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"A thing moderately good is not so good as it ought to be. Moderation in temper is always a virtue; but moderation in principle is always a vice."

-- Thomas Paine

 
Testimony by Abortion Providers Re Partial Birth Abortion (4/04) PDF Print E-mail

Testimony from Abortion Doctors
2April 2004
Trials in the 3 lawsuits against the Partial-Birth Abortion Ban Act began Monday, March 29th in three separate U.S. District Courts.  The primary plaintiff in the Southern District of New York is the National Abortion Federation (NAF); the plaintiffs in the District of Nebraska are Dr. Leroy Carhart and several other abortion doctors (Abortion Doctors), and the primary plaintiff in the Northern District of California is Planned Parenthood Federation of America (PPFA).  The Attorney General of the United States is the defendant in each case. 

After opening statements from each side, plaintiffs began presenting their evidence.  Excerpts from the unofficial transcripts of  testimony from the first 3 days of trial appear below. 
NEW YORK CASE.

DAY TWO:  Tuesday, March 30, 2004.
Excerpts from NAF's re-direct examination of Dr. Amos Grunebaum:

THE COURT.  Doctor, you mentioned earlier today that you believe in full disclosure to your patients as to the procedures and the various possibilities that are available.
THE WITNESS.  Yes, I do.
THE COURT. And that you spell out for the woman just what is entailed in a D&E that involves dismemberment, correct.
THE WITNESS.  Yes, I do.
THE COURT.  You also spell out that if you are doing an intact D&E or D&X or partial-birth abortion, whichever term is used, that that entailed a partial delivery, and then the procedure you described of inserting the scissors in the base of the skull and using a suction devise to remove the brain.
THE WITNESS.  Yes, I do.
~
THE COURT.  And that some of them desire that because after the procedure if they want to see or hold the dead fetus, is that correct?
THE WITNESS.  Yes. 
THE COURT.  I believe you mentioned also take pictures, is that correct?
THE WITNESS.  Yes.  That is part of our common policy -- it changed about ten years ago -- that we take pictures.
THE COURT.  This is part of the grieving process?
THE WITNESS.  Absolutely.  We have been told by grieving counselors to take pictures of all dead fetuses and babies -- specifically babies, but also fetuses -- so there is a memory of the baby by the mother.

DAY THREE:  Wednesday, March 31, 2004
Excerpts from NAF's direct examination of Dr. Timothy Johnson:

Q.  Do you have an opinion, Dr. Johnson, as to which of the two D&E variations, the intact or the dismemberment variation, may best facilitate the extraction of the fetal skull during an abortion procedure?
A.  I think that the intact procedure is actually developed in part to deal with the problem of the fetal skull.  When one does a D&E, technically one of the challenges is to remove the fetal skull, partly because it is relatively large, partly because it is relatively calcified, and it is difficult to grasp on occasion.  So one of the common technical challenges of a dismemberment D&E is what is called a free-floating head or a head that has become disattached and needs to be removed.  This can lead to more passages of instruments through the cervix. And technically it is difficult to grasp the head; it is round, it slips out of the instruments that we generally use.  Either those instruments or the head can be extruded outside the uterus and cause perforation.
~
Q.  Did you make any observation of the way the physician performing that intact D&E effected the incision into the skull?
A.  In the situations that I have observed, they either -- actually, the procedures that I have observed, they all used a crushing instrument to deliver the head, and they did it under direct vision. 
Q.  Thank you, Doctor.
THE COURT:  Can you explain to me what that means.
THE WITNESS:  What they did was they delivered the fetus intact until the head was still trapped behind the cervix, and then they reached up and crushed the head in order to deliver it through the cervix.
THE COURT:  What did they utilize to crush the head?
THE WITNESS:  An instrument, a large pair of forceps that have a round, serrated edge at the end of it, so that they were able to bring them together and crush the head between the ends of the instrument.
THE COURT:  Like the cracker they use to crack a lobster shell, serrated edge?
THE WITNESS:  No.
THE COURT:  Describe it for me.
THE WITNESS:  It would be like the end of tongs that are combined that you use to pick up salad.  So they would be articulated in the center and you could move one end, and there would be a branch at the center.  The instruments are thick enough and heavy enough that you can actually grasp and crush with those instruments as if you were picking up salad or picking up anything with --
THE COURT:  Except here you are crushing the head of a baby.
THE WITNESS:  Correct.
~
THE COURT:  Was the body outside the woman's body to an extent?
THE WITNESS:  Some of it.  It can be or not.  Some of it can be or -- it depends on where the cervix is.  It depends on where the uterus is.  It depends how long the baby is.  It depends how long the mother's vagina is.
THE COURT:  At some times that you observed it was?
THE WITNESS:  Right.  And sometimes during the procedure the cervix can actually be brought down so that -- the cervix and the uterus can be moved up and down relative to the opening of the vagina.
THE COURT:  An affidavit I saw earlier said sometimes, I take it, the fetus is alive until they crush the skull?
THE WITNESS:  That's correct, yes, sir.
THE COURT:  In one affidavit I saw attached earlier in this proceeding, were the fingers of the baby opening and closing?
THE WITNESS:  It would depend where the hands were and whether or not you could see them.
THE COURT:  Were they in some instances?
THE WITNESS:  Not that I remember.  I don't think I have ever looked at the hands.
THE COURT:  Were the feet moving?
THE WITNESS:  Feet could be moving, yes.
~
THE COURT:  If you are all finished let me just ask you a couple questions, Dr. Johnson.  I heard you talk a lot today about dismemberment D&E procedure, second trimester; does the fetus feel pain?
THE WITNESS:  I guess I --
THE COURT:  There are studies, I'm told, that says they do.  Is that correct?
THE WITNESS:  I don't know.  I don't know of any -- I can't answer your question.  I don't know of any scientific evidence one way or the other.
THE COURT:  Have you heard that there are studies saying so?
THE WITNESS:  I'm not aware of any.
THE COURT:  You never heard of any?
THE WITNESS:  I'm aware of fetal behavioral studies that have looked at fetal responses to noxious stimuli.
THE COURT:  Does it ever cross your mind when you are doing a dismemberment?
THE COURT:  Simple question, Doctor.  Does it cross your mind?
THE WITNESS:  Does the fetus having pain cross your mind?
THE COURT:  Yes.
THE WITNESS:  No.
THE COURT:  Never crossed your mind.
THE WITNESS:  No.
THE COURT:  When you have done D&Es or when you have done abortions, do you tell the woman various options that are available to her?
THE WITNESS:  Yes, sir.
THE COURT:  And do you explain what is involved like in D&E, the dismemberment variation?  Do you tell her that?
THE WITNESS:  We would describe the procedure, yes.
THE COURT:  So you tell her the arms and legs are pulled off.  I mean, that's what I want to know, do you tell her?
THE WITNESS:  We tell her the baby, the fetus is dismembered as part of the procedure, yes.
THE COURT:  You are going to remove parts of her baby.
THE WITNESS:  Correct.
THE COURT:  Are you ever asked, Does it hurt?
THE WITNESS:  Are we ever asked by the patient?
THE COURT:  Yes.
THE WITNESS:  I don't ever remember being asked.
THE COURT:  And although you have never done an intact D&E, do you know whether or not the incision of the scissors in the base of the skull of the baby, whether that hurts?
THE WITNESS:  Well, I guess my response would be I think that the baby feels it but I'm not sure how pain registers on the brain at that gestational age.  I'm not sure how a fetus at 20 weeks or 22 weeks processes and understands pain.
THE COURT:  You have never done one of these procedures but did you ever ask what -- you say you know about it clinically, did you ever ask one of those who perform them whether it hurts the fetus?
THE WITNESS:  No, sir.
THE COURT:  When you describe the possibilities available to a woman do you describe in detail what the intact D&E or the partial birth abortion involves?
THE WITNESS:  Since I don't do that procedure I wouldn't have described it.
THE COURT:  Did you ever participate with another  doctor describing it to a woman considering such an abortion?
THE WITNESS:  Yes.  And the description would be, I would think, descriptive of what was going to be, what was going to happen; the description.
THE COURT: Including sucking the brain out of the skull?
THE WITNESS:  I don't think we would use those terms.  I think we would probably use a term like decompression of the skull or reducing the contents of the skull.
THE COURT:  Make it nice and palatable so that they wouldn't understand what it's all about?
THE WITNESS:  No.  I think we want them to understand what it's all about but it's -- I think it's -- I guess I would say that whenever we describe medical procedures we try to do it in a way that's not offensive or gruesome or overly graphic for patients.
THE COURT:  Can they fully comprehend unless you do? Not all of these mothers are Rhodes scholars or highly educated, are they?
THE WITNESS:  No, that's true.  But I'm also not exactly sure what using terminology like sucking the brains out would --
THE COURT:  That's what happens, doesn't it?
THE WITNESS:  Well, in some situations that might happen.  There are different ways that an after-coming head could be dealt with but that is one way of describing it.
THE COURT:  Isn't that what actually happens?  You do Use a suction device, right?
THE WITNESS:  Well, there are physicians who do that procedure who use a suction device to evacuate the intercranial

Excerpts from NAF's direct examination of Dr. Cassing Hammond:

THE COURT:  Do they give full disclosure as to the various procedures available and what is entailed, such as the dismemberment, in some forms of D&E?
THE WITNESS:  If they do not and then the patient is referred to me for D&E, we do tell the patient what's entailed in a D&E.
THE COURT:  In simple, clear English?
THE WITNESS:  I think so, your Honor, yes. Now, there are variations, depending on the patient's own kind of psychological situation that we clearly take into consideration, but we actually have a large number of patients who look at us and say, let me get this straight.  What you will be doing is dismembering the fetus.  And we say, yes, that's exactly what we are doing.
THE COURT:  Do you tell them what happens when they do an intact D&E?
THE WITNESS:  If the patient --
THE COURT:  The brain is sucked out?
THE WITNESS:  Well I don't -- as a point of fact, your Honor, I don't usually do the suction part.  I do compress the calvarium and I do some other procedures.  I don't actually do suction so I don't explain that part.
THE COURT:  You don't explain that to them?
THE WITNESS:  Well I explain the method.
THE COURT:  You explain what a compression of the calvarium is?
THE WITNESS:  Yes, sir; that I do explain.
THE COURT:  That that's crushing the skull?
THE WITNESS:  I explain that, yes.


 

NEBRASKA CASE. 

DAY TWO:  Tuesday, March 30, 2004.
Excerpts from Abortion Doctors' direct examination of Dr. William Fitzhugh: 

Q.  All right.  Going back now, I think you said in some instances when you use a suction cannula, that part of the fetus or the umbilical cord will come out through the cervix.  Then what do you do at that point?
A.  Well, if the umbilical cord comes down, I unattach that from its integrity.  I just break it and pull on it.  If a foot comes down, I grab the foot and pull down on that.
Q.  If no part comes down, as a result of the suction, what do you do?
A.  Then I have to place the ring forceps up into the uterus and find a part.
Q.  And is there a particular part that you're trying to grasp, at that point?
A.  I take whatever I can get, because I have really -- I have a feel of when you feel the cranium of the head, but that's about the only thing I have a feel of when you grasp until you pull it down. … I just pull down with the forceps and, you know, see what part you have, and see if you can get more of that part out.  If you get more of the part out, you twist to try to get more tissue out.  If that doesn't happen, then you pull hard enough that it will disarticulate at that point or break off at that point.
~
Q.  Do you have other concerns, when you find yourself in that situation, to cause you to use forceps to compress the skull?
A.  As I mentioned earlier, my preference is that when I use a suction, my preference is that I obtain the umbilical cord and separate the umbilical cord.  The one thing that I want--and I don't want the staff to have to deal with is to have a fetus that you remove and have some viability to it, some movement of limbs, because it's always a difficult situation.
Q.  So one of the reasons that you use the forceps is to compress the skull is to ensure that the fetus is dead when you remove it?
A.  That's one of the reasons.
~
Q.  ....what actions do you take during a D & E that would be fatal to the fetus?
A.  Well, number one, I like to interrupt the umbilical cord.  Number two, we are working on a young gestation, but that's not to do it.  And we break up parts in the uterus and we crush skulls.
~
Q.  Can you tell the Court how often the fetus comes through entirely intact, without you having to do anything more to remove it?
A.  It happens about two to five times a year.  And in those situations, it will occur one of two ways.  One is that the ladies has had some labor up to that point.  And when I remove the speculum, the laminaria and sponges from the vagina, she'll already have a foot in the vagina or two feet in the vagina.  That's one of the times it happens.  And the other time it happens is when I reach up and deliberately grasp for something.  I will get a foot, bring it down, and the whole body will come down.  And it happens about two to five times a year.
Q.  And in that situation, is the entire fetus coming out or is it any part of it remaining in the uterus?  Is the head -- 
A.  It can happen either way.  I would say one time out of those that I will pull and everything will come out.  I'll pull and twist and everything will come out.  And probably two or three times, I'll have to pull and the head will get stuck against the cervix.  So I'll have to use my ring forceps and crush the skull.
~
Q.  So other than drugs or making incisions in the cervix, could you simply detach the head at that point?
A.  I guess you could, but then you would have to find it.  …
Q.  Does it every happen that you would disarticulate a piece of the fetus, and then on the next pass, bring out the remainder of the fetus, except for the head?
A.  Its happened that way, disarticulated up to a knee joint.  You grab the next grasp and you brought most everything out.
~
Q.  But some of them are alive at the time you do the procedure?
A.  The majority of them are alive at the time.

Excerpts from the Government's cross-examination of Dr. Fitzhugh:

Q.  So when you're doing the D & E procedure that you do, you expect dismemberment to occur; is that correct?
A.  It happens in the majority of cases, not expected, but it sure would be nice if it happened more often.
~
Q.  When there have been instances where the -- you have been doing a D & E and the fetus has come out intact, have you been aware of reactions from others in the operating room?
[Here counsel for the plaintiffs entered an objection, which the Court overruled.]
A.  Yes, they certainly show more interest in that when it happens than they do on a routine situation.
Q.  In fact, they gasp, don't they, when that kind of thing happens?
A.  Some of them gasp, yes, sir.
Q.  Your impression in those situations is that they were probably having a harder time dealing with that situation; is that correct?
A.  Yes, sir.

Excerpts from Abortion Doctors' direct examination of Dr. Jill Vibhakar:

Q.  And after the grasp part passes through the cervix, what typically happens then?
A.  At some point, the more proximal part of the fetus that remains in the uterus becomes too large to fit through the cervix, and so it becomes, pulls apart from the rest of the body and becomes -- or it becomes disarticulated.
Q.  Okay. Is there an average number of times that you reach into the uterus? ....
A.  No.  It generally requires multiple passes.
~
Q.  And have you had any situations where the fetus is not necessarily coming out feet first but where  part of the fetal trunk past the naval has come outside the mother?
A.  Yes, . . . the upper extremity is removed included [sic] the shoulder area, and sometimes when--sometimes when we are doing the D & E, some of the first things that are removed are maybe a portion of skin from the trunk or even ribs or other trunk contents.
~
Q.  And can the fetus still be living in that it has a heartbeat or other signs of life at that time?
A.  Possibly, yes.
~
Q.  Do you know when the removal of the fetus, fetal demise occurs?
A.  No, I don't.
Q.  Is there any clinical significance to when you cause fetal demise during the procedure?
A.  Not in my opinion.

Excerpts from Government's cross examination of Dr. Vibhakar: 

Q.   Okay.  When the head was struck, you disarticulated the body from the head; is that correct?
A.  Yes.
Q.  And you removed the body, compressed the head and removed the head;  is that correct?
A.  Yes.
Q.  And in decompressing the skull, you're trying to reduce its sides [sic] so it can fit through the cervix?
A.  Yes.
Q.  And when you are doing this, you're trying to remove skull pieces so the liquid brain will empty from the cranium and the head will decrease in size;  is that correct?
A.  And in compressing it, if it doesn't fit, and in my experience it hasn't fit without decompressing it in the process of crushing it or grasping it, it becomes punctured enough so that the cranial contents will drain, and then it will fit through the cervix.
~
A.  ....There was one instance where one of our faculty who doesn't normally perform them agreed to perform one on the labor floor, and then her mother needed emergency surgery, and in order to allow her to be with her mother, I came off my maternal leave to complete the D & E, …

DAY THREE:  Wednesday, March 31, 2004.
Excerpts from Abortion Doctors' direct examination of Dr. William Knorr:

Q.  Can you tell the Court approximately how many abortions you performed last year?
A.  Somewhere between five and six thousand.
Q.  Of those, can you estimate how many were second trimester abortions?
A.  Somewhere between 12 and 15%.
~
Q.  Dr. Knorr, before you begin to remove the fetus during a D & E procedure, is the fetus typically alive?
A.  . . . . the majority of the fetuses are alive.
Q.  And you don't routinely induce fetal demise, as part of your second trimester abortion procedures, is that right?
A.   That's right.  Very rarely.
Q.  And why not?
A.  I just don't believe in it .  I think that it's an extra procedure and, you know, we first have to remember, don't do any harm.
~
Q.  When it happens and the fetus comes through the cervix except for the head, how do you proceed?
A.  I first evaluate the cervix to see if I have enough room to slip a finger between the cervix and the fetal head, and if I can do that, I can then insert my crushing forcep around the head, crush the head and extract it.  If the cervix if very tight, I can't do that, I will use a craniotomy procedure, will turn the fetus so the back is up and find the area that I want to open, and either with a finger, dialator or a scissor will open that area and gently pull down. That pressure alone is enough to empty the cranium and extract the head.
~
Q.  And why don't you routinely do second trimester abortions by induction?
A.  I don't really have the ability to do that.  I cannot put a woman in the hospital where I have privileges and admit her for an elective abortion beyond 12 weeks of gestation, and even if I wanted to do 12 weeks and under, I can usually never find a nurse that will accompany me to the OR to do it.

Excerpts from Government's cross examination of Dr. Knorr:

Q. Also when you bring out a fetus in pieces, you make sure that  you have got all the parts that you want;  right?  You kind of --
A.  Yes.
Q.  You try and lay them out and put them back together as best you can to see if you have everything?
A.  Not necessarily.  Some of us keep track on the way out.
~
Q.  Dr. Knorr, is the procedure you perform consistent with this definition in DX 651?
A.  No.
Q.  In what way?
A.  … Breech extraction of the body excepting the head, well, according to the way I do my procedure, that sometimes occurs.  Partial evacuation of the intracranial contents of a living fetus to effect delivery of a dead but otherwise intact fetus, yes, I do do that.
~
Q.  Doctor, when you do have an intact extraction and the head gets stuck at the cervical os and then you do something to bring the head out, you testified on direct that sometimes the fetus is alive before you open the skull?
A.  Yes.
Q.  Right.  How can you tell?  What signs of life are there?
A.  Well, as I think I stated in my testimony, these fetuses are grossly obtuned, meaning that they have a lack of oxygen due to the tetanic contraction. They have some oxygen, there will be a fetal heartbeat, but they are generally limp.  Does that answer your question?


CALIFORNIA CASE. 

DAY ONE:  Monday, March 29, 2004
Excerpts from PPFA's direct examination of its lead witness, Dr. Maureen Paul: 

Q.  And when you begin the evacuation, is the fetus ever alive? 
A.  Yes.
Q.  How do you know that?
A.  Because I do many of my procedures especially at 16 weeks under an ultrasound guidance, so I will see a heartbeat.
Q.  Do you pay attention to that while you are doing the abortion? 
A.  Not particularly.  I just notice sometimes. 
~
Q. Okay.  Does it every come out completely without the head becoming lodged?
A.  Rarely it does.
~
Q.  And you had said that sometimes when you apply traction to the fetus it comes out intact up to point where the calvarium lodges; is that correct?
A.  Yes.
Q.  In that circumstance, what do you do to complete the procedure?
A.  Well, there are two things you can do.  You can disarticulate at the neck, or what I prefer to do is to just reach in with my forceps and collapse the skull and bring the fetus out intact.
~
Q.  You testified earlier, Dr. Paul, that the fetus can be alive when the evacuation begins; is that correct?
A.  That's right.
Q.  When in the course of the abortion does the fetus -- does fetal demise occur? 
A.  I don't know for sure.  I certainly know that if I deliver intact and collapse the skull that demise occurs.

Excerpts from the Government's cross-examination of Dr. Paul:

Q.  In performing a D&E at 20 weeks gestational age and above, in your previous capacity, was there ever a time when you saw any indication that the fetus was experiencing pain?
A.  I have no idea what that means.

DAY TWO:  Tuesday, March 30, 2004
Excerpts from PPFA's direct examination of Dr.  Katharine Sheehan: 

Q.  Okay.  So after you have assessed the fetal presentation, What do you do next?
A.  Then, a cervical block of local anesthetic is placed around the cervix, and the amniotic sac is ruptured, allowing the amniotic fluid to flow out.  And, then, using the forceps, I begin the procedure if extracting the fetal part.
Q.  And how do you go about doing that?
A.  I generally try using the ultrasound to find the small parts of the fetus, “small parts” being considered the extremities.  I really prefer it if the lower extremities are presented first.  I can grasp the lower extremities of the fetus, and using gentle traction, extract the tissue.
Q.  And after you have done that, what do you have?  What happens next?
A.  I continue to put traction on the fetus tissue.  If the cervix is adequately dilated, then the fetus will generally slide down through the cervix, and I continue to extract the tissue until it is completely extracted. If the cervix is not so well dilated, then disarticulation and dismemberment happens.
~
Q.  So do you ever use a chemical agent to cause fetal demise?
A.  Yes.
Q.  What is that agent?
A. The agent is Digoxin.
Q.  What is Digoxin?
A.  Digoxin is the name for Digitalis, which is a cardiac medicine that is typically used for specific cardiac conditions, most typically heart failure.
Q.  And at what gestational age do you use Digoxin?
A.  We start using it at 22 weeks.
Q.  Why do you choose 22 weeks?
A.  We like to prevent an eventuality of a live birth, and because it seems to make the procedure move along a little bit easier on the day of the procedure. …We administer the Digoxin with a needle through the abdominal wall of the woman intro the uterus.  We are aiming to get it into the fetal heart, or at least into the fetal thorax.  However, we are not able to do that every time.  If we are not able to do that, then we attempt to put the Diogoxin into the amniotic fluid.  And it seems to work less often when it is just put into the amniotic fluid.
Q.  What percentage of time are you successful in getting the Digoxin into the fetal heart?
A.  I would say approximately 50 percent.
~
Q.  And what about the term "living fetus," what does that mean to you?
A.  It would be a fetus that still has a heartbeat, and that would still apply to many of my cases.
Q.  And in your practice do you bring the fetus to the point where the fetal trunk past the navel is outside the body of the woman?
A.  Yes, I do.  That's what I mainly do.
Q.  And that happens often?
A.  Yes.
~
Q.  You testified yesterday, I believe, that you have performed approximately 30,000 surgical abortions throughout your career?
A.  That is my best guess.

Excerpts from the Government's cross-examination Dr. Sheehan:

Q.  Thank you. If I could read that to you, page 101 [of Dr. Sheehan’s deposition], starting on line 22.and I should say first this question refers to your expert report; is that correct?
A.  Uh-huh.
Q.   “Question:  Could you describe, doctor, what you mean in paragraph 4 by your ‘best  efforts to remove the fetus intact?

Answer:  I think I already described that, but what I attempt to do is to grasp the fetal feet with the instrument, and putting gentle traction on that fetal extremity, I try to tease the tissue down so that the fetus comes down feet first through the cervix, the pelvis and the thorax, and I actually get the arms out and just use gentle traction, rather than using the kind of crushing and compressing gestures that one would use to do the disarticulation.”

Is that what you said?
A.  Yes.

Excerpts from PPFA’s direct examination of Dr. Eleanor Drey:

Q.  And was there a time frame of when [Digoxin] was given?
A.  When we first started giving it, we always gave it at the time that we were doing our pre-operative evaluation, so that the patient would get the laminaria placed.  And then, after that, she would have the Digoxin injection. At that time we were waiting two days with the laminaria in place.  And, so, initially we were giving Digoxin two days before D&E.
Q.  And did you ever change that procedure, that time schedule?
A.  We did.  What started happening was we had an unfortunate number of women who were spontaneously going into labor and delivering at hospitals sort of all over the bay area, and it was distressing to everyone.
TVC Weekly News: Grisly Details On Partial-Birth Abortion Emerge In Physician Testimonies
Summary: In New York, lawyers for the Department of Justice are defending the Partial-Birth Abortion law just passed by Congress and signed by President Bush. In a New York court on April 5, 2004, a lawyer interviews a physician who does partial-birth abortions. We have reprinted a portion of this grisly exchange below. This is a raw transcript and may contain transcription errors:

From the direct of the Plaintiff witness, Dr. Fredriksen, regarding full disclosure and fetal pain:
   THE COURT: Doctor, do you make full disclosure to all
   your patients before you embark on a particular procedure?
  
   THE WITNESS: I educate them in the process of an
   informed consent as to the risks of pregnancy termination and
   the relative difference of risks of the different procedures.

   THE COURT: Well, when you tell them about pain and
   such that you were talking about before, do you also tell them
   about that you do the D&E, it involves dismemberment? Do you
   tell them that you tear the limbs off the fetus?
  
   THE WITNESS: I don't use that term, as I say it.
  
   THE COURT: Do you use simple English words so they
   know what you are doing --
  
   THE WITNESS: Yes.
  
   THE COURT: -- and what they're authorizing?
  
   THE WITNESS: Yes.
  
   THE COURT: Well, how do you tell them that you are
   going to take the limb off?
  
   THE WITNESS: I tell them that in the process.
THE COURT: Do you use "disarticulation"?
  
   THE WITNESS: No.
  
   THE COURT: What word do you use?
  
   THE WITNESS: I tell them that in the process of the
   termination we will attempt to get the fetus out as intact as
   possible but that is not a guarantee and sometimes a fetus
   comes out in parts.
  
   THE COURT: Do you discuss with them whether or not
   there is any fetal pain?
  
   THE WITNESS: I think that's a concern.
   My approach has been to say that the cord usually
   comes down and severing of the cord means that the fetus
   sanguinates.
  
   THE COURT: Do you think that a normal woman patient
   understands those words?
  
   THE WITNESS: Well, bleed to death is the analogy on
   more lay terms.
  
   THE COURT: Well, do you use sanguinate or do you say
   bleed to death?
  
   THE WITNESS: I use the term that the fetus loses all
   of its blood when the cord is severed.
  
   THE COURT: Do you tell them whether or not the fetus
   experiences pain?
  
   THE WITNESS: Since I don't know that I do say that
   most of the time the fetus may not experience anything.
   Because once the cord has been severed there is no blood supply
   to the central nervous system and therefore the fetus, for all
   intrinsic, purposes dies.

   Whether or not that is analogous to the end of the
   presence or absence of a fetal heartbeat I don't know, but
   there is no fetus that has central nervous system activity once
   they have lost all oxygenation.
  
   THE COURT: Do you use all of those words,
   "oxygenation," and things like that? Or do you tell them in
   simple words?
  
   THE WITNESS: I tell them in simple, understandable
   words, depending upon the particular patient that I am dealing
   with.
  
   THE COURT: Oh, depending on the patient the words
   vary?

   THE WITNESS: Yes.
  
   THE COURT: And when you do an intact D&E do you tell
   them that you are going to insert scissors in the base of the
   skull?
  
   THE WITNESS: No.
  
   THE COURT: You don't tell them that.
  
   THE WITNESS: No, because I don't always do that,
   number one.
  
   THE COURT: You do that sometimes?
  
   THE WITNESS: Yes.
  
   THE COURT: When you do, do you tell them?
  
   THE WITNESS: Not ahead of time because I can't
   predict who I'm going to do that with and who I can't do that
   with.
  
   THE COURT: Do you tell them you may be doing that?
  
   THE WITNESS: No.
  
   THE COURT: Do you tell them whether or not it hurts?
  
   THE WITNESS: Who am I -- what am I --
  
   THE COURT: The patient.
  
   THE WITNESS: The patient?
  
   THE COURT: The woman, the mother.
  
   THE WITNESS: It doesn't hurt her, no.
  
   THE COURT: Do you tell whether or not it will hurt
   the fetus?
  
   THE WITNESS: The intent of an abortion is that the
   fetus will die during the process of uterine evacuation.
  
   THE COURT: Ma'am, I didn't ask you that. Very simply
   I asked you whether or not do you tell the mother that one of
   the ways she may do this is that you will deliver the baby
   partially and then insert a pair of scissors in the base of the
   fetus' skull?
THE WITNESS: I have not done that.
  
   THE COURT: Do you ever tell them that after that is
   done you are going to suction or suck the brain out of the
   skull?
  
   THE WITNESS: I don't use suction.
  
   THE COURT: Then how do you remove the brain from the
   skull?
  
   THE WITNESS: I use my finger to disrupt the central
   nervous system, thereby the skull collapses and I can easily
   deliver the remainder of the fetus through the cervix.
  
   THE COURT: Do you tell them that you are going to
   collapse the skull?
  
   THE WITNESS: No.
  
   THE COURT: The mother?
  
   THE WITNESS: No.
  
   THE COURT: Do you tell them whether or not that hurts
   the fetus?
  
   THE WITNESS: I have never talked to a fetus about
   whether or not they experience pain.
  
   THE COURT: I didn't say that, Doctor. Do you tell
   the mother whether or not it hurts the fetus?
  
   THE WITNESS: In a discussion of pain for the fetus it
   usually comes up in the context of how the fetus will die. I
   make an analogy between what we as human beings fear the
   most -- a long protracted painful death.
  
   THE COURT: Doctor, I didn't ask you --
  
   THE WITNESS: Excuse me, that's what I tell my
   patients.
  
   THE COURT: But I'm asking you the question.
  
   THE WITNESS: I'm sorry.
  
   THE COURT: And I'm asking you whether or not you tell
   them that.
  
   THE WITNESS: I feel that fetus dies quickly and it's
   over quickly. And I think from a standpoint of a human being
   our desire is that we have a quick death rather than a long
   protracted death --

THE COURT: That's very interesting, Doctor but it's
   not what I asked you. I asked you whether or not you tell them
   the fetus feels pain.
  
   THE WITNESS: I don't believe the fetus does feel pain
   at the gestational ages that we do, but I have no evidence to
   say one way or the other so I can't answer that question.
  
   THE COURT: Have you ever read any studies about fetal
   pain?
  
   THE WITNESS: Fetal pain is best explored in the
   premature context of delivering premature babies beyond 24 or
   up to 28, at 28, 30 weeks. In those studies it's much, much
   further in gestation than where I am dealing with the fetus.
  
   THE COURT: Are you aware of any studies done on fetal
   pain in a shorter gestational period?
  
   THE WITNESS: No.
  
   THE COURT: Next question.
 


CULTURE & COSMOS April 12, 2004 Volume 1, Number 35
Congressional "Findings" Key to Upholding Partial Birth Abortion Ban

        Based on testimony from the three trials challenging the ban on
partial birth abortions (PBA), some legal scholars believe that at least
one court could uphold the legislation. Congressional findings, attached
to the legislation under consideration, conclude that partial birth
abortion is never medically necessary. Proponents of the grisly procedure
are out to disprove this claim by arguing that a ban would adversely
affect the health of women.

        The crucial issue for the court is the question of women's health, and the abortion debate has been framed this way since the Supreme Court decided the Doe v. Bolton case, which was decided the same day as Roe v. Wade. Doe allows abortion to save the health of the mother, but the health exception is exceptionally broad such that any reason at all can be used.
All subsequent legislative attempts to regulate abortion have had to deal with Doe's health exception. The first Congressional attempt to ban partial birth abortion did not consider the health exception and was subsequently struck down by the Supreme Court in Stenberg v. Carhart(2000).
With the current ban, Congress addressed the issue explicitly by
including expert findings which establish that partial birth abortion is never necessary for a mother's health. The American Medical Association, for instance, has said that partial birth abortion is "never medically indicated." Even abortionists testifying in the current trials say that partial birth abortion is never the only option to save a woman's health. One of the more interesting turns in the current trials has been the introduction of the question of fetal pain, though it is unclear how this topic will affect the outcome. Abortion proponents have traditionally insisted that the abortion debate remain squarely on the mother, often setting her at odds with her unborn child. Dr. Michael M. Uhlmann, a visiting professor of politics at Claremont Graduate University and a close observer of the abortion debate, says that "the fetal pain issue reintroduces the humanity of the unborn child much to the consternation of PBA proponents. All abortion cases are based on the supposition that the mother's interests are the only interests at stake." According to Uhlmann the "unborn child keeps intruding into the argument every time, and that's
why the fetal pain issue becomes emotionally and factually relevant.
Whether it becomes legally relevant is a separate matter."

 
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