Mike Rounds, Governor, et al. v. Planned Parenthood Minnesota, et al.
U.S. Court of Appeals for the Eighth Circuit, No. 05-3093 (en banc)
June 27, 2008
The Governor and Attorney General of South Dakota ("the State"), along with the intervenor crisis pregnancy centers, appeal the district court's preliminary injunction preventing the 2005 version of South Dakota's statute regulating informed consent to abortion from becoming effective. For the reasons discussed below, we vacate the preliminary injunction and remand to the district court for further proceedings.
Dr. Wolpe's affidavit included a curriculum vitae detailing his expertise in "the area of ideology in medicine and bioethics." Wolpe Aff. P 1. Dr. Wolpe stated that the proposition "that from the moment of conception, an embryo or fetus is a 'whole, separate, unique, living human being' . . . is not a scientific or medical fact, nor is there a scientific or medical consensus to that effect." Id. PP 2, 3. Dr. Wolpe further averred that "to describe an embryo or fetus scientifically and factually, one would say that a living embryo or fetus in utero is a developing organism of the species Homo Sapiens which may become a self-sustaining member of the species if no organic or environmental incident interrupts its gestation." Id. P 6.
In its opposition to the motion for preliminary injunction, the State introduced portions of the Act's legislative history and several affidavits. The legislative history includes testimony from several women who had obtained abortions in South Dakota and felt their decisions would have been better informed if they had received from their abortion providers the information required by § 7. In addition, the legislative history includes testimony from experts such as Marie Peeters-Ney, M.D., a physician and geneticist, explaining the scientific basis for the disclosure required by § 7(1)(b) that "the abortion will terminate the life of a whole, separate, unique, living human being." Dr. Peeters-Ney testified that use of the term "human being" was accurate because:
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.
The State augmented the points raised in the legislative history with eight affidavits from medical experts and eight from women who had undergone abortions or worked at crisis pregnancy centers. For example, David Fu-Chi Mark, Ph.D., a molecular biologist employed in the pharmaceutical industry, stated that the Act's definition of "human being" as an "'individual living member of the species Homo sapiens,' including human beings living in utero, makes it clear that the statement under [§ 7(1)(b)] is stated as a scientific fact and nothing more. As such, it is truthful and scientifically accurate." Mark Aff. P 1. The affidavit described in detail the DNA and RNA science supporting the accuracy of the statement. Similarly, Bruce Carlson, M.D., Ph.D., a professor of medicine and author of a widely used textbook on human embryology, stated that "[t]he post implantation human embryo is a distinct individual human being, a complete separate member of the species Homo sapiens, and is recognizable as such." Carlson Aff. PP 1, 5.
The larger question, raised by the implications of this decision, is whether the decision could be a vehicle by which to affirm in law the personhood of the unborn, or at least to, once and for all, torpedo Roe's reliance on "philosophy" and "theology," rather than scientific fact, to deny that the entity in the womb is a living and separate and distinct human being.