This transcript shows that first trimester abortions are done on babies with heartbeats who do not always die instantly during the procedure.
When legislation to ban the Dilation and Extraction (Partial Birth) abortion procedure was passed in certain states, there were several trials about whether the ban was constitutional. This testimony was given in United States District Court for the Western District of Wisconsin on May 27, 1999, Case No. 98-C-0305-S. It concerns not the partial birth procedure, which we will read about later, but the very common suction curettage procedure. The purpose of the testimony was to compare this early abortion technique to a partial birth abortion.
This is an 8 week old unborn baby- a typical candidate for this type of abortion:
Abortionist Dennis Dean-Christensen (his words are in bold)
Q. Are you aware that we stipulated that during a suction curettage procedure sometimes no fetal parts come out through the cannula during suction and that the doctor then goes in with forceps to remove parts?
A. Yes, I’m aware of that.
Q. At that point when the suction has been used but no fetal parts have come out and the doctor goes in with forceps is the fetus alive?
A. Based on our definition, yes.
Q. And when will the fetus die in that scenario?
A. Well, sometime between that point and when we complete the procedure.
Abortionist Harlan Raymond Giles
THE WITNESS. The fetus in the suction D&C is much smaller, generally less than 12 weeks of gestation, and the fetus either in whole or in part passes through the plastic cannula – and then goes into a suction machine where there’s a gauze bag that then traps the fetal structure and the placental structure as well.
Q. Okay. Can the heart of a fetus or embryo still be beating during a suction curettage abortion as the fetus or embryo comes down the cannula?
A. For a few seconds to a minute, yes.
THE WITNESS: I’ve performed approximately or greater than 40,000 suction curettage abortions. Roughly, you know, 10,000 D&E abortions. After the 20th week I’ve performed approximately 5,000 abortions, about 3,000 of them being D&E and about 2,000 of them being the intact variety of D&E. [which is another name for a D&X or Partial Birth abortion]
Q. When you perform an abortion by the suction curettage method does it ever happen that a portion of the fetus is extracted from the uterus while the fetus is still alive?
. . .
A. Well, when we do a suction curettage abortion, you know, roughly one of three things is going to happen during the abortion. One would be is that the catheter as it approaches the fetus, you know, tears it and kills it at that instant inside the uterus. The second would be that the fetus is small enough and the catheter is large enough that the fetus passes through the catheter and either dies in transit as it’s passing through the catheter or dies in the suction bottle after it’s actually all the way out. Now on any given procedure does a surgeon know precisely which of those three possibilities is going to occur, the answer is no. But is it my intent that one of these three possibilities will happen with each given patient, then the answer is yes.
Q. And when you perform an abortion previability are you concerned with the point in the process when the fetus dies?
A: Generally no, because it doesn’t add anything medically to the safety or care of the woman that’s being taken care of.
Following are excerpts from the Partial Birth Abortion Ban trial in Nebraska.
Leroy Carhart, M.D., et. al. v. Ashcroft
U.S. District Court, District of Nebraska
The Honorable Richard G. Kopf, Judge.
Note: All pictures are of unborn babies who would be candidates for this type of abortion, which is usually performed in the late second trimester, but can be performed in the third.
Excerpts from 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. 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.
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. 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. 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 direct examination of Dr. Jill Vibhakar:
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.
Picture: Sometimes the shoulder or arm is removed first when aborting a baby this age, sometimes skin from the trunk or a rib
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 [detached] the body from the head; is that correct?
Q. And you removed the body, compressed the head and removed the head; is that correct?
Q. And in decompressing the skull, you’re trying to reduce its sides [sic] so it can fit through the cervix?
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.
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.
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 —
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.
Excerpts from direct examination of Dr. Leroy Carhart, M.D.:
Q. Okay. And, Doctor, is the fetus living at the point at which it’s stuck at the calvarium [head], lodged at the cervical os?
A. Normally, my 16 and 17-week patients are — the fetuses are alive at the time of the final delivery.
Q. And what’s your next step, at that point, if the fetus has lodged at the cervical os?
A. Under 17 weeks, I would use a forcep. …remove the part of [the] fetus that was easily reachable. Hopefully try to use small bites to work the way up and remove the rest of the fetus so that it comes out intact. If not, then remove whatever part that I could get easily and then go back and remove the rest.
Q. Okay, Doctor, have you had a circumstance…where the fetus has been not intact, partially dismembered, and yet part of the fetal trunk passed the naval passed the umbilicus, has come outside the body of the mother?
A. ….But, certainly, when an upper extremity comes through the vagina, and I have to remove it, at that point — the shoulder, the shoulder joint actually tends to be more substantial than other joints in the body. So mostly if I can grab above the elbow, I will get part of the scapula, and sometimes even part of the chest wall from that extremity; ribs, and possibly even lung tissue or other tissue inside of the chest cavity.
Q. Doctor, focusing on your 12 through 17-week procedures, can you tell me, does the cervical dilation that you achieve have any effect on the size of the fetal parts that you’re able to remove?
A. Yes, ma’am. I can normally remove, virtually intact, as I said, two, three pieces. I can often get up to the base of the skull then go back and remove the skull. I can often get both lower extremities, and divide somewhere at the upper part of the spinal cord, removing abdominal organs and some even thoracic organs on the very first removal.
Excerpts from cross examination of Dr. Carhart:
Q. Do you agree with the statement, Doctor, that dismemberment at 20 weeks and beyond is difficult due to the toughness of the tissue at that stage of the development?
A. I think it’s fair to say that, yes, sir.
Q. And would you agree that it’s fair to say that because of the progress and the ossification and calcification of the fetal bones as gestation increases, it becomes more difficult to dismember the fetus after 19 weeks?
A. ….I don’t think that up through 24 weeks anybody would say that it’s truly a difficult procedure. It’s more difficult as the gestation increases.
Q. So would you agree, Doctor, that in the process of disarticulating [removing] a fetal part is a process of traction, counter-traction, grasping what you can get ahold of, pulling it down through the cervical os and rotating to dismember the part; is that a fair statement? A. If one is trying to disarticulate, yes.
Q. In those instances then, where the head is stuck in the os you testified a moment ago you’ll either compress or open the skull to drain, correct? A. Yes, sir, if traction alone, yeah, compressing, grabbing and bringing it down that alone doesn’t work, yes, sir.
Q. You try the compression and grabbing first?
A. I usually try to remove it manually before I use any instruments, yes, sir.
Q. And what informs your decision on whether either to open the skull and have the fetus drained or have the head drained or use forceps or some other means of compressing the skull?
A. Well, I don’t know if I can put that into words. It’s a judgment call at the time.
Q. Your declaration says you use a sharp instrument to open the skull on those occasions on which you do it?
A. I have to see that. I don’t even own a sharp instrument in my clinic.
Q. Yeah, 22, last, second-to-last sentence [referring to Carhart’s earlier declaration], I use a sharp object either under direct visualization or with real-time ultrasonography to penetrate or enter the fetal skull.
A. Well, my actual choice is a uterine packing forceps, but I would accept that that could be, by some, considered sharp. I’m not saying there is anything wrong with this.
Q. You consider that forceps to be more of a blunt instrument; is that correct, Doctor?
A. I generally like to open the tissue slowly and dissect it apart the same way much like you’re doing surgery because you’re less likely to involve any other structures, and if you do, you’re not causing a vast amount of problems. It’s rather limited.
Q. My question is, simply, I want to get to the actual process that you utilize in trying to bring the fetus out intact.
A. I rarely try to dismember a fetus after the 20th week. I’m not sure I understand how to get my point and what I’m doing to be understood. If I — if nothing is coming through the os and nothing has come through the os and it appears to be that waiting another hour or four hours is going to not produce any different change than what I have seen already, at that point we will put the patient in the operating room and remove the fetus. I may grab a foot and bring it down. …If I bring an arm down and bring it outside of the uterus and possibly even outside of the vagina, depending on where the uterus is, I’m not going to put that arm back inside of the woman’s body to take that bacteria back inside, so I’ll remove that arm….
Q. You recommend the use of ultrasound?
A. If — I think for second trimester D & E, it would be considered not within the standard of care to not have obtained an ultrasound. I don’t think there is a standard of care that involves the real-time, as you’re doing it, ultrasound. I know many, many doctors do not do that, [and] they do very well. I also know that I sleep better at night when I know what I’ve done.
Q. Do you know how common it is for a pregnancy to be terminated for a maternal physical health reason?
A. Not in the United States. In my practice in Omaha or in Nebraska, my practice. It’s fairly rare.
THE COURT: Okay. Now, once again, in the ages that we are talking about here, the later ages, 18 weeks to 24 weeks, are there any circumstances where you in the recent past have been unable to cause fetal demise by use of injection?
WITNESS: Yes, sir, there was one incident where that happened with a 21 week twin pregnancy, and can I describe – – ….She was a multi-parous patient, and I attempted with her to do the fetal injection first which used to be my practice. I thought I had obtained adequate, that I had obtained that, and I started to place laminaria and very shortly. By the time I had put in the third or fourth laminaria, I started to get bleeding, and it just became worse and worse as time went on. …we gave her everything to try to constrict the uterus because if you can impact the fetus into the uterus, you can cause enough construction to slow the blood flow down. . ..However, one of the twins had, I thought, probably was dead. The other one, I’m sure, was not, but I had to remove both of those fetuses in virtually a nibble-nibble fashion. I don’t know how else to describe it, because I had an opening, the maximum I could get was like maybe one-anda-half to two centimeters which was not adequate to deliver the fetuses.
Excerpts from redirect examination of Dr. Carhart:
Q. ….The procedure you talk about from 14 to 17 weeks where you were able to remove the fetus intact or largely intact up to the calvarium, if the next step was the compression or collapsing of the skull, whichever method you use to do that, could that cause fetal demise?
A. I think it eventually would. It may not cause immediate fetal death though. I mean, the fetus is going to die.
Excerpts from re-direct examination of Dr. Watson Bowes, Jr.: Q. And, Doctor, what is your opinion concerning the medical necessity of partial-birth abortion procedures such as intact D&E with regard to preserving the health of the mother?
A. Well, I will restate what the American College of Obstetricians and Gynecologists said in their statement. They know of no instance where it’s necessary to use this procedure to — they could think of no specific instance when this procedure would be necessary to protect the health of the mother.
Excerpts from direct examination of Dr. Kanwaljeet Anand:
Q. So, Doctor, do you have an opinion as to whether the partial-birth abortion procedure causes pain to the fetus?
A. If the fetus is beyond 20 weeks of gestation, I would assume that there will be pain caused to the fetus. And I believe it will be severe and excruciating pain caused to the fetus.
Q. What do you mean by severe and excruciating pain?
A. You see, the threshold for pain is very low. The fetus is very likely extremely sensitive to pain during the gestation of 20 to 30 weeks. And so the procedures associated with the partial-birth abortion that I just described would be likely to cause severe pain, right from the time the fetus is being manipulated and being handled to the time that the incision is made, and the brain or the contents, intracranial contents, are sucked out.
Excerpts from direct examination of Dr. Leroy Sprang:
Q. Okay. Doctor, if I could, I wanted to ask you, based on your training, experience as an OB/GYN, your knowledge of medical literature, do you have an opinion as to whether the intact D & X procedure presents significant risk to the woman?
A. I believe it does.
Q. Could you just briefly list kind of what those risks are?
A. My concerns with the procedure are several things that distinguish it from the traditional D &E. The fact that it — more commonly for D & E, you can dilate the cervix over one day. There may be exceptions. But in general, more commonly one day. More commonly for a D & X, you’re dilating it over two days.
Q. Does that present a risk?
A. Presents several problems. Laminaria are these little seaweed sticks that you’re placing in the uterus, and they have to cover the entire length of the cervix. They have to be from the outside to the inside to make sure the entire cervix dilates evenly. Again, infectious disease is my area of expertise. Bacteria have a better chance moving along the laminaria and getting inside the endocervical os and running a risk of infection, because they are in contact with the vagina, and up against the amniotic sack. That’s the issue.
A: In the descriptions I have read on occasion, including Haskell, he says sometimes when you go back the second day, the bag breaks. But he still puts his laminaria in, and still waits for the next day. Well, once the bag breaks and you have a foreign body sitting there and the bacteria are getting from the vagina to the uterus, that’s a recipe for disaster.
Q. You’re talking about the risk of infection?
A. Correct, and trauma to the cervix. If you are dilating the cervix to a greater degree, some of it is mechanical. You mechanically dilate first before he puts the first laminaria in. I have been told by some — the people, some or at least one of the people who does that, that they force as many laminaria in as possible on the second day because they want the greatest amount of dilatation as possible because that will make the delivery process easier. So it’s not just slow dilation from laminaria taking in fluid, there is some mechanical aspects to it too. And that, I think, does more risk to the cervix.
Q. What kind of risk to the cervix are you talking to?
A. You traumatize the cervix. And there is information on earlier ones, which even dilate mechanically now, dilate the cervix either from 10 millimeters to 11 millimeters, it increases the risk of an incompetent cervix later. The cervix not being able to maintain a pregnancy or maybe just weak enough you have more preterm deliveries. And preterm deliveries are the single greatest medical obstetrical problem in the United States today.
Q. Tell us what I’m done with that. Doctor, have you ever performed an intact D & X procedure?
A. I have not.
Q. In your practice, have you ever seen the need for it?
A. I have not.
Q. Your practice involves high risk obstetrics; is that correct?
A. Full range including high risk obstetrics and, again, I’m now president of a group of like 27, 28 OB providers. So I have seen a great number of circumstances. With our issues, they do clearly present them to me and I have never seen that.
Q. Would that be true even of situations involving serious maternal health conditions?
A. I have never seen a situation where a D & X would be the safest, the best, or the only procedure to use to protect the health of the mother.
Q. And that would be even in emergency situations where the pregnancy needs to be terminated and very quickly?
A. I have never seen a situation where intact D & X would be required, or the best procedure to do. In reading all the other declarations and stuff, I haven’t seen a single physician who provides it do that. The AMA committee that I sat on could — and there were several different obstetricians and Counsel on Scientific Affairs. Nobody could come up with a situation where the intact D & X would be necessary to preserve the health of the mother. In ACOG, when they had their panel, could not come up with — they couldn’t come up with a single example where it would be, you know, the best, most appropriate alternative to save the health of the mother or to have a beneficial effect on the health of the mother.
Excerpts from Government’s direct examination of Dr. Curtis Cook:
Q. When a pregnancy has to be ended prematurely, because of a maternal health condition of the kind that you treat, is it ever necessary to take a destructive act against the fetus directly, in order to protect the health interests of the mother?
A. No, all that is required for recovery of the mother is for separation of the fetus and placenta from her system so that she can start the recovery process. There is nothing inherent in the destruction of the fetus that starts to facilitate that process.
Q. What is your response to the assertion that medical inductions are a more painful and physiologically stressful procedure than a surgical termination such as D&E?
A. Well, I think surgery is decidedly nonphysiologic as opposed to labor. So a labor induction is a much more physiological process or utilizes a natural process more than surgery would. But it also is a more controlled and monitored situation, as opposed to the D&X procedure, meaning that patients are constantly monitored for pain control, analgesia is constantly available to them in various forms, including patient controlled IV anesthesia or epidural, as opposed to having a handful of Motrin or Ibuprofen, going to a motel room somewhere for a couple of days while the cramping and contracting is taking place. [In a situation where labor is induced, a woman’s natural body process of expelling a baby is utilized instead of the unnatural D&E or D&X procedure. Also, in the case of inducing labor a woman’s condition is monitored more closely and pain managed in a superior way. More evidence that a partial birth abortion is not better for a woman’s health than giving birth.]
Q. Doctor, the question was, in inductions, you have never used Digoxin or KCL to induce fetal demise in performing inductions, because you always considered it unnecessary; is that right?
A. That is not correct. I have not utilized those techniques but not because I consider them unnecessary ever. They haven’t been necessary for my clinical situations, because the people that utilize those techniques utilize it so they can guarantee that there is not a live born baby at time of delivery. And, if possible, I want a live born baby at time of delivery.
[Dr. Cook does not do abortions, but he does induce labor. The difference between an abortion and a live birth is simply not putting in medication to kill the unborn baby prior to causing labor. There is no medical risk involved in not doing this extra procedure]
DAY EIGHT: Thursday, April 8, 2004
Excerpts from Government’s direct examination of Dr. Elizabeth Shadigian:
Q. ….What is your opinion, with respect to assertions that the D&X procedure is intuitively safe, based on the experience of practitioners who are performing it?
A. Well, I know those practitioners have their best intellectual judgment in mind. And I know they want to be honest and truthful in what they are saying, but really it’s just anecdotal evidence they have that they think it’s safe. They don’t have any long-term studies or even a comparison of the D&X to another kind of procedure. So I don’t question that they really believe that, but really without data, we can believe a lot of things, but medicine is based on evidence. It’s based on doing studies. It’s based on comparison of what we know to what we don’t know. And in the absence of that, those are just anecdotal thoughts or feelings that a physician may have.
Q. What’s your basis for that last assertion as to the follow-up of the abortion practitioners with their patients?
A. Well, there have been several studies. One, I quote specifically which is the Picker study from 1999, and they actually asked women about the quality of their abortion care, because this is such an important issue. And, in fact, it turns out that only about 29% of women actually follow up with their abortion provider afterwards. So it’s hard for me to understand how abortion providers, in quotes, know their complications, if they don’t even see their patients back later.
The following section consists of highlights of the partial birth abortion ban trial held in California. Partial birth (or D & X) abortions are usually done in the late second trimester but can be done in the third trimester as well. All pictures of unborn babies are in the late second trimester – candidates for this type of abortion.
Planned Parenthood v. Ashcroft
U.S. District Court, Northern District of California
The Honorable Phyllis J. Hamilton, Judge
DAY ONE: Monday, March 29, 2004.
Excerpts from direct examination of Dr. Maureen Paul:
Q. And when you begin the evacuation, is the fetus ever alive?
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 [skull] lodges; is that correct?
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 parts.
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.
[This is another way of saying she grasps the arms and legs, then pulls them off]
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?
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?
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?
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?
Excerpts from 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 preoperative 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.
DAY THREE: Thursday, April 1, 2004:
Excerpts from direct examination of Dr. “Doe” (testifying under a pseudonym):
Q. Do some women deliver the fetus partially as a result of the misoprostol?
A.Yes, they can.
Q. And when that happens, could the fetus be outside the uterus past the navel of the fetus?
A. Outside the uterus, yes, and potentially even outside the vagina.
Q.. And could it be alive?
A. Yes. [He just admitted that babies are sometimes born alive]
Q.. And when that happens, how do you complete the procedure?
A. Usually, if the fetus is coming out, the easiest method is to try to do how we would do a breech. It often comes out in a breech presentation. And, again, that is feet first, head second. We do the similar maneuvers that we would do to do a breech delivery. However, sometimes the cervix is not dilated enough to allow the calvarium [head] to pass.
Q. And what do you then do?
A. I would separate the calvarium [head] from the body.
Q. And when during in induction does fetal demise occur; do you know?
A. I don’t know. It really depends on gestational age, and sometimes the fetus is born alive.
Q. And do you ever — do patients ever ask you whether there is something they could use to cause fetal demise?
A. Yes. I would — I don’t know what percentage of my patients, but a certainly small number of patients ask could there be fetal demise prior to the procedure. When I talk to them about what it would entail to do, most of them do not want to proceed with that. And I don’t think they are particularly worried about the effects. They don’t think — I think about the infection risk. They don’t think about the infection risk. They just don’t want to go through that procedure, to have a needle placed, and under ultrasound guidance maybe see the ultrasound and see the fetus again. The vast majority of the patients don’t want to have that done.
Excerpts from cross-examination of Dr. “Doe”:
Q. And I think you testified earlier that in about 15 percent of the D&Es you perform, the fetus is delivered partially intact so that the calvarium gets stuck in the cervix; is that correct?
A. It was – I think my testimony, I believe, is approximately 15 percent would be delivered intact. Not all of those that the calvarium would be stuck; some would deliver completely intact.
Q. Do you have a — can you give me an estimate of that 15 percent how many are delivered where the calvarium does get stuck in the cervix?
A. I would probably say at least 80 percent the calvarium would be stuck in the cervix.
Q. And just to be clear, the calvarium, again, is just the fetus’ head, correct?
Q. In those cases in which you are doing a D&E and the fetus delivers partially intact except for the calvarium getting stuck in the cervix, you have to insert forceps and crush the calvarium; is that right?
A. I would separate the calvarium from the fetal — how I would perform the procedure is, I would separate the calvarium from the fetal body, thorax, and then insert the forceps to crush the calvarium to be able to deliver it.
Q. Let me just ask you. Can you describe for us how you get the forceps around the calvarium before crushing it?
A. In a situation where the fetus is delivered up until the calvarium?
Q. That’s right.
A. Again, as I testified, I would separate the calvarium from the fetus, so —
Q. Let me stop you right there. How would you separate the calvarium from the fetus?
A. Under direct visualization, I would use, seeing outside of the cervix within the vagina that I can see directly, I would use scissors to cut the neck and separate the — I am not in the uterus, I am in the vagina, separating the fetal calvarium from the fetal body.
Q. And after you’ve done that, the calvarium is still in the cervix?
A. Or in the lower uterine segment.
Q. Okay. Then what is the next step that you do?
A. The next step I would use is to put the bierer forceps — is what I most likely would be using in the situation – into the uterus, get around, open them wide, get around the calvarium, and crush the calvarium. Just as if it were higher up and not stuck in the cervix, I would be doing it just the same way.
Q. And is it fair to say that the calvarium is one of the largest parts of the fetus?
Q. It is also one of the widest parts of the fetus?
Q. Is it fair to say that when you are opening the forceps to get around the calvarium, you are opening them wider than you would if you were attempting to grasp a fetal limb?
Q. Could there potentially be risks to the cervix when you are opening the forceps wide enough to get around the calvarium?
Q. In fact, one of those risks might be a perforation or a laceration of the cervix, right?
Q. And another risk might be a perforation or a laceration of the lower uterine segment?
Q. And let’s talk about that a little bit. Are the — can the bones of the calvarium, can they be sharp?
Q. Are they in any — are they sharper say than the bones of the fetal leg or are they roughly comparable?
A. It depends on how — if it’s a disarticulation of how it went. A calvarium could be crushed and there are not sharp edges and the femur, which is a leg bone, could be broken and be sharper. I think you can’t predict that. But I think any of the major long bones, certainly not ribs, but femur, humorous could be sharper than a calvarium that has been crushed.
Q. And when you are crushing the calvarium, there is the same risks that we talked about earlier, possible perforation or laceration of the cervix, the lower uterine segment, or the uterus; is that right?
Q. And a cervical or uterine laceration, it can be relatively minor or it could be relatively severe; is that right?
Q. If it’s severe enough, there are some cases where a woman might exsanguinate and die, right?
Q. Can you tell us what exsanguinate means?
A. To bleed to death.
Excerpts from re-cross examination of Dr. “Doe”:
Q. And Ms. Parker asked you a question about why some of your patients don’t prefer a labor induction abortion. I think one of the reasons you gave was that your — the woman may not want to see the fetus; is that right?
Q. Now, in a labor induction abortion you are not showing the fetus to the mother in every case, are you?
A. No, we are not. But with a labor induction, it is often kind of unpredictable when the fetus delivers. And it is probably a minority of times the physician is actually there at the time to deliver the fetus. Often you don’t have the normal kind of cervical dilation that you might have in a term labor. You have nothing, nothing, nothing. And then, all of a sudden, she goes: “I have got to push,” and the fetus kind of pops into the bed.
DAY FOUR: Monday, April 5, 2004.
Excerpts from cross- examination of Dr. Fredrik Broekhuizen:
Q. Usually in examining the fetal parts you don’t actually see the bones, do you? You usually see the limb and the actual bone is in the limb?
A. You can sometimes see bone. Sometimes you can see just the limb.
Q. But usually you just see the limb, and the actual bone is in the limb?
A. Actually, when disarticulation takes place in the joint one can certainly see the end of the bone on inspection.
Q. The end of the bone. But usually the rest of the bone is inside the limb?
A. There are situations where actually the bone is crushed in the middle of the limb. And under those circumstances one can see part of the bone.
Q. Doctor, you testified earlier that sometimes parents want an intact fetus for blessing or burial. Have you ever had the parent express that desire where you had compressed the head of the fetus to complete the delivery?
Q. Was anything done in those instances, doctor, to improve the appearance of the fetus’ head after decompression?
Q. What was done?
A. The fetus was — just like a newborn — it was dressed and kind of had a little hat placed on it so that only the face was visible.
Q. You have seen the fetus’ legs move before crushing the head, haven’t you?
A. I have seen that before compressing/decompressing the head.
Q. And that is while the head is lodged in the internal os?
Q. The rest of the body is outside the cervix?
Excerpts from direct examination of Dr. Mitchell Creinin:
Q. If that happens and you remove the dilators and you find you have more than two, two and a half centimeters, is that a bad outcome?
A. No. — I want — I judge the number of Dilapan based on making sure I get the minimum amount without putting in so many that I make her uncomfortable or get more dilation than I absolutely need, which I have found at times can cause patients to go into labor or deliver.
Q. What do you do to evacuate the contents of the uterus?
A.. . . If it is head first, it’s very, very, very difficult to try and grasp the head as the very first thing. So, with every D&E, the way I have been taught, the way I have always done it, the way I have always taught it is to try and grab a lower limb to convert the position to breech and then proceed with the evacuation. If it’s already breech, or if it’s transverse, that’s easier to grab a lower extremity. After grabbing the lower extremity, I am going to pull the pregnancy or pull whatever part I have grasped through the open cervix until there is resistance from the lower uterine segment and the internal os. My goal is to try and remove the fetus as intact as possible. The fewer passes, the safer it is for the woman. So, as I pull down, the uterus is going to tell me how far I can go just by the resistance I get. So when I meet resistance, I will continue to pull, and it’s the pressure of the fetus against the lower uterine segment that actually results in dismemberment of the fetus. And where that is going to happen on the fetus will vary from patient to patient.
Q. So, moving along, once you’ve located and grasped the lower extremities and turn the fetus if you need to, what do you do next?
A. Pull with the instrument that I am using to remove the fetus with the attempt to remove the fetus in as few passes as possible. So until I meet resistance from the lower uterine segment, I will continue to pull.
Q. Why —
A. And once I meet resistance, I will then, while holding on to the fetus — minimal rotation, but just kind of try and ease those parts through the cervix to allow whatever’s meeting resistance to try and slowly get through the cervix. The fetus will either continue to come or will begin to break apart. It will break apart wherever or whatever it is. It may be in the middle of the leg, it may be at the abdomen, it may be at the chest, just depending on the dilation and the size of the fetus, et cetera, just on that individual case.
Q. Does it ever happen that in grasping the fetus you’re able to remove the fetus intact or relatively intact all the way up to the calvarium?
A. Yes, on occasion.
Q. If that happens, would you do anything differently to complete the procedure?
A. If the fetus is intact up to the calvarium, there’s two things I could do. One would be to continue to pull, and usually it comes apart at the level of the neck, or I can insert, what I would I have done is insert scissors through that part of the head under direct visualization, inserted the 11-millimeter cannula that I used before and drain the brain tissue and then the head comes through the opening.
DAY FIVE: Tuesday, April 6, 2004
Excerpts from Government’s cross-examination of Dr. Mitchell Creinin:
Q. Now, you have encountered situations in which you are performing a D&E and the fetus is removed intact except that the head of the fetus gets stuck at the internal cervical os, correct?
Q. When that has happened you have proceeded with the D&E procedure in one of three ways, correct?
A. If you can tell me the three ways I would be happy to.
Q. One method would be to pull on the baby so that the head breaks off from the rest of the body; is that right?
Q. And then, you will go inside the uterus with the forceps and remove the head?
Q. The next method is that you would use scissors to puncture the base of the skull?
Q. And the, you will stick a suction cannula into the opening and drain the brain tissue, and then you will have the head come out.
A. Did you say “Drain the brain tissue”?
Q. Then, you will drain the brain tissue?
Q. And the third method is that you take a crushing instrument, put that instrument inside the cervical os, crush the baby’s head, and pull the head through the cervix, correct?
A. That would be the third possible, although physically that would virtually never be the case. It would be one of the first two. Those are my three options, but it would be one of the first two that I could realistically do.
Q. Doctor, if a woman’s cervix was so dilated the fetus could be delivered in intact it would not be necessary to collapse the skull because the fetus could pass through the cervix, right?
Q. But you would not allow the fetus to pass intact if the fetus were at or about 24 weeks in gestation, correct?
Q. Because if the fetus were close to 24 weeks, and you were performing a transvaginal surgical abortion you would be concerned about delivering the fetus entirely intact because that might result in a live baby that may survive, correct?
A. You said I was performing an abortion, so since the objective of the abortion is to not have a live fetus, then that would be correct.
[The doctor states that he must crush the skull to keep the baby from being born alive. If he didn’t crush the skull, there would be a live birth. The only thing preventing a live birth is the interference of the doctor, who is killing the baby rather than delivering him]
Q. In your opinion, if you were performing a surgical abortion at 23 or 24 weeks and the cervix was so dilated that the head could pass without compression, you would do whatever you needed to do in order to make sure that the live baby was not delivered, wouldn’t you?
A. Whatever I needed, meaning whatever surgical procedures I needed to do as part of the procedure? Yes. Then, the answer would be: Yes.
Q. And one step you would take to avoid delivery of a live baby would to be to deliver or hold the fetus’ head on the internal side of the cervical os in order to collapse the skull; is that right?
A. Yes, because the objective of my procedure is to perform an abortion.
Q. And that would ensure that you did not deliver a live baby?
Excerpts from Planned Parenthood’s re-direct examination of Dr. Creinin:
The witness: There have been situations, most commonly if there is a multiple pregnancy and the first one is removed by D&E, and then the second one because the cervix is very pliable at that point will come out completely intact.
The Court: Have you had that experience?
The Witness: Yes. In all of those situations, though regardless of whether the fetus comes out completely intact, intact up to the head, and I do a procedure on the base of the skull, or I did – or it comes out completely at the level of the head, and I disarticulate it, all of those have at times gone intact or relatively intact to the level of the umbilicus or greater and would violate the law.
Excerpts from Planned Parenthood’s direct examination of Dr. Carolyn Westhoff:
Q. And in what way does it – looking at the reduction in the risk of injuring the woman with the sharp, boney fragments, if you can explain in a little more detail how that happens?
A. Well, I need to explain that by contrasting it to a D&E that involves disarticulating the fetus. When the fetus is disarticulated, the skin and soft tissue covering the bones is disrupted, so sharp fragments of bone are exposed. And in the process of exposing them, grasping them, and removing them from the uterus there is the possibility that those bony fragments can lacerate at any level of the uterus and the cervix itself during extraction.
Q. Can the bony parts perforate the uterus in addition to lacerating it?
A. Yes, they can.
Q. Have you ever observed uterine perforation or laceration or cervical laceration as a result of instrument passes in a D&E with disarticulation?
Q. Have you ever observed that happening as a result of sharp fetal parts?
A. Yes, I have.
Q. Is there an advantage to intact D&E in terms of not having retained tissue in the uterus after the procedure?
A. Yes, there is.
Q. What is the – what is that – can you explain that advantage in a little more detail?
A. Yes. When the fetus is removed in parts we attempt to account for all the parts on the operating table at the completion of the case. But it is entirely possible that small fragments of soft tissue can remain inside the uterus that we can’t be sure of. And even with, for instance, the sonographic scan, we may not be able to detect those, and that can lead to subsequent infection or hemorrhage on the part of the patient. We have, in fact, on our service had a case with a small fragment of retained skull leading to those very difficulties and requiring a second procedure subsequently to relieve those symptoms.
A. … In contrast, when I am retrieving a fetal skull that is floating fee in the uterine cavity, I must pass instruments in an attempt to grasp it inside the uterus. And that is a blind use of instruments, which has more potential for perforation.
Q. And once you start the procedure with instruments, do you complete it with instruments? Or might you bring out a presenting part with an instrument, and then switch to your fingers?
A. Yes. Each procedure proceeds very individually, and so each step of the procedure will depend really on just what happened in the one step before it. And for each step of the procedure I want to do what is going to be safest at that moment. So, yes, in fact, I have had cases where I may bring down and extract a leg with an instrument and disarticulate that leg, but because the position of the fetus comes down in the uterus during that maneuver, I may then be able to bring down the next leg with my fingers. And, in fact, the rest of the fetus will follow. So, similarly, I could start with my fingers and then in addition need to use instruments. So the combination of maneuvers I use are determined one at a time on an individual basis to minimize the total number of passes and maximize patient safety at each step of the way.
DAY SEVEN: Friday, April 9, 2004
Excerpts from Government’s direct examination of Dr. M. Leroy Sprang:
Q. . . . Now, could you tell us, please, why it is your opinion that intact D&X presents a risk of infection?
A. Several reasons. One, that normally in the vagina, just like on the skin in the mouth we have numerous bacteria present. But particularly in the vagina there are generally five to nine organisms that occur in very large numbers, like 10 to the ninth. And that is where they belong, and they don’t do any harm there. If you add a foreign body, twigs, stick seaweed, you are going a get a certain amount of trauma to the tissue which enhances the bacterial growth. And the way the laminaria work, their length is such that you are taking them from the outside of the vagina, placing them through the cervical canal. For them to be effective, they have to cover the entire length of the cervical canal with a portion of them remaining in the vagina so you can retrieve them, and the other portion going right up against the amniotic sac. If you don’t do that, you are not going to completely dilate the cervix the entire length, and it will lead to major problems. So what happens in the first day, a certain amount of trauma from the little sticks, as they dilate, even more trauma. But then the bacteria in the vagina work their way up those little sticks and are then at the level of the internal os and sitting right next to the amniotic sac. So that it is moving them from the normal position to an abnormal position, which increases the risk of infection.
Q. Does the length of time over which the dilation for intact D&X occurs, do you think that also increases the risk of infection?
A. It increases the risk because the length of time a foreign body is there, the greater the risk of bringing bacteria from the vagina to the cervix, either on the first application or on the subsequent applications of the laminaria. Sometimes the actual little sticks will break the amniotic sac, too, which significantly increases the risk of infection because then you have the bacteria going from the vagina to the uterine cavity. And I know that happens just obviously intuitively it happens, but the different authors, including Haskell, describes it in his paper that sometimes it breaks and sometimes it doesn’t. And the next day when they remove them and proceed to the next step of the procedure, if it has — his comment is “if it hasn’t already ruptured,” which obviously tells you sometimes it does, then he ruptures the membranes. So you have another significant risk of infection there, especially if it broke. You inserted them on day two, and you waited to day three to do the procedure, you’ve got a ruptured bag of waters with foreign bodies sitting in the cervix for potentially 24 hours.
Q. Doctor, you said something a few minutes ago about the amount of bacteria in the vagina. What I think you said was: “10 to the ninth”?
A. Yes. It is a mathematical term. And you add 10, and add nine zeros. That is the number.
Q. Doctor, I think you also mentioned the internal podalic version as presenting a risk to the patient. Why is it your opinion that that maneuver presents a risk to the patient?
A. Having done it as well, there is a strong mechanical force in taking the fetus and basically forcing it to do a summersault within the uterine cavity. These are not little things that you just kind of push gently, and it just turns. It doesn’t work that way. You are using a great deal of force in turning it upside-down that does trauma to the uterine cavity and could disrupt the placenta and cause bleeding. And rarely things like amniotic fluid embolus. Those are not common things that could happen, but rarely they could. And, in fact, in Williams’ textbook of obstetrics, which is one of the most premiere, respected obstetrical textbooks for teaching medical students, when I was a student was the primary textbook, it specifically says that there are very few, if any, indications to do internal podalic version other than the second twin. And in various editions he actually says it is potentially harmful. He says that it is the most common cause of traumatic uterine rupture.
Q. Doctor, if I can ask a few follow-up questions on those things. You mentioned disrupting — the potential for disrupting the placenta. What can that lead to?
A. Again, these are rare situations, but there is potential trauma if you disrupt the placenta at that point. There will be bleeding. And you are also — you have got vernix parts, white stuff on the fetus. There is not as much that early in pregnancy. You have still got some amniotic fluid around. When you disrupt the placenta, some of that material can get into the maternal circulation, which could cause an amniotic fluid embolism in the mother, which is a very serious situation.
Q. Is there any risk in that internal podalic version of causing maternal bleeding?
A. Because if you do separate the placenta, all the blood supply to the uterus goes to the surface of the placenta and stops there. If the placenta starts to separate, you, in fact, have an abruption of a placenta, and there would be internal hemorrhage.
Q. So you have never encountered a situation where the pregnancy had to be terminated before viability because of a maternal health condition?
A. I have not.
Q. Doctor, are you aware of any maternal health conditions that would require terminating pregnancy by the intact D&X method?
A. And after careful review and after sitting on both the ACOG — correction — AMA task force, we could not find any medical conditions that would require an intact D&X. The ACOG panel could not come up with any situations that would require an intact D&X. And, in fact, in reading each of the numerous declarations and depositions I haven’t seen any physician [here a hearsay objection was sustained]
Q. Doctor, in your practice have you seen a need for the use of the intact D&X [partial birth] method?
A. I have never seen a situation where an intact D&X method was necessary to be performed.
National Abortion Federation, et. al. v. Ashcroft
U.S. District Court, Southern District of New York
The Honorable Richard Conway Casey, Judge
Partial birth abortions are usually done in the late second trimester. All pictures of babies were taken at this time, so they all would be potential candidates for this type of abortion
DAY TWO: Tuesday, March 30, 2004 (DAY ONE, opening statements only)
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 device 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.
Pictures: From Dr. Tiller’s abortion facility in Kansas, the mother and father of an aborted baby take pictures with their dead child.
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 WITNESS: I guess whenever I —
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 contents; yes.
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 [head] 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.
DAY FOUR: Thursday, April 1, 2004.
Excerpts from direct examination of Dr. Cassing Hammond:
A. So when we do this procedure, I’ve got the patient asleep, I’ve got a device that I can hold on to the top of the cervix – So I can lift the cervix, look at the back of the neck, and then a scissors, which we have on our operating table, and make an incision in the back of the fetal neck. That whole time I can see what I am doing. And in the very rare cases where I can’t see what I am doing, I can usually put my finger, in fact always put my finger, on top of my scissors, which are against the back of the fetal neck, and I have complete control and feeling the entire time I do this. In those cases, feeling is just as good as seeing. I know exactly where the scissors are. They are not anywhere near the patient’s cervix or uterus. It is a completely visible, completely palpable in the sense of feeling operation. If you contrast that with a D&E that is by dismemberment -RGS the last part of the procedure usually involves trying to get the head or calvarium out. What I am having to do in one of those procedures is to try to feel with an instrument up inside the uterus with this skull that is bobbing at the end of my instrument, and I have to get around it.
Q. Dr. Hammond, do you always use scissors or other instruments to breech the fetal head or the fetal neck in the course of doing an intact D&E of this kind?
A. Not always. It depends on the fetus. If you’ve got a fetus that is earlier in gestation, the skull, or calvarium, it is soft. It isn’t as firmly formed. So in those cases you can often do this just with your finger, you can do this digitally. In some cases the scissors probably after 20 weeks I am more likely to use them. We actually have a number of instruments on the table that I can use, whatever seems like it is going to be most effective.
Excerpts from cross examination of Dr. Hammond:
Q. [Y]ou told the Judge that you explained to your patients what compressing the head means, correct?
A. Yes, we do.
Q. But in fact, you don’t explain to every patient that there is a possibility that you might remove the fetus intact up to the point where the head is stuck in the internal cervical os and you perform a procedure to compress the skull or puncture the skull, do you, Doctor?
A. Not to every patient, no.
Q. You only do it if the patient asks you, isn’t that right, Doctor?
A. In some cases, yes.
Q. And in fact, Dr. Hammond, no patient has ever asked you, has she?
A. I don’t know. Somebody might have. I don’t have an independent recollection at this point.
Q. Directing your attention to page 233, line 4 of your deposition in this case:
“Q has a patient ever asked that?
“A not to my knowledge, no.”
Q. In fact, the closest you have ever come to having this kind of conversation with any of your patients is when they’ve come in and they’ve said to you, Doctor, is the procedure similar to what we’ve been hearing about in the media as being encompassed by the partial-birth abortion ban act of 2003 or a similar statute? Isn’t that right, Doctor?
A. That is true.
A. So, if they choose to pursue this in any way or bring it up we will have this conversation with our patients.
THE COURT: With the technical language that you used here?
A. No. No. No. No. With patients I make the most, the best attempt I can not to use words like calvarium and to replace it with skull and so forth, but we don’t — we don’t sugar coat it too much, your Honor.
THE COURT: You use reduction rather than crushing the skull.
A. I will say crush, clamp and extract and I use those very words because those are what patients understand. We want them to know exactly what the procedure is going to entail and we actually try not to sugar coat this for them because they’re the ones who are going to undergo the procedure.
THE COURT: But only if they ask.
THE WITNESS: No. Occasionally a patient clearly wants more information and if we sense that we try to give what’s appropriate to the patient. Keep in mind, a lot of my patients are emotionally quite fragile so we don’t have to bring up the terms — we don’t have to go into gory detail about everything that we are doing. But does that mean that we don’t share with them, that this involves dismemberment or separation of parts of the fetus or taking the fetus apart? We do. And we use that term. We say we take the fetus apart. We say, it is coming out in pieces and we make sure that that’s clear with the patients. And they understand it. And given the circumstances that they confront and their alternatives, the majority of them want us to do the procedure.
THE COURT: Do you tell them whether or not it hurts the baby?
THE WITNESS: We have that conversation quite a bit with patients, your Honor.
THE COURT: And what’s your answer?
THE WITNESS: We say several things to the patient, your Honor. First of all, we tell the patient that it’s controversial what exactly — what the fetus experiences of pain at various gestational ages. We share with them the fact that even for normally developed fetuses people debate the beginning of sensation of the fetus.(Studies show that a baby at the latter part of the second trimester feels pain. See also Does the Baby Feel Pain?), They debate at what gestational age the fetus is able to interpret pain as we think about it. We share with the patients that even though there are speculations about these things among normal fetuses, when you start dealing with the kind of circumstances that we confront where a baby may not have its forebrain or may not have its brain or may have it which is in essence a completely disrupted and in some cases spinal cord, that there is no data that lead us to know what the baby feels.
THE COURT: How about when there is no anomaly instead of all these exceptions, how about when there is no anomaly.
THE WITNESS: We say that there is a possibility and one of the things that we are doing with most of these patients after 16 to 18 weeks is they’re all under IV anesthesia, not just conscious sedation where it’s some IV administered medications that likely don’t reach the fetus in high concentrations but — and not an inhalational anesthesia where it less would reach the fetus by IV deeply sedating anesthetic which may confer some pain control to the fetus. We also share with them their alternatives and we share with them the fact that we really don’t know what the fetus feels and some of the other things that they can do for pain. For example, frankly, your Honor, I think we sugar coat some of the other option and we share this with patients. They might ask, well can you give intracardiac injections that we discussed or could you, could we do an induction termination and avoid this? But the honest truth is, how do we know that taking this huge instrument and poking it into the baby’s heart and injecting a poison hurts any less than my rapidly cutting the umbilical cord or transecting the spinal cord with my scissors? Or how do we know that poisoning the environment that the baby is in with digoxin is any more painful or less painful than my doing a very rapid D&E. And if the baby delivers and is living in the sense of a medical induction, we’re assuming because nature takes it course that it’s not painful. But if the baby slowly tires and stops breathing and dies by asphyxiation it is reasonable to assume that even for a normally born fetus a normally formed fetus that this may also involve pain. So what we are really asking the patients that I see is, which do you think is going to hurt worse for your fetus?
THE COURT: Excuse me. You don’t feel any obligation whatsoever to protect the life of the fetus?
THE WITNESS: We are seeing —
THE COURT: I am asking you something.
THE WITNESS: With many of my patients, yes, particularly post-viability, your Honor.
THE COURT: You don’t find any dual responsibility, your obligation is only to the woman?
THE WITNESS: In the circumstances in which I am doing terminations, that is correct. …..
Q. What do you do under those circumstances when you have delivered a fetus that is alive in the course of an induction termination?
A. The very first thing we do is to assess the viability of the fetus. By that, we perform a very rapid assessment of whether we think this fetus is of the gestational age where resuscitation is appropriate. If there is any question of in our minds at apprentice, we have a full — excuse me — a 24-hour in-house [neonatologist] whom we contact who does an immediate assessment and then would perform whatever resuscitative measures are necessary on behalf of the baby -PLT. Assuming, since we usually have very, very good data about gestational age and know that these are nonviable fetuses, assuming that that is not the case, we would then provide comfort and care to the baby. By that, we would place the baby under a radiant warmer to keep the baby warm. We might wrap the baby. Then depending on what the mother wishes to do, allow the mother to hold the baby at this point and simply [wait] for nature to take its course.
Q. You have seen a fetus born alive after induction abortion in the second trimester, haven’t you?
A. I’m sorry, can I just — you said after induction abortion in the second trimester? Am I correct?
Q. Yes. Doctor.
A. Yes, I have.
Q. And you have observed signs of life in the fetus, didn’t you?
A. That is correct.
Q. You have seen spontaneous respiratory activity, right?
Q. Spontaneous movements?
Q. And you have seen these signs at 24 weeks, right?
A. That is correct. Q. 23 weeks?
A. Yes. Q. 22 weeks?
Q. Doctor, don’t you make an effort when you perform D&E by dismemberment to count the fetal parts after the procedure is over?
A. No. We look for sentinel parts. But we don’t count every single part that we’ve extracted after one of these procedures, no.
Q. Well you make an effort to count the four extremities and the head, don’t you?
A. That we do, yes. …..
Q. You could use a combination of your hand and your instrument; not really grasping but helping and assisting the delivery of the infant to the point its head gets stuck, right?
A. That is correct.
Q. Sometimes you place an instrument in the uterus, grasp a lower extremity, deliver it into the vagina, take the instrument off, grasp the lower extremity with your right hand, feel with the fingers of your left hand beyond the external os to the opposing extremity, deliver that extremity to get a better grasp on the fetus and then continue the delivery, correct?
A. That is correct.
DAY FIVE: Friday, April 2, 2004.
Excerpts from direct examination of Dr. Carolyn Westhoff:
THE COURT: Doctor, that isn’t my question. Do you discuss dismemberment? Do you tell them about ripping or tearing a limb off the fetus?
THE WITNESS: I may very often discuss that I remove the fetus in pieces but that is not necessarily a uniform part of the discussion.
THE COURT: Well do you do it most of the time? I mean, do they really understand what are you doing when you tell them all these clinical terms?
THE WITNESS: I try to use everyday language and not use terms that are going to be confusing to the patient. We try to —
THE COURT: Do any of them ask you whether or not the fetus experiences pain when that limb is torn off?
THE WITNESS: I do have patient who ask about fetal pain during the procedure, yes.
THE COURT: And what do you tell them?
THE WITNESS: I, first of all, assess their feelings about this, but they of course even notwithstanding the abortion decision, would generally tell me they would like to avoid the fetus feeling pain. I explain to them that in conjunction with our anesthesiologists that the medication that we give to our patients during the procedure will cross the placenta so the fetus will have some of the same medications that the mother has.
THE COURT: Some.
THE WITNESS: Yes, that’s right.
THE COURT: What do you tell them, does the fetus feel pain or not when they ask?
THE WITNESS: What I tell them is that the subject of the fetal pain and whether a fetus can appreciate pain is a subject of some research and controversy and that I don’t know to what extent the fetus can feel pain but that its —
THE COURT: Do you tell them it feels some pain?
THE WITNESS: I do know that when we do, for instance an amniocentesis and put a needle through the abdomen into the amniotic cavity that the fetus withdraws so I certainly know based on my experience that the fetus with withdraw in response it a painful stimulus.
THE COURT: Don’t you make it simple for them and say yeah, they feel it?
THE WITNESS: I am not confident what the fetus feels with the anesthesia that we use and I don’t want to shy away from the possibility the fetus feels pain but I do not believe it’s fully determined what the fetus feels during this procedure.
THE COURT: Do you care?
THE WITNESS: Certainly.
THE COURT: Have you ever lacerated the cervix?
THE WITNESS: Yes. I have had patients experience cervical laceration under my care during D&E.
THE COURT: I want to know whether that woman knows that you are going to take a pair of scissors and insert them into the base of the skull of her baby, of her fetus. Do you tell her?
THE WITNESS: I do not usually tell patients specific details of the operative approach. I’m completely —
THE COURT: Do you tell her that you are going to then, ultimately, suck the brain out of the skull?
THE WITNESS: In all of our D&Es the head is collapsed or crushed and the brains are definitely out of the skull but those are —
THE COURT: Do you tell them that?
THE WITNESS: Those are details that would be distressing to my patients and would not — information about that is not directly relevant to their safety.
THE COURT: Don’t — whether it’s relative to their safety or not don’t you think it’s since they’re giving authorization to you to do this act that they should know precisely what you’re going to do?
THE WITNESS: That’s actually not the practice I have of discussing surgical cases with patients.
THE COURT: I didn’t ask you that. I said don’t you think they ought to know?
THE WITNESS: No, sir, I don’t.
Q. Do you tell a woman who is considering a D&E that the fetal arms, legs, extremities may be dismembered is in the course of a dismemberment variation D&E, Dr. Westhoff?
A. I tell patients that we will remove all of the fetus and the uterus and membrane, the placenta and membranes from the uterus as safely as possible and that that proceeds somewhat differently for all patients.
Q. How often will it be necessary to collapse the fetal skull during D&E whether the D&E proceeds by a dismemberment or more relatively intact, Doctor?
A. For the vast majority of D&Es [it will] be necessary it either crush or collapse the fetal skull.
THE COURT: Do you tell the woman that? Do you use the word crush?
THE WITNESS: Your Honor, I do not.
THE COURT: I didn’t think so.
Q. Is there a difference, Dr. Westhoff, between the way a head, fetal head may be collapsed in a D&E by dismemberment and the way it may be collapsed during a D&E performed by the intact [method]?
A. Yes. The approaches are different. In the dismemberment D&E the fetal head will be up inside the uterus. It is necessary to insert our forceps, open them as wide as possible to try to capture the head within the opening of the forceps and then crush the head using external force applied against the head. With an intact D&E, when we have put a hole into the base of the skull we can generally do that under direct visualization because the base of the skull is, thanks to traction, held right in the cervical opening and so it is, in my experience and my opinion, less risky to put a hole in the base of the skull. Because the contents of the skull are liquid the skull contents may often drain out spontaneously as soon as there is a hole in the skull. In some cases it is necessary to use [suctioning].
Q. What have women told you as to reasons why they wish to terminate pregnancies after the first trimester?
A. There are several categories of. One is personal problems such as relationship problems and social problems. A much larger group in our practice is women who HIV abnormalities in the pregnancy itself. These may be chromosomal abnormalities that have been diagnosed or anatomical abnormalities of the fetus, and a smaller group are problems with maternal health. That is a smaller category than the other two.
Q. How do the contractions during induction [abortion] during the second trimester, Dr. Westhoff, compare to those typically experienced at term during labor?
A. The uterine contractions during an induction abortion are similar to the contractions that women experience during childbirth where labor is also induced using similar med situations. I believe based on my experience that contractions that are induced with medication are more painful than contractions that occur spontaneously.
THE COURT: How could you know that without feeling it yourself?
THE WITNESS: Your Honor, if it is appropriate, I have been through childbirth and have had an induction myself. But I have taken care of many, several thousand, patients in childbirth. Based on my observation of spontaneous labor and induced later, I have a very definite opinion that induced labor is more painful for my patients.
Q. Dr. Westhoff, can you state whether in your opinion the intact variation of D&E facilitates a grieving by the woman or parents with respect to the D&E abortion?
A. Yes. We have taken care of several patients who have availed themselves of the opportunity to hold the fetus after a termination done by the intact D&E meld. Because it is the back of the skull that collapsed, since this is not disfiguring, and the face, for instance, is intact. Several of my patients have wished to hold the fetus after the procedure and have expressed gratitude that they were able to do so.
THE COURT: Would any of those patients that have expressed that desire to assist them in grieving, and certainly grieving is a serious thing, in any of those instances did you tell those mothers that what they authorized you to do was to make an incision at the base of the skull of their baby and suck its brain out?
THE WITNESS: Your Honor, I definitely —
THE COURT: It is a simple question, Doctor. Did you in any of those cases?
THE WITNESS: I definitely in those cases discussed collapsing the skull. I definitely don’t recall exactly what words I used to communicate it.
THE COURT: But did you tell them that you would be sucking the brain out of the same baby that they desired to hold, for the grieving process? Did you tell them that is what you did?
THE WITNESS: I definitely tell them I collapsed skull.
THE COURT: How about [sucking] the brain out, did you tell them that before they wanted to hold that baby so they would know that is what they had authorized you to do?
THE WITNESS: They know that the head is empty. I do not use the term “sucking the brain out” with my patients. I don’t think that helps the grieving process.
Q. Dr. Westhoff, you mentioned a moment ago that the face may remain even though the head is collapsed and the intracranial content suctioned out. Can you explain how that occurs?
A. Yes. The fetus has a tiny face and a relatively large head. The bones of the back of the skull are very soft. When we make an incision in the base of the skull, we don’t disturb any of the skin covering the entire skull, we don’t disturb the scalp. So the top and back of the head itself just collapses and looks a little wrinkly and collapsed, but the facial structures are not disturbed at all by that procedure.
Q. Do you or the hospital take any other steps to help facilitate the grieving process in circumstances where parents may indicate they desire it?
A. Yes, sir. We have clergy available to meet with our patients during their pre-op visits or on the day of their surgery. We have social workers available. And we also have a variety of referrals available. We have arrangements to permit burial of the fetus if the patients want. Because the hospital also has small coffins present, both for stillbirths or for fetuses after a termination, and in the case of our D&E patients we actually have little hats available so we could in fact cover the back of the head where the incision had been made.
Q. When you perform an intact D&E, Dr. Westhoff, is the fetus living when you commence vaginal delivery?
A. Although I don’t always check for it, I believe there is usually a heartbeat and that the fetus is living.
Q. And at the time you either cut the umbilical cord or collapse the skull, is the fetus living?
Q. Dr. Westhoff, do you make it a practice either to effect fetal demise by using potassium chloride, as we have heard about, or injecting a toxin into the amniotic sac prior to the time that you effect a surgical evacuation of the uterus?
A. No, Mr. Hut, I usually do not do so
Q. Why not?
A. The main reason that it is an additional procedure that does not offer any benefit to the woman that I am taking care of. The procedure itself is not trivial, it can be difficult to accomplish, can fail, and has some risks. Those are the main reasons I do not use this procedure.
THE COURT: As you said this morning, there is some dispute as to fetal pain. If you had done that, there wouldn’t be any pain, would there? To the fetus I’m talking about.
THE WITNESS: I don’t think we know whether intracardiac injection would cause fetal pain, your Honor.
THE COURT: I take it, then, the question of the infliction of pain to the fetus is not on the top of your list of concerns when doing your work?
THE WITNESS: While I wish to avoid fetal pain, I have no desire to inflict fetal pain- top of my list is the safety of the woman who is undergoing the procedure.
THE COURT: In fact, do you consider fetal pain at all?
THE WITNESS: Yes, your Honor. As I previously stated, I think one of the benefits of using general anesthesia with my patients, since I don’t know if there is fetal pain, is that the general anesthesia crosses the placenta and does circulate in the fetal circulation and may have a physiologic effect in the fetus, and I think that is a benefit.
THE COURT: That is the limit of your concern? OK. Next question.
DAY SIX: Monday, April 5, 2004
Excerpts from cross- examination of Dr. Carolyn Westhoff:
Q. Then assuming that you have sufficient dilation you will take two of your fingers, reach into the woman and attempt to grasp a fetal part and bring it down into the cervix, right?
Q. And you like to grab the fetus’ foot if you can, right?
Q. And if you can you bring down the fetus’ foot and then you break the amniotic sac with your forceps, right?
Q. Then, because the fetus is wet you take a piece of gauze to help improve your grasp and you bring one foot down and if possible sweep the second foot through the cervix, right?
Q. Then with gentle traction on both of the feet you pull the fetus through the cervix, right?
Q. Well, you pass a finger up through the cervix to find the fetus’ arms, right?
Q. And generally they’re extending into the uterus at that point, aren’t they?
Q. And so you will move your finger along the shoulder to sweep the arm across the fetus’ chest, right?
A. I may do that, yes.
Q. And by doing that you sweep the arm down and around and the arm comes through the cervix, right?
Q. And then you repeat that maneuver on the opposite side of the fetus’ body to sweep down the other arm, right?
Q. And at that point the fetus’ body is below the cervix and the neck is in the cervix with the head still in the uterus, right?
Q. And it’s at that point that you take a scissors and insert it into the woman and place an incision in the base of the fetus’ skull, right?
Q. Now the contents of the fetus’ skull, just like the contents of my skull and your skull is liquid, right?
A. That’s right.
Q. And sometimes after you’ve made the incision the fetus’ brain will drain out on its own, right?
A. That’s right.
Q. Other times you must insert a suction tube to drain the skull, right?
A. That’s right.
Q. And then the skull will collapse immediately after its liquid contents have been removed and the head will pass easily through the dilated cervix, right?
A. That’s right.
Excerpts from direct examination of Dr. Marilynn Fredriksen:
Q. You mentioned that you perform a procedure known as dilation and evacuation, or D&E, is that correct?
Q. Approximately how many D&E procedures have you performed throughout your career?
A. I really don’t know, but probably thousands.
THE COURT: Thousands, plural?
THE WITNESS: Thousands, plural.
THE COURT: Have you ever perforated a uterus or done any of these things?
THE WITNESS: Yes.
THE COURT: Were you ever sued for malpractice?
THE WITNESS: Yes.
THE COURT: Involving an abortion?
THE WITNESS: Yes.
THE COURT: Just one – did in the malpractice suit against you, Doctor, did the plaintiff recover?
THE WITNESS: No.
THE COURT: Was there settlement?
THE WITNESS: No. We won.
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.
DAY SEVEN: Tuesday, April 6, 2004.
Excerpts from direct examination of Dr. Marilynn Frederiksen: Q. Is it always necessary to make an incision at the base of the fetal head to facilitate delivery in an intact D&E?
A. No, it is not.
Q. Why not?
A. In certain circumstances it is easier to just use grasping forceps and deliver the head through the cervix.
Q. Dr. Frederiksen —
THE COURT: Excuse me. Grasping forceps, does that mean you crush the skull?
THE WITNESS: You compress the skull, yes.
THE COURT: You crush it, right?
THE WITNESS: Yes.
THE COURT: So you use your finger to get the contents of the skull out rather than sucking the contents of the skull out, is that correct?
THE WITNESS: Yes.
Q. Have you ever injected KCl or digoxin into the fetal heart before beginning a pregnancy termination in the second trimester?
A. Yes, I have. …..
Q. Can a physician affect fetal demise by injecting KCl or digoxin anywhere other than in the fetal heart?
A. You can’t guarantee the process.
Q. Why not?
A. I have been unable in certain cases to actually put a needle into the heart for technical reasons or because the mother is obese or the fetus is in a particularly difficult position to gain access to the heart. When you put these agents not in the heart or near the heart, you can’t guarantee fetal death.
Q. Has it ever happened that you have attempted to inject a feticidal agent into the fetal heart but failed to do so and demise failed to occur?
Q. Can you describe that for us, please.
A. Technically, we couldn’t get the needle into the heart. We chose to put digoxin into the muscle mass of the fetus. The fetus still had a heartbeat the next day.
Q. How did you learn to perform an intracardiac fetal injection?
A. It was an extension of my maternal fetal medicine training.
Q. In what context?
A. We initially started to do intracardiac injections of small fetuses in the end of the first trimester and the beginning of the second for the purpose of reducing multifetal pregnancies or multiple gestations, either with a twin gestation, where one twin is normal and the other is abnormal, or of a situation where we have too many fetuses within the uterus.
Excerpts from cross-examination of Dr. Marilynn Frederiksen:
Q. Doctor, you would never use a scissors to grasp for and extract fetal parts, would you?
Q. In an intact D&E you use a scissors to puncture the fetus’s skull at the base of the neck, correct?
Q. You would agree, Doctor, wouldn’t you, that a scissors is potentially more dangerous to the woman than a forceps if a mistake is made, right?
Q. A scissors is more dangerous than a forceps because a scissors is a sharper instrument than a forceps, right?
Q. In fact, Doctor, in your opinion, forceps do not pose a risk of cervical laceration, do they?
A. I don’t think so, no.
Q. Doctor, you offered the opinion in your expert report that one advantage to intact D&E is that you get an intact fetus for pathologic assessment, right?
Q. In fact, with an intact D&E you don’t actually get a fully intact fetus, do you?
A. That’s correct.
Q. A fetus aborted by intact D&E has no brain contents, does it?
A. No, it does not.
Q. At the conclusion of the procedure, you examine the products of conception to ascertain that they have all been evacuated?
Q. When you do a D&X or intact D&E, you either compress the fetal head with forceps or you make an incision into the back of the neck, into the skull, with a scissors, and then you cause disruption of the fetal brain?
Q. To disrupt the fetal brain, you use your finger, and that compresses the contents of the head and allows it to pass through the cervix?
Q. When you do a D&X in breech presentation, you grasp the fetal foot, and with careful manipulation of the fetus you deliver the fetus to the trunk, right?
Q. Then you essentially do a breech delivery, where you are left with the fetal head inside the cervix, right?
Q. Then you either compress the head or you enter the skull with scissors and disrupt the fetal brain, correct?
DAY EIGHT: Wednesday, April 7, 2004
Excerpts from direct examination of Dr. Gerson Weiss:
THE COURT: Do you, when you tell them the various procedures available, say that in an intact D&E, if you choose to call it, or partial-birth abortion, that you take a pair of scissors and make an incision in the base of the skull?
THE WITNESS: I say that we take the fluid and material out of the skull.
THE COURT: No, Doctor. The question is simple. Don’t turn it around. Just do you tell them that if you do that procedure you’re going to take a pair of scissors and make an incision at the base of their baby’s skull?
THE WITNESS: I do not use that language.
THE COURT: Do you discuss with them whether or not this inflicts pain on the fetus or the baby?
THE WITNESS: No, I do not.
THE COURT: Do you tell them that you are going to use a suction device and suck the brain out of the baby?
THE WITNESS: Yes.
THE COURT: You use simple words and tell them that?
THE WITNESS: Yes.
THE COURT: Next question.
Q. Can you eliminate the risks of retained fetal tissue in a D&E involving dismemberment by counting the fetal parts at the end of the procedure?
. No, you can’t. You can count roughly. You can count there is a limb here, I can see feet and hands, I can see skull fragments, I can see trunk. But when you see little pieces, if there are small pieces left behind that are torn off, you can’t fully reconstruct and you cannot fully count the small pieces. Another way of looking at that is if you have a long bone that is broken into six parts, you are only going to say I see long bone parts. You will not be able to reconstruct to a point of that accuracy.
Q. Is your ability to bring the fetus out intact affected by the fetal tissue at that gestational age that you perform D&Es?
A. The earlier the pregnancy the more fragile the fetus. So, grasping a fetus early on is more likely to tear it and less likely to allow you to bring it out whole. If the fetus were older its condition would be tougher enough that it could take, you could move it into an appropriate position easier.
Q. And you also testified that you have, when you were speaking with the Judge, that you have used suction to remove the brain of the fetus, is that right?
Q. Is there another way that you have removed the head in the D&E procedures that you have performed?
Q. What is that?
A. You can in a, before 18 weeks, sometimes grab the head with one instrument, with a grasping instrument in one hand and use a grasping instrument in the other hand to grab the rest of the head. Usually with a twist you can deflate the head enough to bring it through. So, it’s a crush —
THE COURT: Do you crush the head?
THE WITNESS: Yes, it could be a crushing; yes, early on.
Q. What is it that you are using to bring the cervix down in your description?
A. You are using a grasping instrument called a tenaculum. Usually they have several opposing teeth which grasp the cervix and allow you to hold it without tearing.
Q. In the example you just gave, I think you said that there were several things you might do that would be an act that would kill the fetus. What might those things be?
A. One thing would be to simply pull the fetus out. Having done that, it is likely that the fetal head would remain inside, and in pulling it would have separated the head from the body, and that would have resulted in the fetal death and later delivery. Another possibility is that you would grasp the head under those circumstances and either crush it or hold it and then puncture it to deliver the head. In either case, you have done an overt act after delivering the fetus to the trunk.
Q. In the example you gave where you delivered the fetus up to the head, is any part of the trunk past the navel outside the woman’s body?
A. Yes, certainly.
Q. What part?
A. Depending on the anatomy of the woman, most of the cervix is dilated, so it is usually a good part of the fetus, probably from the navel down in the situation when the vagina and the cervix are in the same plane or close to the same vertical plane.
Q. In that example is any part of the trunk above the navel outside?
A. It is possible that, depending on the situation, a part of the fetus above the navel would be outside. It depends only on the geometry of the cervix and how far the cervix is brought down.
Q. In the example you gave where the head separates, is that an act that you know will kill the fetus?
A. It is.
Q. Is that an act that completes the delivery of the fetus.
A. No, it is not.
Q. Why not?
A. Because you would then have to remove the head.
Q. You would have to go back —
A. You would have to go back, grasp the head, and remove it.
Q. Dr. Weiss, what is your purpose, in the example you just gave, in delivering a fetus up to the head after removing an arm? What is your purpose in doing that?
A. Your purpose in doing the procedure is overall to terminate the pregnancy, to make the woman no longer pregnant
Excerpts from cross-examination of Dr. Weiss:
Q. You were on the board of directors of Planned Parenthood of Essex County from 1992 through 1997, is that right?
A. That is correct.
Q. You are still a member of Planned Parenthood?
A. I don’t know if I am a member.
Q. Would it surprise you to learn that your CV lists you as a member of Planned Parenthood?
A. No. I am not sure what the dates are. I would be continuing a member if I sent them a check this year, and I don’t recall doing so.
Q. As soon as the law on abortion changed in 1971, you were part of a group that established a Planned Parenthood-sponsored abortion facility in Pittsburgh, is that correct?
A. That is correct.
Q. And you have provided testimony —
THE COURT: What year was that?
MR. LANE: Excuse me, your Honor?
THE COURT: What year was that?
MR. LANE: 1971, your Honor.
THE WITNESS: Excuse me, sir. I misspoke. On recollection, it was after the law was changed, and that was January 22, 1973. So I believe it was 1973.
THE COURT: A date that sticks in your mind, is it, Doctor?
THE WITNESS: Vividly.
Q. Doctor, in your view, you don’t set out to do a specific abortion procedure, but instead set out to make a woman unpregnant, isn’t that right?
A. That’s correct.
Q. The word “unpregnant” is your term, right, Doctor?
A. That’s correct.
Q. That is a term you used here this morning as well as in your deposition?
Q. That is not a medical term, is it, Doctor?
A. No. It is a term in English.
THE COURT: It is a what term?
THE WITNESS: A term in English.
DAY SEVEN: Thursday, April 8, 2004.
Excerpts from direct examination of Dr. Stephen T. Chasen:
THE COURT: Yes. Do you tell them straight out what you are doing? No sugar coating, just you tear it off and remove it in pieces?
THE WITNESS: There is nothing I can do to make this procedure palatable for the patients. There is no sugar coating.
THE COURT: I didn’t ask you that, Doctor. I know it is not pleasant. I want to know whether or not these people know, have a fully-educated discussion with you what you are going to do.
THE WITNESS: We have a full and complete discussion about the fact that in most cases the fetus will not pass intact through the cervix and in many cases —
THE COURT: No, let’s go back. I asked you a simple question. Do you tell them you are going to tear limbs off?
THE WITNESS: I don’t have simple discussions with my patients. I have involved discussions. I can share with you what I tell my patients.
THE COURT: Go ahead. I am asking you, do you tell them you tear it off?
THE WITNESS: I initiate the discussion in general terms, and they always include the possibility that destructive procedures will be done to facilitate removal of the fetus.
THE COURT: Do you do it in nice sugar-coated words like that?
[note the doctor’s inability to answer yes or no questions with a ‘yes’ or ‘no’] THE WITNESS: My patients are under no illusions and they don’t regard that as sugar-coating and they are usually devastated-
THE COURT: How do you know, Doctor, do you see into their minds?
THE WITNESS: These are patients most of whom I have cultivated a relationship, and I can tell.
THE COURT: Oh, you can tell. Do you ever use the word you are going to tear the limb off?
THE WITNESS: Yes, I do, I use that terms sometimes.
THE COURT: You do?
THE WITNESS: That is not an option I give them. Their option is to have a D&E or to continue the pregnancy or to have a medical induction of labor. When I am telling them D&E, again, in general terms that some destruction of the fetus will be necessary and —
THE COURT: No, Doctor, let’s get back. [Do you tell] them that if it comes to that procedure, you will take a pair of scissors and insert them in the base of the skull?
THE WITNESS: I don’t use those terms, but, again, they know that the brain has to be removed so allow —
THE COURT: You don’t use those terms?
THE WITNESS: I don’t talk about the specific instruments that I use to accomplish this.
THE COURT: Do you tell them that you’re going to suck the brain out of the skull?
THE WITNESS: I don’t use the term “suck” but I say the brain has to be removed so that the skull will fit through the cervix without injuring them.
THE COURT: Do you ever discuss with them whether or not in the D&E, the dismemberment, when you tear limbs off, do they ask you, does it hurt?
THE WITNESS: Patients have asked about if —
THE COURT: What do you tell them?
THE WITNESS: I tell them that neither I nor anybody knows for sure whether it does.
Q. Doctor, in earlier answer, again I think in response to a question put to you by his honor, you made reference to certain observations you have made concerning fetal response to stimuli and response to anesthesia; what were those observations?
A. In some cases prior to inserting [laminaria] and performing the abortion procedure I will do a procedure to effect fetal death. I will inject the fetus with potassium which will stop the heart. The most common way to do this is by injecting a fetal directly into the heart of the fetus under ultrasound guidance. New these cases the mothers are not anesthetized and the fetuses don’t receive any anesthesia by route of the mother. And in every one of these cases, upon contact of the needle with the fetal chest, I see a withdrawal response of the fetus, recoiling that I can see on the ultrasound.
Q. Yes. Just describe for us if you can how you perform a D&E?
A: Once they’re under anesthesia I do an examination and based on the dilation of the cervix, based on the proximity of the cervix to the opening of the vagina, based on the fetal position that I can determine by palpation or with ultrasound that I have there, I determine the, what I feel will be the most appropriate way to evacuate the fetus from the uterus.
Q. And what might those appropriate ways be?
A. ….And in most cases the degree of cervical dilation will not accommodate passage of the fetal head through the cervix. And in this case my practice is to make an incision at the base of the skull with the scissors which I can do really under direct visualization, place a suction device within the skull, the brain tissue is aspirate and typically the head then delivers easily.
Q. And what do you do in the event that you are not able to —
THE COURT: Excuse me. Does that mean because the skull collapsed?
THE WITNESS: Yes.
THE COURT: That it delivers easily.
THE WITNESS: Once the skull has collapsed.
Q. In your experience, Dr. Chasen, are there ever cases in which, to your knowledge, the fetus dies during the course of an induction abortion?
Q. Based on your experience, Dr. Chasen, how long does the process of fetal death [by] asphyxiation take from the onset of contractions and induction abortion?
A. It could take many minutes.
Q. Dr. Chasen, in your experience, how is the fetal head extracted in a dismemberment D&E?
Q. Dr. Chasen, in your experience, how is the fetal head extracted in a dismemberment D&E?
A. The fetal head is extracted by placing the forceps around it and crushing it.
Q. How readily is that — how easy is that to accomplish?
A. In some cases it is relatively easily accomplished and in other cases it is very difficult.
THE COURT: Does it hurt the baby?
THE WITNESS: I don’t know.
THE COURT: But you go ahead and do it anyway, is that right?
THE WITNESS: I am taking care of my patients, and in that process, yes, I go ahead and do it.
THE COURT: Does that mean you take care of your patient and the baby be damned, is that the approach you have?
THE WITNESS: These women who are having [abortions] at gestational ages they are legally entitled to it —
THE COURT: I didn’t ask you that, Doctor. I asked you if you had any caring or concern for the fetus whose head you were crushing.