That's the title of this excellent column by Nat Hentoff discussing a South Dakota abortion rights case.
The case has nothing to do with the ban on nearly all abortions that was rejected so soundly by South Dakotans on Election Day.
This case is about a South Dakota law that gets to the very core of the abortion controversy: When do we become human beings?
The law would require that doctors tell women intent on having abortions that the procedure would "terminate the life of a whole, separate, unique, living human being."
I thought this column was particularly timely, given some of the arguments over Planned Parenthood's objections to the informed consent portions of the Pennsylvania law upheld in the case Planned Parenthood v. Casey. One commenter argued that PP was already providing abortion information, but that the information required in the law wasn't medical or accurate at all, and was designed to "scare off" women seeking abortions.
I suspect the same commenter would object to doctors being required to state that abortions "terminate the life of a whole, separate, unique, living human being" as well. But such objections do beg the question, if the baby isn't a "human being," then what precisely is he/she? And another question I think naturally follows is this: if a baby born at 23 weeks is a person entitled to life, why is an abortion at 23 weeks merely a woman exercising her "right to choose"? In other words, is personhood merely an accident of location?
Hentoff continues:
Arguing against this at the Eighth Circuit Court of Appeals in St. Louis, a lawyer for Planned Parenthood, Timothy Branson, said the language of this South Dakota law "injects an ideological component into the discussion of the unsettled question of when human life begins. "This is the first case," he emphasized, "that really shows where the line is."
Yes, it is.
As Adam Liptak reported in the Oct. 31 New York Times, a panel of the court of appeals agreed with Planned Parenthood and blocked enforcement of the law. Many states do have "informed consent" laws by which doctors must provide factual information about the procedure to women, and its health risks. These laws have been upheld by other federal appeals courts.
What, then, makes the South Dakota "informed consent" law different? Before this case (Planned Parenthood v. Rounds) — that "really shows where the line is" — reached the Eighth Circuit, Karen E. Scheier, a federal district court judge in South Dakota — had stopped enforcement of the law with a preliminary injunction back in June 2005, in which she ruled:
"Unlike the truthful, non-misleading medical and legal information (tell that to my commenters!--Ed.) doctors were required to disclose" (in the Supreme Court's 1992 Planned Parenthood v. Casey decision), "the South Dakota statute requires abortion doctors to enunciate the state's viewpoint on an unsettled medical, philosophical, theological and scientific issue — that is, whether a fetus is a human being."
Agreeing with her, The New York Times noted, Eighth Circuit Judge Diana Murphy, writing for the 2-to-1 majority, declared: "Governmentally compelled expression is particularly problematic when a speaker is required by the state to impart a political or ideological message contrary to the individual's own views."
What strikes me as particularly odd about this argument is that most people who will make it see nothing wrong with compelling pharmacists to distribute contraceptives, even if it is "contrary to the individual's own views." Why is compelling speech verboten in one case, but compelling behavior acceptable in another?
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