Wrongful Death Suit Filed Against New Jersey Abortion Practitioner
by Newark Star Ledger

Newark, NJ -- Fourteen years ago, attorney Harold Cassidy gained national prominence by persuading the New Jersey Supreme Court to invalidate surrogate motherhood contracts in the historic "Baby M" case.

Now, the Holmdel attorney is attempting to change New Jersey law again by advancing a novel legal argument in his long-running battle against abortion.

Cassidy says a Somerset County woman who had an abortion in 1996 should be allowed to file a wrongful death lawsuit against the abortion practitioner for the death of her 7-week-old unborn child. He says the abortion practitioner should also be held responsible for not telling the woman she was terminating a human life.

The 56-year-old attorney says women throughout the country reach out to him, telling him they would have never gone through with their abortions had they known they were ending human lives.

"Even if no one asked the doctor, he would have a duty to disclose this," Cassidy said. "You can't assume she knows that. In modern medicine, doctors treat pregnant women as two separate patients -- the mother and child."

In a case pending in the Appellate Division of Superior Court, Cassidy is representing Rosa Acuna, 35, a South Bound Brook mother of two who says she was talked into having an abortion in April 1996. She says the abortion practitioner suggested her unborn child was little more than blood and tissue.

The case faces two major obstacles.

New Jersey is one of 10 states that does not allow wrongful death lawsuits when a doctor's malpractice results in the death of an unborn child. And Cassidy concedes no state has ever allowed a woman who voluntarily had an abortion to bring a wrongful death suit.

In bringing this litigation, Cassidy hopes to create a new precedent allowing wrongful death lawsuits on behalf of an unborn baby, so then he can sue doctors for negligence if they don't explain that abortion "involves the termination of a life -- of a living human being."

John Z. Jackson, the attorney representing Sheldon Turkish of Perth Amboy, who performed the abortion, did not return repeated phone calls, but argues in legal papers that the wrongful death claims are baseless since Acuna voluntarily sought and received an abortion.

Superior Court Judge Douglas Hague agreed and dismissed those counts in Acuna's medical malpractice suit. Hague said that under Roe vs. Wade, the landmark U.S. Supreme Court ruling establishing a woman's right to an abortion, an unborn child does not have personal rights to equal protection. An appeals court, however, has agreed to review the case. A hearing date has not been scheduled.

Abortion advocates say Cassidy's lawsuits are frivolous and border on the harassment of those who perform abortions.

"The filing of frivolous lawsuits is part of an increasing trend among anti-choice activists to scare doctors away from providing critical reproductive health services," said Deborah Jacobs of the New Jersey chapter of the pro-abortion American Civil Liberties Union.

Even some pro-life advocates are critical of Cassidy, privately saying he is hurting their cause by bringing lawsuits with shaky legal footing.

Cassidy is no stranger to controversy. Early in his career he represented women who were shamed into giving children up for adoption and longed to be reunited with them.

He gained national recognition when he represented Mary Beth Whitehead, a Brick Township woman who agreed to be artificially inseminated and bear a child for William and Elizabeth Stern of Tenafly for $10,000. The case landed in state Supreme Court when Whitehead tried to back out of the deal and keep the child.

In a 1988 decision, the state's highest court struck down the surrogate contract, but gave primary custody of the baby girl, called "Baby M," to the Sterns. The court case sparked a national debate over surrogate motherhood.

Married and the father of two children, Cassidy is a graduate of St. Peter's College and St. John's University Law School. He once spent a year at the Maryknoll seminary studying to be a Catholic priest.

Viewing his work as a calling rather than a career, Cassidy does not subscribe to the notion that a good lawyer can argue both sides of a case. He said his moral compass does not allow him to shift gears that easily.

In his office, Cassidy maintains a lawyerly tone when talking about the Acuna case. But that changes when he hits the road in search of support for Acuna, a Puerto Rican native who never finished high school.

On a brisk evening last month at Princeton University, Cassidy proclaimed the evils of the "abortion industry" to an audience that included students, nuns, Catholic school girls, doting couples and mothers with squirmy toddlers.

Speaking at the stately McCosh Hall, Cassidy commingled the fervor of an old-fashioned preacher with the lexicon of a lawyer to tell a friendly crowd that his case is morally right and legally sound.

In the style of a revivalists calling for converts, he ended his message by stretching his hand out to the left and then to the right beckoning people individually: "Will you stand with Rosa?"

One by one, virtually everyone in the ornate hall rose in support of Rosa Acuna, whom Cassidy likens to civil rights pioneer Rosa Parks.

"For 20 years women have come into my office and asked me to get their babies back," Cassidy shouted to the crowd, his voice giving out. "I can't get their babies back. Rosa can't bring the baby back. This is more about holding doctors accountable and protecting women in the future."