Lawyer Hopes New Argument Topples Roe

At first, it sounds like a novel argument: Under current laws, abortion is illegal because it always deprives the mother of informed consent. Simply enforce the law as it stands, and the abortion issue will be solved.

An attorney with a track record of pro-life success considers that argument credible enough—especially in light of evidence shed by technological advances—to bring it before the Supreme Court.

New Jersey attorney Harold J. Cassidy, whose previous litigation struck down surrogate parenting in the high-profile “Baby M” case, is pursuing a lawsuit on behalf of Donna Santa Marie, a woman who was pressured into an abortion against her will, and two other women.

Cassidy hopes the suit will overturn Roe v. Wade, the 1973 Supreme Court decision that made abortion-on-demand legal any time during a pregnancy.

Cassidy spoke about the case with Register Radio News correspondent Rich Rinaldi.

You cite “Baby M” as a precedent for your arguments. Can you explain the connection?

The Supreme Court of the United States has always recognized the fact that a mother has a fundamental right to have a relationship with her child. In the case of adoption, if a woman thinks that, for whatever reason, she cannot raise her child, the law says that no waiver of that right will be recognized until after the baby is born.

The thinking behind this is multi-faceted. One, it's a recognition that a woman shouldn't be forced to make a decision when she is in a crisis. And two, [her decision] has to be fully informed. Only when she can hold the baby, see the baby, can she have a full appreciation of what she is giving up.

In the Baby M case, the Supreme Court of New Jersey said that, as a matter of law, any decision by a mother to waive this fundamental right prior to birth is uninformed.

Can you give us some of the specifics of that case?

Well, a woman had made the mistake, for altruistic purposes, of trying to help a couple who could not have their own child. She signed a contract not only prior to birth, but prior to conception.

The contract said that she would have the father's sperm implanted in her, carry the child, and then surrender her rights to a relationship with that child once the baby was born. She would surrender the child so that the wife of the father of the child could adopt the child. But then she had a change of heart.

She went through the experiences that women have in pregnancy, and she understood that this was her child. When the baby was born, she realized that she could never give that baby up, especially in exchange for money, which is what the contract was for.

The Supreme Court said that those contracts are unenforceable as a matter of law for a number of reasons, including the fact that they exploit women—but also because the mother has this fundamental right [of informed consent]. As a matter of law, a right of such magnitude could never be waived until the mother sees the baby after birth.

So the court was saying that this right can be given up only after birth?

Yes, and it's also a further recognition of a fact that we all know and is really, in a way, a sacred statement about all of us as individuals: that each child is utterly unique and determinations have to be made about that particular child.

‘The court has shown … that it is totally unimpressed with the reasoning behind Roe .’

There is also the question of new technology today as compared to when Roe v. Wade was passed.

In 1973 science understood life only on a gross morphological basis. Today, with DNA research, we understand it on a submolecular level.

There has been this explosion of technology, much of which has resulted in new discoveries which conclusively establish that we have a complete, separate, unique and therefore irreplaceable human being right after conception.

This is one of the things that we are presenting to the court: This is a human being. Abortion doctors have been claiming that they are representing the rights of the woman. They claim that the act of killing a human being for no purpose other than to get rid of [him or her] is a constitutionally protected act.

The court has never looked at the question of whether such conduct, so defined, could be constitutionally protected. Also, once you recognize that the mother-child relationship exists, the child exists.

The court has never been presented with the abortion doctors who have been claiming they represent the rights of the mothers.

No one has ever raised a woman's right [to be fully informed]. Well, now we have the Santa Marie litigants—women who have courageously stood up and said, “Our rights have been destroyed by the abortion doctors who killed our children without our informed consent.”

Do you expect to win this case?

The court has shown in a number of decisions that it is totally unim-pressed with the reasoning behind Roe.

That decision isn't standing now because the court thinks it's solid jurisprudence; it's standing for a number of [legally weak] reasons. One of these is that the court doesn't see an alternative, given the current climate. Another is that the court claims it is bound to upholding [the status quo] because so many people have come to rely on it.

I expect that Roe will fall because there is no case that is so bad in terms of its legal reasoning and in terms of the damage that it does to the culture. It represents what is probably one of the greatest human rights violations of our time.

It's just a matter of people standing up to the court and demanding that our justices get things right when it comes to the lives of children and the welfare of their mothers.

Rich Rinaldi is director of Register Radio News.