I know this is long but I thought it was worth sharing, from the New York.

Protecting the Ban on Partial-Birth Abortion
A Trial Notebook by Jay Sekulow

There are three trials underway in U.S. District Courts in California, Nebraska, and New York involving a challenge to the national ban on partial-birth abortion, which was approved by Congress last fall and signed into law by President Bush. In the New York case, U.S. District Court Judge Richard Casey is hearing testimony in federal court in Manhattan. The American Civil Liberties Union is representing the National Abortion Federation and individual physicians in the New York case. ACLJ Chief Counsel Jay Sekulow, who is supporting the Department of Justice in its defense of the law, is attending the trial in New York City. Jay will be filing reports regularly concerning the testimony taking place inside the courtroom in this Trial Notebook.


Date: Wednesday, March 31, 2004
Time 4:04pm
Southern District Court of New York

The doctor testifying for the Plaintiff was visibly shaken by the questioning of Judge Casey after the conclusion of the cross examination.

Judge Casey began his questioning by asking, "In a dismemberment D and E procedure in the second trimester, does the fetus feel pain?"

Answer: "I have no idea."

Question: "Are you aware that there are studies indicating that the fetus feels pain?"

Answer: "No, I have not seen those studies."

Question: "You have never heard of the studies?"

Answer: "I have not seen the studies."

Question: "Does it ever cross your mind as you are performing the procedures whether or not the fetus feels pain?"

Answer: (He hesitated for a while.) Then he said, "No, not really." (And he mumbled.)

Question: "When you are consulting with a patient prior to the procedure, do you discuss the details that you are going to remove parts of their baby?"

Answer: "Yes I do."

Question: "Do they ever ask if it hurts?"

Answer: "No they do not."

Question: "Although you have never performed an intact D and E (partial birth abortion), do you know whether or not the partially delivered baby feels pain when the scissors are inserted into the base of the skull?"

Answer: "I am sure that the baby feels it, but I am not sure how the fetus registers it."

Question: "When you describe the procedure, do you tell the patient that the baby's brains will be sucked out?"

Answer: "No, I do not describe it in those terms. I think I use other terms like cranial collapse."

Question: "You make it nice and palatable, so that they would not understand what it is all about?"

Answer: "I use medical terminology in order to describe the procedure."

Question: "Can they fully comprehend it? They are not all Rhodes Scholars, correct?"

Answer: "That is true, however, I describe the procedure in medical terminology."

Question: "It is so much nicer to say it that way?"

Answer: "Yes."


Date: Wednesday, March 31, 2004
Time: 12:54pm
Southern District Court of New York

The testimony continued this morning and was particularly gruesome and disturbing. The doctor testifying for the Plaintiffs admitted that there were risks involved in the D and E procedure, and that alternative procedures existed that were safe. The doctor testified that he had performed no D and E's over the last three years. He also testified that he had not had any patients for whom D and E would be a preferable procedure to other procedures he had available.

He was asked, "Is D and E a destructive procedure as you use the term?"

His answer was, "Yes, sir."

The testimony became extremely gruesome when he began to describe the reason for the creation of the D and E procedure. He said that the intact procedure was created to deal with the problem of the free-floating fetal head. He said that the head of the fetus is relatively large and relatively calcified, so it is hard to grasp and sometimes becomes unattached from the fetal body during the dismemberment procedure because it is round and it slips out of the instruments.

When Judge Casey found that the doctor had never performed the procedure, he interrupted Plaintiff's Counsel with his own questions.

Judge Casey asked, "Just a minute. You have never done it?"

Answer: "No sir, I have not."

When the doctor described the procedure he had observed, the testimony became almost surreal.

The doctor said, "What they did, they delivered the fetus intact until the head was lodged in the cervix. Then they reached up and crushed it. They used forceps to crush the skull."

Judge Casey asked about the instruments, "Like a cracker that they use to crack a lobster shell?"

The doctor answered, "Like an end of tongs you use to pick up a salad, except they are thick enough and heavy enough to crush the skull."

Judge Casey responded, "Except in this case you are not picking up a salad, you are crushing a baby's skull."

Then Judge Casey asked, "According to affidavits I have read, the fetus is still alive at this point?"

Answer: "Yes, sir."

Question: "The fingers of the baby opened and closed?"

Answer: "I did not observe the hands when I observed the procedure."

Question: "Were the feet moving?"

Answer: "Yes sir, until the skull was crushed."


Date: Wednesday, March 31, 2004
Time: 8:43am
Southern District Court of New York

As I head into court this morning and look back over the final hour of the doctor's testimony several things stand out. This is an extremely important case, although it is hard to listen to some of the details of this gruesome procedure. It is truly historic for this type of frank discussion of what goes on in an abortion procedure to be taking place in a courtroom during live testimony.

The plaintiffs entire case has been based on their claim that partial birth abortion (the D and X procedure) is safe. It was interesting that the doctor while being questioned by the government's attorney, responded to one question about the procedure's risk by telling her, "The whole procedure is a risky procedure."

Another aspect of the case that is extremely important is whether or not these procedures are necessary. The plaintiff's have said that the reason for these abortions is that the fetus suffers from an abnormality that would make it impossible for it to live on its own. Despite their claim, the plaintiff's refuse to turn over the medical records that would indicate that they were telling the truth. The doctor testified while being questioned by the government's attorney that he could not recall the anomaly that the fetus was suffering from the first time he performed a partial birth abortion. When Judge Casey asked the doctor, "If you looked at your records would they show the fetus had an anomaly?" He responded, "All records always reflect an anomaly, well not necessarily an anomaly but the reason for the termination." The original answer is not one that the abortion doctor is comfortable with, and until we look at the records they refuse to turn over, we cannot know how many of these procedures are done for purely elective reasons when the mother is in no danger at all and the fetus is healthy.

This is also indicated by this quote from the doctor later during questioning, " A fetal abnormality is not the reason to perform an abortion, the reason is because a woman chooses to have an abortion done." That freedom of choice, to terminate a pregnancy involving a healthy fetus that is 23 weeks old, is what the plaintiff's seek to protect.

Another argument made by the plaintiffs is that if partial birth abortion were illegal, they could get better genetic information from the body because it would be intact. However the doctor testified that in all the time he has been doing dismemberment abortions, only once can he recall a time when he would have been able to provide better genetic counseling if he would have performed a partial birth abortion instead.

When pressed by the governments attorney about the procedure itself he tried to evade questions but ended up giving some interesting answers.

Q: "There are no credible scientific studies on D and Es (partial birth abortion)?"

A: No there are not.

The testimony ended with more questions by Judge Casey who asked the doctor to repeat his claim that he disclosed all the details of the procedure when he had patient consultation. He said he did. Then Judge Casey asked him about his testimony that some parents request him to take pictures after the termination to remember the baby. He reiterated it. Finally Judge Casey asked, "They request the picture even though this is the fetus they ordered you to suck the brains out of?" The doctor responded that they do.


Date: Tuesday, March 30, 2004
Time: 4:21pm
Southern District Court of New York

The testimony of the doctor continued and was very disturbing. He discussed live birth. "In live delivery, the well being of the baby is the primary concern. In an abortion, you are not concerned about the well being of the baby." When asked about partial birth abortion, he said, "It involves forcing scissors into and through the skull." Later the doctor testified that abortion done at 20 weeks is less dangerous than 21, 22 or 23 weeks. The doctor continued by claiming that it is "unclear what past the navel means" in the language of the ban itself. The doctor continued to describe D&E's. He said in intact D&E the legs and trunk are pulled through until the head lodges in the cervix. Most of the fetus is outside the mother's body. Then he was asked a question.

Question: "Does an intact D&E involve an overt act that you know will kill the fetus?"

Answer: "Yes, that is the whole point of the abortion - to kill the fetus."

The questioning continued:

Question: "After you have dismembered the fetus can it still be living?"

Answer: "Absolutely. Then I will either dismember more or if the next part I get is intact, I will deliver the rest up to the head and perform a D&E. Just removing an arm or a leg does not necessarily kill the fetus."

The afternoon testimony and the cross examination created tremendous credibility problems for the doctor. The cross examination began with a question involving the curriculum vitae of the doctor that was posted online at a web site he claimed he had never heard of. The CV on that web site identified him as a professor at Columbia. He argued about whether or not he was a professor at Columbia. Then he blamed the incorrect information contained on the web site on the fact that it was a web site until the government's attorney pointed out that the curriculum vitae that he submitted to the Government also included the claim that he was an assistant professor at Columbia from 1987 through now, even though that information is not correct.

Later the doctor continued to make statements that were contradicted by his prior testimony in his deposition. It became apparent that his credibility was suffering when he would say to a yes or no question, emphatically "no" and then have his testimony read from his prior deposition and to the exact same question his answer would be an emphatic "yes."

He described in gruesome detail the first time he witnessed a D&E abortion. The question was asked:

Question: "You thought that what you witnessed was a miracle."

Answer: "Correct."

Question: "You understood that the doctor was trying to remove the fetus intact?"

Answer: "Yes."

Question: "The fetus was not dead when the doctor removed it?"

Answer: "No. It died by removing the skull and part of the brain."

Finally, during a portion of the testimony in which the doctor was describing dismemberment D&E, he said, "You take the forceps, you grasp the fetus and either pull down or rotate it clockwise or counterclockwise and it makes it easier."

Judge Casey questioned the doctor at that point and said, "On whom?"


Date: Tuesday, March 30, 2004
Time: 1:32pm
Southern District Court of New York

The horrors of the abortion procedure was put on trial in U.S. District Court here in New York City this morning.

It was not the witnesses of the Government but rather the Plaintiff's witness, who is an abortion doctor, who provided the promised "raw" and "graphic" language. The doctor discussed the difference between an intact dilation and extraction D&E which is their term for partial birth abortion and dismemberment D&E. In a dismemberment D&E, the doctor tears the baby apart by taking its limbs off. He explained that at that point the baby is developed enough to have bones which can be sharp when they are broken, which can injure the woman when the bones are pulled out of her. He testified that the breech delivery of the fetus, with a large portion of the child's body exposed and the insertion of scissors in the base of the skull and the removal of cranial content (brains), according to the doctor, created less risk to the mother.

Later Judge Casey questioned the doctor.

Question: "When you discuss the range of options with a patient, do you describe the dismemberment procedure where the limbs are torn off?"

Answer: "Yes."

Question: "Do you describe the D&X procedure where you put the scissors into the base of the skull and remove the brains?"

Answer: "Yes, I do. And sometimes after hearing the details couples leave."

The doctor's view of ethics in medicine is also a concern. "Ethics, especially in my speciality changes and fluctuates week to week."


Date: Tuesday, March 30, 2004
Time: 8:39am
Southern District Court of New York

Yesterday following the trial I was interviewed by numerous news organizations including CNN, PBS Newshour, National Public Radio and the Washington Times. I was pleased to be able to report that the first day of the trial went well for the government and their argument that the ban on partial birth abortion is constitutional.

This morning there is some uncertainty as to which witnesses the plaintiffs will call next, because the testimony of their witnesses will depend on an evidentiary ruling to be issued as court begins. I will be there to react to the developments and bring them to you as they happen.


Date: Monday, March 29, 2004
Time: 4:29pm
Southern District Court of New York

At the end of the testimony of the first witness, Judge Casey asked some questions.

Judge Casey: "You said on new procedures, doctors should keep detailed records."

Answer: "Yes."

Question: "Should other doctors evaluate the new procedure so the information can be shared?"

Answer: "Yes."

Question: "To evaluate all the records, you would have to look at them?"

Answer: "Yes."

Judge Casey's questions reveal his interest in the ability to look at the records related to the partial birth abortion procedure.

The American Medical College of Obstetrics and Gynecology has refused to testify live, which made for a rather boring reading of prior testimony in court. The Judge was not pleased with this. The members of AMCOG also refused to be identified individually. The testimony that they read indicated that partial birth abortion is not ever the only procedure available and that there are no circumstances where the D&X procedure is the only available option. There are no studies indicating when D&X is the best choice. There are no case reports justifying D&X as the best procedure. So, there is no data for partial birth abortion according to their own testimony that they read into the record today.


Date: Monday, March 29, 2004
Time: 2:04pm
Southern District Court of New York

The trial in the Partial Birth Abortion case before Judge Richard Casey began today with the opening arguments. The National Abortion Federation lawyer (Plaintiff) began with an admission that the testimony would be "very raw stuff" that would be "discomforting to any of us." He continued "that these graphic and raw procedures are performed on second trimester fetuses is an element of emotion." The argument by Plaintiff included the incredible claim that the ban on partial birth abortion "fails to serve the interests of providing for fetal health of a fetus who could survive outside the womb." The Plaintiff's attorney also carefully avoided any reference to third trimester abortions arguing that the ban applied to second trimester abortions and that third trimester abortions were precluded by state law. This is despite the fact that the creator of the procedure, Dr. Marvin Haskell, invented the procedure to enable third trimester abortions to be performed more easily. Plaintiff's attorney argued that the vast majority of partial birth abortions occurred during wanted pregnancies. Perhaps the most disturbing claim made by Plaintiff's attorney was that a parent would be better able to grieve after a fetus had its brain tissue removed than if the unborn child was dismembered.
Assistant U.S. Attorney Sean Blaine, made three main points:
1. No maternal or fetal conditions made partial birth abortion necessary for the mother's health.
2. There are no safety advantages presented by the procedure.
3. The partial birth abortion procedure "blurs the line between an abortion and a live birth."

He emphasized the evidence would show that when the unborn life was taken inches from birth, it felt real pain that the mother's anesthesia did not dull. He urged the Court to look through the eyes of Congress to uphold its decision based on eight years of detailed factual findings. He said that the findings are reasonable based on "substantial evidence." He also argued that unlike induction, a whole fetus is not available after partial birth abortion because the cranium collapses during the procedure. He responded to the opening arguments of opposing counsel by saying "while opposing counsel said the terms will be graphic, it is the nature of the procedure itself which creates discomfort." He also discussed the upcoming testimony of medical experts who will testify that "they cannot imagine any hypothetical condition in which partial birth abortion would be medically necessary."