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Washington Times, April 9, 2007

Court to rule on law calling fetus a 'human'

By Amy Fagan

The U.S. Court of Appeals for the 8th Circuit will hear arguments tomorrow over the constitutionality of a South Dakota law that requires doctors to tell pregnant women seeking abortions that the procedure would terminate a life and could cause them depression.

The 2005 law is being challenged by Planned Parenthood and will be defended by the South Dakota Attorney General's Office and attorneys representing two pro-life pregnancy centers. A lower court temporarily suspended the law, but its supporters are seeking to overturn that injunction so the law can take effect.

This is the first time that a federal appeals court will grapple with the questions of whether an abortion ends a human life and terminates a mother-child relationship, as the South Dakota law purports, said one lawyer who will help defend it.

"The court of appeals is seeing issues that no U.S. court of appeals has ever addressed directly," said Harold J. Cassidy, a New Jersey attorney for those supporting the law. "We're totally confident that this statute will be upheld."

Planned Parenthood of Minnesota, North Dakota and South Dakota argues that the law violates the First Amendment by requiring a doctor to "recite an ideologically loaded speech" to women seeking abortions.

"This statute is bad policy, bad politics and bad for women's health," said Sarah Stoesz, president and chief executive officer of Planned Parenthood of Minnesota, North Dakota and South Dakota.

"We believe that it's an improper interference with the doctor-patient relationship," agreed Vicki Saporta, president and CEO of the National Abortion Federation.

The law would require the doctor to inform the pregnant woman that an abortion would "terminate the life of a whole separate, unique living human being" and a mother-child relationship and that it could cause her depression and increased risk of suicidal thoughts. The woman would have to sign a paper saying she understood, and the doctor would have to certify that the woman understood.

Attorney General Larry Long said the law aims to provide women with "informed consent." Any time a patient goes in for elective surgery, he said, the doctor "sits down and goes through what's going to happen to you in excruciating detail."

"Do you think that happens with abortion? Of course not," he said. "Why is the woman who is going in for an abortion not entitled to that same level of detail?"

Planned Parenthood attorney Roger Evans said that other states have "informed-consent" laws, but that no state compels the doctor to deliver the state's "ideological" view of the fetus or compels the woman to listen, as this law does.

"It is requiring the physician to be the mouthpiece of the state," he said, adding that the suicide-related information is "flatly false."

Mr. Long said he doesn't understand how the language referring to a living human being can be so controversial.

"It's not a German shepherd, is it?" he asked.

"The statute says: 'Look, the mother needs to know what she's giving permission to do,' " said Mr. Cassidy.

A panel of three 8th Circuit judges already upheld the lower court's injunction of the law, but supporters of the law managed to persuade the full 8th Circuit to review the decision.

Even if the temporary suspension of the law is thrown out, the law will still be challenged in a case waiting to proceed, said Mr. Cassidy. And Planned Parenthood could still appeal to the Supreme Court to reinstate the temporary injunction, he said. Mr. Evans said it is too soon to predict what his group would do.

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