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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: Friday, April 2, 2004
Time 2:46pm
Northern District of California, San Francisco
I have discussed previously the questioning by Judge Casey in New York, who indicated that by using medical terminology doctors are able to make the horrors of the abortion procedures they perform seem less terrible. That is important in understanding the testimony we are about to discuss. I will provide quotations we have just received from the testimony in the San Francisco trial of a "Dr. Doe," and then discuss what Dr. Doe is saying in layman's terms. Dr. Doe is a perinatologist (maternal-fetal specialist) who is testifying under a pseudonym. It will be clear why Dr. Doe wanted to remain anonymous after you read Dr. Doe's testimony. Dr. Doe is a board-certified ob/gyn, and board-eligible in maternal-fetal medicine.
Q. Doctor, going back to the cases in which you are doing a D-and-E and it proceeds with a partially intact delivery so the calvarium is stuck in the cervix, I think you testified that you slide, you use the forceps to crush the calvarium, right?
A. Yes.
Q. Is it fair that you generally slide the Bierer forceps if you are using those, or any form of forceps, under the cervix between the fetus and the uterine cavity -- is that correct?
A. I am sorry, can you repeat that part?
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 would most likely 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. However, sometimes the cervix is not dilated enough to allow for the calvarium to pass.
Q. And what do you then do?
A. I would separate the calvarium from the body.
Q. When you perform the evacuation in the typical D-and-E, do you ever need to convert the lie of the fetus or the direction of the fetus?
A. Sometimes. Sometimes the fetus is, again, what we would call vertex or cephalic. And that is when the head is presenting at the cervix. The head is the difficult--the most difficult portion to deliver in these procedures, and occasionally I will see if I can deliver the cranium initially. Often that doesn't work, and I would need to reach in a little bit higher up with the forceps, grasp the lower extremity and pull down, and that kind of converts the presentation to a breech presentation.
Q. When you are doing your regular procedure, does it ever happen that you bring out the fetus intact or partially intact up to the head?
A. Yes, sometimes it does.
Q. Approximately how many times does it happen in your procedures?
A. Maybe 15 to 20 percent.
Q. And when this happens, do you consider it to be a different procedure than one which is disarticulated before that point?
A. I don't think it is different, and I feel fortunate when it happens in some ways, because I think that I will then have less passes into the uterus, and I think less chance for injury or infection.
In the New York trial, Judge Casey has admonished both sides to have witnesses explain any medical terms they use in layman's terms, but it appears this is not happening in San Francisco.
The term "calvarium" refers to an incomplete skull, and specifically the portion of the skull including the braincase and excluding the lower jaw or lower jaw and facial portion. This part of the baby's head, as the testimony in New York indicated as well, is difficult for the surgeons to remove, because these abortions are occurring so late in the pregnancy that the skulls are fairly calcified. This means that the skulls are fairly developed and hard, and due to their hardness and their round shape, they are the most difficult part of the baby for the abortion doctor to crush and tear. The solution for this particular abortion doctor is to separate the calvarium from the fetus and then grasp it with forceps. What this means in layman's terms is that this doctor cuts the baby's head off at the neck with scissors, and then jabs forceps up into and around the skull to crush it and pull it through the partially dilated cervix. The cervix has been at this point intentionally dilated just enough to allow the surgical instruments the doctor uses to grasp and tear, but not enough for the baby's head to fit through.
The term "disarticulated" in the final question, concerning whether or not the doctor recognizes the difference between the intact D-and-E and the dismemberment D-and-E procedure, means torn. While Dr. Doe denies seeing the difference, the doctor considers it fortunate when the intact D-and-E procedure is the one performed. The doctor feels fortunate to be able to pull down the baby's body until everything but the head is delivered because of the ability to cut the baby up closer to the vagina, which the doctor claims is safer than cutting it up inside the uterus.
As this case continues, we will hear more disgusting testimony, and we will hear more attempts to characterize the ban as vague and the procedure as necessary for the health of the mother. It is encouraging that even in these grim proceedings, while the plaintiffs are attempting to make their case, they cannot get away from the fact that they have not been able to establish that the procedure is necessary for maternal health, and that they have the ability to recognize the specific procedure banned by the act. Essentially, what you have are abortion doctors who say they want to keep this procedure because it makes it easier and faster to kill a late term baby who is so developed that tearing it apart is difficult. This testimony makes sense, given that Dr. Marvin Haskell, who invented the procedure, gave those reasons to explain why he created it.
Date: Friday, April 2, 2004
Time 12:28pm
Southern District Court of New York
In reflecting on this trial, it is helpful to understand the context of the case. The Supreme Court dealt with the issue of partial birth abortion in Stenberg v. Carhart, 530 U.S. 914 (2000). The majority opinion held that a Nebraska statute making partial birth abortion illegal was unconstitutional. One of the main reasons the Court cited was that the Nebraska statute lacked an exception for the preservation of the mother's health. The record in the Carhart case is different than the record in this case, and after more study and more research, the plaintiffs have been thus far unable to provide any research or any records to indicate that the ban would harm the health of the mother. The plaintiffs continue to refuse to turn over the records that they have that would indicate whether or not maternal health is the reason for the abortion, but as the testimony has gone on, it has been clear that maternal health is not the reason. This makes the abortion providers' fear that the records become public understandable. They are not afraid that privacy will be violated, since, as in many medical records cases, the records will be redacted so that no information will be contained within the records that could identify the patients. Rather, they are concerned that the real reason for these abortions will be clear.
The other major reason that the Nebraska ban was ruled unconstitutional was vagueness. As the Assistant U.S. Attorney has argued and discussed other abortion methods, she has in no way suggested that these methods are a good thing. Rather, she is showing that the procedure that is banned -- what the abortion doctors have been referring to as an "intact D-and-E" or "D-and-X" procedure, is clearly different from other methods in which abortion doctors perform late term abortions. In their efforts to paint the statute as vague, the abortion doctors have been left testifying to absurd claims like, "I do not know what above the navel means," and, "I am unsure whether I would have tripped the ban if I removed the fetus by tearing away the lower part of the body and then later tearing away the abdomen." This attempt to blur the lines between the different procedures has been countered by skillful cross examination, which has illustrated that each of these abortion doctors are capable of differentiating between the procedures, and that this specific ban, which targets the partial birth and then killing of a baby, is not vague.
We will be bringing you breaking news from the trial in San Francisco in the next hour or two.
Date: Thursday, April 1, 2004
Time 6:20pm
Southern District Court of New York
The Assistant U.S. attorney did an excellent job this afternoon in cross-examining the National Abortion Federation's doctor. In fact, the doctor could not point to any specific D-and-E abortion he had performed that was based on the variety of medical conditions he indicated necessitated the procedure. The cross examination has been very effective in exposing the lack of maternal health justifications for the procedure.
The doctor said on cross examination that his review of medical charts had not in any way informed his testimony. He then disagreed with a statement released by his co-plaintiff and the group he is part of -- the National Abortion Federation -- that absent a review of medical charts for D-and-E abortions, doctors cannot make a determination as to whether or not the procedure is necessary.
He was having trouble when he was testifying about the medical records he reviewed in preparation for the trial. He was asked if he found a single instance where the mother's health neccessitated a D-and-E procedure, and he answered: "No." He also was unable to find examples of times where pregnant women with heart disease or cancer had late term abortions, although he identifed those reasons as part of his justification for the procedure.
At one point Judge Casey became upset with one of the National Abortion Federation attorneys, because they were engaging in direction of their client as he was testifying. This practice is not allowed. The judge said: "I warned your side about this before... a few days ago. Stop telegraphing your client. If this happens again, I will take the appropriate steps."
Date: Thursday, April 1, 2004
Time 12:12pm
Southern District Court of New York
It seems as if the testimony would become something that you would get used to after a time. But the testimony this morning was extremely unsettling, despite the fact that this is now the fourth day in which we have listened to details on this horrific procedure.
Judge Casey this morning questioned the abortion doctor who was testifying, asking him: "You do not feel any obligation to protect the life of the fetus?"
Answer: "Yes, for my patients who want a fetus."
Question: "Do you feel an obligation to protect the fetus?"
Answer: "No, not when I am doing a termination."
In further testimony, the doctor sought to explain why he feared that the language of the ban might encompass other procedures he engages in besides the intact D-and-E procedure. The Judge asked him for examples. The doctor gave examples in graphic detail.
He said, "Say in a dismemberment D-and-E, I reached inside the uterus, I do not have control of the appendages and I grasp the upper abdomen, and then I begin a dismemberment D-and-E and I pull out some parts of the fetus, I could pull out part of the fetus up and above the fetal navel, which is what the ban covers and be delivering the fetus at that point, and perhaps triggering the ban."
Then he gave another example, "I grasp a lower extremity and I pull until I reach fetal resistance, which is often at the belly button. Then I will often make an incision below the belly button to decompress the fetus... I know the fetus cannot survive the incision in its abdomen."
He said, "Let's say I disarticulate and (tear) the fetus at the pelvis and then I have partially delivered below the waist. And then if I grasp the fetal abdomen and deliver the rest through dismemberment D-and-E, I may have also triggered the ban."
Judge Casey then asked, "Isn't the distinction that you are delivering the fetus in parts and the ban covers delivering a fetus as a whole?"
The doctor replied, "Yes, that's correct."
Date: Thursday, April 1, 2004
Time 9:23am
Southern District Court of New York
As I look over my trial notes for the last few days I notice a disturbing trend developing. The doctors seem to indicate that most of these procedures are taking place because of a fetal anomaly. A fetal anomaly is any detectable difference from a normal fetus, as one of the abortion doctors testified it is, "any kind of fetal defect...any kind of genetic defect." Because the plaintiff's refuse to turn over the medical records requested by the government and by the judge in this case, there is absolutely no way of knowing if they are telling the truth about why the procedures are taking place.
The other side continues to argue that this horrific procedure is necessary because it can protect the mother's health. However yesterday one of their doctors testifying said, "There are only a few fetal anomalies that can have an adverse effect on the mothers health." It is clear that there is another reason besides the mothers health that these babies are being aborted. The most discussed fetal anomalies seem to be Down's syndrome and hydrocephalus. One doctor even testified, "Unfortunately some babies are born with anomalies we could not detect prior to birth, but hopefully the ultrasound equipment will continue to improve." The doctor was saying in essence "who would want a handicapped child?"
This argument that the handicapped should be eliminated is being discussed before a judge who is blind. The argument seems especially weak to me because here at the ACLJ we have a young man, Paul Wood, working for us who has hydrocephalus, an abnormality that causes the ventricles of the brain to be enlarged by excess fluid building up, and he does an excellent job for us. In fact, he wrote a letter to President Bush in support of the ban on Partial Birth Abortion. Not only can these babies with fetal abnormalities be delivered, they can have productive lives, and assuming that they cannot is insulting to the handicapped.
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 were 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."
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PRESIDENT GEORGE W. BUSH: The American people and our government have confronted the violence and come to the defense of the innocent child. And the executive branch will vigorously defend this law against any who would try to overturn it in the courts. 
GLORIA FELDT: Yes. The stakes are so high, every woman's right to choose and frankly at this point every American's right to medical privacy are under attack. We're challenging the law, this federal abortion ban, because it has no exception to protect the health of the woman. And because it outlaws a broad range of techniques that doctors use, even as early as the beginning of the second trimester, 12, 13, 14 weeks, in order to be able to provide the best health care for their patient. It's also part of a larger agenda, to outlaw all abortions. 
Interestingly, the case that I'm heavily involved in in New York is handled in the U.S. district courthouse named for former Senator Moynihan. When this bill came up, he rarely voted in a pro-life way, but in this particular case he did agree that this was a particular ban that should be eliminated. He said it was tantamount to infanticide. What you have is a situation where this procedure blurs the line between live birth and abortion. When that's the case, you have to side on the side of life.
And one doctor, for example, I think in a very powerful statement said, you know, it feels like there's an elephant in the room and that elephant is basically the politicians who are looking over my shoulder and trying to tell me what I should do in the interest of my patient. I would be faced, she said, with having to make a decision about whether to do what I think is best for my patient and become a criminal, or not. And I think that's a choice that no doctor should have to make, and certainly no woman's health or life should be put at risk by politicians who have no business practicing medicine. 
JAY SEKULOW: I represent members of Congress that supported and put this bill forward and I will tell you that there was eight years of hearings and testimony concerning whether there was a medical necessity for this procedure. And in that particular hearing that took place before the House and Senate, the Congress was convinced that there was not a medical necessity and there will be experts testifying to that fact. (All talking) …Excuse me, please. The American Gynecologist Association today in New York refused to testify. Judge Casey was quite disturbed by the fact that the representatives from the College of Gynecology refused to appear in court to be examined. They have issued a general statement, of course the AMA has a contrary statement, they passed a resolution saying that this procedure was not medically necessary -- but the author… 
Jay Sekulow is not a doctor, I am not a doctor, President Bush is not a doctor. There are very few members of Congress who are doctors. It's the doctor who ought to be able to make that judgment call. Every woman is different, every situation is different. These are personal and private and medical issues, and the larger agenda here is to outlaw all abortion for all women at any time during pregnancy. Jay, you need to just be honest about that. 
JAY SEKULOW: No, they weren't today. In fact that's put a little bit of a scheduling issue in this particular trial, because Judge Casey did order that the records that were requested by the attorney general be released without the names of the woman, without any identification of who the woman involved in these procedures are. But that has been stayed pending an appeal by the second circuit which is being handled hopefully on an expedited basis right now sometime in April, but it may be sooner. So that information has not yet been made available, although interestingly here in New York Judge Casey said that evidence should be a admitted, after all it was the National Abortion Federation that said this procedure is medically necessary and these individual doctors and then show the evidence as to why it's medically necessary. I suspect that they don't want that to happen. 
We have physicians, in fact, on both sides of this case who are talking about the research, the various clinical research that has been done, the evidence that they have, the peer reviewed and not peer reviewed studies, that's what they need to do. And our judge in San Francisco agreed with the contention that the Justice Department simply does not need these records in order to be able to make their case. They're irrelevant. 
