Abortionists' Testimonies

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


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


We urge you to spread this news far and wide.  The press refuses to print this testimony although it involves a landmark decision by Congress and  signed into law by President Bush.  If you thought this procedure was rarely performed and only involves a specific method of partial birth abortion, think again.  Read what the abortionists who are performing these heinous acts have to say themselves.


Read Current Updates on The Testimony






April 2, 2004




DAY TWO:  Tuesday, March 30, 2004.

Excerpts from NAF's re-direct examination of Dr. Amos Grunebaum:


THE COURT.  Doctor, you mentioned earlier today that you believe in full disclosure to your patients as to the procedures and the various possibilities that are available.

THE WITNESS.  Yes, I do.

THE COURT. And that you spell out for the woman just what is entailed in a D&E that involves dismemberment, correct.

THE WITNESS.  Yes, I do.

THE COURT.  You also spell out that if you are doing an intact D&E or D&X or partial-birth abortion, whichever term is used, that that entailed a partial delivery, and then the procedure you described of inserting the scissors in the base of the skull and using a suction devise to remove the brain.

THE WITNESS.  Yes, I do.


THE COURT.  And that some of them desire that because after the procedure if they want to see or hold the dead fetus, is that correct?


THE 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 COURT:  Describe it for me.

THE WITNESS:  It would be like the end of tongs that are combined that you use to pick up salad.  So they would be articulated in the center and you could move one end, and there would be a branch at the center.  The instruments are thick enough and heavy enough that you can actually grasp and crush with those instruments as if you were picking up salad or picking up anything with --

THE COURT:  Except here you are crushing the head of a baby.

THE WITNESS:  Correct.


THE COURT:  Was the body outside the woman's body to an extent?

THE WITNESS:  Some of it.  It can be or not.  Some of it can be or -- it depends on where the cervix is.  It depends on where the uterus is.  It depends how long the baby is.  It depends how long the mother's vagina is.

THE COURT:  At some times that you observed it was?

THE WITNESS:  Right.  And sometimes during the procedure the cervix can actually be brought down so that -- the cervix and the uterus can be moved up and down relative to the opening of the vagina.

THE COURT:  An affidavit I saw earlier said sometimes, I take it, the fetus is alive until they crush the skull?

THE WITNESS:  That's correct, yes, sir.

THE COURT:  In one affidavit I saw attached earlier in this proceeding, were the fingers of the baby opening and closing?

THE WITNESS:  It would depend where the hands were and whether or not you could see them.

THE COURT:  Were they in some instances?

THE WITNESS:  Not that I remember.  I don't think I have ever looked at the hands.

THE COURT:  Were the feet moving?

THE WITNESS:  Feet could be moving, yes.


THE COURT:  If you are all finished let me just ask you a couple questions, Dr. Johnson.  I heard you talk a lot today about dismemberment D&E procedure, second trimester; does the fetus feel pain?

THE WITNESS:  I guess I --

THE COURT:  There are studies, I'm told, that says they do.  Is that correct?

THE WITNESS:  I don't know.  I don't know of any -- I can't answer your question.  I don't know of any scientific evidence one way or the other.

THE COURT:  Have you heard that there are studies saying so?

THE WITNESS:  I'm not aware of any.

THE COURT:  You never heard of any?

THE WITNESS:  I'm aware of fetal behavioral studies that have looked at fetal responses to noxious stimuli.

THE COURT:  Does it ever cross your mind when you are doing a dismemberment?

THE COURT:  Simple question, Doctor.  Does it cross your mind?

THE WITNESS:  Does the fetus having pain cross your mind?



THE COURT:  Never crossed your mind.


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 WITNESS:  I don't ever remember being asked.

THE COURT:  And although you have never done an intact D&E, do you know whether or not the incision of the scissors in the base of the skull of the baby, whether that hurts?

THE WITNESS:  Well, I guess my response would be I think that the baby feels it but I'm not sure how pain registers on the brain at that gestational age.  I'm not sure how a fetus at 20 weeks or 22 weeks processes and understands pain.

THE COURT:  You have never done one of these procedures but did you ever ask what -- you say you know about it clinically, did you ever ask one of those who perform them whether it hurts the fetus?

THE WITNESS:  No, sir.

THE COURT:  When you describe the possibilities available to a woman do you describe in detail what the intact D&E or the partial birth abortion involves?

THE WITNESS:  Since I don't do that procedure I wouldn't have described it.

THE COURT:  Did you ever participate with another  doctor describing it to a woman considering such an abortion?

THE WITNESS:  Yes.  And the description would be, I would think, descriptive of what was going to be, what was going to happen; the description.

THE COURT: Including sucking the brain out of the skull?

THE WITNESS:  I don't think we would use those terms.  I think we would probably use a term like decompression of the skull or reducing the contents of the skull.

THE COURT:  Make it nice and palatable so that they wouldn't understand what it's all about?

THE WITNESS:  No.  I think we want them to understand what it's all about but it's -- I think it's -- I guess I would say that whenever we describe medical procedures we try to do it in a way that's not offensive or gruesome or overly graphic for patients.

THE COURT:  Can they fully comprehend unless you do? Not all of these mothers are Rhodes scholars or highly educated, are they?

THE WITNESS:  No, that's true.  But I'm also not exactly sure what using terminology like sucking the brains out would --

THE COURT:  That's what happens, doesn't it?

THE WITNESS:  Well, in some situations that might happen.  There are different ways that an after-coming head could be dealt with but that is one way of describing it.

THE COURT:  Isn't that what actually happens?  You do Use a suction device, right?

THE WITNESS:  Well, there are physicians who do that procedure who use a suction device to evacuate the intercranial


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


THE COURT:  Do they give full disclosure as to the various procedures available and what is entailed, such as the dismemberment, in some forms of D&E?

THE WITNESS:  If they do not and then the patient is referred to me for D&E, we do tell the patient what's entailed in a D&E.

THE COURT:  In simple, clear English?

THE WITNESS:  I think so, your Honor, yes. Now, there are variations, depending on the patient's own kind of psychological situation that we clearly take into consideration, but we actually have a large number of patients who look at us and say, let me get this straight.  What you will be doing is dismembering the fetus.  And we say, yes, that's exactly what we are doing.

THE COURT:  Do you tell them what happens when they do an intact D&E?

THE WITNESS:  If the patient --

THE COURT:  The brain is sucked out?

THE WITNESS:  Well I don't -- as a point of fact, your Honor, I don't usually do the suction part.  I do compress the calvarium and I do some other procedures.  I don't actually do suction so I don't explain that part.

THE COURT:  You don't explain that to them?

THE WITNESS:  Well I explain the method.

THE COURT:  You explain what a compression of the calvarium is?

THE WITNESS:  Yes, sir; that I do explain.

THE COURT:  That that's crushing the skull?

THE WITNESS:  I explain that, yes.





DAY TWO:  Tuesday, March 30, 2004.

Excerpts from Abortion Doctors' direct examination of Dr. William Fitzhugh: 


Q.  All right.  Going back now, I think you said in some instances when you use a suction cannula, that part of the fetus or the umbilical cord will come out through the cervix.  Then what do you do at that point?

A.  Well, if the umbilical cord comes down, I unattach that from its integrity.  I just break it and pull on it.  If a foot comes down, I grab the foot and pull down on that.

Q.  If no part comes down, as a result of the suction, what do you do?

A.  Then I have to place the ring forceps up into the uterus and find a part.

Q.  And is there a particular part that you're trying to grasp, at that point?

A.  I take whatever I can get, because I have really -- I have a feel of when you feel the cranium of the head, but that's about the only thing I have a feel of when you grasp until you pull it down. … I just pull down with the forceps and, you know, see what part you have, and see if you can get more of that part out.  If you get more of the part out, you twist to try to get more tissue out.  If that doesn't happen, then you pull hard enough that it will disarticulate at that point or break off at that point.


Q.  Do you have other concerns, when you find yourself in that situation, to cause you to use forceps to compress the skull?

A.  As I mentioned earlier, my preference is that when I use a suction, my preference is that I obtain the umbilical cord and separate the umbilical cord.  The one thing that I want--and I don't want the staff to have to deal with is to have a fetus that you remove and have some viability to it, some movement of limbs, because it's always a difficult situation.

Q.  So one of the reasons that you use the forceps is to compress the skull is to ensure that the fetus is dead when you remove it?

A.  That's one of the reasons.


Q.  ....what actions do you take during a D & E that would be fatal to the fetus?

A.  Well, number one, I like to interrupt the umbilical cord.  Number two, we are working on a young gestation, but that's not to do it.  And we break up parts in the uterus and we crush skulls.


Q.  Can you tell the Court how often the fetus comes through entirely intact, without you having to do anything more to remove it?

A.  It happens about two to five times a year.  And in those situations, it will occur one of two ways.  One is that the ladies has had some labor up to that point.  And when I remove the speculum, the laminaria and sponges from the vagina, she'll already have a foot in the vagina or two feet in the vagina.  That's one of the times it happens.  And the other time it happens is when I reach up and deliberately grasp for something.  I will get a foot, bring it down, and the whole body will come down.  And it happens about two to five times a year.

Q.  And in that situation, is the entire fetus coming out or is it any part of it remaining in the uterus?  Is the head -- 

A.  It can happen either way.  I would say one time out of those that I will pull and everything will come out.  I'll pull and twist and everything will come out.  And probably two or three times, I'll have to pull and the head will get stuck against the cervix.  So I'll have to use my ring forceps and crush the skull.


Q.  So other than drugs or making incisions in the cervix, could you simply detach the head at that point?

A.  I guess you could, but then you would have to find it.  …

Q.  Does it every happen that you would disarticulate a piece of the fetus, and then on the next pass, bring out the remainder of the fetus, except for the head?

A.  Its happened that way, disarticulated up to a knee joint.  You grab the next grasp and you brought most everything out.


Q.  But some of them are alive at the time you do the procedure?

A.  The majority of them are alive at the time.


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


Q.  So when you're doing the D & E procedure that you do, you expect dismemberment to occur; is that correct?

A.  It happens in the majority of cases, not expected, but it sure would be nice if it happened more often.


Q.  When there have been instances where the -- you have been doing a D & E and the fetus has come out intact, have you been aware of reactions from others in the operating room?

[Here counsel for the plaintiffs entered an objection, which the Court overruled.]

A.  Yes, they certainly show more interest in that when it happens than they do on a routine situation.

Q.  In fact, they gasp, don't they, when that kind of thing happens?

A.  Some of them gasp, yes, sir.

Q.  Your impression in those situations is that they were probably having a harder time dealing with that situation; is that correct?

A.  Yes, sir.


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


Q.  And after the grasp part passes through the cervix, what typically happens then?

A.  At some point, the more proximal part of the fetus that remains in the uterus becomes too large to fit through the cervix, and so it becomes, pulls apart from the rest of the body and becomes -- or it becomes disarticulated.

Q.  Okay. Is there an average number of times that you reach into the uterus? ....

A.  No.  It generally requires multiple passes.


Q.  And have you had any situations where the fetus is not necessarily coming out feet first but where  part of the fetal trunk past the naval has come outside the mother?

A.  Yes, . . . the upper extremity is removed included [sic] the shoulder area, and sometimes when--sometimes when we are doing the D & E, some of the first things that are removed are maybe a portion of skin from the trunk or even ribs or other trunk contents.


Q.  And can the fetus still be living in that it has a heartbeat or other signs of life at that time?

A.  Possibly, yes.


Q.  Do you know when the removal of the fetus, fetal demise occurs?

A.  No, I don't.

Q.  Is there any clinical significance to when you cause fetal demise during the procedure?

A.  Not in my opinion.


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


Q.   Okay.  When the head was struck, you disarticulated the body from the head; is that correct?

A.  Yes.

Q.  And you removed the body, compressed the head and removed the head;  is that correct?

A.  Yes.

Q.  And in decompressing the skull, you're trying to reduce its sides [sic] so it can fit through the cervix?

A.  Yes.

Q.  And when you are doing this, you're trying to remove skull pieces so the liquid brain will empty from the cranium and the head will decrease in size;  is that correct?

A.  And in compressing it, if it doesn't fit, and in my experience it hasn't fit without decompressing it in the process of crushing it or grasping it, it becomes punctured enough so that the cranial contents will drain, and then it will fit through the cervix.


A.  ....There was one instance where one of our faculty who doesn't normally perform them agreed to perform one on the labor floor, and then her mother needed emergency surgery, and in order to allow her to be with her mother, I came off my maternal leave to complete the D & E, …


DAY THREE:  Wednesday, March 31, 2004.

Excerpts from Abortion Doctors' direct examination of Dr. William Knorr:


Q.  Can you tell the Court approximately how many abortions you performed last year?

A.  Somewhere between five and six thousand.

Q.  Of those, can you estimate how many were second trimester abortions?

A.  Somewhere between 12 and 15%.


Q.  Dr. Knorr, before you begin to remove the fetus during a D & E procedure, is the fetus typically alive?

A.  . . . . the majority of the fetuses are alive.

Q.  And you don't routinely induce fetal demise, as part of your second trimester abortion procedures, is that right?

A.   That's right.  Very rarely.

Q.  And why not?

A.  I just don't believe in it .  I think that it's an extra procedure and, you know, we first have to remember, don't do any harm.


Q.  When it happens and the fetus comes through the cervix except for the head, how do you proceed?

A.  I first evaluate the cervix to see if I have enough room to slip a finger between the cervix and the fetal head, and if I can do that, I can then insert my crushing forcep around the head, crush the head and extract it.  If the cervix if very tight, I can't do that, I will use a craniotomy procedure, will turn the fetus so the back is up and find the area that I want to open, and either with a finger, dialator or a scissor will open that area and gently pull down. That pressure alone is enough to empty the cranium and extract the head.


Q.  And why don't you routinely do second trimester abortions by induction?

A.  I don't really have the ability to do that.  I cannot put a woman in the hospital where I have privileges and admit her for an elective abortion beyond 12 weeks of gestation, and even if I wanted to do 12 weeks and under, I can usually never find a nurse that will accompany me to the OR to do it.


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


Q. Also when you bring out a fetus in pieces, you make sure that  you have got all the parts that you want;  right?  You kind of --

A.  Yes.

Q.  You try and lay them out and put them back together as best you can to see if you have everything?

A.  Not necessarily.  Some of us keep track on the way out.


Q.  Dr. Knorr, is the procedure you perform consistent with this definition in DX 651?

A.  No.

Q.  In what way?

A.  … Breech extraction of the body excepting the head, well, according to the way I do my procedure, that sometimes occurs.  Partial evacuation of the intracranial contents of a living fetus to effect delivery of a dead but otherwise intact fetus, yes, I do do that.


Q.  Doctor, when you do have an intact extraction and the head gets stuck at the cervical os and then you do something to bring the head out, you testified on direct that sometimes the fetus is alive before you open the skull?

A.  Yes.

Q.  Right.  How can you tell?  What signs of life are there?

A.  Well, as I think I stated in my testimony, these fetuses are grossly obtuned, meaning that they have a lack of oxygen due to the tetanic contraction. They have some oxygen, there will be a fetal heartbeat, but they are generally limp.  Does that answer your question?





DAY ONE:  Monday, March 29, 2004

Excerpts from PPFA's direct examination of its lead witness, Dr. Maureen Paul: 


Q.  And when you begin the evacuation, is the fetus ever alive? 

A.  Yes.

Q.  How do you know that?

A.  Because I do many of my procedures especially at 16 weeks under an ultrasound guidance, so I will see a heartbeat.

Q.  Do you pay attention to that while you are doing the abortion? 

A.  Not particularly.  I just notice sometimes. 


Q. Okay.  Does it every come out completely without the head becoming lodged?

A.  Rarely it does.


Q.  And you had said that sometimes when you apply traction to the fetus it comes out intact up to point where the calvarium lodges; is that correct?

A.  Yes.

Q.  In that circumstance, what do you do to complete the procedure?

A.  Well, there are two things you can do.  You can disarticulate at the neck, or what I prefer to do is to just reach in with my forceps and collapse the skull and bring the fetus out intact.


Q.  You testified earlier, Dr. Paul, that the fetus can be alive when the evacuation begins; is that correct?

A.  That's right.

Q.  When in the course of the abortion does the fetus -- does fetal demise occur? 

A.  I don't know for sure.  I certainly know that if I deliver intact and collapse the skull that demise occurs.


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


Q.  In performing a D&E at 20 weeks gestational age and above, in your previous capacity, was there ever a time when you saw any indication that the fetus was experiencing pain?

A.  I have no idea what that means.


DAY TWO:  Tuesday, March 30, 2004

Excerpts from PPFA's direct examination of Dr.  Katharine Sheehan


Q.  Okay.  So after you have assessed the fetal presentation, What do you do next?

A.  Then, a cervical block of local anesthetic is placed around the cervix, and the amniotic sac is ruptured, allowing the amniotic fluid to flow out.  And, then, using the forceps, I begin the procedure if extracting the fetal part.

Q.  And how do you go about doing that?

A.  I generally try using the ultrasound to find the small parts of the fetus, “small parts” being considered the extremities.  I really prefer it if the lower extremities are presented first.  I can grasp the lower extremities of the fetus, and using gentle traction, extract the tissue.

Q.  And after you have done that, what do you have?  What happens next?

A.  I continue to put traction on the fetus tissue.  If the cervix is adequately dilated, then the fetus will generally slide down through the cervix, and I continue to extract the tissue until it is completely extracted. If the cervix is not so well dilated, then disarticulation and dismemberment happens.


Q.  So do you ever use a chemical agent to cause fetal demise?

A.  Yes.

Q.  What is that agent?

A. The agent is Digoxin.

Q.  What is Digoxin?

A.  Digoxin is the name for Digitalis, which is a cardiac medicine that is typically used for specific cardiac conditions, most typically heart failure.

Q.  And at what gestational age do you use Digoxin?

A.  We start using it at 22 weeks.

Q.  Why do you choose 22 weeks?

A.  We like to prevent an eventuality of a live birth, and because it seems to make the procedure move along a little bit easier on the day of the procedure. …We administer the Digoxin with a needle through the abdominal wall of the woman intro the uterus.  We are aiming to get it into the fetal heart, or at least into the fetal thorax.  However, we are not able to do that every time.  If we are not able to do that, then we attempt to put the Diogoxin into the amniotic fluid.  And it seems to work less often when it is just put into the amniotic fluid.

Q.  What percentage of time are you successful in getting the Digoxin into the fetal heart?

A.  I would say approximately 50 percent.


Q.  And what about the term "living fetus," what does that mean to you?

A.  It would be a fetus that still has a heartbeat, and that would still apply to many of my cases.

Q.  And in your practice do you bring the fetus to the point where the fetal trunk past the navel is outside the body of the woman?

A.  Yes, I do.  That's what I mainly do.

Q.  And that happens often?

A.  Yes.


Q.  You testified yesterday, I believe, that you have performed approximately 30,000 surgical abortions throughout your career?

A.  That is my best guess.


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


Q.  Thank you. If I could read that to you, page 101 [of Dr. Sheehan’s deposition], starting on line 22.and I should say first this question refers to your expert report; is that correct?

A.  Uh-huh.

Q.        “Question:  Could you describe, doctor, what you mean in paragraph 4 by your ‘best    efforts to remove the fetus intact?


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


Is that what you said?

A.  Yes.


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


Q.  And was there a time frame of when [Digoxin] was given?

A.  When we first started giving it, we always gave it at the time that we were doing our pre-operative evaluation, so that the patient would get the laminaria placed.  And then, after that, she would have the Digoxin injection. At that time we were waiting two days with the laminaria in place.  And, so, initially we were giving Digoxin two days before D&E.

Q.  And did you ever change that procedure, that time schedule?

A.  We did.  What started happening was we had an unfortunate number of women who were spontaneously going into labor and delivering at hospitals sort of all over the bay area, and it was distressing to everyone.



Date: Wednesday, April 7, 2004
Time 6:33pm
Southern District Court of New York

The doctor continued his testimony this afternoon. The doctor had testified on direct examination that induction was not as safe a method of abortion as dilation and extraction. This is important, because the Plaintiffs are attempting to prove that the procedure is necessary for the health of the mother. On cross examination, the doctor admitted that he had never done an induction abortion.

At this point, Judge Casey stopped the questioning.

Q: "Just a minute. You have never done one?"

A: "That is correct."

On direct examination the doctor gave some horrific examples of ways in which he could possibly trigger the ban, including one in which he tore off the arm of a fetus and then proceeded with a partial birth abortion. He then continued by saying that in another example, "You would have separated the fetal head from the fetal body, or you would grasp the fetal head and crush or puncture it."

The cross examination by Assistant U.S. Attorney Sean Lane established that many of the opinions by the abortion doctor were not based on extensive experience. The doctor claimed he did only one abortion per year for the last five years. It was also established that the doctor did not have a subspecialty in maternal fetal medicine, which covers high risk obstetrics, and so he had no expertise when it came to the type of women he claimed would be in danger if other abortive techniques besides partial birth abortion were used. He did admit, however, that he "cannot think of a circumstance that would require an intact D-and-E for maternal health conditions."

He testified on direct examination that he had supervised 5000 D-and-E procedures, but on cross examination he admitted that for most of the procedures he "supervised" he was not in the room. He also admitted that he had no training in abortion methods in the last 10 years. That made his testimony on procedures, which use very different methods than they did 10 years ago, fairly unhelpful for the Plaintiff's case.

When he was confronted with a statement from his deposition testimony taken in January that he later realized was not helpful for his case, he said, "I did state that, and I was wrong."

Mr. Lane clarified: "You mean, you did state that in your deposition, and you were wrong?"

The doctor responded: "Yes."

Another argument the Plaintiffs have attempted to make is that they are unsure what the ban covers because the terms are "ambiguous." Despite this claim, they continue to discuss the procedure with particularity when they are lauding its health benefits. Although this doctor claimed to be unable to distinguish various abortion procedures, Mr. Lane discussed with him some forms which he had approved for patient consent that specifically listed different abortion procedures. The doctor was not pleased to have to discuss those forms.

Judge Casey, in making an evidentiary motion allowing testimony by witnesses for the Justice Department, said again: "It is important that we have a full and complete hearing. They will be allowed to testify." It is encouraging that Judge Casey wants to allow all of the evidence to be heard in this case. Too often in the abortion controversy, legally relevant evidence has been excluded by Judges who felt uncomfortable delving into the substance of the procedure. This case will not suffer from that defect.

The doctor seemed to be suffering from an interesting memory disorder, which allowed him to remember things that helped his case, but never anything that hurt it. For example:

In 1998, while testifying in another case, the doctor was asked: "Have you ever delivered a live intact fetus during a D-and-E?"

He answered: "I don't know. I have never checked for that."

Then, when asked the same question today, he said: "Yes, I can recall several specific instances."

When asked why he suddenly could remember better, his response was: "That was 6 years ago." Apparently time enabled him to recall the past more vividly about some subjects.

Perhaps if he testifies in a case in the future, he will be able to recall whether or not he has ever used ultrasound in an abortion procedure. Today the questioning went like this:

Mr. Lane: "You have never used an ultrasound?"

Doctor: "I am not sure."

Judge Casey: "When would that have been?"

Doctor: "A year or two ago."

Judge Casey: "You perform one procedure per year, and you are not sure if it was one or two years ago or if it happened at all?"

Doctor: "I do a lot of things. My day is full."

Judge Casey: "I am sure it is."

The doctor's testimony also took some absurd twists reminiscent of the doctor who was unsure of what "above the navel" meant as he attempted to evade answering Mr. Lane. Mr. Lane was establishing that partial birth abortion can be more dangerous to the mother than other procedures because of the use of scissors to stab the baby.

Mr. Lane: "Doctor, would you agree that a pair of scissors is a more dangerous instrument if there is a mistake than a pair of forceps?"

Doctor: "No, I would not say that. A closed (pair of) scissors is not sharper than a (pair of) forceps."

Mr. Lane: "Doctor, in conducting this procedure, would you expect the scissors to stay closed the whole time?"

Doctor: "No."

Mr. Lane was also able to elicit testimony from the doctor indicating that there are no studies comparing intact D-and-E to other procedures. The doctor said, "That is clearly correct." There were also no studies comparing the risks of cervical laceration, uterine perforation, infection or procedure time between intact D-and-E and other procedures. So all you had was the opinion of a doctor who was on the board of Planned Parenthood, who has no special training in maternal fetal medicine, who has had no training in abortion in ten years, and who has supervised procedures while out of the room. Needless to say, Assistant U.S. Attorney Sean Lane was extremely effective in undermining the Plaintiff's case today.

The doctor also testified that he had removed a fetal head from the body before removing the body, and that he had removed a torso first after tearing off the limbs and head. He testified in accord with the other abortion doctors in response to the question: "You sometimes crush a part of the fetus with your instrument. Does your ability to do that depend on the gestational age?"

Answer: "Yes. Over time, as the fetus develops and its bones grow, they become harder and stronger and it increases in bulk and mass, becoming less friable -- meaning less able to be broken up or fractured."

Date:Wednesday, April 7, 2004
Time 1:08pm
Southern District Court of New York

The morning's testimony began with testimony from one of the Plaintiffs. After reading some deposition testimony into the record, the Judge asked why the witnesses testifying by deposition had been unwilling to appear in court. After the deposition testimony was entered, the live testimony began.

The Plaintiff testifying today is an active opponent of any effort to restrict abortion. He has served as an expert witness in several cases attacking abortion restrictions including parental notification for the State of New Jersey and the State Partial Birth Abortion Ban there.

Judge Casey questioned the doctor during his direct testimony. One of the arguments consistently made by the Plaintiffs has been that dismemberment D-and-E is more dangerous than intact D-and-E because it creates a higher risk of uterine perforation.

Judge Casey asked the doctor, "Have you ever perforated the uterus performing this procedure, D-and-E?"

A: "I do not start out a procedure saying..."

Q: "I did not ask you that, doctor. It is a simple question: Have you ever perforated the uterus performing a dismemberment D-and-E?"

A: "No."

When discussing the safety of the abortion procedure, the doctor testified, "Essentially every provider has had a perforation of the uterus, a small perforation is called a perforation, just as a three inch gash that causes tremendous bleeding is called a perforation. Everyone has this."

Judge Casey also questioned this doctor about whether or not he gives his patients disclosure of the details of the procedure.

Q: "Doctor, do you make a complete and full disclosure?"

A: "I try to."

Q: "Do you explain in simple, clear language that anyone can understand?"

A: "I tell them the fetus may be removed in pieces."

Q: "So, you do not make it clear that you are pulling off the parts of the fetus?"

A: "No, I do not."

Q: "Do you discuss fetal pain?"

A: "No."

Q: "When you discuss an intact D-and-E, as you choose to call partial birth abortion, do you tell them that you will take a pair of scissors and make an incision at the base of the baby's skull?"

A: "No. I tell them I evacuate the cranium."

Q: "I did not ask you that. It is a simple question. Do you tell them that you will take a pair of scissors and make an incision at the base of the baby's skull?"

A: "No."

Q: "Do you discuss whether the baby will feel pain?"

A: "No, I do not."

Q: "Do you discuss that you will suck out the brain?"

A: "Not in those words."

The Judge also asked a question which illustrated some of the difficulties the Plaintiffs have had in proving that the intact D-and-E procedure is safer.

Judge Casey asked, "Perforation and infection can occur in an intact procedure?"

Answer: "Yes, they can occur in an intact D-and-E."

The Plaintiff's attorney asked, "Are there any maternal conditions that would require the use of the intact D-and-E?"

The doctor responded, "'Require' is a difficult word. You cannot always do it for technical reasons, so it cannot be required."

The doctor testified that when he performs the intact D-and-E, he sometimes sucks out the brains, and sometimes he crushes the head. He testified, "You can grab the head with one instrument and twist to deflate the head."

Then Judge Casey asked, "So you crush the head?"

A: "Yes, crush the head."

We have talked about partial birth abortion and the reality was evident in court today when the doctor testified to the full extent of the visualization he has when performing the procedure. The doctor testified that the cervix is dilated to the extent that the fetal trunk is not only pulled down but also the shoulders, the neck, and part of the fetal skull. When he performs the procedure, he pulls down not just to the neck, but further than the neck, to the point where the skull is exposed.

Date: Tuesday, April 6, 2004
Time 1:00pm
Southern District Court of New York

Reporting by Jay Sekulow, ACLJ

A pathologist, called by the National Abortion Federation to establish the advantages of having an intact fetus for the purposes of identifying fetal abnormalities, provided morning testimony. During the direct questioning by the Plaintiff's attorney, Judge Casey questioned the doctor about diagnoses made in her pathology lab.

Judge Casey asked, "The diagnosis of the abortion is incorrect sometimes?"

A: "Well, I am not certain as to what you mean."

Q: "Does it happen that on occasion a diagnosis of specific fetal abnormality is incorrect?"

A: "Yes, sometimes."

Q: "So that abortion was performed because of an anomaly that does not exist? They thought that the condition existed, and when you do your report you find that it did not?"

A: "Yes, that's right."

Then the doctor resumed her testimony under direct questioning by the Plaintiff and testified that sometimes there are undetected anomalies. Judge Casey then asked, "Can you have an anomaly that you could live with?" And the doctor answered, "Yes that is possible."

On cross examination, Assistant U.S. Attorney Joseph Pantoja did an excellent job illustrating that the pathologist's testimony in no way indicated that intact D-&-E is a preferable procedure. He questioned her regarding diagnosing abnormalities which involved the brain: "If a suction catheter had been inserted into the opening of the cranium and the contents were evacuated, would it impair your ability to make a diagnosis?" The doctor answered, "No it would not." Joseph Pantoja then read from her deposition in which she had indicated the opposite. Then he illustrated that there were several other methods by which the pathologist could ascertain whether or not an anomaly existed, and that a labor induction abortion would produce a whole fetus that would be more suitable for pathological examination than a fetus that had been killed by the intact D-&-E method.


Date: Tuesday, April 6, 2004
Time 9:14am
Southern District Court of New York

We are preparing for a difficult morning of testimony. We expect another abortion provider to continue the testimony of the horrific nature of these abortion procedures. The courtroom scene was very intense yesterday, as the witness for the National Abortion Federation got really angry at one point with the judge's questioning. Judge Casey has the right and responsibility to ask these very pointed, direct and relevant questions. Here in New York we are really seeing a trial with all of the relevant information being admitted into evidence.


Date: Monday, April 5, 2004
Time 5:49pm
Southern District Court of New York

This afternoon, the National Abortion Federation had another doctor take the stand. After going over her credentials, this abortion doctor began her testimony by claiming that intact D-and-E is always safer than other options. When her attorney continued questioning, she revealed that she does not base that opinion on any medical literature because there is not a specific study that compares the health benefits of an intact D-and-E versus a dismemberment D-and-E. She also admitted that there had not been any case studies on the issue.

When Judge Casey began to question her during her direct examination, the exchange that followed was remarkable. Judge Casey began by asking, "Doctor, do you make full disclosure?"

She responded, "I make sure the patient gives informed consent."

Q: When you tell them about the procedure, do you tell them what you are going to do?

A: I do.

Q: Do you use simple English words, so they know what they are doing and authorizing?

A: I do.

Q: In a dismemberment D-and-E procedure, do you tell them you will tear the limbs off, or do you say "disarticulate"?

A: I tell them that we will try to get it intact, but it may come out in parts.

Q: Do you discuss the killing of the fetus?

A: I tell them that when I cut the umbilical cord of the fetus, the fetus exsanguinates.

Q: "Exsanguin" what?

A: In layman's terms, it would be drained of blood.

Q: Do you tell them that?

A: No.

Q: Do you tell them whether the fetus feels any pain?

A: The fetus may have a heartbeat, but I do not think it is alive.

Q: Do you ever tell them it will hurt?

A: It does not hurt her.

Q: No not the mother, that it will hurt the fetus?

A: The intent of the abortion is that the fetus will be terminated.

Q: Do you ever tell them that if you use an intact D-and-E method you will use scissors and insert them in the base of the skull?

A: I have not told them that.

Q: And do you tell them that afterwards you suck the brains out?

A: I use my finger to disrupt the central nervous system and collapse the skull. [Yes, this doctor has her own variation of the procedure in which instead of decapitating, like the doctor in San Francisco, or using an instrument that has suction, like the other doctors, she sticks her finger in the hole she made and uses it to crush the skull.]

Q: Do you tell the mother the fetus will feel pain?

A: I have never talked to a fetus.

Q: I did not ask you that. Do you ever tell the mother?

At this point in her testimony the doctor became very angry and raised her voice and said: "That is what I tell my patients, I'm sorry! ... I do not believe the fetus feels pain, so I do not tell them that." Then the Judge asked her if she had ever read any of the studies on fetal pain, and she responded that she had not.

Judge Casey ended today by ruling that the testimony of President Clinton's Department of Justice officials would be excluded from this case, saying: "It is for the courts to determine if the act as passed in its present form is constitutional." We are pleased with this decision.

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