AMERICA DESERVES TO KNOW THE TRUTH!
Date: Wednesday, April
7, 2004 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."
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.
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
http://www.aclj.org/resources/prolife/pba/040329_trial_notebook.asp
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.
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.