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Law, culture, and Catholicism...up in smoke!

Friday, June 27, 2008

Pro-Life WIN in South Dakota!!!

The 8th Circuit Court just issued its decision to vacate the injunction obtained by Planned Parenthood against the State of South Dakota to stop the implementation of House Bill 1166.

You will remember that this bill regulates abortion by requiring informed consent that includes the statement: "That the abortion will terminate the life of a whole, separate, unique, living human being;" The statue defines "human being" as “an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation.

The Bill's novelty is in the above statement, the necessity that the physician certify that the patient understands the information (making him subject to a class 2 misdemeanor and subject to lose his license if he doesn't certify), and alerts the mother that her relationship with the baby in utero is Constitutionally protected, but these rights are terminated with the abortion procedure.

The preliminary injunction was granted upon PP's claim that this statement, specifically saying "human being" violates the First Amendment rights of the physician because it is ideological and not factual, and non-medical information.

This despite the legislative hearings that included the following testimony from Dr. Peeters-Ney, a physician and geneticist, on the factual, biological meaning of "human being":

Becoming a member of our species is conferred immediately upon conception. At the moment of conception a human being with 46 chromosomes comes into existence. These chromosomes, the organization, the chromosomal pattern is specifically human. The RNA, the messenger protein, the proteins are distinctly human proteins. So this new human being is a member of our species, and humanity is not acquired sometime along the path, it occurs right at conception. Dr. Peeters-Ney also stated that an embryo or fetus is whole in the sense that “[a]ll the genetic information sufficient and necessary to mature, and the information that is needed for this human being’s entire life is present at the time of conception”; that it is “separate from the mother” because “[t]he genetic program is totally complete and this human being will mature according to his or her own program”; and that it is unique because it has “a totally unique genetic code.”
The 8th Circuit vacated the preliminary injunction mostly because it recognizes a higher threshold for injunctions against regulatory actions that derive from the democratic, legislative process (substantial chance of prevailing, rather than less than 50%). Planned Parenthood asserted that the language in the Act is ideological, but did not show how, or how the meaning of the language could be understood other than what is contained in the statutory language:
In the absence of some showing that there are particular circumstances in which a successful abortion will do something other than terminate the life of a whole, separate, unique, living member of the species of Homo sapiens during its embryonic or fetal age, Planned Parenthood cannot demonstrate that the physician’s ability to disassociate is implicated in this case. Given Planned Parenthood’s failure to produce sufficient evidence to establish that it is likely to prevail on the merits of its compelled speech claim, we need not address the remaining ... factors. In summary, the district court abused its discretion by failing to give effect to the statutory definition of “human being” in § 8(4) of the Act. Planned Parenthood’s evidence at the preliminary injunction stage does not establish a likelihood of proving that, with the definition incorporated, the disclosure required by § 7(1)(b) is anything but truthful, non-misleading and relevant to the patient’s decision to have an abortion, and thus “part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Casey, 505 U.S. at 884. Accordingly, we vacate the preliminary injunction entered on compelled speech grounds by the district court.

There were four dissenting judges. Justice Murphy, a woman (because the dissenting opinion has to be made by the woman on the bench) makes some radical arguments:

The medical fact that a unique set of DNA is present at conception . . . does not support a conclusion that the statutory adjectives preceding the word "human being" have scientific meaning. Dr. Ball testified to the contrary. She explained that the proposition that an abortion terminates the life of a "whole, separate, unique, living human being" is neither a medical statement nor a fact which medical doctors are trained to address, but rather an "ideological pronouncement." Ball Aff. ¶ 4. Dr. Wolpe similarly refuted assertions by several of the state's other declarants who claimed that it is a medical or scientific fact that an embryo or fetus is a "whole, separate, unique, living human being" from the moment of conception. Wolpe Aff. ¶ 2. The record is far from showing a medical consensus that a full set of DNA constitutes a "whole, separate, unique, living human being." The adjectives used in the Act to modify "human being" are not statutorily defined so they must be construed "according to [their] accepted usage and a strained, unpractical, or absurd result should be avoided." Juttelstad v. Juttelstad, 587 N.W.2d 447, 450 (S.D. 1998). A nonviable fetus is not "whole" in that it cannot maintain a separate life outside the woman's womb, and it neither "contain[s] all components or constituents" nor does it represent "a complete entity or system." See, e.g., Webster's New College Dictionary (3d ed. 2005). Likewise, "separate" in common usage means "detached," "disconnected," "existing independently," or "not shared." See, e.g., Random House Unabridged Dictionary (2006). A fetus cannot be established to be a "separate" human being since it is physically attached to a woman by an umbilical cord and fully contained inside her body, a connection on which its very survival depends. Cf. Wolpe Aff. ¶ 6.
"Hon." Judge Murphy, you complain that the statutory language is ideological, and yet these statements above are not only ideological, but they are "strained, unpractical and absurd."

1. Doesn't "separate" in this context simply mean that the human being in the womb is not a clump of the mother's cellular DNA, indistinguishable from a toe nail, or hair folicle of the mother? Doesn't "separate" in this context mean, that this life system is independent of the mother's life system, albeit dependent on it for periodic nourishment?

2. Doesn't "whole" in this context mean that the unborn has all the necessary parts to be classified as a human being? Doesn't "whole" simply mean that the being possesses everything necessary to be human? We are not talking about a leg, or an ear, but a whole human organism containing everything it needs to live in its natural developmentally appropriate environment. Would Judge Murphy suggest that a human being is not "whole" if he was placed underwater where he can not obtain the necessary oxygen to be "viable?"

3. What is the medical statement about what an abortion is if it doesn't terminate the life of a whole, separate, unique, living human being?

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