HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, September 17, 2005

Abortion Battle Shapes Up in South Dakota

An AP story in today's Rapid City Journal reports on a court cases challenging a recent South Dakota law:

Professionals with impressive credentials and experience in medicine and ethics are being retained on both sides of a court case that will decide if doctors in South Dakota must tell women that abortions end lives.

The 2005 Legislature passed a measure requiring that information to be given to women who consider abortions. They must be told that abortion terminates the life of a human being and may later result in depression and possible suicide.

Those pushing the measure hope it will eventually reach the U.S. Supreme Court and be the vehicle that ultimately will cause the high court to overturn its 1973 Roe v. Wade case that affirmed the constitutional right of women to seek an abortion legally.

Planned Parenthood of Minnesota, North Dakota and South Dakota obtained a temporary court order against the state to stop the legislation from becoming law July 1. The measure violates the rights of doctors and women seeking abortions, Planned Parenthood said.

Because of divided opinions on the issue of when life begins and the need to fully develop legal arguments on such an emotional issue, both sides have been given several months to get ready for a hearing on a permanent injunction.

Among those pressing for enactment of the proposed law to further regulate abortion in South Dakota is Dr. Bernard Nathanson, 79, who specializes in obstetrics and gynecology in his New York office. Although a founder in 1969 of the National Association for the Repeal of Abortion Laws, he has since switched sides on the issue.

Nathanson, 79, who said he has "delivered an uncountable number of babies and performed and supervised tens of thousands of abortions," has been called to testify as an expert witness in a variety of court cases involving medical practices.

After reviewing the legislation that was placed on hold June 30 by U.S. District Judge Karen Schreier, Nathanson said it is an accurate statement of scientific and medical fact that abortion "will terminate the life of a whole, separate, unique, living human being."

. . .

Another document, filed in support of Planned Parenthood's challenge, comes from Paul Root Wolpe, a professor at the Center for Bioethics at the University of Pennsylvania. He is also bioethics chief for the National Aeronautics and Space Administration.

Wolpe disputes the belief of those who contend that it is a scientific or medical fact — or that there is consensus in those fields — that an embryo or fetus is a whole, living human being from the moment of conception.

"That is a statement that mixes a number of philosophical, rhetorical and scientific ideas in language that is ambiguous and surely debatable despite its appearance of being factual," he said.

"To describe an embryo or fetus scientifically and factually, one would have to say that a living embryo or fetus ... is a developing organism of the species Homo Sapiens which may become a self-sustaining member of the species if no organic or environmental incident interrupts its gestation," Wolpe said.

The law is Chapt. 186 of the 2005 S.D. Session Laws (HB 11667)[tm]

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