TRANSCRIPT HIGHLIGHTS
Planned Parenthood v. Ashcroft
U.S. District Court, Northern District of California
The Honorable Phyllis J. Hamilton, Judge
DAY ONE: Monday, March 29, 2004.
Excerpts from direct examination of Dr. Maureen Paul:
Q. And when you begin the evacuation, is the fetus ever alive?
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.
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Q. Okay. Does it every come out completely without the head becoming lodged?
A. Rarely it does.
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Q. And you had said that sometimes when you apply traction to the fetus it comes out intact up to point where the calvarium [skull] lodges; is that correct?
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.
14 week unborn
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.
[This is another way of saying she grasps the arms and legs, then pulls them off]
Q. And after you have done that, what do you have? What happens next?
A. I continue to put traction on the fetus tissue. If the cervix is adequately dilated, then the fetus will generally slide down through the cervix, and I continue to extract the tissue until it is completely extracted. If the cervix is not so well dilated, then disarticulation and dismemberment happens.
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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.
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Injecting Diogoxin into this 22-week-old baby's heart prevents a live birth and lets the abortion 'move along a little easier' 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 direct examination of Dr. Eleanor Drey: Q. And was there a time frame of when [Digoxin] was given? A. When we first started giving it, we always gave it at the time that we were doing our preoperative evaluation, so that the patient would get the laminaria placed. And then, after that, she would have the Digoxin injection. At that time we were waiting two days with the laminaria in place. And, so, initially we were giving Digoxin two days before D&E. Q. And did you ever change that procedure, that time schedule? A. We did. What started happening was we had an unfortunate number of women who were spontaneously going into labor and delivering at hospitals sort of all over the bay area, and it was distressing to everyone. DAY THREE: Thursday, April 1, 2004: Excerpts from direct examination of Dr. "Doe" (testifying under a pseudonym): Q. Do some women deliver the fetus partially as a result of the misoprostol? A.Yes, they can. Q. And when that happens, could the fetus be outside the uterus past the navel of the fetus? A. Outside the uterus, yes, and potentially even outside the vagina. Q.. And could it be alive? A. Yes. [He just admitted that babies are sometimes born alive] Q.. And when that happens, how do you complete the procedure? A. Usually, if the fetus is coming out, the easiest method is to try to do how we would do a breech. It often comes out in a breech presentation. And, again, that is feet first, head second. We do the similar maneuvers that we would do to do a breech delivery. However, sometimes the cervix is not dilated enough to allow the calvarium [head] to pass. Q. And what do you then do? A. I would separate the calvarium [head] from the body.
~ Q. And when during in induction does fetal demise occur; do you know? A. I don’t know. It really depends on gestational age, and sometimes the fetus is born alive. ~ Q. And do you ever -- do patients ever ask you whether there is something they could use to cause fetal demise? A. Yes. I would -- I don’t know what percentage of my patients, but a certainly small number of patients ask could there be fetal demise prior to the procedure. When I talk to them about what it would entail to do, most of them do not want to proceed with that. And I don’t think they are particularly worried about the effects. They don’t think -- I think about the infection risk. They don’t think about the infection risk. They just don’t want to go through that procedure, to have a needle placed, and under ultrasound guidance maybe see the ultrasound and see the fetus again. The vast majority of the patients don’t want to have that done. Excerpts from cross-examination of Dr. "Doe": Q. And I think you testified earlier that in about 15 percent of the D&Es you perform, the fetus is delivered partially intact so that the calvarium gets stuck in the cervix; is that correct? A. It was – I think my testimony, I believe, is approximately 15 percent would be delivered intact. Not all of those that the calvarium would be stuck; some would deliver completely intact. Q. Do you have a -- can you give me an estimate of that 15 percent how many are delivered where the calvarium does get stuck in the cervix? A. I would probably say at least 80 percent the calvarium would be stuck in the cervix. Q. And just to be clear, the calvarium, again, is just the fetus’ head, correct? A. Correct. Q. In those cases in which you are doing a D&E and the fetus delivers partially intact except for the calvarium getting stuck in the cervix, you have to insert forceps and crush the calvarium; is that right? A. I would separate the calvarium from the fetal -- how I would perform the procedure is, I would separate the calvarium from the fetal body, thorax, and then insert the forceps to crush the calvarium to be able to deliver it. ~ Q. Let me just ask you. Can you describe for us how you get the forceps around the calvarium before crushing it? A. In a situation where the fetus is delivered up until the calvarium? Q. That’s right. A. Again, as I testified, I would separate the calvarium from the fetus, so -- Q. Let me stop you right there. How would you separate the calvarium from the fetus? A. Under direct visualization, I would use, seeing outside of the cervix within the vagina that I can see directly, I would use scissors to cut the neck and separate the -- I am not in the uterus, I am in the vagina, separating the fetal calvarium from the fetal body.
Dr. Doe would kill a baby like this (24 weeks) by cutting the head from the body Q. And after you’ve done that, the calvarium is still in the cervix? A. Or in the lower uterine segment. Q. Okay. Then what is the next step that you do? A. The next step I would use is to put the bierer forceps -- is what I most likely would be using in the situation – into the uterus, get around, open them wide, get around the calvarium, and crush the calvarium. Just as if it were higher up and not stuck in the cervix, I would be doing it just the same way. Q. And is it fair to say that the calvarium is one of the largest parts of the fetus? A. Yes. Q. It is also one of the widest parts of the fetus? A. Yes. Q. Is it fair to say that when you are opening the forceps to get around the calvarium, you are opening them wider than you would if you were attempting to grasp a fetal limb? A. Yes. Q. Could there potentially be risks to the cervix when you are opening the forceps wide enough to get around the calvarium? A. Yes. Q. In fact, one of those risks might be a perforation or a laceration of the cervix, right? A. Yes. Q. And another risk might be a perforation or a laceration of the lower uterine segment? A. Yes. Q. And let’s talk about that a little bit. Are the -- can the bones of the calvarium, can they be sharp? A. Yes. Q. Are they in any -- are they sharper say than the bones of the fetal leg or are they roughly comparable? A. It depends on how -- if it’s a disarticulation of how it went. A calvarium could be crushed and there are not sharp edges and the femur, which is a leg bone, could be broken and be sharper. I think you can’t predict that. But I think any of the major long bones, certainly not ribs, but femur, humorous could be sharper than a calvarium that has been crushed. Q. And when you are crushing the calvarium, there is the same risks that we talked about earlier, possible perforation or laceration of the cervix, the lower uterine segment, or the uterus; is that right? A. Yes. Q. And a cervical or uterine laceration, it can be relatively minor or it could be relatively severe; is that right? A. Yes. Q. If it’s severe enough, there are some cases where a woman might exsanguinate and die, right? A. Yes. Q. Can you tell us what exsanguinate means? A. To bleed to death. Excerpts from re-cross examination of Dr. "Doe": Q. And Ms. Parker asked you a question about why some of your patients don’t prefer a labor induction abortion. I think one of the reasons you gave was that your -- the woman may not want to see the fetus; is that right? A. Yes. Q. Now, in a labor induction abortion you are not showing the fetus to the mother in every case, are you? A. No, we are not. But with a labor induction, it is often kind of unpredictable when the fetus delivers. And it is probably a minority of times the physician is actually there at the time to deliver the fetus. Often you don’t have the normal kind of cervical dilation that you might have in a term labor. You have nothing, nothing, nothing. And then, all of a sudden, she goes: "I have got to push," and the fetus kind of pops into the bed. DAY FOUR: Monday, April 5, 2004. Excerpts from cross- examination of Dr. Fredrik Broekhuizen: Q. Usually in examining the fetal parts you don’t actually see the bones, do you? You usually see the limb and the actual bone is in the limb? A. You can sometimes see bone. Sometimes you can see just the limb. Q. But usually you just see the limb, and the actual bone is in the limb? A. Actually, when disarticulation takes place in the joint one can certainly see the end of the bone on inspection. Q. The end of the bone. But usually the rest of the bone is inside the limb? A. There are situations where actually the bone is crushed in the middle of the limb. And under those circumstances one can see part of the bone. ~ Q. Doctor, you testified earlier that sometimes parents want an intact fetus for blessing or burial. Have you ever had the parent express that desire where you had compressed the head of the fetus to complete the delivery? A. Yes. Q. Was anything done in those instances, doctor, to improve the appearance of the fetus’ head after decompression? A. Yes. Q. What was done? A. The fetus was -- just like a newborn -- it was dressed and kind of had a little hat placed on it so that only the face was visible.
From Dr. Tiller's facility in Wichita, Kansas: A father, mother, and aborted child- note misshapen head
Q. You have seen the fetus’ legs move before crushing the head, haven’t you? A. I have seen that before compressing/decompressing the head. Q. And that is while the head is lodged in the internal os? A. Correct. Q. The rest of the body is outside the cervix? A. Correct. Excerpts from direct examination of Dr. Mitchell Creinin: Q. If that happens and you remove the dilators and you find you have more than two, two and a half centimeters, is that a bad outcome? A. No. … I want -- I judge the number of Dilapan based on making sure I get the minimum amount without putting in so many that I make her uncomfortable or get more dilation than I absolutely need, which I have found at times can cause patients to go into labor or deliver. ~ Q. What do you do to evacuate the contents of the uterus? A.. . . If it is head first, it’s very, very, very difficult to try and grasp the head as the very first thing. So, with every D&E, the way I have been taught, the way I have always done it, the way I have always taught it is to try and grab a lower limb to convert the position to breech and then proceed with the evacuation. If it’s already breech, or if it’s transverse, that’s easier to grab a lower extremity. After grabbing the lower extremity, I am going to pull the pregnancy or pull whatever part I have grasped through the open cervix until there is resistance from the lower uterine segment and the internal os. My goal is to try and remove the fetus as intact as possible. The fewer passes, the safer it is for the woman. So, as I pull down, the uterus is going to tell me how far I can go just by the resistance I get. So when I meet resistance, I will continue to pull, and it’s the pressure of the fetus against the lower uterine segment that actually results in dismemberment of the fetus. And where that is going to happen on the fetus will vary from patient to patient.
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