TRENTON, N.J.—When Rosa Acuna, a 29-year-old mother of two, was advised by Dr. Sheldon Turkish in 1996 to have an abortion, she asked him “if there was a baby already in me.”

“Don't be stupid,” he told her, “it's only blood.”

Acuna consented to the abortion, but when she sought medical help four weeks later for hemorrhaging and a nurse said, “They left part of your baby in you,” she had to know more.

After doing some reading about human development, Acuna came to the disturbing conclusion that Turkish had taken the life of her third child.

She filed, and lost, a wrongful-death suit alleging violation of informed-consent laws. But a New Jersey appellate court ruled in her favor in October, sending her case back to a trial court jury for a decision that her attorney thinks could impact abortion law in this country.

“This case exposes the conflict between a mother's fundamental rights and a conflicting philosophy of an abortion doctor who devalues the mother's interest in her relationship with her child,” said Harold Cassidy, who is representing Acuna and is known for his work on the “Baby M” surrogate-parenting case.

When a Superior Court jury hears his client's case on May 5, Cassidy said, it will mark the first time in the 30 years since the Roe v. Wade U.S. Supreme Court decision legalizing abortion that a trial will be held on the question of whether a first-trimester abortion terminates the life of a human being.

A decision in his client's favor, Cassidy said, could mean that all doctors in New Jersey would be required to inform a woman considering an abortion that the procedure would terminate the life of a living human being. That, in turn, he said, could influence laws in other states. And, he said, the fact that abortion takes the life of a human being would be established in law.

Mothers' Rights

Cassidy said a successful outcome also could start a new debate in the courts concerning the nature of a mother's rights. Recognition that abortion takes the life of a human being, he said, would establish a constitutionally protected relationship between mother and child and show that a woman consenting to an abortion is waiving her oldest and most fundamental liberty.

“The recognition that the mother is involved in waiving her own fundamental right that the law says cannot be waived will ultimately result in the demise of Roe v. Wade,” he said, “and finally will allow the court to reach an honest analysis and disposition of the question concerning whether the child has any constitutional rights. In the end, all this will revolutionize how the court is forced to analyze the abortion issue.”

Cassidy said although abortionists claim they are acting in the interests of women, the rights of the mother and her interest in her relationship with her child are never mentioned.

“Part of the beauty of the Acuna case is that if anyone claims to be really pro-choice, you have to support the plaintiff,” he said. “You have to support the mother's right to be informed.”

In Acuna's case, Cassidy said, “The doctor made the decision for her.”

Turkish agreed in depositions that as a matter of biology life begins at conception but admitted his personal philosophical view was that a life had to be “viable” to be considered a human being.

Neither Turkish nor his attorney, John Zen Jackson, could be reached for comment, but in depositions Turkish has acknowledged that he usually tells pregnant women that the fetus is “nothing but some tissue.” He also reportedly has testified that he couldn't recall Acuna asking him whether there was a baby in her, but, had she asked such a question, he would have replied that a “seven-week pregnancy is not a living human being.”

Nationwide Impact?

Cathleen Cleaver, director of planning and information for the U.S. Conference of Catholic Bishops' Pro-Life Secretariat, said she thinks the case is a good one for the right of women to know what they are about to undergo in an abortion.

“It appears very clear that this plaintiff was lied to by her doctor about whether there was the existence of human life,” Cleaver said.

But she said it would be difficult to determine what impact any ruling in the case could have beyond New Jersey.

“It depends on how far Harold Cassidy takes this case,” she said. “He has a lot of energy and he has the will to take it as far as he can, even to the Supreme Court.”

Cleaver said, however, that the Supreme Court and other federal courts treat abortion cases differently from others.

“Judges play by their own rules when it comes to abortion,” she said. “It is difficult to imagine the Supreme Court, for instance, feeling like it had to follow a lower trial court finding about whether life was present and whether it matters at all.”

Nonetheless, Cleaver said, she thinks it is good to pursue cases like Acuna's since there eventually will be a case that will chip away at abortion rights.

Charles Rice, professor emeritus at the University of Notre Dame Law School and a visiting professor at Ave Maria Law School in Ann Arbor, Mich., questioned whether a positive outcome in the Acuna case would affect abortion law.

Roe v. Wade, he said, drew a distinction between the humanity and personhood of the fetus, saying that whether or not it was a human being, it was not a person with constitutional rights.

In the Acuna case, he said, even if the doctor is held responsible for informing the patient that a human life is taken in an abortion, the life is still not personhood and thus would not overrule Roe v. Wade.

“The constitutional issue in Roe v. Wade was not whether the child is a human being, but whether the unborn child is a person under the 14th Amendment and whether he has legal rights because he is a person,” Rice said. “In any civilized society, all human beings should be considered persons, but the issue involved in this case would appear to be whether the doctor was erroneous in not telling her of the evidence that this is a human being.”

Judy Roberts writes from Millbury, Ohio.