Pain on Trial
NEW YORK — Are abortionists who perform partial-birth abortions — claiming they are medically necessary — telling the truth?
The Justice Department doesn't think so and believes it can find the answers in the medical records of doctors’ patients. But abortionists are claiming the government doesn't have a right to intrude on a patient's privacy.
And is a baby being aborted during the procedure alive and feeling pain? A federal judge hearing the case in New York wants to get to the bottom of that question.
These are some of the issues in the current legal battle over the Partial-Birth Abortion Ban Act, which Congress passed last fall. The law bans an abortion procedure in which an unborn child is deliberately and partly extracted from the birth canal and then is killed, usually by puncturing the skull with a sharp instrument.
Congress called this type of abortion “gruesome, inhumane [and] never medically necessary” and also declared that it imposes severe pain on the fetus and places the woman's health in jeopardy.
Several doctors and organizations, including Planned Parenthood and the American Civil Liberties Union, on behalf of the National Abortion Federation, filed suits to overturn the act soon after President Bush signed it into law last November. They said the act was unconstitutional and contains no exceptions for women's health. Some pro-abortion groups say the procedure is often the safest route for a mother to take.
As a consequence, several judges issued temporary restraining orders that effectively prevented the government from prosecuting anyone who performs partial-birth abortions until the courts render their decisions.
“This criminal abortion ban endangers the health of women,” said Gloria Feldt, president of the Planned Parenthood Federation of America, in early March. “We will not give up until we have defeated it.”
In response to the restraining orders, the government subpoenaed the medical records at several hospitals across the country where abortions are performed.
“In a sense, what these doctors are doing is saying that this procedure is medically necessary and that we should trust them,” said Cathy Cleaver Ruse, the director of planning and information for the Pro-Life Secretariat of the U.S. Conference of Catholic Bishops. “They're not going to provide their records to prove it. They just want you to take their word for it. That's an outrageous position for these doctors to take.”
In a 1997 report, the American Medical Association said it supported a ban because it couldn't find “any identified situation” that the procedure was needed, Ruse said.
“What we know from working on this issue for so long and what we believe,” she said, “is this procedure is used for the doctor's convenience — not because there is some medical necessity for it.”
Access to Records
Federal judges in San Francisco, Lincoln, Neb., and New York City began hearing arguments in the cases March 29. One of the contentious issues in the weeks leading up to the trials was the access to medical records.
A Justice Department spokes-woman said the department respects patients’ privacy rights and has asked that hospitals or doctors delete any confidential information, such as names, Social Security numbers and addresses, before handing over the records.
“Medical records, even those of parties not before the court, are often relevant in civil discovery proceedings, and the Justice Department commonly requests this information in a way that protects patient privacy as it defends health-care laws passed by Congress and prosecutes health-care fraud cases,” said Monica Goodling, the Justice Department spokeswoman.
The National Abortion Federation, Planned Parenthood and the American Civil Liberties Union declined to talk to the Register about any aspect of the trials.
In New York, federal judge Richard Casey ruled in mid-March that medical records have to be turned over to him. Another federal judge ruled in mid-March that records in Michigan have to be turned over to Casey for his trial. Meanwhile, federal judges in Illinois and California have refused the Justice Department's request for the records.
Wendy Wright, the senior policy director for Concerned Women for America, a pro-family group, said the issue of patient privacy is “a red herring.”
The abortionists are “used to being able to lie and not have to substantiate their lies,” she said.
She cited the comments of Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, who told the ABC program “Nightline” in 1995 that the partial-birth abortion procedure was rarely used and only on women whose lives were in danger. In early 1997, he admitted he had “lied through [his] teeth” in both instances.
Dr. Kanwaljeet Anand, a pediatrician at the University of Arkansas for Medical Sciences and a government witness in Lincoln, Neb., testified April 6 that the unborn baby feels “severe and excruciating” pain during the procedure.
But a courtroom exchange in New York seemed to bring the unborn baby's humanity more into focus as Casey questioned abortion advocate Dr. Timothy Johnson about fetal pain.
Johnson, chairman of the department of obstetrics and gynecology at the University of Michigan, said he had not heard of any studies that say the fetus feels pain. Casey expressed surprise when Johnson testified that fetal pain never crosses his mind when he performs a “dismemberment.”
Casey also asked if the baby was still alive during the procedure and if “the fingers of the baby [were] opening and closing” and if the feet were moving. Johnson replied that there could be such movement. Casey then asked about the instrument used to remove the baby's head. Johnson compared it to salad tongs, and Casey interrupted, “Except here you are crushing the head of a baby.”
Testifying in New York on March 30 against the ban, Dr. Amos Grunebaum said many women request the fetus be preserved as intact as possible for a proper burial or so full testing can be done to determine the cause of pregnancy failure, according to the Associated Press.
Grunebaum, a specialist in maternal fetal medicine at New York Hospital, said the law was so vague that it could outlaw virtually any type of abortion performed during the second trimester because the fetus is sometimes still alive as it is brought outside the body, the news service reported.
Although the passage of the Partial-Birth Abortion Ban Act was a victory for those who are against abortions, experts say the road to enforcing the law could be a long one. Because of appeals, which are likely from either side, the partial-birth abortion question might head to the Supreme Court, said Douglas Johnson, legislative director for the National Right to Life Committee.
“Obviously, the fact we have five justices still on the Supreme Court who think that even partial-birth abortion is somehow protected by Roe v. Wade poses a formidable challenge to us,” he said.
He was referring to the 2000 Supreme Court case Stenberg v. Carhart in which the court ruled 5-4 that a Nebraska law banning partial-birth abortion was unconstitutional.
Carlos Briceño writes from Seminole, Florida.
- April 18-24, 2004