Jury to decide whether abortion kills babies

by Daniel Walker Guido, posted Tuesday, November 26, 2002 (16 years ago)

WASHINGTON (BP)--For the first time ever, a jury will decide whether a first trimester abortion takes the life of a human being after a New Jersey Appellate Court overruled a trial court decision that said the state could not make such a decision.

The attorney who won the appeal, Harold Cassidy, considered the ruling a victory for pro-life forces and a "great victory for the rights of pregnant women." Cassidy represented Rosa Acuna in her lawsuit against her gynecologist, Sheldon Turkish. Acuna contended that Turkish never informed her that aborting a baby in the first trimester was ending the life of a human being.

"This takes back the right of women to litigate their own rights in regard to abortions," Cassidy said. "In the past, that right was taken from women by the American Civil Liberties Union and the abortion industry, such as Planned Parenthood. They contended they represented women in any lawsuit against abortion providers, when in fact, their interest is with the providers."

Cassidy contends that Turkish is obligated to inform his patients that a life will be terminated before he begins an abortion. Acuna, 35, contends the April 1996 abortion was therefore performed without her informed consent.

When she asked the doctor whether a baby was already there, she testified he said it was "nothing but some blood." The doctor admitted in depositions that he tells pregnant mothers that there is "nothing but some tissue."

The trial court decision was based on its contention that "Roe v. Wade" prohibited the state from recognizing that the child was a human being. The significance of the case is that if Acuna wins in the new trial ordered by the Appellate Court, every New Jersey doctor would be required to inform his or her patients that an abortion would terminate a human life. The new trial tentatively is scheduled to begin May 5.

Should Acuna win, Cassidy said he expects the state will file an appeal with the New Jersey Supreme Court and, depending on the outcome there, will appeal if necessary to the U.S. Supreme Court. He believes the Supreme Court could hear the case as quickly as two years from now.

The case began when Acuna went to her doctor with stomach pain, only to discover she was pregnant. The mother of two was told by her doctor to have an abortion because of a kidney ailment.

"What is being litigated here is whether or not the unborn human being has the same value and legal status as other human beings," Cassidy said.

"By not telling Mrs. Acuna that he would be terminating a life, the doctor inserted his own personal and philosophical view for the facts and took the decision to have an abortion away from her," Cassidy said. Acuna seeks to file a wrongful death lawsuit against her doctor in the death of her 7-week-old unborn child. If she wins the case, she can ask for damages for her emotional distress, which she contends is depression, post-traumatic stress disorder and psychosexual dysfunction.

Cassidy is known as an advocate of the rights of pregnant mothers. He first received national attention when he successfully litigated the "Baby M" case, which protected mothers' rights by declaring surrogate parenting contracts unenforceable. He once spent a year at Maryknoll Seminary studying to be a Catholic priest before choosing law for a career.

He has some legal obstacles to scale. New Jersey is one of 10 states that does not allow wrongful death lawsuits when a doctor's malpractice results in the death of an unborn child. Also, no state has ever allowed a woman who had an abortion of her own choice to bring a wrongful death lawsuit.

Some pro-abortion advocates contend that the lawsuit is being pursued just to scare away doctors from performing abortions.


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