Medical Right Watch

New Jersey case part of concerted effort to redefine “beginning of life”

The Medical Right campaign to use “informed consent” as a vehicle for establishing fetal rights suffered a temporary setback in New Jersey but remains focused on reaching the U.S. Supreme Court. The New Jersey Supreme Court unanimously rejected a lawsuit that would have defined the beginning of life as at fertilization, as a “matter of medical fact.” A look at some of the movers behind the lawsuit and their arguments indicates that the Medical Right considers this campaign to be as damaging to reproductive rights as the “partial-birth abortion ban” campaign—and potentially as productive for their cause.

Harold Cassidy of Shrewsbury, New Jersey, the attorney who brought the case, Acuna v. Turkish, announced on September 25 that he was requesting a reconsideration of the New Jersey Supreme Court decision before seeking a review by the U.S. Supreme Court. A full complement of Medical Right organizations filed a brief in support of his request. The group included the Christian Medical and Dental Associations, Catholic Medical Association, Association of Pro-Life Obstetricians and Gynecologists, Association of Pro-life Physicians, New Jersey Physicians Resource Council (a “pro-family” group), and Heartbeat International and Care Net (umbrella groups for religiously-affiliated crisis pregnancy centers). Lawyers on the brief are Samuel Casey, executive director of the Christian Legal Society, and attorneys affiliated with the Legal Center for the Defense of Life.

Several other legal actions are attempting to redefine the beginning of life, and Cassidy is connected to many of them. He worked with legislators in South Dakota as an associate of the Thomas More Law Center, an organization dedicated to the Christian defense of “the sanctity of life,” to craft a total ban on abortion. The law, ultimately rejected by voters in 2006, defined the beginning of life as at “that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.” He also represented the Alpha Center, a crisis pregnancy center founded by Leslee Unruh, who was director of the South Dakota campaign to pass the abortion ban and also heads the Abstinence Clearinghouse. The South Dakota law would have required doctors to tell a woman that an abortion will terminate the life of a living human being.

In New Jersey, the Supreme Court flatly rejected Cassidy’s arguments that the doctor should have told his patient, prior to the abortion, that it was “scientific and medical fact” that her six-to-eight week embryo “was a complete, separate, unique and irreplaceable human being.” Cassidy has brought a similar malpractice case in Illinois against Planned Parenthood of Chicago.

The New Jersey court said Cassidy’s arguments were not backed by medical consensus and noted that there has never been consensus about the “beginning of life” since the U.S. Supreme Court decision in Roe v. Wade. In Acuna, the patient said she suffered mental distress after an abortion of a six-to-eight week embryo. At the time, Acuna, 29, had two children under the age of three and suffered from a kidney disorder. She spoke with her doctor and returned three days later, signing a consent form for termination of pregnancy. After the vacuum aspiration process, she continued to bleed and was treated at a hospital with a dilation and curettage and discharged. She then came to believe that the abortion killed a human being, and that the doctor should have told her that.

In court papers, Cassidy stated that he was prepared to present experts who would testify that her embryo was “an existing human being.” Among those designated as experts were Dr. Bernard Nathanson, past president of the American Association of Pro-Life Obstetricians and Gynecologists, who also provided testimony in South Dakota to support a ban on abortion; Theresa Burke, who heads Rachel’s Vineyard, a group that argues for the recognition of post-abortion trauma, and Robert George, a Princeton University professor and intellectual heavyweight for the Religious Right. Despite their arguments, the New Jersey court ruled that doctors need only provide patients with material medical information, including gestational stage and medical risks.

In earlier years, Cassidy was a member of the legal team of The Justice Foundation and Operation Outcry, Texas groups that solicited women “harmed by abortion” to bring legal actions to challenge the right to choose. They ask women to sign statements: “It is not in the human or legal interest of any mother to kill her own child. A mother’s true interest is in her child’s life and in her relationship with her child. Roe v. Wade should be overturned.” Operation Outcry was founded by a Religious Right medical product-seller, Dr. James R. Leininger, who funds the Family Research Council, Focus on the Family, and the Republican National Coalition for Life PAC, according to Sourcewatch of the Center for Media and Democracy. Operation Outcry represented Norma McCorvey, the plaintiff in Roe v. Wade, in a futile but well-publicized effort to overturn the decision years later.

In 1999, on a radio program with Father Frank Pavone of Priests for Life, Cassidy described his planned campaign to seek recognition that life begins at fertilization. He said there is “new knowledge about the fetus” since Roe v. Wade, referring to fetal surgery, sonograms and DNA technology. “Modern medicine clearly and unequivocally treats the child as a separate human being …. I’m sure the court will deal with it.”

Cynthia Cooper
October 5, 2007

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