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Full text of "Partial-birth abortion : hearing before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, June 15, 1995"

PARTIALBIRTH ABORTION 

Y 4. J 89/1 : 104/31 ^^^^^^^^^^^ 

Partial-Birth Abortioni Serial Ho 

HEARING 

(BEFORE THE 
SUBCOMMITTEE ON THE CONSTITUTION 

OF THE 

COMMITTEE ON THE JUDICIAKY 
HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST SESSION 



JUNE 15. 1995 



Serial No. 31 










^ 



Printed for the use of the Committee on the Judiciary 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1995 



For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-052345-1 



PARTIAL-BIRTH ABORTION 

Y 4. J 89/1; 104/31 ^^^^^^^^^^^ 

Partial-Birth fibortion* Serial Ko 

HEARING 

(BEFORE THE 
SUBCOMMITTEE ON THE CONSTITUTION 

OF THE 

COMMITTEE ON THE JUDICIAEY 
HOUSE OF REPRESENTATIVES 

ONE HXnroRED FOURTH CONGRESS 
FIRST SESSION 



JUNE 15. 1995 



Serial No. 31 







^-h 



Printed for the use of the Committee on the Judiciary 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1995 



For saJe by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-052345-1 



COMMITTEE ON THE JUDICIARY 

HENRY J. HYDE, Illinois, Chairman 

CARLOS J. MOORHEAD, California JOHN CONYERS, Jr., Michigan 

F. JAMES SENSENBRENNER, Jr., PATRICIA SCHROEDER, Colorado 

Wisconsin BARNEY FRANK, Massachusetts 

BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York 

GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California 

HOWARD COBLE, North Carolina RICK BOUCHER, Virginia 

LAMAR SMITH, Texas JOHN BRYANT, Texas 

STEVEN SCHIFF, New Mexico JACK REED, Rhode Island 

ELTON GALLEGLY, California JERROLD NADLER, New York 

CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia 

BOB INGLIS, South CaroUna MELVIN L. WATT, North CaroUna 

BOB GOODLATTE, Virginia XAVIER BECERRA, California 

STEPHEN E. BUYER, Indiana JOSE E. SERRANO, New York 

MARTIN R. HOKE, Ohio ZOE LOFGREN, California 

SONNY BONO, California SHEILA JACKSON LEE, Texas 
FRED HEINEMAN, North CaroUna 
ED BRYANT, Tennessee 
STEVE CHABOT, Ohio 
MICHAEL PATRICK FLANAGAN, Illinois 
BOB BARR, Georgia 

Alan F. Coffey, Jr., General Counsel / Staff Director 
Julian Epstein, Minority Staff Director 



Subcommittee on the Constitution 

CHARLES T. CANADY, Florida, Chairman 
HENRY J. HYDE, Illinois BARNEY FRANK, Massachusetts 

BOB INGLIS, South Carolina MELVIN L. WATT, North Carolina 

MICHAEL PATRICK FLANAGAN, IlUnois JOSE E. SERRANO, New York 

F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan 

Wisconsin PATRICIA SCHROEDER, Colorado 

MARTIN R. HOKE, Ohio 
LAMAR SMITH, Texas 
BOB GOODLATTE. Virginia 

Kathryn a. Hazeem, Chief Counsel 

William L. McGrath, Counsel 

Keri D. Harrison, Assistant Counsel 

John H. Ladd, Assistant Counsel 

Robert Raben, Minority Counsel 



(U) 



CONTENTS 



HEARING DATE 



Page 

June 15, 1995 1 

OPENING STATEMENT 

Canady, Hon. Charles T., a Representative in Congress from the State of 
Florida, and chairman. Subcommittee on the Constitution 1 

WITNESSES 

Morton, Mary Ellen, RJ»J., neonatal specialist and flight nurse 76 

Robinson, J. Courtland, M.D., associate professor. Department of Gynecology 

and Obstetrics, Johns Hopkins University 63 

Smith, Pamela, M.D., director of medical education, Mt. Sinai Hospital 38 

Smolin, David M., professor of law, Cumberland Law School, Samibrd Univer- 
sity 97 

Watts, Tammy 71 

White, Robert J., M.D., professor of surgery, Case Western Reserve Univer- 
sity 67 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Canady, Hon. Charles T., a Representative in Congress from the State of 
Florida, and chairman. Subcommittee on the Constitution: Correspondence, 
articles, and statements 4 

Morton, Mary Ellen, R.N., neonatal specialist and flight nurse: Prepared 
statement 79 

Robinson, J. Courtland, M.D., associate professor. Department of Gynecology 
and Obstetrics, Johns Hopkins University: Prepared statement 65 

Smith, Pamela, M.D., director of medical education, Mt. Sinai Hospital: Pre- 
pared statement 42 

Smolin, David M., professor of Law, Cumberland Law School, Samford Uni- 
versity: Prepared statement 97 

Watts, Tammy: Prepared statement 74 

White, Robert J., M.D., professor of surgery, Case Western Reserve Univer- 
sity: Prepared statement 69 

APPENDDCES 

Appendix 1. — Statement of Hon. Sheila Jackson Lee, a Representative in 
Congress from the State of Texas 103 

Appendix 2. — Letter dated July 11, 1995, to Chairman Canady from Watson 
A. Bowes, Jr., M.D. professor. University of North Carolina at Chapel 
Hill 104 

Appendix 3. — Letter, with enclosure, dated June 8, 1995, to Keri D. Harrison, 
assistant counsel. Subcommittee on the Constitution, from Eve Surgical 
Centers Medical Corp 108 

Appendix 4. — Statement of National Right to Life Committee, Inc 122 

Am>endix 5. — Statement of Kathryn Kolbert, vice president, the Center for 
Reproductive Law & Policy 128 

Appendix 6. — Statement of Marion Syversen, president. Feminists for Life 
of Maine 141 



(III) 



PARTIAL-BIRTH ABORTION 



THURSDAY, JUNE 15, 1995 

House of Representatives, 
Subcommittee on the Constitution, 

Committee on the Judiciary, 

Washington, DC. 
The subcommittee met, pursuant to notice, at 10:23 a.m., in room 
2237, Raybum House Office Building, Hon. Charles T. Canady 
(chairman of the subcommittee) presiding. 

Present: Representatives Charles T. Canady, Henry J. Hyde, 
Bob Inglis, F. James Sensenbrenner, Jr., Martin R. Hoke, 
Bob Groodlatte, Barney Frank, John Conyers, Jr., and Patricia 
Schroeder. 
Also present: Representative Sheila Jackson Lee. 
Staff present: Kathryn A. Hazeem, chief counsel; Keri D. Har- 
rison, assistant counsel; Jacquelene McKee, paralegal; Jennifer 
Welch, secretary; and Robert Raben, minority counsel. 

OPENING STATEMENT OF CHAIRMAN CANADY 

Mr. Canady. The subcommittee will come to order. I am pleased 
to have the opportimity to hold this hearing to examine the partial- 
birth abortion procedure. We will hear primarily from medical ex- 
perts today. They will describe the partial-birth abortion procedure 
in which a live baby's entire body, except for the head, is delivered 
before the baby is killed, after which the practitioner completes the 
delivery. They will testify regarding whether the baby undergoing 
this procedure feels pain. 

We invited two of the abortionists who specialize in and advocate 
the use of this type of abortion. They agreed to testify. But appar- 
ently after further consideration, they found that their position was 
a position they did not wish to speak to the subcommittee about 
today. I am very disappointed to report that both practitioners can- 
celed at the last minute. 

This hearing focuses on partial-birth abortion because while 
every abortion sadly takes a human life, this method takes that life 
as the baby emerges from the mother's womb while the baby is in 
the birth canal. The difference between the partial-birth abortion 
procedure and homicide is a mere 3 inches. 

A fundamental principle on which our country was founded is 
that we are endowed by our Creator with the unalienable right to 
life. Roe v. Wade alienated that right from a powerless group by 
taking away their legal personhood. Richard John Neuhaus cor- 
rectly stated that, "We need never fear the charge of crimes against 
humanity so long as we hold the power to define who does and who 

(1) 



does not belong to humanity." The Supreme Court instituted abor- 
tion on demand by deciding that unborn human beings do not be- 
long to humanity. 

Partial-birth abortion procedures go a step beyond abortion on 
demand. The baby involved is not unborn. His or her life is taken 
during a breech delivery. A procedure which obstetricians use in 
some circumstances to bring a healthy child into the world is per- 
verted to result in a dead child. The physician, traditionally trained 
to do everything in his power to assist and protect both mother and 
child during the birth process, deliberately kills the child in the 
birth canal. 

Because we believe it is an inhuman act, Barbara Vucanovich, 
Tony Hall, Henry Hyde, and I introduced a bill yesterday with 28 
of our colleagues to ban the performance of partial-birth abortion. 
Partial-birth abortion is defined in the bill as, and I quote, "An 
abortion in which the person performing the abortion partially 
vaginally delivers a living fetus before killing the fetus and com- 
pleting the delivery." 

On June 12, the National Abortion Federation sent a letter to 
Members of Congress in response to a letter Barbara Vucanovich 
and I sent to inform our colleagues of our intention to introduce the 
partial-birth abortion ban. The National Abortion Federation letter 
made a number of claims about the partial-birth abortion proce- 
dure that are inconsistent with the statements of Drs. McMahon 
and Haskell, two abortionists who use and advocate the use of the 
procedure. 

The letter claims that the drawings of the partial-birth abortion 
procedure that we included with our "Dear Colleague," are highly 
imaginative and misleading. But Dr. Haskell himself told the 
American Medical News that the drawings were accurate from a 
technical point of view. 

Prof. Watson Bowes of the University of North Carolina at Chap- 
el Hill, a distinguished physician and prominent authority on fetal 
and maternal medicine, and coeditor of the Obstetrical and 
Gynological Survey, reviewed an article by Dr. Haskell describing 
a partial-birth abortion procedure and confirmed that the drawings 
are an accurate representation of the procedure described in the ar- 
ticle by Dr. Haskell. 

The National Abortion Federation letter also claims that fetal de- 
mise is virtually always induced by the combination of steps taken 
to prepare for the abortion procedure. Both Dr. Haskell and Dr. 
McMahon, however, told American Medical News that the majority 
of fetuses aborted this way are alive until the end of the procedure. 
In a Dayton News interview. Dr. Haskell referred to the scissors 
thrust that occurs after the baby's entire body is delivered and only 
the head of the baby is still lodged in the birth canal as the act 
that kills the baby. He said, and I quote, "When I do the instru- 
mentation on the skull, it destroys the brain sufficiently so that 
even if it," that is, the baby's head, "falls out at that point, it defi- 
nitely is not alive." 

After his review of Dr. Haskell's article, Professor Bowes con- 
cluded that the fetuses are alive at the time the partial-birth proce- 
dure is performed. Indeed, Dr. Bowes notes that Dr. Haskell explic- 



itly contrasts his procedure with other procedures that do induce 
fetal death within the uterus. 

The National Abortion Federation letter implies that partial- 
birth abortions are performed only in unusual circumstances. Nei- 
ther Dr. Haskell nor Dr. McMahon claims that this technique is 
used only in limited circumstances. In fact, their writings advocate 
this method as the preferred method for most late-term abortions. 
Dr. Haskell prefers the method from 20 to 26 weeks into the preg- 
nancy. Dr. McMahon uses the method through the entire 40 weeks 
of pregnancy. In fact, a previous National Abortion Federation 
memo to its members counsels them not to apologize for this legal 
procedure, and states, 'There are many reasons why women have 
late abortions: life endangerment, fetal indications, lack of money 
or hesJth insurance, social-psychological crises, lack of knowledge 
about human reproduction, etc." 

It is my hope that we can have a candid debate on the realities 
of this procedure without disinformation or euphemisms. I believe 
that when they are informed about the truth of this procedure, my 
colleagues who value the dignity of human life and believe in com- 
mon decency, will agree with me that partial-birth abortion is inhu- 
man and should be banned. 

[The material referred to above follows:] 



CHARLES r. CANADY 

COMMITTEE ON THE JUDICIARY 

(fnnnrp<i<( nf rii^ TlUnil-^h A^tattm '"S« 

131 688-2651 



Congregg of ttje ©niteb States; '"S«:^r.u 



COMMITTEE ON ACRICULTUBE 



Jlouse of iReprwfentatibw 

ai«a£rt)ington. ffiC 20515-O912 



Junes, 1995 

Dear Colleague: 

Next week, we will introduce a bill to ban partial-birth abortions. This type 
of abortion, performed in the second and third trimester of pregnancy, is 
particularly brutal and inhuman because the baby is delivered except for the head 
before the abortionist kills the baby. The difference between this legal procedure 
and murder is literally three inches. 

During the partial-birth procedure, the abortionist uses forceps to pull a living 
baby feet-first through the birth canal until the baby's body is exposed, leaving 
only the head just within the uterus. The abortionist then forces surgical scissors 
into the base of the baby's skull creating an incision through which he inserts a 
suction tube to evacuate the brain tissue from the baby's skull. The evacuation of 
this tissue causes the skull to collapse, allowing the baby's head to be pulled from 
the birth canal. 

We have included diagrams of the procedure on the back of this letter. The 
diagrams clearly show how unthinkable this procedure is for those who value the 
dignity of human life and believe in common decency. 

Our bill would make performing a partial-birth abortion a felony. It would 
also establish a cause of action against an abortionist who performs the procedure. 

Please join us in putting a stop to these abhorrent procedures by becoming 
an original cosponsor of the Partial-Birth Abortion Ban. Call Keri Harrison at 6- 
7680 with questions or to cosponsor. 

Sincerely yours, 

Charles T. Canady ^ Barbara Vucanovich / 

Member of Congresff Member of Congress 




June 12, 1995 

U.S. House of Representatives 
Washington, DC 20515 

Dear Representative: 

By now you have probably received a letter from Rep. Charles Canady (R-FL) and Barbara 
Vucanovich (R-NV), asking you to sign on to a bill criminalizing what they erroneously refer to 
as "partial birth" abortions. The letter is accompanied by graphic, misleading sketches. 

The National Abortion Federation (NAF), as the professional association of abortion providers, 
would like to correct the inaccurate and deceptive information that is being distributed regarding 
this procedure. The letter's language, and the drawings that accompany it, are intendonadly 
inflammatory and provocative. However, according to J. Courtiand Robinson, MD, MPH, of 
the Johns Hopkins University School of Medicine, they are also "highly imaginative and 
artistically designed, but with litde relationship to the truth or to medicine." 

The surgical technique used most often in abortions after the first trimester is called dilatation 
and evacuation. This involves the dilation of the cervix, using a natural dilator called laminaria 
or an artificijil dilator, over the course of several hours or even overnight. After the cervix has 
been sufficiendy dilated, suction is used to remove the fetvis. In some cases, the circumstances — 
the position or size of the woman's uterus and cervix, or the position of the fetus — dictate that 
the fetus is instead removed intact. As with standard D&E, fetal demise is virtually always 
induced by the combination of steps taken to prepare for the abortion procedure. The physicijm 
performing this procedure is not inducing a "partial birth." This is not a different surgical 
procedure than D&E; rather, it is one option available to the physician for concluding a D&E if 
the medical facts of the case dictate that this is the safest and best way to do so. 

To criminalize a physician for concluding a surgical procedure in the way he or she deems to be 
safest for the patient — the woman — is tantamount to legislating malpractice. The legislation, as 
written, is a sly, indirect way of banning later abortions altogether. Responsible physicians will 
not initiate any surgical procedure if they cannot conclude it in whatever way is safest for their 
patient. Later abortion is an emotionally devastating situation. Many women having abortions 
in these circumstances are ending planned and wanted pregnancies because of devastating fetal 
anomalies, or because their own Uves or health are at grave risk. Others are very young 
teenagers -- sometimes horribly traumatized by rape or incest -- who have not recognized the 
signs of their pregnancies until too late. Still others are women in poverty, who have tried 
desperately to act responsibly and end an unplanned pregnancy in the early stages, only to face 
insurmountable financial barriers. 



National Abortion Federation 
Page 2 

In any of these circumstances, a woman expects her doctor to help her terminate the pregnancy 
with the greatest care for her safety and health. Those who drafted this bill and drew these 
sketches want you to forget that. We trust that you won't. If you "value the dignity of life and 
believe in common decency," you will reject this attempt to prevent doctors from treating 
patients in the safest way possible. 

If you have further questions about any aspect of this subject, NAF vnH be happy to put you and 
your staff in touch with expert physicians, such as Dr. Robinson, who can discuss the matter with 
you. 

Sincerely, 




5kbhjU 



Vicki Saporta Gary Prol^aska, MD 

Executive Director Chair 

Medical Education & Advisory Committee 



THE UNIVERSITY OF NORTH CAROLINA 

AT 

CHAPEL HILL 




Dav« Andruslco 

N«ws Editor 

National Right to Lif* News 

Suit* 402 

419 7th Straat, N.W. 

Washington D.C. 20004 

D«ar Mr. Andruako: 

I hava raviawad tha articla antitlad "Dilatation and 
Extraction for Lata Sacond Trimastar Abortion" by Martin 
Haskall, M.D. (prasantad at tha National Abortion Fadaration 
Riak Managaaant Saainar, Saptaia>ar 13, 1992). Tha 
illustration adaptad froa drawings appaaring in tha Fabruary 
1993 issua of "Lifa Advocata" and anclosad in your lattar of 
April 19, 1993, is an accurata raprasantation of tha 
procadura dascribad in tha articla by Dr. Haskall. 

Sincaraly yours. 



Watson A Bowas 
Profassor 



IDi. WatMon Bowes, a leading authority on matarnai and fatal aedicine, 
is a professor of both obstetrics/gynecology and pediatrics. He is 
co-editor of Obstetrical and Gynecological Survey , and has served on 
the Congressional Biomedical Ethics Advisory Coimittee.] 



10 



Abortion 



Continued from pa^e J 

A letter to the Siar-Tnbune said the 
procedure sho*n "is only performed 
at'ter feul death when an autopsy is 
necesjary or to save the life of the 
mocher" And the Morrisville. Vt.. 
Tnuucnpi. which said m an editonal 
thai It allowed the brochure to be in- 
serted in Its paper only because it 
feared legal acuon if it refused, quoted 
the abortion federation as providing 
similar informauon. "The fetus is dead 
24 hout5 before the pictured pixxedure 
IS undertaken." the editorial stated. 

But Dr. Haskell and another doctor 
who rouanely use the procedure for 
late-term abortions told AMNtws that 
the majority of fetuses aborted diis way 
are alive until the end of the procedure. 

Dr. Haskell said the dnwuigs were 
accurate "from a lechucal poiet of 
view." But he took issue with the im- 
plication that the fetuses were 'aware 



Radford also acknowledged that the 
informaoofi her group was quoted at 
providing was inaccurate. She has 
smce sent a lener to federadon mem- 
for 




• The language and graphics in tfaa 
some readen. 
'Much of I 
er. IS r 
invoked if one were (o liaicn to 



odier surgical procedure involving bkMd. 




Only Or. HmImU. JamM T. McMn- 
hobMaof Loa. 
fiU of odwr docioci pwtom te D*X 
pioccdura. which Ot McMataa nhn 
to as "ioact DftE." Tha nan eom- 



ally involvH i^iKint dtowin or an- 

loU iL tea dilariit te cwix and in- 
dBcinglatac 

OtHMkriL «to owm aboctioa clin- 
iM m CimdmtA md Daywa. said he 



Brochura cKas N.Y. case 

The tour-page anii-abortion bro- 
chures also include a graphic depiction 
of the D&X procedure But the cover 
features a photograph of 16-monch-old 
.^na Rosa Rodnquez. *hose nght arm 
was severed dunng an abonion attempt 
when her mother was 7 months preg- 
nant. 

The child was bom two days later. 
at 32 to 34 weeks gesution. Abu 
Hayat MD. of New York, was con- 
victed of assault and performing an il- 
legal abortion. He was sentenced to up 
to 29 years in pnsoa for this and an- 
other related offense. 

New York law bans aboruons after 
24 weeks, except to save the mother's 
life. The brochure stales that Dr. Hayit 
never would have been prosecuted if 
the federal "Freedom of Choice Act" 
were in effect because the act would 
invalidate the New York sutute. 

The proposed law would allow abor- 
tion for any reason unal viability. But 
It would leave it up to individual prac- 
utioners — not the sute — to define 
that powL t^Mtviability abortions, how- 
ever, could not be resincted if done to 
save a woman's life or health, including 



The abortiott federatioa's Radford 
called die Hayat case 'an aberTaDoa' 
and stressed that the vast majority of 
abortions occur within dte fint trimes- 
ter. She alio said thai later abortion* 
usually are done for reasons of fetal 



Bui Douglas Johnson of the National 
Right to Life Comiratiee called that 
suggesdon "Maiandy false.' 

^^e abortion practitioners them- 
selves will admit the majottty of their 
late-term abortitMa'are elective.' he 
said. 'BBople like Dr. HatkeU are jaa 
how to do II 




exampte. oae-diird of aU ahornoaa are 
said to occur in California, but dM state 
hat no reportinf rcquiremenu. The 



and ha had ao ptaea la I 

o«araiglK while doiaa dH 

B« dH claaiic Ole. 



ipaalSwaeks. 



ea dM tiak of p erfor a iioa. leviai 
hemorrhafiag. ha said. So he 
■diodie OftX 




prooadata 
ftU of odH 
people queaay. But he defenda it. 
"Once you decide dH uierua muat be 
emptied, you diea heve to heva 1004 
aUegiaoca to matamal riak. There's ao 
juttiricatKm to doing a mora daafvoaa 
procedure because somehow this 
doesn't offend your sensibilitiea aa 



ibottions in IMS. die I 
year for which figuraa are available. 
60.000 of ^ " 



te. ia which dM dM 16- to 20-waek oenod. widi lO.l 

MdedMwoo*. 5m AMOinW. Mjt p> 



11 



Abortion 



Continued from preceding page 
at week 21 and beyond, the institute 
says. Estimates were based on actual 
gestational age, as opposed to last 
menstrual period. 

There is particular debate over the 
number of third-trimester abortions. 
Former Surgeon General C. Everett 
Koop. MD. estimated in 1984 that 
4.000 are performed annually. The 
abortion federation puts the number at 
300 to 300. Dr. Haskell says that 
''probably Koop's numbers are more 
correct" 

Dr. Haskell said he performs abor- 
tions "up until about 23 weeks' " ges- 
tation, most of them elective. Dr. Mc- 
Mahon does abortions through all 40 
weeks of pregnancy, but said he won't 
<do an elective procedure after 26 
weeks. About 80% of those he does 
after 21 weeks are nooeiective. he said. 



MiXMl 

Dr. McMahbn admits having mixed 
feelings about the procedure in which 
he has chosen to specialize. 

"I have two positions that may be 
internally inconsistent, and that's prob- 
ably why I fight with this aU the time." 
he said. 

"I do have monl compunctioas. And 
if I see a case that's laisr. like after 20 
weeks where it fraoUy is a child to 
me. I really agooixe ovsr it because 
the potential is so imminently tliere. I 
think. 'Gea. itliioo bad thai this child 
couldn't be adopted.' 

"Ob dM ocbsr haod. I how* another 
I tUnk is superior in 
of qoastioQs. and dial is: 
Who owns da child?* b"! got lo be 



DLMcMaboo 



nical skilL I can taj, 
tbev'ie s) 

SOlUtiOB 



hostafe to my tech- 
im, *No, I won't do 



desperate maneuver." 

Dr. Haskell, however, says whatever 
qualms he has about third-thmester 
abortions are "only for technical rea- 
sons, not for emotional reasons of fetal 
development" 

"I think it's important to distinguish 
the two," he says, adding that his cut- 
off point is within die viability thresh- 
old noted in Roe v. Wade, the Supreme 
Court decision diat legalized abortion. 
The decision said that point usually oc- 
oirred at 28 weeks "but may occur 
earlier, even at 24 weeks." 

Viability is generally accepted to be 
"somewhere between 23 and 26 
weeks.'* said Dr. Haskell. "It just de- 
pends on who you talk to. 

"We don't have a viability law in 
Ohio. In New York they have a 24- 
week limitation. That's how Dr. Hayat 
got in trouble. If somebody tells me I 
have to use 22 weeks, that's fine. . . . 
I'm not a trailblazer or activist trying 
to constantly press the limits." 

Campaign't Impact dabatad 

Whedier die ad and brochures will 
have die full impact abortion oppo- 
nents intend is yet to be seen. 

Congress has yet to schedule a final 
showdown on die bill. Aldiough it has 
already passed dirough die necessary 
committees, supporten are reluctant to 
move it for a tuli House and Senate 
voce until diey are sure diey can win. 

In fact House Speaker Tom Foley 
(D, Wash.) has said he wants to bring 
die bill for a vote under a "closed 
procedure, which would prohibit 
of amendments. 

But opponents are lobbying heavily 
against Foley's plan. Among the 
amendments they wish to offer is one 
dial would allofw, but not require, states 
to restrict abortion ~~ except to save 
dw mother's life — after 24 weeks. 



12 




E] 



m m m 

fli ill! ifi pi* 

ef iiii iW Hi 

«> iiliJpHilli 
p Piiiliit!!!! 




11, 1 ii 1 i 




13 



THE UNIVERSITY OF NORTH CAROLINA 

AT 

CHAPEL HILL 

Th. School of MedKan. Th. Un.m«., of Vonh C^obn. . 

Otoinmn.. of Ob.ie.nci * Oyn«:olot> CM -JTO. 214 MkN.Oct auildini 



I of Maicrnal-FcuJ Medicine 



ChwH Hill. N.C ;T)99-IJ70 



May 17, 1993 



Douglas Johnson 

Fsdsral L«glslatlv« Dlrsctor 

National Right to Life Comnittaa, Inc. 

Suits SOU 

419 7th Strsst, N.W. 

Washington, O.C. 20004-2293 

Dsar Mr. Johnson: 

Ths prassntation by Dr. Martin Haskall, antitlad Dilation 
and Extraction for Lata Second Triaastar Abortion, presented 
at the National Abortion Federation Risk Management Seminar, 
September 13, 1992 says nothing about the fetuses being dead 
prior to the procedure. In the "BacJcground" section of the 
manuscript. Dr. Haskell refers to two methods of inducing 
fetal death prior to performing the extraction (intra- 
amniotic infusion of urea or rupture of the membranes and 
severing the umbilical cord) which were described at 
previous NAT meetings. By contrast, the method that Dr. 
Haskell describes says nothing about induction of fetal 
death prior to the surgical procedure. Consequently, I 
believe it is quite safe to say that fetuses are alive at 
the time the D4X procedure is performed. 

Enclosed find a copy of the letter that I have sent in 
overnight mail to Congressman Smith. I am also enclosing 
for your interest copies of the articles that I enclosed 
with that letter. In addition there is a recent article by 
Dr. Robarton in Cambridge about the care of newborns with 
birth weights less than 800 gm. I call your attention to 
the section entitled Clinical Conclusions on page 328. 

Sincerely, [Dr. Watson Bowes, a leading authoTicy 

on maternal and fetal medicine, is a 
professor of both obstetrics/gynecology 
and pediatrics. He is co-editor of 
Obstetrical and Gynecological Survey , 
Hatson A. Bowes Jr., M.D. and has served on the Congressional 
Professor Biomedical Ethics Advisory Committee.] 



14 



Second Trimester Abortion: 
From Every Angle 

Fall Risk Management Seminar 

SeptemberlS-14, 1992 
Dallas, Texas 



Presentations, Bibliography & Related Materials 






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15 



Dilation aad Extraction 
for Late Secood Trimester Abortion 

Marti-i Haskell. MD. 

Presented at th« National Abortion Federauon 
Risk Managemeot Stnitnar. September 13, 1992 



INTRODUCTION 

The surgical method described in this paper diHen from classic D&E io that it 
does not rely upon dismerebennent to remove the fetus. Nor are inductions or 
infusions used to expel the intact fetus. 

Rather, the surgeon grasps and removes a nearly intact fetus thraugh an 
adequaUly dilated cervix. The author has coined the term Dilation and Extraction or 
DAX to distinguish it from dismemberment-type D&E*!. 

This praceduie can be performed in a properly equipped physician's oQiee 
under local anesthesia. It can be used suooeasfiilly in patients 20-26 we»ks in 
pre£ii 

The author has performed over 700 o f these procedures vitb a bw rate of 
complications. j jJLj^ 







BACKGROUND 



DAE evolved aa aa alternative to induction or instillation methods for second 
trimester abortion in the mid 1970*8. This happened in part because of lade of 
hospital facilities allowing second trimester abortions in some geographic areas, in 
part because surgeons needed a 'right now* solution to complete suction abortions 
inadvertently started in the second trimester and in part to provide a means of early 



16 



aecond tnmasttr abortion to avoid necessary delays for insullation methods ' The 
North Carolina Conrercnce in 1978 established D&E as the prererred method for early 
second trimesur abortions in the U.S.2. 3_ 4 

Classic D&E is accomplished by dismembering the fetus inside the uterus with 
instruments and removing the pieces through an odequately dilated cerva.5 

However, most aurfeons find dismembcnncni at twenty weeks and beyond to 
be difQcult due to the toughness of fataJ tissues at this stage of development. 
Conaequently. most late second tnmesier abortions are performed by an induction 
method.6 ^. 8 

Two techniques of late second thmastcr D&C's have been described at previous 
NAF meetings. The firat relies on sterile urea intraamniotic infusion to cauae fetal 
demise and lysis (or aoflsning) ofleUl tissues prior to surgery .9 

"TIjc saand technique is to ruptun the membranes 24 hours prior to surgery 
and cut the umbilical cord. Fetal death and anauing autolysis eofUn the tissues. 
There are atundant riska of infection with this method. 

In summary, approachaa to lata second trimester DAFs rely upon some means 
CO induce early fetal demia* to soften the feUl tissues making dismemberment easier 

PATIENT SELECTION 

The author routinely peribrms this procedure on all patienU 20 through 24 
weeka LMP with certain exeeptiena. The author performs the procedure on seleeud 
patienu 25 through 26 weeka LMP. 

The author refera for induction patienU falling into the following categories: 

Previous C-aectlon over 22 weeka j^ , u« 

Obeae patienta (more than 20 pounds over large frame ideal weight) 
Twin pregnancy over 21 weeks 
PatieikU 26 weeks and over 



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DESCRIPTION OF DILATION AND EXTRACTION METHOD 

Dilation and extraction takes place over three days. In a DutsbeU. O&X caa be 

described as (bllows: 

Dilation 

MORE DILATION 

Raal-ttme ultrasound wisualizatioD 

Versiea (as Deeded) 

lotact extractioa 

Fetal skull deeompreaaioa 

Removal 

Clean-up 

ReoBwcry 

Day 1 ■ Dilation 

The patient ia evaluated with an ultrasound. bcmoflobiQ and Rh. Hadlock 
scales are uaed to intnrpiet all ultraeound moasuiemcnts. 

In the operatinc raom. the cervix is prspped, anesthcsiaed and dilated to 9-11 
mm. Five, six or seven lerga DiUpan hydreocopic dilators are plaosd in the eervix. 
The patient foes home or ts a meUl ovemif bt 



The patMBt raturaft ta the operatiaf room when the previous day^ Dilnpan 
an ramevod. The OBviz ia acrubbed and aneetheeised. Between IS and 2S Dilapan 
are placid in the eervieel canaL The petient returns home or to a motel ovemicbt 



The petient lecaras to the operatinc raom where the previeue day's Dilapen 
are ramevad. The enrfieal aaaisUnt administen 10 lU Pitaoa iatramaacularly. The 
cervix ia scrubbed aaeethesixed and (rasped with a tenaculum. The membranes are 
ruptured, if they are not already. 



18 



The surpcai assistant places an ultrasound probe on the patient's abdomen 
and scans the fetus, locating the low«r extremities. This stan provides the surgeon 
tnrormation about the orientation of the fetus and approxiraau locabon of the lowar 
extremities. The tranducer is then held in positwn over the lower axtninities. 

The surgeon introduces a large grasping ferccp, such ae a Bierer or Hem. 
through the vaginal and oarvical canals into the corpus of the uterus. Baaed upon hu 
knowledge of fetal onentation. ha moves the tip of the iostnuneDt carefully towards 
the fetal lower extremities. When the instrumant appaara on the sonogram screen . 
the surgeon is able to open and close iU jaws to firmly and reliably graap a lower 
extremity. The surgeon the n appliaa firm tractiop to the instruineot caua ing a version 
of the Citus (if necessary) and puUs the extremity into the vagina. 

By observing the movement of the lower extremity and varvion of the fiitus ea 
the ultrasound screen, tha surgaon is aasuivd that his iastnunont has not 
inappropriauly grasped a matamal structure. 

With a lower extremity in the vagina, the surgeon uses his" fingera to deliver 
the oppositt lower extta mity. then tha torso, tha shoulders and the upper extremities 

The skull lodges at the internal cervical os. UauaUy there is tiot enough 
dilatioa for i t to paaa through. The latus is oijeated dorsum or spine up. 

AC this point, th e I^^fa^h«ndad surgaoo slides tha ftngen of the left had along 
the back of tha fataa and •hooka' tha shoulders of the fetus with the index and ring 
fingera (palm ^wn). Next he slides the tip of tha middle finger along the spine 
towards tha skull while applying traction to the shouldara end lower extremities. The 
middle finger lifU and puahea the anterior cervical lip out of the way. 

While mainUiniwg thU tension, lifting the cervix and apply ing traction to the 
shoulders with the fmpra of the left hand, tha aurgaon takea a pair of hlunt curved 
Metsenbaum scissors in tha right hand. Ha carefully advances the tip, curved down- 



19 



ilont th« ipint and undar his middle finger u ntil he feels it contact the base of the 
skull under the tip of his middle finger. 

ReasM»sing proper placement of the closed scissors tip and safe elevation of the 
cervix, the turgeon then forces the icisaori into the base of the skull or into the 
foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge 
the opening. 

The surgeon removea the aciaaors and introduces • suctioa catheter into this 
hole and evacuates the skull contenta . With the catheter still to place, he appUea 
traction to the fetus, removing it completely from the patienL 

The surgeon rinally remevea the placanU with forceps and scrapes the uteriae 
walls with a large Evana and a 14 mm suction curette. The praoedure ends. 



PatieaU are ebaarvvd a mininuin of 2 hours following suifaiy. A pad check 
and vital signs are performed every 30 minutes. Patiente with miainal bleeding after 
30 minutaa ate eneeuraged to walk about the building or outside between checka. 

latraveaous fluidt, pitoda and anttbietka an availabia far the axeaptioaal 
tiacs they an n aadad, 

ANESTHESIA 

Udeoaiae 1% with epiaephhne edministered uUra<ervieally ia the staadard 
anaatteMa. Nitiaus-oaidafeiygan enelgesie ia administered oaaally as as adjunct. 
For the DUapan iaaart and Dilapan change. ISee's u uaad ia 3 eqoidistaat loeatioaa 
afound the oervis. For the surgary. 24ec's ia uaed at 6 equidistaat spota. 

Carboeaine IH ia aubatitutad for lidocainc for patiente who eaptaaaad Udocaina 
eenaitivity. 



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MEDtCATIONS 

All patients not allcrfic to t«tracycline analogues receive doxycycluit 200 mgm 
by mouth daily for 3 days beginning Day 1. 

Patienta with lOX hiatory of gonorrhea, chlamydia or pelvic inflajnmatory 
disease receive additional doxycydine. lOOmgni by mouth twice daily for six 
additional days. 

Patients allergk to tatracydinca are not given preplylactic aatibiotws. 

Ergotrata 0.2 ragm by mouth four times daily Car three days is dispensed to 
each patient. 

Pitocin 10 lU intramuscularly is adminiatered upon removal of the Dilapan on 
Day 3. 

Rhogam intramuscalarly ia provided to all Rh negative patieaU on Day 3. 

IbuprofeB orally is provided liberally at a rate of 100 mgm per hour from Day 1 
onward. 

PatienU with aevere cramps with Dilapan dilation are provided Phenargan 2S 
mgm suppoeitorMa netally ev«r]r^4 hours as needed. 

Ran paliaou nqftin Synalogos DC in order to sleep during Dilapan dilation. 

Patianu with a h«mo(lobin lesa than 10 g/dl prior to surgery raoeive packed 
rmlbloedeaUi 



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FOLLOW-UP 



All patients an ^vcn a 24 Kour physician's Dumber to call in cas* of a problem 



At leut thrae attempu ta contact each patieot by phone one week after 
surftry are made by the office staff. 

All patienu ai« aaked to return for check-up thj«e weeks foUowiii« their 



THIRD TRIMESTER 

The author ia aware of one other auneon who wa a «oceptu«lly aunilar 
t>chaiq«e . Ha adda additioBal changes of Dilapan andfor lamioeria in the 48 hour 
dilation pened. Coupkd with other refinemena and a slower operating tiiae, he 
parfomu these praceduies up to 32 weeks or mon.^O 



SUMMARY 

:.- heooduiiaB. Dilation and Estraction is an altemaUve method for achieving 
lato aacBBd trimoatar abortions to 26 weeks. It can be used ia the third trimester. 

AsBOBg its advaaugas ai« that it ia a quick, surgical outpatient method that 
can bo periemMd on a acheduled basis under local an e s thes ia 

Aaoag ita disadvanugea ai« that it requiraa a high degne of surgical skiU. 
and may aec be appropriate for a bw paUenta. 



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June IS. 199S 

Dear NAF Member: 

M^y of you have called in recent weeks reg^irdlng the diithbution of an inflammatory 
aati-abonion flyer depiciing graphic deuiU of the Dilation and Extraction (D&X) 
abortion procedure. We wmld hke co provide you with tome accurate information on 
chii procedure, ta well as some guidelines in diiciuting thi* and any other abortion 
procedure with the prej» and public. 

First of aU, the D&X procedure was presented as part of the NAT 'Second Trimester 
Abortion: From Every Angle' risk management seminar held in September of 1992. 
The surgical method described differs from a classic Dilation and Evacuadbn (D&£} 
procedure only in that it does not rely upon dismemberment to remove the fetus. 
Rather, the nirgeon grasps and removes a neariy intact fetus throu^ an adequately 
dilated cervix. This b a small variation in a basic surgical procedure thatthas been 
performed for over 1 5 years. The workbooks and tapes from this meeting arej available 
to aB NAF members who would like addiuohal detaks. 

The language and graphics used in the latest anti-choice pr<^aganda to desicribe this 
procedure are dinurbing to some readers. Much of the negative reaction, however, is 
the same reaction that M^t be invoked if one were t« Usun to a surgeon 4«*eribing 
step-by-step almost any other surgical procedxire involving blood, human tisfue, etc 

Here are a fev talking poinu chat may hdp you in di s cnsi i n g this pMcedmrcr 

1. Don't apdogizr. this is a legal abortion procedure. 

i. • The woman receiving the abortion is the patient. ' 

S. The obBgauott of any physidaa is to enitirc that dik abortion pirocedure 
' taltcted ben promotes the health and safety of faiia/her patient. 

4>- ThtTt is oa method of abortion that is acceptable to an and-choice penon. 

S. This is not a oosunon procedure. Very fiw women have abortions after 
20 weeks: one-half of one-percent of all abortions are performed after 20 
weeks: some 300-500 abortions a year are peifbnaed after 24;-week« of 
pregnancy. 



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Page two 



6. There are many reasons why women have late abortions : life 
cndangerment, fetal indkauons. lack of money or health insurance, social, 
psychological crises, lack of knowledge about human reproduction, etc. 
Use the NAF fact sheet on second trimester abortion. ] 

7. Women who are having an abortion because of fetal anomalies are able to 
have the intact fetus examined by genetidsu, thereby, providing a better 
diagnostic evaluation of the chances for a future healthy pregnancy. 

8. Abortions in cases of fetal defect are almost always performed after 20 
weeks. The availability of testing for severe fetal defects, such as Tay- 
Sachs, has actually permitted women who otherwise wovdd not risk 
becoming pregnant to conceive and bear a child. Any prolpbition on 
abortions after 20 weeks would prohibit women from having abortions in 
cases of severe fetal defects. I 

It is critically important that NAF members be able to share information on new and 
improved abortion technologies in the spirit of scientific advancement, as with viy other 
mediad advances. While we face political pressures unknown in other segmenu of 
health care that often discourage open dialogue, NAF will continue to provide the latest 
in advances in abortion care to improve women's health. J 

I 
We take pride in keeping you up-to-date on medical issues in abortion care and are 
pleased to contribute to the health of your clients. If we can answer any ochef questions 
about the above, please feel free to contact ut. 

Sincerely, 



Barbara Radford 
Executive Director 



BR:pa 



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Martin HaskcU, M.D. 

P.O. Box 43222 
Cincinnan, Ohio 45243 

(513)527-4970 Fax (513) 527.4981 



June 27, 1995 



Congressman Charles D. Canady, Chairman 

ATTN: Keri Harrison 

Subcommittee on Constitution 

Committee on the Judiciary 

House of Representatives 

H2-362 

Ford House Office Building 

Washington, DC 20515 



Re: For the record on HR 1833 



Dear Chairman Canady: 

Recently, your committee held a hearing regarding a procedure that you refer 
to as a partial birth abortion. During the hearing and subsequently in a 
statement written June 15, 1995, you quote the American Medical News as 
quoting me that drawings were accurate "from a technical point of view." 
You further stated in a letter to colleagues on June 14, 1995, quoting again 
the American Medical News, that the majority of the fetuses aborted this way 
are alive until the end of the procedure. As a public official, I am sure you 
also have been subject to representations by the press that were not entirely 
on the mark. 

Let me set the record straight since it is supposedly my words and thoughts 
that you banter about ao freely. 

Over the years I have seen over a dozen representations and articles in 
various newsletters published by people who have only one purpose in mind, 
to ban all abortions. The original of ^ese articles was I believe printed in 
Life Advocates in Oregon (a publication whose editorial board advocates the 
murder of physicians who perform abortions). This original article is 
liberally sprinkled with editorial comments and statements that show a gross 
ignorance of the procedure and events that take place during its 



25 



Congressman Charles D. Canady 
June 22, 1995 
Page 2 



performance. Subsequent reprints have been further editorialized and 
embellished leading them further from the truth. 

Let me state unequivocally that taken as a whole these lay articles 
are misleading and misrepresent the nature of this surgery. 

Articles written for the professional community take for granted a certain 
amount of knowledge in the reader. Consequently they do not describe every 
detail. Additionally, the original paper is over three years old. The 
procedure has continued to evolve in refinement since then. Statements that 
fetuses are not dead until nearly the end of the procedure are not accurate. 
Death occurs early in the procedure if not before. Representations that 
fetuses are living, conscious, feeling pain, wiggling, kicking or trying to 
escape are totally fictitious. 

It amazes me that people who have never seen a procedure are so willing to 
talk so authoritatively about something of which they know so little. It 
amazes me even more that you are so willing to be their pundit. 

During the hearings, you also stated that my reasons for not attending your 
hearing were reluctance to defend the procedure. I do not understand why 
you wish to promulgate such a flagrant lie when my letter to Henry Hyde 
(copy enclosed) and provided to the subcommittee's assistant, Keri Harrison, 
accurately states my reasons for not attending: 

1. '^t has not been possible for me to rearrange my commitments to 
my patients on such short notice" 

2. "yovi invitation did not include a copy of any proposed legislation. 
Therefore, it would be difficult for me to testify credibly about 
something that is just idea in someone's head" 

Such puxpoflefiil misrepresentations by politicians cause all Americana to 
mistrust their elected oflficials and their government in general. 



Sincerely yours, 

Martin Haskell, MD^ 
MH:jf 



SSI 



NEWS 



Published by the American Medcal AssociatJon/51! 



July 11, 1995 



The Hon. Charles T. Canady 

Chairman, Subcomnictee on the Constitution 

Committee on the Judiciary 

U.S. House of Representatives 

2138 Rayburn House Office Bldg. 

Washington, D.C. 20515-6216 

Dear Representative Canady: 

Ue have received your July 7 letter outlining allegations of inaccuracies 
in a July 5, 1993, story in American Medical News . "Shock-tactic ads target 
late-terra abortion procedure. ' 

You noted that in public testimony before your coonittee, AMMews is 
alleged to have quoted physicians out of context. You also noted that one 
such physician submitted testimony contending that AMMews misrepresented his 
statements. Ue appreciate your offer of the opportunity to respond to these 
accusations, which now are part of the permanent subcoamittee record. 

AMNews stands behind the accuracy of the report cited in the testimony. 
The report was complete, fair, and balanced. The comments and positions 
expressed by those interviewed and quoted were reported accurately and in- 
context. The report was based on extensive research and interviews with 
experts on both sides of the abortion debate, including interviews with two 
physicians who perform the procedure in question. 

Ue have full documentation of these interviews, including tape recordings 
and transcripts. Enclosed is a transcript of the contested quotes that relate 
to the allegations of inaccuracies made against AHNews. 

Let me also note that in the two years since publication of our story, 
neither the organization nor the physician who complained about the report in 
testimony to your comittee has contacted the reporter or any editor at AMMews 
to complain about it. AMMews has a longstanding reputation for_balance, 
fairness and accuracy in reporting, including reporting on abortion, an issue 
that is as divisive within medicine as it is within society in general. We 
believe that the story in question comports entirely with that reputation. 

Thank you for your letter and the opportunity to clarify this matter. 



Respectfully yours, 



^^^\mx.\^i^uA^ 



Barbara Bol 
Editor 



Attachment 



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Relevant portion* of recorded interview with Martin Haskell, HD: 

AMI: Lee's calk first about whether or not Che fecus is dead beforehand... 

Uaskell: No ic's not. No, it's really noc. A percencage are for various 
numbers of reasons. Some just because of the stress — intrauterine stress 
during, you know, the two days Chat the cervix is being dilated. Sometimes the 
membranes rupture and it takes a very small superficial infection to kill a 
fetus in utero when the membranes are broken. And so in my case, I would think 
probably about a third of those are definitely are (sic) dead before 1 
actually start to remove the fetus. And probably the other two-thirds are not. 

AMM ; Is the skull procedure also done to make sure chat the fetus is dead so 
you're noc going to have the problem of a live birth? 

Haakell: It's immaterial. If you can't get it out, you can't get it out. 

AMM ; I mean, you couldn't dilate further? Or is that riskier? 

Uaakell: Well, you could dilate further over a period of days. 

AMM ; Would that just make it... would it go from a 3-day procedure Co a 4- or 
a 5-? 

Uaakell: Exactly. The point here is to effect a safe legal abortion. I mean, 
you could say the sane thing about Che D&E procedure. You know, why do you do 
the D4E procedure? Why do you crush the fetus up inside the womb? To kill it 
before you Cake ic ouc? 

Well, that happens, ye*. But that's not why you do it. You do it to get it 
out. I could do the same thing with a D&E procedure. I could put dilapan in 
for four or five days and say I'm doing a D&E procedure and the fetus could 
just fall out. But that's not really the point. The point here is you're 
attempting to do an abortion. And that's the goal of your work, is to complete 
an abortion. Not to see how do I manipulate the situation so that I get a live 
birth instead. 

AMM , wrapping up the • lerview; I wanted to aiake sure I have both you and 
(Dr.) McMahon saying 'Mo' Chen. That this is mis information, these letters to 
the editor saying it's only done when the baby's already dead, in case of 
fetal demise and you have to do an autopsy. But some of them are saying 
they're getting Chat informacion from NAF. Have you calked to Barbara Radford 
or anyone over there? I called Barbara and she called back, but I haven't 
gotten back to her. 

Uaskell; Well, I had heard that they were giving that information, somebody 
over there might be giving inforoation like that out. The people that staff 
the MAF office are not medical people. And many of them when I gave my paper, 
many of them came in, I learned lacer, Co waCch siy paper because many of chem 
have never seen an aborcion performed of any kind. 

AMM ; Did you also show a video when you' did that? 



28 



Haskell: Yeah. I taped a procedure a couple of years ago, a very brief video, 
that simply showed Che technique. The old story about a picture's worth a 
thousand words. 

AMM ; As National Bight to Life will tell you. 

Haskell: Afterwards they were just amazed. They just had no idea. And here 
they're rabid supporters of abortion. They work in the office there. 
And...soaie of them have never seen one performed... 



rn^rnts oa elective vs. non-elective abortions: 

Haskell: And I'll be quite frank: most of my abortions are elective in that 
20-24 week range... In my particular case, probably 20Z are for genetic 
reasons. And the other 80Z are purely elective... 



29 

Mr. Canady. Mr. Frank. 

Mr. Frank. Mr. Chairman, I have very strong views on this. But 
given the importance of this particularly to women, I am going to 
yield my time to the senior woman in the U.S. Congress, the gen- 
tlewoman from Colorado. 

Mrs. SCHROEDER. I want to thank the ranking minority member 
for yielding. I mean that very sincerely, because as the senior 
woman in this House, this is a day I had dreaded. I see us really 
rolling back on women's rights. 

I think what we are doing here today is bad medicine, it's bad 
law, it's bad public policy, and it's intrusive government at its very, 
very worst. 

What this bill is doing is saying that doctors should put aside 
their best medical judgment in favor of some political judgments 
made by Washington politicians. I do not know of any other area 
where we go in and legislatively mandate medical practices. In 
other words, some of the written testimony I have seen on this has 
said that what we are really doing is legislatively mandating mal- 
practice. 

First of all, the partial-birth procedure is not a medical term. It 
is a political term. We all know that what people are really trying 
to get at here is the fundamental right of women to receive medical 
treatment that they and their doctors determined to be safest and 
best for them. That is the essence. That is a constitutional right. 
That right has been around for more than 20 years. Today we are 
moving to try and tamper with that. 

Today we are going to try and make a procedure sound so ter- 
rible and so awful that only women who are demons would consider 
doing this. Only doctors who are demons would consider doing this. 
It is almost reinciting witchcraft of a sort, trying to see women as 
witches. Well, let's talk about this. 

There are very, very, very few of these procedures. These proce- 
dures are heartbreak procedures. These are procedures that nobody 
wants to engage in. But sometimes everything goes wrong. Every- 
thing goes wrong and it is left to a woman, her spouse, her doctor, 
to sit down and make hard choices. I do not think we want the 
Government in Washington taking those choices away. 

When you hear from some of the women who had to make these 
hard choices, they came to them by medical science. Things that we 
thought were progressive. Things such as amniocentesis and many 
of the procedures now that tell us more about what is happening 
along the different markers of birth. I must ask, are we going to 
do away with those things too? Are we going to do away with all 
medical procedures and go back to the Dark Ages? 

I remind you that in World War I, more women died in childbirth 
in this country than American soldiers died in World War I. We 
have gone a long way to making all of this safer for women. I hate 
to see us rolling back. 

We are going to see a gruesome parade of photos today. That is 
going to be part of why they are going to say this should all be 
banned. But I must say that you could do that with almost any 
medical procedure. All of us are a little squeamish about medical 
procedures of almost any kind. Do you want to see liver trans- 



30 

plants? Do you want to see heart transplants? Do you want to 
make people squirm? You can start doing all of that. 

The issue is, is this a valid life-saving medical procedure that a 
doctor could reach under reasonably difficult situations. I think 
that we have all agreed, yes. 

I want to say there are some very brave women that are sitting 
here in this hearing. I don't know how they are doing it. First there 
is Vicky Wilson, who is a nurse married to an emergency room phy- 
sician. She had to end a wanted pregnancy because of devastating 
fetal malformations. She is standing. I want to say I salute you and 
your husband for being here and listening to this. 

There is also Tammy Watts, a California woman, who terminated 
a wanted pregnancy because the fetus was so horribly defonned 
and could not live outside the womb. I think you are a very brave 
woman to be here and stand up to this too. 

Vicky Smith, who is an Illinois mother of two children ages 7 and 
11, had to end a wanted pregnancy because again, the fetus was 
microcephalic, had multiple fetal deformations. Vicky Smith is now 
pregnant again. Vicky, thank you for having the courage to come 
here. 

I also want to say that none of these people engaged in this proc- 
ess lightly. I think that is why they have the courage to come here 
and say do not demonize them. These were very difficult decisions 
for them to make and their doctors to make. Who are we, as politi- 
cians, to say we know better? 

Also, I would like to offer for the record a letter from Rabbi Shira 
Stern and her husband, Rabbi Donald Weber. They wrote to re- 
count their experience with abortion. They said, you don't have to 
show us pictures of fetuses in jars. We held our own shortly after 
the abortion. Don't talk to us of pain. We worked for 5 years as vol- 
unteer chaplains on the pediatric floor of the Memorial Sloan Ket- 
tering Cancer Center in New York, and we watched countless chil- 
dren die in agony. Our baby would have died at birth with pain 
sensors that were much more sophisticated at its full gestational 
age than they did at the time of the abortion. We had all sorts of 
problems. This is very painful. I put their letter in the record for 
anyone who would care to be objective and look at this. 

I think because this bill begins the imposition of restrictions on 
abortion, and that will also increase the medical risks to the life 
and health of women, it should be considered unconstitutional. I 
know and I hope that the American women will say this is unac- 
ceptable. This is a beginning of chopping away at a right we have 
spent much too long in trying to ascertain. One of the fundamental 
rights under the Constitution is one, to health care, and to be 
treated fully as an adult. 

I must say again, as the only woman, what a sad day this is. I 
hope that the women in America will wake up, realize what is hap- 
pening. Your rights are at stake today. My rights are at stake 
today. Physicians' rights are at stake today. If we want the physi- 
cians who treat us to deal with their best medical judgment and 
not have political judgments slapped all over their training, this is 
the day to draw the line in the sand and say, "No more." It's our 
choice. It is not politicians' choice. I thank the gentleman from 
Massachusetts again for yielding. 



31 

Mr. Canady. Mr. Hyde. 

Mr. Hyde. Well, I thank the chairman. It's always instructive to 
hear the gentlelady from Colorado. I radically disagree with her. 
She cited some tragic examples of children bom with deformities 
who were aborted because of that. When I hear cases like that I 
think of Terry Wyles, who was born from a woman who had taken 
thalidomide. He was born without arms, legs, with one eye, a little 
lump of flesh left in an alley in London, found by a bobby, and 
taken to a home run by an eccentric, wealthy woman called the 
Guild of the Brave Poor Things. 

Little Terry was there until he was aged 10, when he was adopt- 
ed by a couple in Britain who had lost their own three children, 
had been taken away from the mother by the court. She was adju- 
dicated an unfit mother, but she was fit enough to adopt Terry, 
with her husband, an unemployed war veteran. They became quite 
a family. Terry wrote a book called "On the Shoulders of Giants." 
Prince Phillip comes to visit occasionally to get his spirits bol- 
stered, because this little grotesque lump of flesh was so grateful 
that his mother permitted him to live, at least didn't exterminate 
him, which is what abortion is, even though he was a little lump 
of flesh. 

I think of Gregory Wittine, whom I watched get an Eagle Scout 
badge, although he was confined to a wheelchair, profoundly af- 
fected by cerebral palsy, could not speak, pointed to letters on an 
alphabet card. I saw him with a chest full of merit badges I 
couldn't have earned in the best day of my life, the best year of my 
life. He hiked 10 miles. He crawled on his knees 1 mile, pushed 
himself 9 miles in a wheelchair. 

Do we need people like that? People that have gotten the short 
end of the stick. When we get depressed, when we think the world 
is piling up on us, people who have been given so little and have 
done so much. I think so. 

So for all of these cases, there are other cases that inspire us. 
Beethoven conducting the premiere of the "Ninth Symphony" in the 
Vienna Opera House and can't hear a note. He said, "I am wretch- 
ed. I cannot hear." Yet he wrote and conducted this divine music 
and had to be turned around to face the audience so he could see 
what he couldn't hear. 

So there are cases and there are cases and there are cases, that 
abortion is the intentional and direct killing of a human life once 
it has begun. To do that, some people may say is a right. I say for 
every right there is a responsibility. We have a responsibility to 
protect human life where and when we can. 

So this is an endless discussion. It never ends. It goes on and on 
and on. Perhaps that's a good thing in a democracy. I thank the 
gentleman. 

Mrs. SCHROEDER. Would the gentleman yield? 

Mr. Hyde. Sure. With pleasure. 

Mrs. SCHROEDER. I just want to say that I think all of us would 
attribute great inspiration to the cases that you talk about. But I 
hope that we also listen with open ears, and I think we'll find that 
the women did exercise these rights with great responsibility. Their 
lives were in jeopardy, or maybe other things. I think there's two, 
you know, we really need to listen to the whole thing, because 



32 

there is the woman's life that we are also looking at. I know the 
gentleman from Illinois 

Mr. Hyde. I would say to my dear friend, that a life for a life 
is certainly an even trade. And that when a mother's life is threat- 
ened, that the tradeoff is equal. But when something less than a 
life is at risk, then I don't think the trade is equal. I stand in awe 
of the gentlelady of Colorado, who presumes to speak for all 
women. I certainly wouldn't pretend to speak for 

Mrs. SCHROEDER. Well, if the gentleman will yield further. I 
don't believe I ever said I spoke for all women. I must say that I 
do think that when we start talking about how we start measuring 
rights and responsibilities, those are very serious issues. But one 
of the great things about this country is that we have tried to keep 
the Federal Government out of coming down very hard on one side 
or the other. I think that's what I'm 

Mr. Hyde. I couldn't agree more with the gentlelady. When they 
force taxpayers to pay for abortions, they are involving us coer- 
cively in something that we abhor. Again, it seems to me the pur- 
pose of government is to protect the weak from the strong. Other- 
wise, there's no reason for government. 

While I am a Republican, I am no libertarian. I believe there is 
a use for the Government, sometimes a unique use. When a preg- 
nant woman, who should be the natural protector of her child in 
the womb, becomes her child's deadly adversary, the Government 
ought to intercede to protect the weak, there's nothing weaker than 
the defenseless preborn child, from the strong. But you and I can 
go on indefinitely. Let's do that sometime. We'll hire a 

Mrs. SCHROEDER. Well, Mr. Chairman, I'd be more than happy. 
Again, let's not demonize. 

Mr. Canady. Mr. Frank. 

Mr. Frank. I should note first that everything the gentleman 
from Illinois has said applies not to partial-birth abortions or how- 
ever you want to describe them. It applies to all abortions. The 
gentleman from Illinois has given, with his usual eloquence, his ob- 
jection to any form of abortion whatsoever. 

That is relevant because this is the first step in a sincere effort 
by some people who believe that all abortions should be outlawed, 
and if they cannot be outlawed because the Supreme Court will not 
be made to change its position, they should be made as unavailable 
as possible. As I said, this is the first step. 

People should understand that nothing in what the gentleman 
from Illinois said differentiates this particular type of abortion from 
any other. He is consistently and conscientiously against all abor- 
tions. This is the first step in that effort. 

But I have some problems even with it as done. The gentleman 
from Illinois said when the pregnant woman who should be the 
protector turns on the child. Well, why then would you pass a law 
if you believe that the woman who volunteers to have such an abor- 
tion, if you believe that the woman who seeks out a doctor, and by 
the way, as far as speaking for all woman, I believe myself that on 
this issue, the gentlewoman from Colorado speaks for most women, 
but the key point is, that none of us are proposing to 

Mr. Canady. Let me tell the members of the audience that we 
appreciate your being here, but no matter which side you are on. 



33 

we would ask that you not express your approval or disapproval of 
the statements by the Members or of the statements of any of the 
witnesses. Thank you. 

Mr. Frank. I think making faces is OK. The key point is this. 
The gentlewoman from Colorado and I are not proposing a law for 
all women. We are not presuming to tell all women what to do. We 
recognize that this choice, the choice that was described of some of 
the brave people who were here, is a very difficult one. We don't 
think the Federal Government ought to make it for them. We are 
not saying all women must do one thing or must do another. We 
are saying this is the most intimate and difficult choice, and people 
should make it within their own families and within their own 
views. 

But what does this bill say? If you commit an act that people 
here are describing as a terrible act, if you the women do that, not 
only are you subject to no penalty whatsoever, but you can sue the 
doctor who you asked to perform it. That is in this bill. 

What about your notions of personal responsibility? We are told 
on the conservative side that people should be held to a standard 
of personal responsibility. We are presented with a bill which says 
you can seek out a doctor, ask that doctor to perform this proce- 
dure which you think is a terrible procedure, voluntarily partici- 
pate in the procedure. Indeed, you are obviously indispensable at 
procedure. And then turn around and sue the doctor and get money 
from the doctor who did what you asked him to do, and which you 
participated in. 

That goes so contrary to your notions of personal responsibility 
that it is puzzling. It can only be a recognition that for all the rhet- 
oric, this is obviously not something that you want to really treat 
as criminal. Why else would you take the woman whose participa- 
tion is the essential element in all this? The woman who makes the 
decision, the woman who seeks out the doctor, the woman who goes 
to the doctor and submits to the procedure. She comes out in this 
as someone who has a right to sue the doctor who simply did what 
she wanted. 

That shows to me a fundamental ambivalence in the minds of 
the people who say this. Because if it were everything that you said 
it was, you would be at least punishing, you would be punishing 
the woman in a logical sense if she has participated in a murder. 
You certainly would not be empowering her to sue. Nor would you 
be empowering others to sue, and for psychological damages. 

That is just the other great inconsistency we have here. We have 
been told on the conservative side that we should return things to 
the States. This is a matter the States have full jurisdiction over 
right now. This is not anything preempted by the Federal Govern- 
ment. I am not talking constitutionally now. I am talking about the 
matter of public policy. 

How can people who talk about how they want to return things 
to the States now come and say we're going to have this Federal 
statute regulating abortion. The States are fully free to do it. If the 
overwhelming majority in a State think this is a bad thing and 
they have a way to do it constitutionally, then they can do it. In 
some States, provisions like this do exist. 



34 

The argument for doing it on the Federal level is, that there are 
some States that have chosen not to ban it. My conservative col- 
leagues believe that the States have no business exercising their 
judgment in this regard. I understand that. I have never claimed 
to be Thomas Jefferson without the wig. But don't come to me on 
the one hand and say, "We're for State's rights. We are going to 
undo this Federal monolith." And then for the first time in my 
memory, inject the Federal Grovernment statutorily into this very, 
very intimate decision. 

So I think that this is flawed in several regards. I would just re- 
affirm what the gentlewoman from Colorado has said. We are not 
trjdng to make any decision for anybody. We are respecting the in- 
dividual integrity of this very difficult decision, and therefore, I 
hope that this legislation does not go anywhere. 

Mr. CONYERS. Mr. Chairman. 

Mr. Canady. Yes. 

Mr. CONYERS. I would like to make a comment or two. 

Mr. Canady. Well, you will be recognized in turn. Mr. Inglis has 
been here. I will recognize him now. We'll come back to you. 

Mr. CONYERS. Thank you. 

Mr. Inglis. Thank you, Mr. Chairman. I start any comments I 
make by saying this. That we're now on probably one of the most 
volatile issues that we can possibly face. I always try to start that 
discussion by indicating compassion for the victims of abortion that 
are walking around today. The fact is, there are a lot of victims of 
abortion that are alive. They are the women that were deceived, 
and now realize that they wish they had not had an abortion. 

If we look in our families, somewhere in the family somebody has 
had an abortion, a sister, a mother, a cousin, an aunt. Somebody 
in almost every family has had an abortion. That is why this is 
such a huge tragedy. 

So I start anything I say by way of compassion for the victims 
of abortion who are walking around today, that are still dealing 
with the guilt of what they now realize they did. With that open- 
ing, I would also say that I am really quite disappointed. I thought 
we might have found some common ground here. I thought that 
there wouldn't be anybody who would rise in defense of this tj^e 
of abortion. I guess I'm too much of a Polyanna. I thought the 
gentlelady from Colorado, for example, would say well surely this 
is a case where we can agree, that this is a horrible procedure and 
one that we should not make legal. 

But I guess I am finding out just how radical the other side is 
on this issue. It's a really interesting thing to see the radical na- 
ture of someone who would defend a procedure in which a live child 
is halfway delivered and then killed on the way out. I just cannot 
imagine anything more radical than that position. 

So I thought really we would find some common ground here and 
agree that yet this is something that people of good faith can agree 
on. That surely this is a type of abortion that we can't abide in a 
civilized society, where a child if it were just literally inches in a 
different realm, inches away from life, inches away from the protec- 
tion of the Constitution, is murdered, and a civilized society de- 
fends it as some sort of a right. 



35 

I think what it rises to is it indicates that this is really some sort 
of sacrament in a very perverted religious system almost. Some 
sort of a statement that we've got to have abortion and you can't 
stop us from having it. Some sort of an assertion of— I'm really not 
sure what it is, but a rather strange assertion that literally inches 
from life and protection of the Constitution, we murder a child. I 
am really surprised that we wouldn't have found some common 
ground, particularly, I look forward to the panelists making it clear 
that the real world here is that this is not going on that often in 
the cases that the gentlelady from Colorado cited about people in 
hard decisions. It is rather going on in people's minds who choose 
conscientiously to go to a place that is going to, in the gentleman's 
word from Illinois, exterminate a living human being. They are not 
involved in a normal healthy delivery. They are going to a place 
that specializes in the extermination of human life. 

So in the real world, contrary to what the gentlelady has indi- 
cated, the real world, this is happening in abortion chambers. This 
is happening where people pay another person to exterminate a 
human being that is literally inches from life and protection of the 
Constitution. 

Mrs. SCHROEDER. Would the gentleman yield? 

Mr. Inglis. I'd be happy to. Maybe you could explain to me why 
this isn't radical. 

Mrs. ScHROEDER. This is happening by some of our best educated 
medical minds making a decision that this is the safest procedure 
for the woman's health. Now I think it's 

Mr. Inglis. Let me reclaim my time. Let me reclaim my time be- 
cause — let me reclaim my time because the gentlelady persists in 
not living in the real world. The gentlelady is not living in the real 
world. We are talking places where one consciously decides to go 
to pay another person 

Mrs, SCHROEDER. A doctor's office. 

Mr. Inglis. To exterminate. 

Mrs. SCHROEDER. A doctor. 

Mr. Inglis. Another human being. 

Mr. Frank. Would the gentleman yield? 

Mr. Inglis. I will not because I'm not finding any common 
ground. I'm not finding any rationality in what the womsin has to 
say. 

Mr. Frank. Will the gentleman yield for me? 

Mrs. SCHROEDER. You are tr5dng to 

Mr. Inglis. Reclaiming my time, I want to make clear that this 
is a very — I mean, I listened as the gentlelady talked about hard 
decisions and medical professionals, you are not in the real world. 

The real world is that people are going to a place, consciously de- 
ciding to engage the services of a specialist who is good at pulling 
a baby within inches of life and then sucking the brains out of that 
child. That is not a medical specialist who is involved in a hard de- 
cision. 

Mr. CONYERS. Would the gentleman yield? 

Mr. Inglis. That is a radical procedure. 

Mr. Canady. The gentleman's time is expired. Mr. Conyers. 

Mr. Frank. Would the gentleman yield to me for 15 seconds at 
the outset? 



36 

Mr. CONYERS. Thank you, Mr. Chairman. I would yield to Mr. 
Frank. 

Mr. Frank. I would just then say to my friend from South Caro- 
lina, he talks about someone who makes this conscious choice to go 
and do this, and then apparently he votes for a bill which would 
allow her to then to sue and get damages for it. 

So if this is such a terrible decision this woman is making, why 
are you then going to vote for a bill if you are going to vote for this, 
which lets her then sue the person? I am just baffled by that eval- 
uation of human life. The person who submits to what you consider 
murder, who is indispensable to the murder, then makes a profit 
off it. 

Mr. CoNYERS. Ladies and gentleman, it is obvious that this is 
one of these subjects that is very personally and tenaciously held 
by people that oppose abortion. It is the law that allows abortion. 
It is the law that we are examining. 

But what we are doing here today is continuing a strategy, an 
obvious one, of limiting abortion rights since we can't — we don't 
have the support or the legal justification for changing the law, is 
that we're going to begin in this new conservative Congress to cut 
back in every place we can. What more convenient strategy than 
to start off here in one of the most painful, difficult, unhappy deci- 
sions in the abortion arena than this politically claimed decision or 
title that we have on this subject matter here today. 

I submit to you that there is no medical term called partial-birth 
abortion. I am getting drawn further and further into this dispute 
because I sense the difference between those who fight to curb 
abortion and their difficulty in helping to deal with the children 
who are bom, who come out of the birth circumstance, and what 
do we do after they get a life? What do we do in terms of training 
them and educating them and trjdng to build up their families? 
Well, we cut back. That's what we do. 

We say well, this is an incredible right, that we know when life 
occurs in the fetus. But after it does, let's abolish the Department 
of Education. Let's cut back on aid to families with dependent chil- 
dren. Let's reduce the budgets for the children of the poor. All 
these wonderful statements that are being made about this period 
from the beginning of life to the existence as a fetus. Yet we are 
faced with a society with more and more dysfunctional families, 
more children that are leading lives of despair, more joblessness. 
But those are different subjects, these are people alive. But when 
we get to this, we're going to impose our views on you. 

So I see this as a strategy. I am prepared to withstand it. I al- 
ways like to hear people talking about government-funded abor- 
tions. Why should taxpayers pay for abortions. Why should tax- 
payers that don't like war pay for wars? Why should taxpayers that 
don't like anything else have to pay for it? Because we have deter- 
mined that is the appropriate way that we have to run a system 
to raise money for the Government. 

So I don't see any real value in Beethoven now being raised as 
a case on one side or the other on this issue. I think the fact that 
he was deaf is totally irrelevant to these proceedings. 

But it is a sad moment when we are in the biggest frenzy of cut- 
ting the funds necessary for children and families and health to 



37 

flourish in this country, that we are now here meeting in a commit- 
tee of this importance over a subject which I think is probably very 
low on the list, Partial-birth Abortion Ban Act of 1995. I deplore 
it. 

Mr. Canady. The gentleman's time has expired. Mr. Goodlatte. 

Mr. Goodlatte. Thank you, Mr. Chairman. I very much appre- 
ciate you holding these hearings. I appreciate your courage in ad- 
dressing this issue, because I think it's an issue that every Amer- 
ican should be aware of and consider and think about. Quite frank- 
ly, I am appalled that there would be objection to being willing to 
ban a procedure like this, that if the doctor would bring that baby 
a few inches further into full delivery, would clearly have the full 
protection of the law. 

Mr. Frank and Mrs. Schroeder have spoken eloquently about a 
woman's right to choose. You know, if there were only one right in- 
volved, if there were only one life involved, I think there would be 
nobody in this room who would disagree with that. But therein lies 
the responsibility of government, and responsibility of every one of 
us to have government intercede when there is more than one right 
involved. We do have to act responsibly in protecting those who can 
not protect themselves. 

One of the individuals on the other side mentioned bringing this 
up about what could be the most unhappy decision that not only 
a woman, but hopefully a man too, might be involved in making 
a decision about this. Well here we have the opportunity to take 
away what is clearly not only an unhappy decision, but a wrong de- 
cision, to be allowed to do something like this. I think that we are 
clearly on the right track in addressing this issue today. Thank 
you, Mr. Chairman. 

Mr. Canady. Thank you, Mr. Goodlatte. Mr. Hoke. 

Mr. Hoke. Thank you, Mr. Chairman. I will be brief because I 
want to hear the testimony of the witnesses, as do you. I want to 
thank you as well and commend you for holding this hearing today. 
I think it takes a tremendous amount of courage and is the sort 
of thing that this committee should be doing. I am very grateful 
that you decided to do it. 

I also want to make a quick observation regarding the State that 
I come from, Ohio, where the State legislature recently voted to 
make this specific procedure illegal. It was the right thing to do 
there. It will be the right thing to do here as well. 

I am particularly looking forward to the testimony of Dr. White, 
who is one of this Nation's most preeminent neurosurgeons. He is 
from Cleveland. I mention him particularly, because I am inter- 
ested in not only what he has to say about the ability of a fetus 
to experience pain, but also because I make the observation that 
he trained my own father who is also a neurosurgeon. But I won't 
say how many years ago, to protect all of those who are involved. 

Finally, the other observation I would like to make is that I am 
particularly appalled at this procedure for the reasons that have 
been described already, but also because this is a procedure that 
takes place after the 20th week. I have been consistently opposed 
to any abortions that take place in the second or third trimesters, 
except under the most extraordinary circumstances to save the life 



38 

of the mother. So I look forward to this hearing, Mr. Chairman. 
Thank you. 

Mr. Canady. Thank you, Mr. Hoke. I'd Uke to now ask that the 
other witnesses on our first panel please come forward and take 
their seats. I'll introduce all the members of our panel, and then 
we'll recognize them in turn. 

First we will hear from Dr. Pamela Smith, who comes to us 
today from the department of obstetrics and gynecology at Mt. 
Sinai Hospital in Chicago, where she is the director of medical edu- 
cation. In addition to serving as president-elect of the American As- 
sociation of Pro-Life Obstetricians and Gynecologists, Dr. Smith 
has written several articles for medical journals on the subject of 
pregnancy and issues relating to complications during pregnancy. 

Second, Dr. J. Courtland Robinson will testify. Dr. Robinson is 
from the School of Hygiene and Public Health at Johns Hopkins 
University. 

Third, we will hear from Dr. Robert J. White. Dr. White is pro- 
fessor of neurosurgery at the Case Western Reserve University 
School of Medicine, and is director of the division of neurosurgery 
and the brain research laboratory at the Metro Health Medical 
Center. He is internationadly known for his expertise in clinical 
brain surgery. He has been the recipient of several honorary doc- 
torate degrees and visiting professorships. 

Fourth, we will hear from Ms. Tammy Watts, with us today from 
California. Ms. Watts has had personal experience with abortion. 

Finally, Mary Ellen Morton, a nurse specializing in neonatal care 
will testify. Ms. Morton has developed a program on neonatal and 
pediatric pain control that she presents to health care profes- 
sionals. For the past 5 years she has practiced as a flight nurse 
with Med Flight, an air medical program in Columbus, OH, where 
she helps to stabilize and transport premature or ill infants to Co- 
lumbus Children's Hospital. 

I would like to ask each of our witnesses to please summarize 
your testimony in no more than 10 minutes. If you can summarize 
it in less than 10 minutes, that would also be appreciated. Without 
objection, the entirety of your prepared statements will be placed 
in the record. 

Our first witness. Dr. Smith. 

STATEMENT OF PAMELA SMITH, M.D., DIRECTOR OF MEDICAL 
EDUCATION, MT. SINAI HOSPITAL 

Dr. Smith. Thank you, Mr. Chairman, and honorable members 
of the subcommittee. Abortion providers claim that participation in 
intrauterine dismemberment or D&E, dilation and evacuation tech- 
niques, often causes severe psychological ill effects in counseling 
staff and surgical providers. Partial-birth abortion techniques, 
which are distinctly different surgical procedures, compound this 
problem even further. 

The partial-birth abortion method is strikingly similar to the 
technique of internal podalic version, or fetal breech extraction. 
Breech extraction is a procedure that is utilized by many obstetri- 
cians with the intent of delivering a live infant in the management 
of twin pregnancies, or single infant pregnancies complicated by 
abnormal positions of the prebom infant. 



39 

In fact, when I describe the procedure of partial-birth abortion to 
physicians and lay persons who I know to be prochoice, many of 
them were horrified to learn that such a procedure was even legal. 

The development and growing use of the partial-birth abortion 
method is particularly alarming when one considers the recent ac- 
tions of the Accreditation Council for Graduate Medical Education. 
This council, whose members include a nonvoting Federal official, 
has tremendous power. It is responsible for accrediting medical 
education programs. Nonaccredited programs are not eligible for 
Federal funding, and students who graduate from nonaccredited 
programs may not be able to obtain State licenses, hospital privi- 
leges, or board certification. 

ACGME is requiring obstetrics and gynecology residency training 
programs to provide abortion training either in their own program 
or at another institution. This policy will undoubtedly be used to 
coerce individuals and institutions to participate in procedures that 
violate their moral conscience. Physicians throughout this country 
therefore will encounter the ethical dilemma of participating in an 
abortion procedure which even under Roe v. Wade is literally sec- 
onds and inches away from being classified as a murder by every 
State in the Union. I believe that this factor among others, fully 
justifies the banning of this particular abortion technique. 

What I would like to do at this time is to demonstrate for you, 
using this model, which is a replica of how small the average baby 
would be that is subjected to this procedure. This is the length and 
a model of a 19- to 20-week-old infant. I would like to just go 
through this very quickly, the procedure, to show you the 
similarities between this procedure and the procedures that are 
used by obstetricians not to destroy the baby's life, but to save the 
baby's life. 

Breech presentation is when the buttocks or the feet are coming 
first. This area here is the bottom of the womb or the cervix. Nor- 
mally, when you are trying to deliver a premature baby that may 
be breech, what you would like to do is to have the bag of waters 
intact around the baby, because that serves two things. It can bufi- 
er the baby as you are pulling the baby out. It also serves to keep 
the cervix open, so that the head does not get trapped. 

When you do partial-birth abortion, however, because you want 
the head to be trapped you don't want the bag of waters there, par- 
ticularly when the baby is premature. So the bag of waters is rup- 
tured. 

You then grab the feet. If the infant is very small, you would use 
the forceps that are there. If the infant is larger, you would prob- 
ably put your hand in, the same way we would do if we did an in- 
ternal podalic version, grab the feet and start to pull the baby 
down the cervix and into the vagina. 

Normally when I do this with the intention of delivering the baby 
alive, I like to have the back toward the mother's bladder, which 
would be here, because it will be easier for me once the head gets 
to the level of a cervix to flex the head and deliver the baby safely. 

When you do partial-birth abortions, you want the head here in 
this position, so that you can have access to the neck. Again, when 
you are delivering a breech baby, cervical entrapment is a com- 
plication. It's a complication that we basically handle by either cut- 



40 

ting the cervix with a certain kind of incision to release the head, 
or by doing a cesarean section sometimes. Especially if it's a large 
baby and the cervical incision doesn't work. 

With the abortion technique that we are describing today, how- 
ever, you want the head to get trapped, because if the baby gets 
past the cervix and slips out, then his status changes from an abor- 
tus to a living person. So what you do to make sure that the baby 
does not move the few inches that is required is you hold your 
hands here. Basically, when you want to deliver the baby alive, you 
use your hands in this position to buttress the baby. Again, you 
usually have an assistant up here pressing and flexing the moth- 
er's abdomen to deliver the head. 

But when you are doing an abortion technique, you are steadying 
the baby so that the baby won't slip out. Then you take the 
Metzenbaum scissors, which are these scissors here. Put them in 
the back of the baby's head. Push them in to try to sever the cord, 
the spinal cord, open the scissors up to create a hole big enough 
to put a catheter in. You then put the catheter in and suck out the 
baby's brains. That way, the baby is dead. When the baby comes 
out that ends the abortion technique. 

Of course when you are doing this to deliver a live baby, the dif- 
ferences are primarily at the level of the cervix. If by chance the 
cervix is floppy or loose and the head slips through, the surgeon 
will encounter the dreadful complication of delivering a live baby. 
The surgeon must therefore act quickly to ensure that the baby 
does not manage to move the inches that are legally required to 
transform its status from one of an abortus to that of a living 
human child. 

Although the defenders of this technique proclaim that it is safe, 
they have not substantiated these claims. Only two individuals 
have provided any kind of data to evaluate. Included in this scanty 
amount of data, there is a report of a hemorrhagic complication 
that required 100 units of blood to stabilize the patient, along with 
an infectious cardiac complication that required 6 weeks of anti- 
biotic therapy. 

I have also been shown a copy of a letter dated June 12, signed 
by the executive director of the National Abortion Federation. This 
memo makes a number of remarkable claims regarding the partial- 
birth abortion method, claims that are flatly inconsistent with the 
recorded statements made by physicians who specialize in perform- 
ing these procedures. I will refer to statements made by Dr. Martin 
Haskell, who wrote a monograph explaining in detail how to per- 
form this type of procedure, which was distributed by the National 
Abortion Federation in 1992. I will also refer to statements made 
by Dr. James McMahon in various interviews and in written mate- 
rials that he has distributed. 

The National Abortion Federation letter states that fetal demise 
is virtually always induced by the combination of steps taken to 
prepare for the abortion procedure. But in interviews with the 
American Medical News, quoted in an article published in the July 
5, 1993, edition, both Dr. Haskell and Dr. McMahon said that the 
majority of fetuses aborted this way are alive until the end of the 
procedure. 



41 

Dr. Haskell himself further elaborated in an interview published 
December 10 in the Daj^on News, that it was the thrust of the 
scissors that accomplished the lethal act. I quote him, "When I do 
the instrumentation of the skull, it destroys the brain sufficiently 
so that even if the fetus falls out at that point, it's definitely not 
alive." 

Prof. Watson Bowes of the University of North Carolina at Chap- 
el Hill, a prominent authority on fetal and maternal medicine, and 
coeditor of the Obstetrical and Gynecological Survey, reviewed Dr. 
Haskell's article and noted that Dr. Haskell quite explicitly con- 
trasts this procedure with other procedures that do induce fetal 
death within the uterus. Professor Bowes concurred that the 
fetuses are indeed alive at the time that the procedure is per- 
formed. 

The National Abortion Federation letter also claims that the 
drawings of the partial-birth procedure distributed by Congress- 
man Canady and others are highly imaginative and misleading. 
But Dr. Haskell himself validated the accuracy of these drawings, 
as reported in the American Medical News. Again I quote. "Dr. 
Haskell said the drawings were accurate from a technical point of 
view, but he took issue with the implication that the fetuses were 
aware and resisting." 

Professor Bowes also reviewed the drawings and wrote that they 
are an accurate representation of the procedure described in the ar- 
ticle by Dr. Haskell. 

I would invite the members of the subcommittee to review the 
drawing of the fetal breech extraction method that I have attached 
to my written testimony, reproduced from Williams Obstetrics, a 
standard textbook. You can see that the method described by Dr. 
Haskell is an adaptation, or I would rather say a perversion, of the 
fetal breech extraction, and that the textbook drawings are strik- 
ingly similar to the disputed drawings of the partial-birth proce- 
dure. I would also invite the members of the subcommittee to ex- 
amine an accurate model of a fetus at 20 weeks and the Metzen- 
baum surgical scissors that are used in this procedure, and decide 
for yourselves who is being misleading. 

The National Abortion Federation letter also suggests that these 
partial-birth abortions are commonly done in a variety of unusual 
circumstances, such as when the life of the mother is at grave risk. 
I have practiced obstetrics and gjmecology for 15 years and I work 
with indigent women. I have never encountered a case in which it 
would be necessary to deliberately kill the fetus in this manner in 
order to save the life of the mother. 

There are cases in which some acute emergency occurs during 
the second half of pregnancy that makes it necessary to get the 
baby out fast, even if the baby is too premature to survive. This 
would include for example, HELLP sjnidrome, a severe form of 
preeclampsia that can develop quite suddenly. But no doctor would 
employ the partial-birth method of abortion, which as Dr. Haskell 
carefully describes, takes 3 days. 

Dr. McMahon also lists maternal conditions such as sickle cell 
trait, uterine prolapse, depression, and diabetes as indications for 
this procedure, when in fact, these conditions are frequently associ- 
ated with the birth of a totally normal child. 



42 

The National Abortion Federation letter of June 12 also states, 
"This is not a different surgical procedure than D&E." This state- 
ment is erroneous. The D&E procedure involves dismemberment of 
the fetus inside the uterus. It is cruel and violent, but it is quite 
distinct in some important respects from the partial-birth method. 
Indeed, Dr. McMahon himself has provided to this subcommittee a 
fact sheet, that he sends to other physicians in which he goes into 
a detailed discussion of the distinctions between intrauterine dis- 
memberment procedures, which he calls disruptive D&E, and the 
procedure that he performs, which he calls intact D&E. 

This brings us to another important point. There is no uniformly 
accepted medical terminology for the method that is the subject of 
this legislation. Dr. McMahon does not even use the same term as 
Dr. Haskell, while the National Abortion Federation implausibly 
argues that there is nothing to distinguish this procedure from 
D&E. 

The term you have chosen, partial-birth abortion, is straight- 
forward. Your definition is straightforward, and in my opinion, cov- 
ers this procedure and no other. 

Mr. Canady. Doctor, if you could summarize and continue and 
conclude in another couple of minutes, I'd appreciate it. 

Dr. Smith. I'll just summarize by saying partial-birth abortions 
are being hersdded by some as safer alternatives to D&E. But ad- 
vances in this type of technology do not solve the problem. They 
only compound it. In part because of its similarity to obstetrical 
techniques that are designed to save a baby's life and not destroy 
it, this procedure produces a moral dilemma that is even more 
acute than that encountered in dismemberment techniques. The 
baby is literally inches away from being declared a legal person by 
every State in the Union. The urgency and seriousness of these 
matters therefore require appropriate legislative action. Thank you. 

[The prepared statement of Dr. Smith follows:] 

Prepared Statement of Pamela Smith, M.D., Director of Medical Education, 
Mt. Sinai Hospital 

Mr. Chairman and honorable members of the subcommittee, I am Dr. Pamela 
Smith. I am a board-certified obstetrician-gynecologist with 15 years experience. I 
serve as director of medical education in the department of obstetrics and gyne- 
cology at Mt. Sinai Hospital in Chicago, and I am also a member of the Association 
of Professors of Gynecology and Obstetrics. 

I am also testifying as the president-elect of the American Association of Pro-life 
Obstetricians and Gynecologists. 

Abortion providers claim that participation in intrauterine dismemberment or 
"D & E" (dilation and evacuation) techniques often cause severe psychological ill- 
effects in counseUng staff and surgical providers. Partial-birth abortion techniques, 
which are distinctly different surgical procedures, compound this problem even fur- 
ther. The pauiial-birth abortion method is strikingly similar to the technique of in- 
temgd podalic version, or fetal breech extraction. Breech extraction is a procedure 
that is utilized by many obstetricians with the intent of delivering a live infant in 
the management of twin pregnancies, or single-infant pregnancies complicated by 
abnormal positions of the pre-bom infant. 

In fact, when I described the procedure of partial-birth abortion to physicians and 
lay persons who I knew to be pro-choice, many of them were horrified to learn that 
such a procedure was even legal. 

The development and growing use of the partial-birth abortion method is particu- 
larly alarming when one considers the recent actions of the Accreditation Council 
for Graduate Medical Education (ACGME). This Council, whose members include a 
non-voting federal official, has tremendous power. It is responsible for accrediting 
medical education programs. Non-accredited programs are not eligible for federad 



43 

funding, and students who graduate from non-accredited programs may not be able 
to obtain state licenses, hospital privileges or Board certification. 

ACGME is requiring obstetrics and gynecology residency training programs to 
provide abortion training either in their own program or at another institution. This 
policy will undoubtedly be used to coerce individuals and institutions to participate 
in procedures that violate their moral conscience. Physicians throughout this coun- 
try therefore will encounter the ethical dilemma of participating in an abortion pro- 
cediu-e which even under Roe versus Wade is literally seconds and inches away from 
being classified as a murder by every state in the union. I believe that this factor, 
among others, fully justifies the banning of this particular abortion technique. 

In a total breech extraction, the physician — fi-equently with the aid of 
ultrasound — grasps the lower extremities of the baby. With the bag of waters serv- 
ing as a buffer and cervical wedge, the physician pulls the infant towards the cervix 
and vagina. To facilitate the delivery of the head by flexion, care is taken to main- 
tain the baby's spine in a position that points towards the mother's bladder. 

Depending upon the size of the infant, an attempt may be made to deUver the 
baby without rupturing the bag of waters. In such a case, the bag of waters facili- 
tates delivery of the head by mechanically maintaining cervical dilation. Should the 
bag of waters rupture and the head become entrapped, it can be released by cutting 
the cervix, or a Cesarean section can be performed to deliver the baby abdominally. 

Partial-birth abortions, which according to the physicians who perform them have 
been done on babies fi-om the ages of 19 weeks to full term, represent a perversion 
of the above technique. In these procedures, one basically relies on cervical entrap- 
ment of the head to help keep the baby in place while the practitioner plunges a 
pair of scissors into the base of the baby's skull to sever the spinal cord. The scissors 
also creates an opening for the insertion of a suction ciirette to remove the baby's 
brains. 

If, by chance, the cervix is floppy or loose and the head sUps through, the svirgeon 
will encounter the dreadful "complication" of delivering a live baby. The surgeon 
must therefore act quickly to insure that the baby does not manage to move the 
inches that are legsdly required to transform its status fi-om one of an abortus to 
that of a living human child. Although the defenders of this technique proclaim that 
it is safe, they have not substantiated these claims. Only two individuals have pro- 
vided any kind of data to evaluate. Included in this scanty amount of data, there 
is a report of a hemorrhagic complication that required 100 units of blood products 
to stabilize the patient, along with an infectious cardiac complication that required 
six weeks of antibiotic therapy. 

I have also been shown a copy of a letter dated June 12, signed by the executive 
director of the National Abortion Federation, a trade association of abortion provid- 
ers. This memo makes a number of remarkable claims regarding the partial-birth 
abortion method — claims that are flatly inconsistent with the recorded statements 
made by physicians who speciahze in performing these procedures. I will refer to 
statements made by Dr. Martin Haskell, who wrote a monograph explaining in de- 
tail how to perform this type of procedure and which was distributed by the Na- 
tional Abortion Federation in 1992. I will also refer to statements made by Dr. 
James McMahon in various interviews and in written materials that he has distrib- 
uted. 

The National Abortion Federation letter says that "fetal demise is virtually al- 
ways induced by the combination of steps taken to prepare for the abortion proce- 
dure." But in interviews with the American Medical News, quoted in an article pub- 
Ushed in the July 5, 1993 edition, both Haskell and McMahon "told AM News that 
the majority of fetuses aborted this way are ahve until the end of the procedure." 

Dr. HaskeU himself further elaborated, in an interview published in the Dec. 10, 
1989 Dayton News, that it was the thrust of the scissors that accomplished the le- 
thal act. I quote him: "When I do the instrumentation on the skull ... it destroys 
the brain sufficiently so that even if it (the fetus) falls out at that point, it's defi- 
nitely not ahve," Dr. Haskell said. 

Professor Watson Bowes of the University of North Carolina at Chapel Hill, a 
prominent authority on fetal and maternal medicine, and co-editor of the Obstetrical 
and Gynecological Survey, reviewed Dr. Haskell's article and noted that Dr. HaskeU 
quite explicitly contrasts this procedure with other procedures that do induce fetal 
death within the uterus. Professor Bowes concurred that the fetuses are indeed alive 
at the time that the procediu-e is performed. 

The National Abortion Federation letter also claims that the drawings of the par- 
tial-birth procedure distributed by Congressman Canady and others are "highly 
imaginative" and "misleading." But Dr. Haskell himself validated the accuracy of 
these drawings as reported in the American Medical News. Again I quote: "Dr. Has- 



44 

kell said the drawings were accurate 'from a technical point of view.' But he took 
issue with the impUcation that the fetuses were 'aware and resisting.' " 

Professor Bowes also reviewed the drawings and wrote that they are "an accurate 
representation of the procediire described in the article by Dr. Haskell." 

I would invite the members of the subcommittee to review the drawings of the 
fetal breech extraction method that I have attached to my written testimony, repro- 
duced from WiUiams Obstetrics, a standard textbook. You can see that the method 
described by Dr. Haskell is an adaptation — or I would say, a perversion — of the fetal 
breech extraction, and that the textbook drawings are strikingly similar to the dis- 
puted drawings of the partial-birth procedure. I would also invite the members of 
the subcommittee to examine an accurate model of a fetus at 20 weeks and the 
Metzenbaum surgical scissors that are used in this procedure, and decide for your- 
selves who is being misleading. 

The National Abortion Federation letter also suggests that these partial-birth 
abortions are commonly done in a variety of unusual circumstances, such as when 
the life of the mother is at grave risk. I have practiced obstetrics and gynecology 
for 15 years. I work with many indigent women. I have never encountered a case 
in which it would be necessary to deUberately kill the fetus in this manner in order 
to save the life of the mother. There are cases in which some acute emergency oc- 
curs during the second half of the pregnancy that makes it necessary to get the baby 
out fast — even if the baby is too prematvu-e to survive. This would include, for exam- 
ple, HELLP syndrome, a severe form of pre-eclampsia that can develop quite sud- 
denly. But no doctor would employ the partial-birth method of abortion, which — as 
Dr. Haskell carefully describes — takes three days! 

Dr. McMahon also lists maternal conditions such as sickle cell trait, uterine 
prolapse depression and diabetes as indications for this procedure, when in fact 
these conditions are frequently associated with the birth of a totally normal child. 

The National Abortion Federation letter of June 12 also states: "This is not a dif- 
ferent surgical procedure than D&E . . ." This statement is erroneous. The D&E pro- 
cedure involves dismemberment of the fetus within the uterus. It is cruel and vio- 
lent, but is quite distinct in some important respects from the partial-birth method. 
Indeed, Dr. McMahon himself has provided to this subcommittee a factsheet that 
he sends to other physicians, in which he goes into a detailed discussion of the dis- 
tinctions between the intrauterine dismemberment D&E procedure — which he calls 
"disruptive D&E" — and the procedure that he performs, which he calls "intact 
D&E." 

This brings us to another important point: there is no uniformly accepted medical 
terminology for the method that is the subject of this legislation. Dr. McMahon does 
not even use the same term as Dr. Haskell, while the National Abortion Federation 
implausibly argues that there is nothing to distinguish this procedure from the D&E 
abortions. The term you have chosen, "partial-birth abortion," is straightforward. 
Your definition is also straightforward and, in my opinion, covers this procedure and 
no other. 

In closing, I would like to read for you the sentiment expressed by an abortion 
provider at a meeting of the Association of Planned Parenthood Physicians in San 
Diego in 1978. These comments are in reference to the D&E (dismemberment) abor- 
tion technology: "We have reached a point in this particular technology where there 
is no possibihty of denial of an act of destruction by the operator. It is before one's 
eyes. "The sensations of dismemberment flow through the forceps like an electric cur- 
rent. It is the crucible of a raging controversy, the confrontation of a modem exis- 
tential dilemma. The more we seem to solve the problem, the more intractable it 
becomes." 

Today, partial-birth abortions are being heralded by some as safer alternatives to 
D&E. But "advances" in this type of technology do not solve the problem . . . they 
only compound it. In part because of its similarity to obstetrical techniques that are 
designed to save a baby's life and not to destroy it, this procedure produces a moral 
dilemma that is even more acute than that encountered in dismemberment tech- 
niques. The baby is literally inches from being declared a legal person by every state 
in the union. The urgency and seriousness of these matters therefore require appro- 
priate legislative action. 



45 



PARTIAL-BIRTH ABORTION 




Guided by ultrasound, the abortionist 
grabs the baby's leg with forceps. 




The baby's leg is pulled out into the birth 
canal. 




The abortionist delivers the baby's entire 
body, except for the head. 




The abortionist jams scissors into the 
baby's skull. The scissors are then opened 
to enlarge the hole. 




The scissors are removed and a suction 
catheter is inserted. The child's brains are 
sucked out, causing the skull to collapse. 
The dead baby is then removed. 



46 



THE UNIVERSITY OF NORTH CAROLINA 
CHAPEL HILL 




TM um>«nuy or Nonh CiraUu ai CliwK H 
CB< 'iTO. 214 M«cNid«r Buildill« 



Douglas Johnson 

Fcdaral Legislative Director 

National Right to Life Comalttae, Inc. 

Suite 500 

419 7th Street, N.W. 

Washington, D.C. 20004-2293 

Dear Mr. Johnson: 

The presentation by Dr. Martin Haskell, entitled Dilation 
and Extraction for Late Second Trimester Abortion, presented 
at the National Abortion Federation Risk Management Seminar, 
September 13, 1992 says nothing about the fetuses being dead 
prior to the procedure. In the "Background" section of the 
manuscript, Dr. Haskell refers to two methods of Inducing 
fetal death prior to performing the extraction (Intra- 
amnlotic Infusion of urea or rupture of the membranes and 
severing the umbilical cord) which were described at 
previous NAF meetings. By contrast, the method that Dr. 
Haskell describee says nothing about induction of fetal 
death prior to the surgical procedure. Consequently, I 
believe it Is quite safe to say that fetuses are alive at 
the time the DtX procedure is performed. 

Enclosed find a copy of the letter that I have sent In 
overnight mail to Congressman Smith. I am also enclosing 
for your interest copies of the articles that I enclosed 
with that letter. In addition there is a recent article by 
Or. Roberton in Cambridge about the care of newborns with 
birth weights less than 800 gm. I call your attention to 
the section entitled Clinical Conclusions on page 328. 

Sincerely, lOr. Uatson Bowes, a leading authority 

on maternal and fetal medicine, is a 
professor of both obstetrics/ gynecology 
and pediatrics. He is co-editor of 
Obstetrical and Gynecological Survey , 
Watson A. Bowes Jr., M.D. and has served on the Congressional 
Professor Biomedical Ethics Advisory Committee. 1 



47 



THE UNIVERSITY OF NORTH CAROLINA 

AT 
CHAPEL HILL 

Th« School of MtdiaiK The Uiii>*niiy of Nonh Onliu m 




Dav« Andrusko 

N«ws Editor 

National Right to Life News 

Suite 402 

419 7th street, N.w. 

Washington D.C. 20004 

Dear Mr. Andrusko: 

I have reviewed the article entitled "Dilatation and 
Extraction for Late Second Trimester Abortion" by Martin 
Haskell, M.D. (presented at the National Abortion Federation 
Risk Managenent Seminar, September 13, 1992). The 
illustration adapted from drawings appearing in the February 
1993 issue of "Life Advocate" and enclosed in your letter of 
April 19, 1993, is an accurate representation of the 
procedure described in the article by Dr. Haskell. 

Sincerely yours. 



Watson A Bowes J». , M.D. 
Professor " 



[Dr. Watson Bowes, a leading authority on maternal and fetal medicine, 
is a professor of both obstetrics/gynecology and pediatrics. He is 
co-editor of Obstetrical and Gynecological Survey , and has served on 
the Congressional Biomedical Ethics Advisory Conmittee.l 



48 



Williams 
Obstetrics 

IQ'^' Edition- 



F. Gary Cunningham, MD 

Professor and Chairman, Department of Obstetncs 

Sl Gynecology 
Jack A. Pritchard Professor of Obstetncs & Gynecology 
The University of Texas Southwestern Medical Center 

at Dallas 
Chief of Obstetrics & Gynecology. Parkland 

Memorial Hospital 



Paul C. MacDonald, MD 

Professor. Department of Obstetrics & Gynecology 

and Biochemistry 
Cecil H. and Ida Green Distinguished Chair in 

Reproductive Biology 
The Lniversity of Texas Southwestern Medical Center 

at Dallas 
Attending Staff. Parkland Memorial Hospital 

Norman F. Gant, MD 

Professor, Department of Obstetncs & Gynecology 
The Lniversity of Texas Southwestern Medical Center 

at Dallas 
Attending Staff, Parkland Memorial Hospital 
Executive Director, Amencan Board of Obstetrics 

& Gynecology 



Kenneth J. Leveno, MD 

Gillette Professor, Department of Obstetrics 

& Gynecology 
The Uni\ersity of Texas Southwestern Medical Center 

at Dallas 
Chief of Obstetrics, Parkland .Memonal Hospital 



Larry C. Gilstrap m, MD 

Professor, Department of Obstetncs & Gynecoiog\- 
Director of .Maternal-Fetal .Medicine Fellowship and 

Clinical Genetics 
The University of Texas Southwestern Medical Center 

at Dallas 
Attending Staff, Parkland .Memonal Hospital 



APPLETWJ&LANGE 

Norwalk. Connecticut 



49 



CHAPTER 25 
Techniques for Breech Delivery 



Die indications for vaginal versus cesarean delivery for 
breech presenutions were considered in Chapter 20 
IP 499) tabor and techniques for vaginal delivery of 
[lie breech presentation are considered in the present 
i-lopter. 

l/ltChanlBin of Lsbor. Unless there is disproportion 
between the size of the fetus and the pelvis, engagement 
]iid descent of the breech in response to labor usually 
ukes place with the bitrochanteric diameter of the 
breech in one of the oblique diameters of the pelvis The 
anterior hip usually descends more rapidly than the pos- 
(cnor hip, and when the resistance of the pelvic floor is 
niet. jitemal rotation usually follows, bringing the ante- 
nor hip toward the pubic arch and allowing the bitro- 
chanteric diameter to occupy the anteroposterior 
diameter of the pelvic outlet. Rotation usually takes place 
through an arc of 45 degrees. If, however, the posterior 
extremity is prolapsed, it always routes to the symphysis 
pubis, ordinarily ttirough an arc of 135 degrees, but 
occasionally in the opposite direction past the sacrum 
and the opposite half of the pelvis through an arc of 225 



continues until the peri- 
neum is distended by the advancing breech, while the 
anierior hip appears at the vulva and is stemmed against 
the pubic arch. By lateral flexion of the body, the pos- 
tenor hip then is forced over the anterior margin of the 
perineum, which retracts over the buttocks, thus allow- 
ing the infant to straighten out when the anterior flip is 
bora The legs and feet follow the breech and may be 
bom spontaneously, although the aid of the obstetrician 
usually is required. 

After the birth of the breech, there is slight external 
rotation, with the back turning anteriorly as the shoul- 
>lers are brought into relation with one of the oblique 
diameters of the pelvis. The shoulders then descend 
rapidly and undergo internal rotation, with the bisacro- 
mul diameter occupying the anteroposterior diameter 
t>f the inferior strait Immediately following the shoul- 
ifrs. the head, which is normally sharply flexed upon 
ttie thorax, enters the pelvis in one of the oblique di- 
xneters and then rotates in such a maimer as to bring 
fit posterior poriion of the neck under the symphysis 
pubis. The head then is bom in flexion, with the chin, 
"louth. nose, forehead, bregma (brow), and occiput ap- 
ixaring in succession over the perineum. 

The breech may engage in the transverse diameter 
°f the pelvis, with the sacrum directed anteriorly or 



posteriorly The mechanism of labor in the transverse 
position differs only in that mtemal roution occurs 
through an arc of 90 degrees. 

Infrequently, roution occurs in such a manner that 
the back of the infant is directed toward the vertebral 
column instead of toward the abdomen of the mother 
Such roution should be prevented if possible Although 
the head may be delivered by allowing the chin and face 
to pass beneath the symphysis, the slightest traction on 
the body may cause extension of the head. Extension, if 
uncorrected, increases the diameters of the head, which 
must pass through the pelvis (see Fig. 25-8 later in 
chapter). 



Vaglnat Delivery of Breech 

There are three general methods of breech deUrety 
through the vagina: 

• Spontaneous breech delivery. The infant is ex 
pelled entirely spontaneously without anv irac 
tion or manipulation other than suppon <j< the 
in^t. This form of delivery in mature in/ancs n 
rare. 

• Partial breech extraction. The infant is deliv 
ered spontaneously as br as the umbilicu* but 
the remainder of the body is extracted 

• Total breech extraction. The entire bodv irf the 
intint is extracted by the obstetncian 

Because the technique of breech extraction dilhrt m 
complete and incomplete breeches on the oor lund 
and frank breeches on the other, it is neccssan m mo 
sider these conditions in two separate sections Ijirr ir> 
the chapter. The varieties of breech presenuimn ur 
illustrated in Figures 10-2 to 10-4. 

Managwnont of Labor, a woman admitted m lahi* 
with a breech prescnution deserves the immrUuir tt 
tention of nursing and medical personnel, bei Mnt r* 4h 
mother and fetus are at considerably increased rn4 < . tn 
pared with a woman with a cephalic prcscniauun ( < rup 
20, p. 494). A rapid assessment should be nviJr i>> <-» 
tablish the stage of labor, sutus of the fetal tncti>»>»»nt-« 
and condition of the fenis. An intravenous uvuvi *> » 
established, the hematocrit determined, and a |ir"ur "^ 
screen done to detect antibodies, because iho* « • .m. n 
haveahigh likelihood of undergoing operant r ,J<i.<tn 
Close surveillance of fetal heart rate and utcnnc . "n r « 



50 



578 



VI OPERATIVE OBSTETRICS 



tions IS commenced, and we recommend using contin- 
uous electronic monitoring. An immediate recruitment 
of the necessary nursing and medical personnel to ac- 
complish a vaginal or abdominal delivery should also be 
done. 

Stage of Labor. .Assessment of cervical dilaution and 
effacement and the station of the presenting part are 
essential in planning the route of delivery If labor is too 
far advanced, there may not be sufficient time to obtain 
unaging pelvimetry, and this alone may force the deci- 
sion for cesarean delivery. 

Fetal Condition. The presence or absence of gross fetal 
abnormalities such as hydrocephaly or anencephaly can 
be rapidly ascertained with the use of sonography or 
x-ray. Such efforts will help to ensure that a cesarean 
delivery is not done under emergency conditions, 
thereby increasing maternal risks, for an anomalous in- 
fant with no chance of survival. If vaginal delivery is 
planned, the fetal head should be well flexed (Gimovsky 
and Petrie. 1992 ). Sometimes this is difficult to ascertain 
from sonography. Most often, digital radiographs using 
computed tomographic pelvimetry will be adequate to 
document flexion o( the fetal head (Chap. 1 1. p. 292), 
but if not, a plain film of the abdomen will suffice. 



Intravenous Infusion and Laboratory Values. An intra- 
venous infusion through a venous catheter is begun as 
soon as the woman arrives in the labor suite. Possible 
emergency induction of anesthesia, or hemorrhage from 
lacerations or from uterine atony from tulogcnated an- 
esthetics, are but two of many reasons that may require 
an immediate intravenous access route that can be used 
to administer medications or fluids, including blood. 

Fetal Monitoring. Guidelines for monitoring the high- 
risk fetus are applied as discussed in Chapter 14 (p. 
5"'5 ). Thus, the fetal hean rate is recorded at least every 
1 5 minutes. We prefer continuous electronic monitor- 
ing of fetal heart rate and uterine contractions. When 
membranes are ruptured, the risk of umbilical cord pro- 
lapse is appreciably increased (Chap. 20, p. 498). There- 
fore, a vaginal examination should be done following 
rupture of the membranes to check for umbilical cord 
prolapse. Special anention should be directed to the 
fetal hean rate for the first 5 to 10 minutes following 
membrane rupture, to ensure that there has not been an 
occult cord prolapse. After membrane rupture, internal 
electronic monitoring of fetai heart rate and uterine 
contractions is preferable, because of the more reliable 
information provided by these techniques. 

Recnjitment of Nursing and Medical Personnel. Addi- 
tional help is required for managing labor and delivery 
of a breech. For labor, one-on-one nursing should be 
maintained due to the risk of umbilical cord prolapse or 



occlusion, and the physician must also be readily ^ 
able should there be an emergency '*'' 

Route of Delivery. Consideration for the route of ^ 
cry IS given as soon as possible after admissioa tv 
choice of abdominal or vaginal delivery is based udq! 
the type of breech, flexion of the head, fetal size, qu^ 
of uterine contractions, and size of the maternal pejy^ 
The indications and contramdications for vaginal dn- 
ery of a breech are discussed in detail in Chapter 3n 
p 499. ^ 

Timing of Dellvory. In general, preparations for breect, 
extraction should be initiated when the buttocks or fet, 
appear at the vulva. It is essential that the delivery tejm 
include ( 1 ) an obstetncian skilled in the art of breti:), 
extraction, (2) an associate to assist with the delivcrv 
( 3 ) an anesthesiologist who quickly can induce app,^^ | 
priate anesthesia when needed. (4) an individual trained | 
to resusciute the infant effectively, including tracheal 
intubation, and (5) someone to provide general asso. 
tance. • 

Delivery is easier and, in turn, perinatal morbidin 
and mortality are lower when the breech of the fetus s ! 
allowed to deliver spontaneously to the umbilicus, t I 
fetal jeopardy or distress develop before this time. ho«. •■ 
ever, a decision must be made whether to perform tot^ 
breech extraction or cesarean delivery. For a favorable 
outcome with any breech delivery, at the very inii». 
mum, the birth canal must be sufficiently large to alio* 
passage of the fetus without trauma. Thus, the cervn I 
must be fully dilated, and if not, then a cesarean deliver* I 
nearly always is the more appropriate method of deiit | 
ery when fetal jeopardy develops. 

Extraction of ttt0 CompMe or Incomplef SrMdi | 
During total extraction of a complete or incompIcK I 
breech, the obstetrician's hand is introduced throu^ 
the vagina and both feet of the fetus are grasped The 
ankles are held with the second finger lying betwea 
them: the feet arc brought with gentle traction throu^ j 
the vulva. If difficulty is experienced in grasping boik 
feet, first one foot should be drawn into the vagina bm 
not through the introitus; and then the other fool stwuU 
be advanced in a similar fashion (Fig 29-1 ). Now bcA 
feet are grasped and puUed through the vulva siiiiuli» 
neously. Unless there is considerable relaxation of at 
perineum, an episiotomy should be made. The q)»- 
otoray is an important adjunct to any type of brttrt 
delivery. A mediolateral episiotomy is usually prefotc' 
with a term-sized infant because it furnishes groiV 
room and is less likely to extend into the rectum. 

As the legs begin to emerge through the vtilva. *" 
should be wrapped in a sterile towel to obtain a &t«* 
grasp, for the vemix caseosa renders them slippcnf ■< 
difficult to hold. Many obstetricians prefer the cowd • 
be moistened. Downward gentle traction is then c* 



51 



25 TECHMQtES FOR BREECH DELIVERY 




n,. 25-1. Breech 



Traction on the feet i 



tinucd. As the legs emerge, successively higher portions 
are grasped. 6rst the calves and then the thighs (Fig. 
25-2 ). When the breech appears at the vulva, gentle 
traction is applied until the hips are delivered. As the 
buttocks emerge, the back of the infant usually routes 
to the anterior The thumbs of the operator are then 
placed over the sacrum and the fingers over the hips, 
and gentle downward traction is continued until the 
costal margins, and then the scapulas become visible 
(Fig. 25-3). As traction is exerted and the scapulas 
become visible, the back of the infant tends to turn 
spontaneously toward the side of the mother to which it 
was originally directed ( Fig. 25—4 ). If turning is not 
spontaneous, slight roution should be added to the trac- 
tion, with the object of bringing the bisacromial diam- 
eter of the fetus into the anteroposterior diameter of the 
pelvic oudet. 

A cardinal rule in successful breech extraction 
is to employ steady, gende. downward traction un- 
til the lower halves of the scapulas are delivered 
outside the vulva, making no attempt at delivery of 





n«. 25-3. Breech extraction. Extraction of the Cxxty The r 
applied over, but not atiova. the infanf s pelvis. Rotation 
tempted until the scapulas clearly are visibte. 



52 



VI OPERATIVE OBSTETRICS 



Fig. 2S-4. Breedi extraction. Tt\e scapulas are visi- 




tfae shoulden and arms until one axilla becomes 
visible. Failure to follow this rule frequently will make 
an otherwise easy procedure difficult. The appearance 
of one axilla indicates that the time has arrived for 
delivery of the shoulders. Provided the arms arc main- 
tained in 6exion. it makes little difference which shoul- 
der is delivered first Occasionally, while plans are being 
made to deliver one shoulder, the other is bom spon- 
taneously. 

There are two methods for delivery of the shoul- 
ders; ( 1 ) With the scapulas visible, the trunk is routed 
in such a way that the anterior shoulder and arm appear 
at the vulva and can easily be released and delivered 
first. In Figure 25-4. the operator is shown routing the 
trunk of the fetus counterclockwise to deliver the right 
shoulder and arm. The body of the fetus is then routed 
in the reverse direction to deliver the other shoulder 
and arm. (2) if trunk rotation was unsuccessful, the 
posterior shoulder must be delivered first. The feet are 
grasped in one hand and drawn upward over the inner 
thigh of the mother toward which the ventral surface of 
the ferns is directed. In this manner, leverage is exened 
upon the posterior shoulder, which slides out over the 
perineal margin, usually followed by the arm and hand 
(Fig 25-5). Then, by depressing the body of the fetus, 
the anterior shoulder emerges beneath the pubic arch, 
and the arm and hand usually follow spontaneously (Fig 
25-6). Thereafter, the back tends to route spontane- 
ously in the direction of the symphysis. If upward rou- 
tion fails to occur, it is effected by manual roution of the 
body. Delivery of the head may then be accomplished. 

Unfortunately, however, the process is not always 
so simple, and it is sometimes necessary first to free and 
deliver the arms. These maneuvers are much less fre- 
quently required today, presumably because of adhcr- 




eneci awiv«<v c 



53 



25 TECHNIQUES FOR BREECH DELIVERY 



581 




Fig. 2S-». Bfeech 
aownward traction. The 



subsequently, the arm can be delivered as described 
previously. 

If the arms have become extended over the head, 
their delivery, although more difficult, can usually be 
accomplished by the maneuvers just described. In so 
doing, particular care must be taken to carry the opera- 
tor's fingers up to the elbow and to use the fingers as a 
splint, for if the operator s fingers are merely hooked over 
the fetal arm, the humerus or clavicle is exposed to great 
danger of fracture. Infrequently, one or both fetal arms is 
found around the back of the neck (nuchal arm ). and 
delivery is still more difficult. If the nuchal arm caimot be 
freed in the manner described, extraction may be facil- 
itated by rotating the fettis through half a circle in such 
a direction that the friction exerted by the birth canal will 
serve to draw the elbow toward the face. Should roution 
of the fetus fail to free the nuchal arm, it may be necessary 
to push the fetus upward in an attempt to release it If the 
rotation is still unsuccessful, the nuchal arm is often 
forcibly extracted by hooking a finger over it. In this 
event, fracture of the humerus or clavicle is very com- 
mon. Fortunately, good union almost always follows ap- 
propriate treatment. Because of these frequently less than 
optimal outcomes associated with nuchal arms. Shcrer 
and associates ( 1 989 ) recommend radiological studies to 
identify, when possible, the presence of a nuchal arm 
during the first stage of labor. They recommend cesarean 
delivery if a nuchal arm is identified. 

After the shoulders are bom, the head usually im. 
cupies an oblique diameter of the pelvis with the chin 
directed posteriorly. The fetal head then may be i-x 
tracted with forceps, as described later in the chapter 
or by the Mauriceau maneut/er (Fig. 25-7). 



cnce to the principle of continuing traction without 
attention to the shoulders until an axilla becomes visi- 
ble. Anempts to free the arms immediately after the 
costal margins emerge should be avoided. 

There is more space available in the posterior and 
lateral segments of the normal pelvis than elsewhere: 
therefore, in difficult cases, the posterior arm should be 
freed first Because tbe corresponding axilla already is 
visible, upward traction upon the feet is continued, and 
two fingers of the obstetrician's other hand are passed 
along the humerus until the elbow is reached ( Fig. 25-5, 
mset ). The fingers are now used to splint the arm, which 
IS swept downward and delivered through the vulva. To 
deliver the anterior arm. depression of the body of the 
"nfmt is sometimes all that is required to allow the 
"iterior arm to slip out spontaneously. In other in- 
'■^nces, the anterior arm can be swept down over the 
''■orax using two fingers as a splint Occasionally, how- 
""CT. the body must be held with the operator's thumbs 
over the scapulas and routed to bring the undeUvered 
^Julder near the closest sacrosciatic notch. The legs 
then are carried upward to bring the ventral surface of 
"« inhnt to the opposite iiwer thigh of the mother; 



The operator's index and middle finger of one hand 
arc applied over the maxilla, to Sex the head, while 
the fetal body rests upon the palm of ihc hand and 
forearm. The forearm is straddled by the feiai Icrs^ 
Two fingcn of the operator's other hand then arr 
hooked over the fetal neck, and grasping die shool 
ders, downward traction is applied until the subrn 
cipital region appears under the symphysis Genilr 
suprapubic pressure simultaneously applied bv an 
assistant helps keep die head Bexed. The body of ihc 
fetus then is elevated toward the mother s abdi>- 
men. and the mouth, nose, brow, and eventuaUv the 
occiput emerge successively over the penncum 
Gentle Iraction should be cxcned by the fingcn 
over the shoulders. At d>e same time, appropruic 
suprapubic pressure applied by an assistant, a 
shown m Figure 25-7, is helpfiil in delivery ol the 
head 

This maneuver was first practiced by Maunceau ( I ".' i i 
but for some reason fell into disfavor. Much later smcliu- 
(1876) described a similar procedure but rarcl\ nvidc 
use of it because he preferred forceps. Veit ( I'«»" > r« 



VI OPERATIVE OBSTETRICS 



54 



Rg. 25-7. Delivery of aftercoming head using 



lal head is being delivered, flexion of me head 
IS maintained by suprapubic pressure pro- 
vided by an assistant, and simultaneously by 
pressure on the maxilla (insef) by t 
as traction is applied. 




directed attention to the Mauriceau maneuver, and in 
Germany the procedure frequently is named after Veil. 
The most accurate designation, however, is the 
.Mauriceau-Smellie-Veit maneuver. 



Prague Maneuver 

Rarely, (he back of the fetus £uls to rotate to the 
anterior When this occurs, rotation of the back to the 
anterior may be achieved by using stronger traction 
on the fetal legs. If the back still remains posteriorly, 
extraction may be accomplished using die Mau- 
riceau maneuver and delivering the fetus back down. 
If this is impossible, the fetus still may be delivered 
using the modified Prague maneuver. This maneu- 
ver was recommended by Kiwisch ( 1 846 ). who prac • 
ticed in Prague. The maneuver had been described in 
London as early as 1754 by Pugh. The modified ma- 
neuver as practiced today consists of two fingers of 
one hand grasping the shoulders of the back-down 
fetus, from below, while the other hand draws the 
feet up over the abdomen of the mother ( Fig 2 5-8 ). 
Although the original Prague maneuver was em- 
ployed in cases in which die fetal back was directed 
upward, this is not recommended 



Brachi Maneuver 

In this maneuver, the breech is allowed to deliver 
spontaneously to the umbilicus. The fetal body then 
is held, but not pressed, against the maternal sym- 
physis This force is meant to be die equivalent of 
gravity (Bracht. 1936) The suspension of die fetus 
in this position, coupled with the effects of uterine 
contractions and moderate suprapubic pressure by 
an assistant, often results in a spontaneous delivery. 
Plental and Stone ( 1953) reviewed diis maneuver 
in detail Despite its popularity in Europe, there is 
no proof dut its use is associated with bener long- 



1991) 

ExtraeOon of Frank Bnach. At times, extracuon r«i 
frank breech may be accomplished by moderate inun* 
exened by a finger in each groin and Caciliuied M , 
generous episiotoray (Fig 25-9) If moderate trartaa 
does not effect delivery of the breech, and cesarean a la 
used, vaginal delivery can be accomplished onh bi 
breech decomposition. This procedure involves inr» 
uterine manipulation to convert the frank breech no < 
footling breech. The procedure is accomplished man 
readily if the membranes have ruptured recendv tm < 
becomes extremely difficult if considerable unir nb 
elapsed after the escape of amnionic fluid. In such lats 
the uterus may have become tightly contracted om Ok 




55 



25 TECHNIQUES FOR BREECH DELIVERY 58J 




n,. 25-». Extracoon ot a 



puurd Maneuver 



. Ok f>immt maneuver (Pitard. 1889) 
lids in bringing the fcul feci within reach of the 
operator In this maneuver, two 6ngcrs arc carried 
up along one extremiry to the knee to push it away 
from the midline Spontaneous flexion usually fol- 
lows, and the foot of the fetus is felt to impinge 
upon the back of the hand The fetal foot then may 
be grasped and brought down ( Fig. 2;-IO). Assoon 
as the buaocks are bom. first one leg and then the 
other IS drawn out and extraction is accomplished 
IS descnbed under "Extraction of the Complete or 
Incomplete Breech" earlier in the chapter. 

Forceps to Afttrcoming Head. Piper fbrcqM (Figs, 
i^-l 1 to 25-17) may be applied when the Mauriccau 
maneuver cannot be accomplished easily, or they may 
be applied electively and used instead of the Mauriccau 
maneuver The blades of the forceps should not be ap- 
plied to the aftercoining head until it has been brought 
into the pelvis by gentle traction, combined with supra- 



usadmacaMOf 



pubic pressure, and is engaged (Fig 25-16). As shown 
in Figure 25-17. suspension of the body of the fetus in 
a towel keeps the arms out of the way and prevents 
excessive abduction of the trunk. 

Entrapment ot tha Attarcoming Haad. Occasionally, 
especially with small preterm fetuses, the incompletely 
dilated cervix will not allow delivery of the aftercomuig 
head. Prompt action is necessary if a living in£uit is to be 
deUvered. With gentle traction on the fetal body, the 
cervix, at times, may be manually slipped over the oc- 
ciput, or the Bracht maneuver may be tried. If these 
actions are not rapidly successful, Diihrssen incisions 
can be made in the cervix. This is one of the few indi- 
cations for Diihrssen incisions in modem obstetrics ( see 
Chap. 24, p. 573). 




Rg. 25-11. Pip»fforc8p«. 



56 



VI OPERATIVE OBSTETRICS 




Fig. 2S-12. Position ol infant witti head in petvis pnor to 



Ifly and coUeagues ( 1986) descnbed "abdomiiul 
rescue' for a 20iO-g first twin whose fully dcflcxed 
head was entrapped after the arms had been deliv- 
ered. An emergency classical cesarean delivery re- 
sulted in an Apgar 3/7 infant who remained 
neurologically normal despite a small subarachnoid 
hemorrhage detected by a computed tomographic 
scan. Sandberg ( 1988) has confirmed that replace- 
ment of the fetus higher into the vagina and uterus, 
followed by cesarean delivery, can be used success- 
fully to rescue entrapped breeches that caniwi be 





Fig. 2S-14. Introduction ol nght 



Fig. 2S-1S. Fofcaps lodted and I 



Fig. 25-13. Introduction o( left 



57 



25 TECHNIQUES FOR BREECH DELIVERY 




Figs. 25-11 to 25-15). B. Forceps delivery 
of aftercoming head, ^4ota the direction of 
movemem (arrow). 



Analgesia and Anesthesia tor Labor and Delivery. 

Continuous epidural analgesia (see Chap. 16. p. 437) 
has been advocated by some as ideal for women in labor 
With a breech presentation. According to Crawford and 
Weaver ( 1982), such a block provides some protection 
lot the fetal head during the second stage of labor as 
well as during delivery by abolishing the bearing-down 
reflex and by inducing pelvic muscle relaxatioa Confine 
Md coUe^ues ( 1985) reviewed the outcomes of 371 
normally formed singleton breech fetuses delivered vag- 
inally About 25 percent of these women had been given 
continuous epidural analgesia, but it was quite worri- 



some that oxytocin augmenution was necessary to ef- 
fect delivery in half of them. Although first stage labor 
was not longer than in a control group not given epi- 
dural analgesia, the second stage was prolonged signifi 
cantly in women whose fetuses weighed more than 
2500 g. In fact, it was doubled if the fetus weighed more 
than 3500 g. There was one neonatal death fi-om trauma 
that followed full breech extraction for a prolapsed cord 
under epidural analgesia. Chada and associates ( 1992 ) 
observed simUar outcomes but also noted an increased 
incidence of cesarean delivery. For the above reasons 
we are reluctant to recommend continuous epidural 



58 



VI OPERATIVE OBSTETRICS 



Rg. 2S-17. Management of fetal amis i 




anaigcsia for these women. 

It is wise to allow the breech to deliver spontane- 
ously to the umbilicus. Analgesia for cpisiotomy and 
intravaginal manipulations that are needed for breech 
extraction can usually be accomplished with pudendal 
block and local infiltration of the perineum (see Chap. 
16. p. 431 ). Nitrous oxide plus oxygen inhalation pro- 
vides further relief from pain. If general anesthesia is 
desired, it can be induced quickly with thiopental plus a 
muscle relaxant and maintained with nitrous oxide. An- 
esthesia for decomposition and extraction must provide 
sufficient relaxation to allow intrauterine manipulations. 
Although successful decomposition has been accom- 
plished using epidural, caudal, or spinal analgesia, in- 
creased uterine tone may render the operation more 
difficult. Under such conditions, one of the halogenated 
anesthetic agents may be used to relax the uterus, as 
well as provide analgesia. The safeguards cited for the 
use of these agents in Chapter 16 (p. 427) must be 
followed. 

Prognosis. With complicated breech deliveries, there 
are increased maternal risks. Manual manipulations 
within the birth canal increase the risk of maternal in- 
fection. Intrauterine maneuvers, especially with a 
thinned-out lower uterine segment, or delivery of the 
aftcrcoming head through an incompletely dilated cer- 
vix, may cause rupture of the uterus, lacerations of the 
cervix, or both. Such manipulations also may lead to 



exteiuions of the cpisiotomy and deep perineal tean 
Anesthesia sufficient to induce appreciable utennc re 
taxation may cause uterine atony and. in turn, poscpar 
cum hemorrhage. Even so, the prognosis, in general, foe 
U>e mother whose fetus is delivered by breech cxtrjc 
tion probably is somewhat better than with cesarao 
delivery. 

For tbe fetus, the outlook is less favorable, and it is 
more serious the higher the presenting part is situated u 
the beginning of the breech cxtractioa In addition to 
the increased risk of tentorial tears and intraccrebnl 
hemorrhage, which are inherent in breech delivery, the 
perinatal mortality rate is increased by the greater prob- 
ability of other trauma during extraction. With incom- 
plete breech presentations, prolapse of the umbilical 
cord IS much more common than in vertex presenta- 
tions, and this complication further worsens the prog 
nosis for the infamt 

An adverse outcome for a breech vaginal delivery m 
not universally expected. In £act, Croughan-Mimhanc 
and associates ( 1990) reported that vaginally bom m- 
fiants were not at increased risk for adverse outcoma 
related to head trauma, neoiutal sciztu«s, cerebral 
palsy, mental rctardatioa or spasticity. Christian and 
colleagues ( 1990) reported no perinatal outcome dif 
fcrences for Apgar scores, hospital stay, neonatal com 
plications, and cord blood gases between vaguulJv 
delivered frank breeches and those delivered by cms 
ean section. In this prospective study, all vaginal deli* 



2S TECHNIQUES FOR BREECH DELIVERY 



?87 



cfie* 



were in women with an adequate pelvis 



y0,ented by computed tomographic f>clvimetrv 
g^ial deliveries were restricted to women with frank 
ufcech fetuses estimated to weigh between 2000 and 
iOOO g Christian and Brady (1991 ), however, reported 
,er that there were differences in cord acid-base stud- 
between fetuses born vaginally as a breech versus a 
vertex presentation Specifically, breech presenting vag- 
inally bom infants, on the average, had a lower cord 
blood pH and higher Pco, than cephalic-presenting in- 
(jnts delivered vaginally Hommcl and associates ( 1989 ) 
reported no differences in the incidence of metabolic 
acidemia between vaginally and abdominally delivered 
breeches; however, the incidence of mixed respiratory- 
metabolic acidemia and pure respiratory acidemia were 
increased significantly in vaginally delivered breech in- 
bnts. These observations emphasize the importance of 
nieasuring both umbilical cord gases as well as pH be- 
cause it is likely that only metabolic acidemia of pro- 
longed duration is associated with poor neurological 
outcomes (see Chap. 17, p 446). 

Fracture of the humerus and clavicle cannot always 
be avoided, and fracture of the femur may be sustained 
during difficult frank breech extractions. Such firactures 
are associated with both vaginal and cesarean deliveries 
(Vasa and Kim, 1990). Hematomas of the sternocleido- 
mastoid muscles occasionally develop after delivery, 
(hough they usually disappear spontaneously. More se- 
rious problems, however, may follow separation of the 
epiphyses of the scapula, humerus, or femur. There is 
no evidence that the incidence of congenital hip dis- 
locations is increased by vaginal delivery of a breech 
(Clausen and Nielsen, 1988), but minor hip abnormali- 
ties (best detected by sonography) may be more com- 
mon in vaginally delivered breech neonates (Dom, 
1990; Walter and colleagues, 1992 ). Paralysis of the arm 
may follow pressure upon the brachial plexus by the 
Angers in exerting tractioa but more fr^ucntly, it is 
caused by overstretching the neck while freeing the 
arms. When the fetus is extracted forcibly through a 
contracted pelvis, spoon-shaped depressions or actual- 



fractures of the skull may result. Occasionally, even the 
feiai neck may be broken when great force is employed 
Perinatal morbidity and mortality are considered in 
greater detail in Chapter 20 Finally, testicular iniun- in 
some cases severe enough to result in anorchia. may 
occur following vagmal delivery (Tiwary. 1989). 



Version 

Version, or turning, is an operation in which the presen- 
utionof the fetus is altered anificially. either substituting 
one pole of a longitudinal presentation for the other, or 
converting an oblique or transverse lie into a longitudinal 
presenution. According to whether the head or breech 
is made the presenting part, the operation is designated 
cephalic or podalic version, respectively It is also named 
according to the method by which it is accomplished 
Thus, in external version, the manipulations jrt per- 
formed exclusively through the abdominal wall » hik- m 
internal version, the entire hand is introduced mm the 
uterine cavity. 



Venlon. The object of thu pf.«.«: 
dure is to conven a less favorable presentamxi mm a 
vertex. The problems that have persisted until rermiK 
have not been whether an external cephalic >rrM.i« 
could be accomplished and by what technii^ut- Nil 
rather, whether the procedure was necessar\ sjc j»h1 
cost effective. With respect to the first quotum ii jp- 
pears from the results of randomized controlk-d >4uOh-« 
shown in Table 25-1 that if version is not piftt*m«-d 
approximately 80 percent of noncephalic pri-Mniji>i<»s 
diagnosed in the late third trimester stUl will ht- prt>«ni 
at delivery. This is compared only with 30 pcnrm .< 
those who underwent a successful version i i-vjn tn 
delivery rates in untreated women are more ihjn i« » i 
the rate in those women in whom a version »i» (xr 
formed ( 32 versus 1 5 percent ). 

The safety of external cephalic version • nh ml 
without tocolytic agents remains a controvrrNul ttrt 



TABLE 2S-1. RANOOMIZEO STUDIES TO DETERMINE EFFECT OF CEPHALIC VERSION ON NONCEPHALIC BIRTHS ANO 
CESAREAN OEUVERIES 







NoncphaltcMDIIvry 






CMwnn 


0*llv«ry 




TrMM comm 




Tr—M 


Cm 


Study 


Ma 


(%) No. 


(%) 


Ma 


(%) 


NO. 


VarOofsteo and collaagues (1981 ) 


8/25 


(32) 19/23 


(83) 


7/25 


(28) 


1723 


Ho(m,y,(1983) 


1/30 


(3) 20/30 


(67) 


6/30 


(20) 


aio 


Bnicks and associates (1984) 


17/31 


(55) 29/34 


(85) 


7/31 


(23) 


12J4 


Van Vaaton and co-wortters (1989) 


39/89 


(44) 67/90 


(74) 


8/89 


(9) 


1390 


•*aho»n«l and coUatwratOfS (1991 ) 


18^103 


(18) 87/105 


(83) 


13/103 


(13) 


35' 04 


Tom 


83/278 


(30) 222/282 


(79) 


41/278 


(15) 


90 ?M 



60 



VI. OPERATIVE OBSTETRICS 



According to their survey, Amon and Sibai ( 1988) re- 
ported thai external version is thought by the majoriry 
of maiemal-fctal medicine specialists to be a frequently 
successful technique that is associated with little mor- 
bidity (see Chap. 20. p. 49"'). Adv cates believe that 
external version should be attempted in most nonceph- 
aiic presentations to avoid maternal risks of cesarean 
delivery and perinatal morbidity and mortality associ- 
ated with vaginal delivery (Hofimcyr, 1991). Results 
published to date support this conclusion, but the ob- 
served risks to this elective procedure include, and are 
not limited to. maternal mortality, placental abruption, 
uterme rupture, feto-matemal hemorrhage, isoimmuni- 
zation, preterm labor, fetal distress necessitating emer- 
gency cesarean delivery, and fetal demise ( see Chap. 20, 
p. 498). 

Because of the fear of uterine rupture, women who 
had undergone cesarean delivery were excluded from 
most external cephalic version protocols. Flamra and 
co-workers ( 199 1 ) reported no serious maternal or fetal 
complications associated with such anempts in women 
with previous low transverse utenne incisions. They 
were successful in 82 percent of 56 patients. At present, 
we are not performing external cephalic versions in 
women who have had previous uterine incisions. 

The cost effectiveness of external cephalic version 
has not been established. Hanss ( 1990) reported that 
successful version represented less than 5 percent of 
all deliveries, and less than 10 percent of breech deliv- 
eries in his own institution in 1988. In a study frtjm the 
Netherlands, van dc Pavert and colleagues (1990) 
reached a similar conclusiorL Specifically, they con- 
cluded that the "benefits of external version at term may 
not apply to populations with a low cesarean rate, unless 
versions are carried out with maximum efficiency." 

Hofineyr (1991), in a thoughtful commentary, 
makes a persuasive argument for universal external ver- 
sion. Using the dau summarized in Table 25-1, he main- 
tains that if external version were attempted in 2 
percent of the 750,000 pregnancies deUvcred in the 
United Kingdom each year, the number of breech births 
would be decreased each year by 5 100, and the number 
of cesarean dcliycrics would be decreased by 2100, 
Such a goal docs not appear to be impossible in the 
United Sutes. Morrison and co-workers (1986) at- 
tempted external cephalic version in 2,3 percent of 
pregnancies cared for at the University of Mississippi 
Medical Center between 1982 and 1984, Compared 
with the preceding 3 years at their institution, they 
decreased breech deliveries from 1.8 to 1.1 percent and 
cesarean deliveries performed for breeches from 2.8 to 
1 .6 percent 

Indications. If a breech or shoulder presenution ( trans- 
verse lie ) is diagnosed in the last weeks of pregnancy, its 
conversion to a vertex may be attempted by external 
maneuvers, provided there is no marked disproportion 



between the he fetus and the pelvis, md pro. 

vided there l< enu previa. If the fetus lies trans- 

versely, a cha resenuuon is the only altenuuvf 

to cesarean > ' for a viable fetus (Hankins and 
colleagues, I ',,„). 

According to Fortunato and colleagues ( 1988), ej. 
temal cephalic version using tocolysis is more likely to be 
successful if ( 1 ) the presenting pan has not descended 
into the pelvis. ( 2 ) there is a normal amount of Jmniomc 
fluid, ( 3) the fetal back is not positioned postenorly, md 
(4 ) the woman is not obese. After controlling for othet 
variables, the first two factors listed had an independent 
effect on the success of the version. Hellstrom and col- 
leagues (1990) reported their results from a similar 
study, and they identified only 3 of 1 6 significant vanabia 
to be associated with successful external cephalic vo 
sion. The most important factor was parity, followed by 
fetal presenution and the amount of amnionic fluid. Thev 
found that a version appears to be more successful m a 
parous woman who has an unengaged fetus surrounded 
by a normal amount of amnionic fluid. 

Technique. Cephalic version is performed wMv b^ 
external manipulations (Fig. 25-18). Most invest^ 
tors recommend that uterine relaxation be i iiitNiiliuj 
with a tocolytic agent. Presenution and position nf dk 
fetus are ascertained carefully and documented b* 
sonography, because Leopold maneuvers are ks* frt- 
cise in breech presenutions (Thorp and co-wurtcr^ 
1991 ). Each hand then grasps one of the fetai polei 
The pole that is to be converted into the (in i< mn 
pan then is gently stroked toward the pHvK mtet 
while the other is moved in the opposite darrctna 
This procedure should always be performed widi tc- 
quent fetal hean rate monitoring before, durma mt 
after the procedure. Version probably is bra » 
tempted in a labor and delivery unit or ckar b» ■ 
that rapid cesarean delivery can be accomptaiBi 
should feaU distress develop. After successful vrrana 
the fetus tends to return to the original posiuan latrm 
the presenting part is fixed in the pelvis. Dunna Ufea 
however, the head may be pressed into the pchu • 
let and held firmly until it becomes fixed umkr dK 
influence of uterine contractions. 

While most (Hoftneyr, 1983; Mahomed. I-WI v« 
Dorslen and co-wotlters, 1981, 1982) recommend » 
colysis for external versions, not all agree ttut d» • 
necessary (Scaling, 1988). Robertson and jmkimb 
(1987) reported that ritodrine tocolysis did m« ^ 
prove their success. Similarly, Tan and luar^w 
( 1989), in a prospective randomized tnai tarn* •■ 
salbutamol did not improve their success nu 

Because such manipulations may cause hi ■*•• 
nal bleeding, anti-D immune globulin pr^#»*"» 
should be given to all D-negatlve women in •«•■ 
temal cephalic version is attempted (s 
498 and Chap. 44, p 1003). 



:h« .v * 



61 



25 TECHNIQUES FOR BREECH DELIVERY 589 




Fig. 2S-ia. External cspftalic vankxi. 



Internal Podallc Version. This maneuver consists of 
[he obstetrician turning the fetus by inserting a hand 
into Che uterine cavity, seizing one or both feet, and 
dnwing them through the cervix while pushing trans- 
abdominally the upper portion of the fetal body in the 
opposite direction. The operation is followed by breech 
extraction Despite numcrtHis anempts to defend or 
condemn this procedure, there is presently insuCEcient 
evidence to dooiment its safety (Drew and associates, 
1991 ). There is. however, a large amount of anecdotal 
information to support claims that the procedure may 
be associated with an increased fetal-neonatal risk of 
trauma and fiiture neurological damage. 

Indications. There are very few. if any, indications for 
internal podalic version other than for delivery of a 
second rwia The technique for delivering a second twin 
IS described in Chapter 39 (p. 91 1 ). The possibiUty of 
senous trauma to the fetus and mother during internal 
podalic version of a cephalic presentation is appa r ent, as 
diustrated in Figures 39-20 and 39-21 (pp. 912, 913). 



References 

■^mon E. Sibaj BM. Anderson GD: How pcrinatologiso manage 
the problem of the presenting breech. Am J Pcrlnatol 5:247. 
1988 

Bncht E: Manual aid in breech presentation. Zeitschr Ge- 
bunhshilfe Gynaekol 1122-1. 1936 

Brocks V. Philipsen T. Secher N]: A randomized trial of exter- 
nal cq>h2lic version with tocolysb in laic pregnancy. Br J 
Obstet Gynaecol 91*53. 1984 

Oiadha YC. Mahmood TA. Dick MJ. Smith NC. CampbeU DM. 
Templeton A: Breech delivery and epidural analgesia. Br J 
Obaet Gynaecol 99:96. 1992 

Chrisiian SS. Brady tL Cord blood aCid-base values in breech- 
presenting infants bom vaginally. Obstet Gynecol 78:778, 
1991 



Christian SS. Brady K. Read JA. Kopelraan JN: Vaginal breech 
delivery A five-year prospective evaluation of a protocol 
using computed tomographic pelvimetry Am J Obstct Gy- 
necol 163848. 1990 

Clausen 1. Nielsen KT: Breech positioa delivery route and 
congenital hip dislocation. Acta Ofastet Gynecol Scand 
67 595. 1988 

Confino E, Ismafovich B. Rudick V. David MP: Extradural an- 
algesia in the management of suigleton breech delivery Br 
J Anaesdi 5-'892. 1985 

Crawford jS. Weaver JB: Anaesthetic maiugement of twin and 
breech delivcncs. Clin Obstet Gynecol 929 1. 1982 

Croughan-Minihane .MS. Petitti DB. Gordis L Golditch 1: .Mor- 
bidity among breech intuits according to method of deliv- 
ery Obstet Gynecol 75821. 1990 

Dom U: Hip screening in newborn infints. Clinical and ultra- 
sound results. Wiener Kliniscbe Wochenschrift 181(5up- 
pl>3. 1990 

Drew JH. McKenzle J. Kelly E. Beischer NA: Second twin 
Quality of survival if bom by breech extraction foliowuig 
internal podalic versioa AustNZ J OtMtet Gynaecol 31 HI. 
1991 

Flamm BL Fried MW. Lonky NM. Giles WS: External cephalic 
version after previous cesarean section. Am J Obstet Gyne- 
col 165370. 1991 

Fominaio SJ. Mercer LJ. Guzick DS: External cephalic version 
with tocolysis: Factors associated with success. Obstct Gy- 
necol 72:59. 1988 

Gimovsky ML Petric RA: Breech presentation: Alternatives to 
routine OS. Contemporary Obstet Gynecol 3735. 1992 

Hankins GD. Hammond IT, Snyder RR, Gilstrap LC III: Trans- 
verse Ue. Am J Perinatol 7:66. 1990 

Hanss JW Jr The efficacy of external cephalic version and its 
impact on the breech experience. Am J Obstet Gynecol 
162:1459. 1990 

Hetlstrom AC. Nilsaon B, Stange U Nylund L When does ex- 
ternal cephalic version succeed.' Acta Obstet Gynecol Scand 
69:281. 1990 

Hofmeyr GJ: Effect of external cephalic version in late preg 
nancy on breech presentation and cesarean section rate A 
controUed trial Br J Obstet Gynaecol 90:392. 1983 



62 



590 



VI OPERATTVE OBSTETRICS 



Hofmeyer GJ: External cephalic version ai term How high are 
the stakes' Br J Obsiet Gvnaccol 98 L. 1991 

Hommcl L BcUee H. Unk M The vaJidir. of parameters in 
neonatal diagnosis and fetal monitoring of breech deliver- 
ies 1 Neonatal status after breech dcliven- Zentralblait hir 
Gvnakologie 111 1293. 1989 

Iffv- L. Apuzzio JJ. CohcnAddad N. Zwolska Demczuk B. 
FrancisUnc M. DIenczak J; Abdominal rescue after entrap- 
ment of (he aftcrcoming head Am J Obstet Gynecol 
lS-1623 1986 

KiwischFH BeiiragezurGeburtskunde(>«ur7burg) I 69. 1846 

Krause W Voigt C. Donczik J. Michels W. Gstottner H Assisted 
spontaneous debvery* vs Bracht manual aid within the scope 
of vaginal delivery m breech prescnuuon Late morfoidicy in 
children S-~ years of age Zcitschr Gcburtshil/e Pennatol 
195'6. 1991 

Mahomed K, Seeras R. Coulson R; External cephalic version at 
term A randomized controlled tnal usmg tocolysis. Br J 
Obstet Gynaecol 98 8. 1991 

Maunceau F The method of delivering the woman when the 
infant presents one or rwo feet first In Traite des Maladies 
des Femmcs Grosses. 6th ed. Paris. 1 ~2 1 . p 280 

Morrison JC. .Myatt RE. .Martin JN. Meeks GR. Martin RW, 
Bucovarz ET. Wiser WL External cephalic version of the 
breech prcsenution under tocolysis. Am J Obstet Gynecol 
154900. 1986 

Pinard A On version by external maneuvers. In Traite de 
Palpcr Abdominal. Pans. 1889 

PlentI AA. Stone RE; Bracht maneuver Obstet Gynecol Surv 
8:31J. 1953 

Pugh A: Treatise on midwifery chiefly with regard to the op- 
eration. London. I ''54 

Robertson AW. Kopelman JN. Read JA, Duff P. Magelssen DJ. 
Dashow EE: External cephalic version at term: Is a tocolytic 
necessary? Obstet Gynecol "0 896. 1987 

Sandbcrg EC; The Zavanelli maneuver extended: Progression 
of a revolutionary concept Am J Obstet Gynecol 158:1347. 



Savage JE: .Management of the fetal ; 
Obstet Gynecol 355. 1954 



Sherer DM. Menashe M Palti Z Aviad 1. Ron M Radiolo«c 

evidence of a nuchal arm in the breech presenting fena _ 

the onset of lafxjr .\n indication for abdominal delivery yy-, 

J Pennatol 6353. 1989 
Smellie W Smellie s treatise on the theory and practice of 

midwifery Vol 1. .McCliniock AH (ed). London. The Ne» 

Sydenham Society. 18~6 p 305 
Tan GW Jen SW Tan SL Salmon \M A prospective ran(k)oi. 

ised controlled tnal of external cephalic version compj,^ 

two methods of utcnne tocolysis with a non-iocolyia 

group. Smgapore Med J 30. 155. 1989 
Thorp JM Jr. Jeitkins T Watson W Utility of Leopold mancii. 

vers in screemng for malprescnution. Obstet Gynecol 

'8394. 1991 
Tiwary CM: Testicular mfury in breech deUvery: Possible ia. 

plications. Urology 34 210. 1989 
van de Pavcrt R. Bcnnebroek Gravenhorst J. Keiise MJ Tin 

benefit of external version m full-term breech present*. 

tion. Nederlands Tijdschnft Voor Gci>ee:kunde 1342245. 

1990 
VanDorsten JP Safe and effective external cephalic verstoo 

with tocolysis Contemp Obstet Gynecol 19 44. 1982 
VanDorsten JP. Schifnn BS. Wallace RL: Randomized control 

tnal of external cephalic version with tocolvsis in late prej. 

nancy Am J Obstet Gvnecol 141417. 1981 
Van Veelen AJ. Van CappeUen AW. Flu PK. Straub .MJ. Wjika. 

burg HC; Effect of external ccphaUc version in liie prcj. 

nancy on presenution at delivery A randomized conirolkd 

tnal. Br J Obstet Gynaecol 96916. 1989 
Vasa R. Kim .MR: Fracture of the femur at cesarean secuoa 

Case repon and review of literature Am J Pennatol ' ^6. 

1990 
Veit G: On version by external manipulation. Hamburgischa 

Magazin fiir die GeburtshUfe. 1907 
Walter RS. Donaldson JS. Davis CL Shkolxuck A Burns H). 

Carroll NC. Brouillette RT Ultrasound screening ol higb- 

risk infants: A metliod to mcrease early detection ol coo- 

getutal dysplasia of the hip Am J Dis Child 146 230 1992 



63 

Mr. Canady. Thank you, Dr. Smith. Dr. Robinson. I will point 
out before Dr. Robinson's testimony that the two doctors, McMahon 
and Haskell, that Dr. Smith referred to in her testimony, were the 
doctors we had invited and who had agreed to appear for this hear- 
ing, but who canceled at the last minute. We wanted to give them 
the opportunity to be here to testify and explain the procedure. But 
they were 

Mrs. SCHROEDER. If the chairman will yield. I think one of the 
reasons that we have to be very honest about this, is doctors have 
been harassed and sometimes don't feel very secure in this environ- 
ment that we live in. I think it is only fair to put that on the 
record. 

Mr. Canady. Thank you. Dr. Robinson. 

STATEMENT OF J. COURTLAND ROBINSON, M.D., ASSOCIATE 
PROFESSOR, DEPARTMENT OF GYNECOLOGY AND OBSTET- 
RICS, JOHNS HOPKINS UNIVERSITY 

Dr. Robinson. I would like to thank the chairman and the mem- 
bers of the subcommittee for inviting me to be here today. My 
name is J. Courtland Robinson, associate professor on the fulltime 
faculty in the Department of Gynecology and Obstetrics, Johns 
Hopkins University School of Medicine, and a joint appointment 
with the Johns Hopkins School of Hygiene and Public Health. 

I have been involved in all aspects of reproductive health care for 
women for over 40 years, including complete obstetrical care, abor- 
tion, special oncologic and gjmecological care, with an extra interest 
in family and sterilization. I am here on behalf of the National 
Abortion Federation, the national professional association of abor- 
tion providers. 

My experience with abortion began in the 1950's, when as a 
house officer at the Columbia Presbyterian Medical Center in New 
York City, I watched women die from abortions that were poorly 
done. Over a 5-year period when in training at the medical center, 
many women died before our eyes. Many survived only with ag- 
gressive pelvic surgery. On occasion, we did save the very sick. 

These are not events learned from books, but reality that I pain- 
fully experienced and witnessed. This experience with poorly per- 
formed abortions was further extended during my 11 years as a 
medical missionary with the Presbyterian Church while I worked 
and taught in Korea. 

In 1971 at Baltimore City Hospital, we were already doing legal 
first- and second-trimester abortions before the Roe v. Wade deci- 
sion came down. We did about 1,000 a year. Thirty percent were 
second trimester. At that time, the method of management of sec- 
ond-trimester abortions was saline induction. When the saline did 
not work, it was often my task to carry out an evacuation in order 
to meet the patient's needs in a safe and timely manner. I have 
performed abortions in different settings, and have performed sec- 
ond-trimester abortions using different techniques, depending upon 
the clinical situation. 

When a woman is faced with a need to terminate a pregnancy, 
the physician can manage the surgical procedure using a number 
of techniques, hypotonic glucose, saline, urea, prostoglandins, 
potossin, suction, D&C, D&E. We have used different techniques 



64 

over the years as our skill and understanding of basic physiology 
has become clearer. As in all of medicine, we develop techniques 
which are more appropriate, study the long-term impacts, and de- 
termine which is safer. 

The physician needs to be able to decide, in consultation with the 
patient, and based on her specific physical and emotional needs, 
what is the appropriate methodology. The practice of medicine by 
committee is neither good for patients or for medicine in general. 

This legislation appears to be about something you are referring 
to as partial-birth abortion. I now am beginning to learn a little 
about what you think it means, but I did not know it until a few 
days ago. Never in my career have I heard a physician who pro- 
vides abortions refer to any technique as a partial-birth abortion. 
That, I suspect, is because the name did not exist until someone 
who wanted to ban abortions made it up. Medically, we do not do 
partial-birth abortion. There is no such thing. 

When an intact fetus is removed in the process of abortion, as 
is sometimes done, fetal demise is induced either by an artificial 
medical means or through the combination of steps taken as the 
procedure is begun. Thus, in no case is pain induced to the fetus. 
If neurologic development at the stage of the abortion being per- 
formed even made this possible, which in the vast majority of cases 
it does not, analgesia and anesthesia given to the woman neutral- 
izes any pain that may be perceived by the fetus. 

So when I read in your legislation that you seek to ban "an abor- 
tion in which the person performing the abortion partially 
vaginally delivers a living fetus before killing the fetus and com- 
pleting the delivery," my reaction is that you are banning some- 
thing that does not happen. To say "partially vaginally delivers" is 
vague, not medically oriented, just not correct. In any normal sec- 
ond-trimester abortion procedure done by any method, you may 
have a point at which a part, an inch of cord, for example, of the 
fetus passes out of the cervical os, before fetal demise has occurred. 
This does not mean you are performing a partial birth. 

I have seen the sketches that have been passed around. I have 
read your description of a particular physician's method of perform- 
ing this procedure, a method by the way which is not at all com- 
mon. It represents a particular surgical decision by that physician, 
one which works in his practice. The sketches in any case are not 
particularly correct. They may in a very technical sense represent 
an approximation of what occurs in some cases, but they do not 
represent medical or scientific accuracy. Rather, they are designed 
to be upsetting and inflammatory for the lay person. They do not 
advance medical practice. 

The words of the legislation are equally inflammatory. No one 
doing this procedure is partially delivering a fetus. So then, I have 
to wonder what you are trying to ban with this legislation. It 
sounds to me as if you are trying to leave any late abortion open 
to question, to create a right of action, and in fact, a criminal viola- 
tion. To force doctors to affirmatively prove that they have not 
somehow violated such a law. 

I know that a number of physicians who have performed abor- 
tions for years who are experts in the field, look at this legislation 
and do not understand what you mean or what you are trying to 



65 

accomplish. It seems as if this vagueness is intentional. I, as a phy- 
sician, cannot countenance a vague law that may or may not cut 
off an appropriate surgical option for my patient. 

Women present to us for later abortions for a number of reasons, 
including congenital anomalies, of which I have a few pictures if 
necessary. I can tell you from my long experience that women do 
not appear and ask for any abortion, particularly those that I saw 
die in the 1950's, particularly a later abortion, cavalierly or lightly. 
They want an answer. It is a serious and difficult decision and has 
been for centuries for women to make. It is not my place to judge 
my patient's reason for ending a pregnancy, or to punish her be- 
cause circumstances prevented her from obtaining an abortion ear- 
lier. 

It is my place to treat my patient, a woman with a pregnancy 
she feels certain she cannot continue, to the best of my ability. 
That includes selecting the most appropriate surgical technique 
using my skill and knowledge developed from experience, to deter- 
mine what method is safest for this woman at all times and in all 
circumstances. 

Sometimes, as any doctor will tell you, you begin a surgical pro- 
cedure expecting that it will go one way, only to discover that a 
unique demand, the case requires you to do something different. 
Telling a physician that it's illegal for him or her to adapt a certain 
surgical method for the safety of the patient is absolutely criminal 
and flies in the face of the standards for the quality of medical 
care. 

For many physicians, this law would amount to a ban on D&E 
entirely, because they would not undertake a surgery if they were 
legally prohibited from completing it in the best way they saw fit 
at the time the procedure was being done. Because the law itself 
is so vague and bizarre, leaving them to wonder whether they are 
open to prosecution or not. 

This means that by banning this very rare technique, you end up 
banning D&E, essentially recognized as the safest method of per- 
forming secondary trimester abortions. That means that women 
will probably die. I know. I have seen it happen. 

With all due respect, the Congress of the United States is not 
qualified to stand over my shoulder in the operating room and tell 
me how to treat my patient. If we are to allow women of this coun- 
try the right to decide when and whether to bear children, we as 
their doctors must be allowed to be doctors and treat them to the 
best of our abilities and according to their sense of personal control. 
Thank you. 

[The prepared statement of Dr. Robinson follows:] 

Prepared Statement of J. Courtland Robinson, M.D., Associate Professor, 
Department of Gynecology and Obstetrics, Johns Hopkins University 

I would like to thank the subcommittee for inviting me to be here today. My name 
is J. Covutland Robinson, and I am an Associate Professor on the fulltime ob-g3ai 
faculty at the Johns Hopkins University Hospital. I have been involved in all as- 
pects of ob-g3Ti care for women throughout my 40-year career, including prenatal 
care and delivery, general and special gynecology, family planning, sterilization and 
abortion. I am also here today on behalf of the National Abortion Federation, the 
national professional association of abortion providers. 

My experience with abortion began in the 1950's when, as a house officer at Co- 
lumbia Presbyterian Medical Center, I watched women die from abortions that were 



66 

improperly done. Over a period of five years when I was training at Columbia, 
countless women died before our eyes; sometimes we had to remove their uteruses; 
or only too rarely, we did save them. This is not fiction my grandfather told me, 
but reality that I painfully witnessed over and over again. 

In 1971, at Johns Hopkins, we were already doing legal 1st and 2nd-trimester 
abortions before the Roe v. Wade decision came down. We did about 1,000 per 
year — 30% were 2nds. At that time the method of management of second-trimester 
abortion was saline induction. I was involved in the care and management of pa- 
tients when saline didn't work. That was when we began doing dilatation and evac- 
uation on a limited scale. I have performed abortions throughout my c£u-eer in dif- 
ferent settings, and have performed second-trimester abortions. 

When a woman is faced with a need to terminate a pregnancy, you can manage 
the surgical procedure using a number of techniques. H3T)otonic glucose, saline, 
urea, suction, D&C — we've used all sorts of techniques over the years in medical 
practice. As in all of medicine, we work out techniques which are most appropriate, 
study the long-term impacts, and determine which is safest. The physician needs 
to be able to decide, in consultation with the patient and based on her specific phys- 
ical and emotional needs, what is the appropriate method. The practice of medicine 
by committee or legislature is not good for patients or for medicine in general. 

This legislation appears to be about something you are referring to as "partial- 
birth" abortions. I don't know what that is. Never in my career have I heard a phy- 
sician who provides abortions refer to any technique as a "partial birth" abortion. 
That, I suspect, is because the name did not exist until someone who wanted to ban 
an abortion procedures made up this erroneous, inflammatory term. Medically, we 
do not do "partial birth" abortions. There is no such thing. 

When an intact fetus is removed in the process of abortion, as is sometimes done, 
fetal demise is induced either by an artificial medical means, or through the com- 
bination of steps taken as the procedure is begun. In no case is pain induced to the 
fetus. If neurological development at the stage of the abortion being performed even 
made this possible, which in the vast majority of cases it does not, analgesic and 
anesthesia given to the woman neutrahze any possibility of fetal pain. 

So when I read in your legislation that you seek to ban "an abortion in which the 
person performing the abortion partially vaginally delivers a living fetus before kill- 
ing the fetus and completing the delivery," my reaction is that you're banning some- 
thing that doesn't happen. To say "partially vaginally delivers" is vague, not medi- 
cally substantiated, and is just not medically correct. In a 2nd-trimester abortion 
procedure done by any method, you may have a point at which a part of the fetus 
passes out of the cervical os, for example the hand protrudes an inch, before fetal 
demise has occvirred. This doesn't mean you're performing a "partial birth." 

I've seen the sketches that have been passed around. They are medically inac- 
curate and not designed to advance proper understanding of a surgical procedure. 
Rather, they are designed to be upsetting and inflammatory to the layperson. They 
do not advance medical practice. And the words of the legislation are equally inflam- 
matory. No one doing these procedures is "partially dehvering a living fetus." So 
then, I have to wonder what you're trying to ban with this legislation. It sounds 
as if you're trjdng to leave any later abortion open to question, to create a right of 
action and in fact a criminal violation, to force doctors to affirmatively prove that 
they have not somehow violated such a law. I know that a nimiber of physicians 
who have performed abortions for years, who are experts in the field, look at this 
legislation and do not understand what you mean or what you are trying to accom- 
plish. It seems as if this vagueness is intentional, and I, as physician, cannot coun- 
tenance a vague law that may or may not cut off an appropriate surgical option for 
my patient. 

Sometimes, as any doctor will tell you, you begin a surgical procedure expecting 
that it will go one way, only to discover that the unique demands of the case require 
you to do something different. Telling a physician that it is illegal for him or her 
to adapt his or her surgical method for the safety of the patient is, in effect, legislat- 
ing malpractice, and it flies in the face of standards for quality medical care. For 
many physicians, this law would amount to a ban on D&E entirely, because they 
would not undertake a surgery if they were legally prohibited from completing it 
in the safest and most effective way, according to their professional judgment. Be- 
cause the law itself is so vague, and based on erroneous assumptions, it would leave 
doctors wondering if they were open to prosecution or not, each time they performed 
a later abortion. That means that by banning this technique, you would, in practice, 
ban most later abortions altogether by making them virtually unavailable. And that 
means that women wiU probably die. I know. I've seen it happen. 

Women present to us for later abortions for a number of reasons. I can tell you, 
from many years of experience, that women do not appear and ask for any abortion, 



67 

but particxilarly a later abortion, cavalierly or lightly. I am a doctor. It is not my 
place to judge my patient's reasons for ending a pregnancy or to punish her because 
circumstances prevented her from obtaining an abortion earlier. It is my place to 
treat my patient, a woman with a pregnancy she feels certain she cannot continue, 
to the best of my abiUties. That includes selecting the most appropriate surgical 
technique — using my expertise, developed over years of experience and training, to 
determine what method is safest for this woman at this time in these circumstances. 
With all due respect, the Congress of the United States is not qualified to stand 
over my shoulder in the operating room and teU me how to treat my patients. If 
we are to allow the women of this country the right to decide whether to terminate 
a pregnancy, we as their doctors must be allowed to be doctors and treat them to 
the best of ovu* professional abilities. 

Mr. Canady. Thank you, Doctor. Dr. White. 

STATEMENT OF ROBERT J. WHITE, M.D., PROFESSOR OF 
SURGERY, CASE WESTERN RESERVE UNIVERSITY 

Dr. White. Mr. Chairman, members of this distinguished panel. 
I am dehghted to have the opportunity to testify before you. I ap- 
preciate Mr. Hoke's remarks, whether true or otherwise. 

I come before you as not an obstetrician or a gynecologist. I come 
before you as a brain surgeon and as a neuroscientist. When I was 
undergoing my training at Harvard Medical School and was work- 
ing at Children's Hospital in Boston, where I saw the efforts that 
the pediatricians and the neonatalogists were putting forward to 
save children, infants, it had a mark on my consciousness and on 
my future medical practice. I have been trained through all of my 
years, including many years at the Mayo Clinic, to save lives. Not 
to take lives. 

I go back to a time in American medicine when abortion was ab- 
horred by the medical profession. The thing that we have to con- 
sider here is that we are dealing with a human being, a fetus. By 
the 20th week of gestation and beyond, the fetus has in place the 
neurocircuitry to appreciate pain. Now I'm not going to bore this 
distinguished panel by going through the neuroanatomy and the 
neurochemistry and all the studies that are available that dem- 
onstrate that fetuses of these ages can perceive and appreciate 
pain. As a matter of fact, there are studies that demonstrate even 
at 8 weeks through 13 weeks, there's enough neurocircuitry present 
so that pain and noxious stimuli could be perceived. 

It is well to remember at this particular time, beyond the 20th 
week of gestation, that not only are the fiber tracks in place from 
the surface of the skin in through the spinal cord and to special 
areas of the brain where pain can be appreciated. But the system 
which is equally important in the modulation and suppression of 
pain is not yet as mature as the one conducting pain. Consequently 
some authorities feel that fetuses at this age can perceive pain to 
a greater degree than the adult. So I would like to come before you 
emphasizing that within the framework of fetal development, its 
nervous system, pain can be perceived and appreciated. 

Now, I am not an obstetrician. But as I view and understand this 
particular abortion procedure, with its compression, the pulling, 
the distortion must be a painful experience for the fetus as it is ad- 
vanced into the birth canal. But for me, what is most disturbing 
is the surgical procedure itself. You are talking about a brain oper- 
ation on a fetus who has reached an age where I would be called 



68 

upon as someone trained and experienced in pediatric neurosurgery 
to operate. 

We operate on preemies within this age range, conducting brain 
surgery to save their lives. We would never consider any procedure 
giving us access to that preemie's central nervous system without 
sophisticated anesthesia. 

I read, as you do, that this procedure to terminate the fetus' life 
requires the opening of the scalp, the entering of the spinal canal. 
Now interestingly, I am really wondering if these people who con- 
duct this procedure really know what they are doing in a technical 
way. We operate on infant brains beyond the 24th week of gesta- 
tion using magnification. Some of the most sophisticated instru- 
mentation is utilized to allow us to enter these neuroanatomical 
areas. 

I can conceive that these people eventually sucking out the brain 
when they have not even divided the upper cervical cord, which in- 
cidentally, and we should think about that, is the area in the spi- 
nal cord where Mr. Reeves has been injured. We're bringing to bear 
the greatest technology to improve his neurofunctioning, and he's 
being treated by some of the finest neurosurgeons in this country — 
all to save his life. 

The obstetrician who conducts this type of partial abortion, is at- 
tempting to undertsike brain surgery. There is no description in 
any of the doctors' articles or responses who do these procedures, 
to give me any indication whether they are operating on the upper 
cervical spine, spinal cord, or on the brain stem. 

Now it is true, once you sever central nervous tissue of that area, 
then of course the capability of respiration and so forth has been 
eliminated, as has happened to Mr. Reeves. But I can believe that 
these physicians conducting this abortion procedure are not trained 
neurosurgeons. In the process of terminating this child by removing 
its brain, the poor infant's pain neurocircuitry could be in place be- 
cause they are not properly trained to carry out this dastardly pro- 
cedure. 

Members of the panel, we are talking about a surgical procedure, 
and I have no idea how often it is conducted, by individuals who 
are not trained neurosurgeons. We brain surgeons are trained to 
save lives. 

Since I became involved in this, as I sit at the operating table, 
spending hours utilizing intensive concentration with special in- 
strumentation, to remove blood from the brain, to direct specially 
developed hydraulic tubing into the fluid passages of the brain, all 
in infants of this age or perhaps a little older, all directed to save 
their lives, it frankly disgusts me to think that other medical pro- 
fessionals are undertaking these procedures that we have spent 
years of study and training to develop to save lives, are being con- 
ducted to terminate lives. 

I would also remind you that the animal rights groups in this 
country have displayed great concern over animal rights, particu- 
larly as it relates to pain and to medical experimentation. It seems 
to me that we have reached a point where far greater care would 
have to be exercised by the veterinarian or the medical scientist ex- 
perimenting on animals in terms of pain reduction or elimination, 
than is a part of this particular procedure used in humans. It is 



69 

almost as if it would be more disturbing, even morally incorrect 
and inappropriate, to cause pain in a rat than a human fetus ac- 
cording to these animal rights groups. 

I doubt very much, ladies and gentlemen, if this tyipe of proce- 
dure, and as I said before I am not an expert as to how often it 
would be undertaken, were conducted within the framework of the 
lower animal, I am sure that the animal rights groups would be 
able to bring sufficient pressure on Congress and within the media 
to have it totally eliminated. 

In conclusion, the fetus is at an age of gestation where he or she 
can perceive pain and possibly more exquisitely, than he or she 
would if they were allowed to be born. The procedure itself is a 
brain operation. But the details of it are so limited and so ghastly, 
that it seems to me that it is impossible to believe that medical col- 
leagues in another specialty would carry it out. Thank you, ladies 
and gentlemen. 

[The prepared statement of Dr. White follows:] 

Prepared Statement of Robert J. White, Professor of Surgery, Case 
Western Reserve University 

issue: fetal pain as it relates to the partial-birth abortion method 

I am an academic neurosurgeon who, for over 30 years, has directed a clinical 
neurosurgical service and a neuroscience research laboratory. Thus, on one hand, 
I have been responsible for the total care, including surgery, of adults and infants 
requiring operations on their nervous systems (brain tumors, strokes, injuries, etc.) 
as well as conducting investigations on and in the brain and spinal cords as it re- 
lates to their functions and their diseases. Within the framework of these activities, 
I have been responsible for literally thousands of infants, many of them newly bom 
and many of them premature, who required neurosurgical intervention. While my 
laboratory investigations, utilizing animal models, principally canines and sub- 
human primates, were not specifically directed toward the study of pain or its mech- 
anisms. I was involved in documenting various aspects of the anatomy, physiology 
and biochemistry of both the human and the animal central nervous system. 

While I am obviously not an obstetrician or a gynecologist, I do feel that I am 
quaUfied to speak to the issue of pain in terms of its reception and appreciation by 
the fetus within the age range when the procedure of partial-birth abortion is per- 
formed. Timing, as the Uterature suggests, involves fetuses who have reached the 
20th week of gestation and, most frequently, involve infants between the 20th to 
the 24th week of development or beyond. Without attempting to review the 
neuroanatomical and nevirochemical scientific literature that addresses the issue of 
pain reception and appreciation before the 20th week of gestation, there is ample 
evidence that the neurocircuitry is already in place for the conduction of painful im- 
pulses through the spinal cord via the ascending spinal thalamic tract that are 
known to subserve pain transmission and whose fibers are already developing 
synaptic terminations at the appropriate thalamic nuclear centers. WhUe there is 
some debate as to whether sufficient cortical neuronal connections with thalamic 
nuclei are present prior to the 22nd week and many emphasize the requirement of 
a cortex to appreciate pain, it should also be recalled that there is ample evidence 
that pain can be appreciated at a thalamic level and that the cortex is not abso- 
lutely necessary to subserve the physiological entity of "sentience." It should also 
be recalled that the relatively simple conducting systems for pain involving thin 
non-mylenated fibers easily identified in the early fetus and that the elaborate and 
far more complex pain suppression systems, primarily composed of large mylenated 
fibers which mature much later in the development of the nervous system, is an 
issue that must be seriously considered in terms of the severity of painful impulses 
at this age. Thus, not only are the neuroanatomical pathways already in place for 
carrying pain by 20 weeks gestation, the important neurosystems that modiilate and 
suppress these impulses are either not present, or immature, during this early pe- 
riod of fetal development. 

If one examines the biochemical data, i.e., the concentrations of corticol and 
betaendorphin in fetal plasma immediately following the introduction of a needle 
which passes through the fetal abdomen (between the 20 and 34 week of gestation), 



70 

one documents marked increases in the values of these substances strongly suggest- 
ing a painful experience. The classical cardiovascular responses associated with 
stress and pain can be easily ellicited in fetuses of this age. These automatic dis- 
turbances so characteristic of these states have been docvunented diu-ing this time 
period over and over again. In summary, then, the fetus within this time frame of 
gestation, 20 weeks and beyond, is fully capable of experiencing pain. 

Now, having established the fact that fetuses of this age range possess a maturing 
neurocircuitry fiilly capable of receiving and appreciating pain, we must now pro- 
ceed to examine the obstetrical/surgical procedure, parti^-birth abortion, in ref- 
erence to its potential as a punitive painful experience for the fetus. There are at 
least two maneuvers that this procediu-e presents that are, in all probabiUty, a 
major soiu-ce of discomfort for the fetus. First, when the infant is extracted from 
the uterus and, in the process of this operation, is manipulated, compressed and 
dragged through the birth canal so that only the head partially remains within the 
canal. The rest of the fetus is now externalized and, in essence, has been delivered! 
This is, without a doubt, in a physical sense, a severe, multiple psiinful stimulus. 
Second, where an actual incision has to be made in the scalp tissues, covering the 
back of the head, with surgical scissors in order to enter the upper cervical canal 
(of the neck) and posterior fossa of the skvdl is, without a doubt, an extremely pain- 
ful experience. This is all done, of covu-se, to access the brain stem so that it can 
be incised and, following which, a tube is inserted into the surgical opening in order 
to literally "suck out" the developing brain. Without question, all of this is a dread- 
fully painful experience for any infant subjected to such a surgical procedure. 

What is overwhelming to me is that having to operate on children just a few 
weeks older than those that are undergoing this form of abortion, that is 24 weeks 
or slightly older, we do everjrthing possible to assure ourselves that these infants 
are painfree during operative procediu"es and, in the process, utilize the most ad- 
vanced forms of infantile anesthesia. These undertakings often require operations 
in exactly the same anatomical areas. This involves the so-called posterior fossa at 
the back of the skull where there are lesions in infants of these ages that must be 
addressed, surgically, in order to save their lives. Human pediatric surgery, which 
is undertaken to save Uves, is conducted on an infant who has been rendered totally 
unable to receive painful impulses when the most advanced, operative, stereotaxic 
and other forms of technology are utilized to assure a successful operation. To do 
otherwise would be unthinkable. Here, we have the brutality in the form of this 
abortion technique undertaken with the most dreadful, archaic, forms of surgery 
comparable to what was conducted centuries ago before the invention of anesthesia. 
Practicing pediatric neiu-osurgery aU these years, it still overwhelms me to think 
that we are destroying living beings in almost the same way that we neurosurgeons 
are attempting to save their lives often in the same age groups. We often must per- 
form this delicate brain siirgery on these very young infants simply because of their 
propensity, as premature infants, to bleed into their brains at the time of their vagi- 
nal or cesarean deliveries. They also frequently develop a condition called hydro- 
cephalus (where there are large accvunulations of fluid within the brain) that will 
require delicate operations to place miniaturized shunting/draining systems which 
overcome this deficiency in the fluid hydrauhcs of the brain itself We must also not 
forget that 75% of preemies bom at 24 weeks gestation will survive and at 6 months 
58% of them will still be alive. It is fascinating when you think that we use the 
most advanced forms of technology, especially in neonatology, to save infants in this 
age range and yet this gruesome svirgical technique of destroying the brain is uti- 
lized to sacrifice infants of the same age. 

Having experimented and operated on literally hundreds of animals, many of 
them subhuman primates (monkeys) in order to develop techniques for human brain 
surgery. I must never forget how careful we are to provide these animals with ade- 
quate anesthesia management, treating them often as if they were infants under- 
going surgical procedures. There are powerful groups in this country who are in 
total opposition to the use of any form of animal research for medical purposes and 
are convinced that aU of tiiese experiments, and all of this form of research are very 
painful to the animal. I think we can be assvu-ed that if these types of abortions 
were being carried out in animals, these groups would roundly condemn this form 
of abortion as being painful. The tragedy here is that many of our well-meaning citi- 
zenry are more concerned about animal pain than human fetal pain. This coiild be 
translated into a simple equation, almost child-Uke in its simplicity, yet tragic, that 
pain in the rat is ethically more reprehensible than pain in the human fetus. 

Members of this distinguished panel, it is my professional judgement, based on 
my many years of studying and operating on the human infant nervous system, that 
the procedure of partial-birth abortion, is an extremely painful experience for the 
human fetus at, or beyond, 20 weeks gestation whose nervous system is sufficiently 



71 

advanced in nevtrostructional organizational development to be able to perceive and 
appreciate noxious stimuli which is an intricate part of this procedure. I appreciate 
very much having had the opportunity to appear before the subcommittee deahng 
with this subject. 

Mr. Canady. Thank you, Dr. White. Ms. Watts. 

STATEMENT OF TAMMY WATTS 

Ms. Watts. Good morning. My name is Tammy Watts. I would 
like to thank the subcommittee for inviting me here today. My 
story is one of heartbreak, one of tragedy, but also one of compas- 
sion. 

When I found out I was pregnant on October 10, 1994, it was a 
great day, because on the same day, my nephew, Tanner James 
Gilbert was bom. We were doubly blessed. My husband and I ran 
through the whole variety of emotions, scared, happy, excited, the 
whole thing. We immediately started making our plans. We talked 
about names, what kind of baby's room we wanted, would it be a 
boy or girl. We told everyone we knew, and I was only 3 weeks 
pregnant at the time. 

It was not an easy pregnancy. Almost as soon as my pregnancy 
was confirmed, I started getting really sick. I had severe morning 
sickness, and so I took some time off of work to get through that 
stage. As the pregnancy progressed, I had some spotting, which is 
common, but my doctor said to take disability leave from work and 
take things 1 month at a time. 

During that leave, I had a chance to spend a lot of time with my 
newborn nephew, Tanner, and his mom Melanie, my sister-in-law. 
I watched him grow day by day, sharing all the news with my hus- 
band. We made our plans, excited by watching Tanner grow, think- 
ing, 'This is what our baby is going to be like." 

Then I had more trouble in January. My husband and I had gone 
out to dinner, came back and were watching TV when I started 
having contractions. They lasted for about a half an hour and then 
they stopped. But then the doctor told me that I should stay out 
of work for the rest of my pregnancy. I was very disappointed that 
I couldn't share my pregnancy with the people at work, let them 
watch me grow. But our excitement just kept growing, and we 
made our normal plans, ever3d;hing that prospective parents do. 

I had had a couple of earlier ultrasounds which turned out fine. 
I took the alphafetoprotein test, which is supposed to show fetal 
anomalies, anything like what we later found out we had. Mine 
came back clean. 

In March, I went in for a routine 7-month ultrasound. They were 
saying this looks good, this looks good. Then suddenly, they got 
really quiet. The doctor said, 'This is something I did not expect 
to see." My heart dropped. He said he was not sure what it was, 
and after about a solid hour of ultrasound, he and another doctor 
decided to send me to a perinatologist. That was also when they 
told us we were going to have a girl. They said, "Don't worry. It's 
probably nothing. It can even be the machine." 

So we went home. We were a little bit frightened so we called 
some family members. My husband's parents were away and want- 
ed to come home, but we told them to wait. The next day the 
perinatologist did ultrasound for about 2 hours, and said he 



72 

thought the ultrasound showed a condition in which the intestines 
grow on the outside of the body, something that is easily corrected 
with surgery after birth. But just to make sure, he made an ap- 
pointment for me in San Francisco with a specialist. 

After another intense ultrasound with the specialist, the doctors 
met with us along with a genetic counselor. They absolutely did not 
beat around the bush. They told me, "Your daughter has no eyes. 
Six fingers and six toes, and enlarged kidneys which were already 
failing. The mass on the outside of her stomach involves her bowel 
and bladder, and her heart and other major organs are also af- 
fected." This is part of a syndrome called trisomy- 13, where on the 
13th gene there's an extra chromosome. They told me, "Almost ev- 
erything in life, if you've got more of it, it's great, except for this. 
This is one of the most devastating syndromes, and your child will 
not live." 

My mother-in-law collapsed to her knees. What do you do? What 
do you say? I remember just looking out the window. I couldn't look 
at anybody. So my mother-in-law asked, "Do we go on? Does she 
have to go on?" The doctor said, no, that there was a place in Los 
Angeles that could help if we could not cope with carrying the preg- 
nancy to term. The genetic counselor explained exactly how the 
procedure would be done if we chose to end the pregnancy, and we 
made an appointment for the next day. 

I had a choice. I could have carried this pregnancy to term, 
knowing that everything was wrong. I could have gone on for 2 
more months doing everything that an expectant mother does, but 
knowing my baby was going to die, and would probably suffer a 
great deal before dying. My husband and I would have to endure 
that knowledge and watch that suffering. We could never have sur- 
vived that, and so we made the choice together, my husband and 
I, to terminate this pregnancy. 

We came home, packed, and called the rest of our families. At 
this point, there wasn't a person in the world who didn't know how 
excited we were about this baby. My sister-in-law and best friend 
divided up our phone book and called everyone. I didn't want to 
have to tell anyone. I just wanted it to be over with. 

On Thursday morning, we started the procedure. It was over 
about 6 p.m. Friday night. The doctor, nurses, and counselors were 
absolutely wonderful. While I was going through the most horrible 
experience of my life, they had more compassion than I have ever 
felt from anybody. We had wanted this baby so much. We named 
her Mackenzie. Just because we had to end the pregnancy didn't 
mean we didn't want to say goodbye. Thanks to the type of proce- 
dure that Dr. McMahon uses in terminating these pregnancies, we 
got to hold her and be with her and love her and have pictures for 
a couple of hours, which was wonderful and heartbreaking all at 
once. They had her wrapped in a blanket. We spent some time with 
her, said our goodbyes, and went back to the hotel. 

Before we went home, I had a checkup with Dr. McMahon and 
everything was fine. He said, "I'm going to tell you two things. 
First, I never want to see you again. I mean that in a good way. 
Second, my job isn't done with you yet until I get the news that 
you have had a healthy baby." He gave me hope that this tragedy 



73 

was not the end, that we could have children just as we had 
planned. 

I remember getting on the plane, and as soon as it took off, we 
began crjdng because we were leaving our child behind. The really 
hard part started when I got home. I had to go through my milk 
coming in and everything you go through if you have a child. 

I don't know how to explain the heartache. There are no words. 
There's nothing I can tell you, express or show you, that would 
allow you to feel what I feel. If you think about the worst thing 
that has happened to you in your life and multiply it by a million, 
maybe then you might be close. You do what you can. I couldn't 
deal with anybody, couldn't see anybody, especially my nephews. It 
was too heartbreaking. People came to see me, and I don't remem- 
ber them being there. 

Eventually, I came around to being able to see and talk to peo- 
ple. I am a whole new person, a whole different person. Things that 
used to be important now seem silly. My family and my friends are 
everything to me. My belief in God has strengthened. I never 
blamed God for this. I am a good Christian woman. However, I did 
question. 

Through a lot of prayer and talk with my pastor, I have come 
to realize that everything happens for a reason, and Mackenzie's 
life had meaning. I knew it would come to pass some day that I 
would find out why it happened, and I think it is for this reason. 
I am supposed to be here to talk to you and say, you can't take this 
away from women and families. You can't. It is so important that 
we be able to make these decisions, because we are the only ones 
who can. 

We made another painful decision shortly after the procedure. 
Dr. McMahon said, "This will be very difficult, but I have to ask 
you. Given the anomalies Mackenzie had so vast and different, 
there is a program at Cedars-Sinai which is trjdng to find out the 
causes for why this happens. They would like to accept her into 
this program." I said, "I know what that means, autopsies and the 
whole realm of testing." But we decided how can we not do this? 
If I can keep one family from going through what we went through, 
it would make her life have more meaning. So they are doing the 
testing now. Because Dr. McMahon does the procedure the way he 
does, it made the testing possible. 

I can tell you one thing after our experience, I know more than 
ever that there is no way to judge what someone else is going 
through. Until you have walked a mile in my shoes, don't pretend 
to know what this was like for me. I don't pretend to know what 
someone else is going through. Everybody has got a reason for 
doing what they have to do. Nobody should be forced into having 
to make the wrong decision. That's what you'll be doing if you pass 
this legislation. Let doctors be free to treat their patients in the 
way they think is best, like my doctor did for me. 

I understand this legislation would make my doctor a criminal. 
My doctor is the furthest thing from a criminal in the world. Many 
times I have called him my angel. They say there are angels walk- 
ing around the world protecting us, and I know he is one. If I was 
not led to Dr. McMahon, I don't know how I would have lived 
through this. I can't imagine where we would be without him. He 



74 

saved my family, my mental stability, and my life. I could not have 
made it through this without him, and I know there are a great 
many women out there who feel the same. 

I have still got my baby's room and her memory cards from her 
memorial service. Her foot and hand prints. Those are good things 
and good memories, but she's gone. The best thing I can do for her 
is continue this fight. I know she would want me to. So for her, for 
Mackenzie, I respectfully ask you reject this legislation. Thank you. 

[The prepared statement of Ms. Watts follows:] 

Prepared Statement of Tammy Watts 

I'd like to thank the subcommittee for giving me the opportunity to testify today. 
I understand that this subcommittee is considering legislation that would ban the 
kind of surgery that I had just this past March. Apparently the people who wrote 
this legislation think this type of abortion is horrible. Well, I don't consider what 
happened to me an abortion, but not being able to have this surgery would have 
been more than horrible. 

We found out I was pregnant on October 10, 1994. It was a great day in so many 
ways, because on the same day, my nephew, Tanner James was bom. My husband 
and I ran through the whole variety of emotions — scared, happy, excited, the whole 
thing. We immediately started making our plans — we talked about names, what 
kind of baby's room we wanted, would it be a boy or girl. We told everyone we 
knew — and I was only three weeks pregnant! 

It wasn't an easy pregnancy. Almost as soon as my pregnancy was confirmed, I 
started getting really sick. I had severe morning sickness, and so I took some time 
off work to get through that stage. As the pregnancy progressed, I had some spot- 
ting which is common, but my doctor said to take disability leave from work and 
take things a month at a time. During my leave, I had a chance to spend a lot of 
time with my newborn nephew and his mom, my sister-in-law. I watched him grow 
day by day, sharing all the news with my husband. We made our plans, excited by 
watching Tanner grow, thinking "this is what our baby's going to be like." 

Then, I had more trouble in January. My husband and I had gone out to dinner, 
came back & were watching TV, when I started having contractions. They lasted 
for about half an hour and they stopped. But then the doctor told me I should stay 
out of work for the rest of my pregnancy. I was very disappointed that I couldn't 
share my pregnancy with the people at work, let them watch me grow. But our ex- 
citement just kept growing, and we made our normal plans, everything that pro- 
spective parents do. 

I had had a couple of earlier ultrasounds which turned out fine, and I took the 
alphafetoprotein test, which is supposed to show fetal anomalies — anything like 
what we later found out we had. It came back clean. 

In March I went in for a routine 7-month ultrasound. They were sajdng this looks 
good, this looks good, then suddenly they got really quiet. "The doctor said "This is 
something I didn't expect to see." My heart just dropped. 

He said he wasn't sure what it was, and aft«r about an hour solid of ultrasound, 
he and another doctor decided to send me to a perinatologist. That was also when 
they told us it was a girl. They said, "Don't worry, it's probably nothing, it could 
even be the machine." 

We got home and were a little bit frightened, so we called some family members. 
My husband's parents were away and wanted to come home, but we told them to 
wait. The next day, the perinatologist did ultrasound for about two hours, and he 
said he thought the ultrasound showed a condition in which the intestines grow out- 
side the body, something that's easily corrected with surgery after birth. But just 
to make sure, he made an appointment for me in San Francisco with a specialist. 

After another intense ultrasound with the specialist, the doctors met with us, 
adong with a genetic counselor. They absolutely did not beat around the bush. They 
told me, "She has no eyes, six fingers and six toes and enlarged kidneys which are 
already failing. The mass on the outside of her stomach involves her bowel and 
bladder, and her heart and other major organs are also affected." This is part of 
a syndrome called trisomy-13, where on the 13th gene there's an extra chromosome. 
They told me, "Almost everything in life if you've got more of it, it's great. Except 
for fliis. This is one of the most devastating syndromes, and your child will not live." 

My mother-in-law just collapsed to her knees. What do you do? What do you say? 
I remember just looking out the window — I couldn't look at anybody. My mother- 
in-law asked, "Do we go on, does she have to go on?" The doctor said no, that there 



75 

was a place in Los Angeles that could help if we could not cope with carrying the 
pregnancy to term. The genetic counselor explained exactly how the procedure 
womd be done, if we chose to end the pregnancy, and we made an appointment for 
the next day. 

I had a choice. I could have carried this pregnancy to term, knowing everything 
that was wrong. I could have gone on for two more months, doing everything that 
an expectant mother does, but knowing my baby was going to die, and would prob- 
ably suffer a great deal before dying. My husband and I wovdd have had to endure 
that knowledge, and watch that suffering. We could never have survived that, and 
so we made the choice together, my husband and I, to terminate this pregnancy. 

We came home, packed, and called the rest of our famiUes. At this point there 
wasn't a person in the world who didn't know how excited we were about the baby. 
My sister-in-law and best friend divided up the phone book and called everyone. I 
didn't want to have to tell anyone. I just wanted it to be over with. 

On Thiu^day morning we started the procedure, and it was over about six p.m. 
Friday night. The doctor, nvu-ses and counselors were absolutely wonderful. While 
I was going through the most horrible experience of my life, they had more compas- 
sion than I've ever felt from anybody. We had wanted this baby so much. We named 
her Mackenzie. Just because we had to end the pregnancy didn't mean we didn't 
want to say goodbye. Thanks to the type of procedure Dr. McMahon uses in termi- 
nating these pregnancies, we got to hold her and be with her and have pictures for 
a couple of hoiirs, which was wonderful & heartbreaking all at once. They had her 
wrapped up in a blanket. We spent some time with her and said our goodbyes and 
went back to the hotel. Before we went home, I had a checkup with Dr. McMahon, 
and everything was fine. He said, "I'm going to tell you two things: first, I never 
want to see you again. I mean that in a good way. And second, my job isn't done 
with you yet until I get the news that you've had a healthy baby." He gave me hope 
that this tragedy wasn't the end, that we would have children just as we'd planned. 

I remember getting on the plane, and as soon as it took off we were crying be- 
cause we were leaving our child behind. The really hard part started when I got 
home. I had to go through my milk coming in, everything you go through if you have 
a child. I don't know how to explain the heartache. There are no words. There's 
nothing I can teU you, express or show you that would allow you to feel what I feel. 
Think about the worst thing that's happened to you in your life and multiply it by 
a million — maybe then you might be close. You do what you can. I couldn't deal with 
anybody, couldn't see anybody — especially my nephews. It was too heartbreaking. 
People came to see me and I don't remember them being there. 

Eventually I came around to being able to see and talk to people. I am a whole 
new person, a whole different person. Things that used to be important now seem 
silly. My family and my friends are everything to me. My belief in Gk)d has strength- 
ened. I never blamed God for this, I'm a good Christian woman — ^however I did 
question. Through a lot of prayer and talk with my pastor, I've come to realize that 
everything happens for a reason, and Mackenzie's life had meaning. I knew it would 
come to pass someday that I would find out why it happened, and I think it's for 
this reason I'm supposed to be here to talk to you, and say "You can't take this away 
from women and families. You can't. It's so important that we be able to make these 
decisions, because we're the only ones who can." 

We made another painful decision shortly after the abortion. Dr. McMahon called 
and said, "This will be very difficult, but I have to ask you this. Given the anomalies 
she had, so vast and different, there is a program at Cedars-Sinai which is trying 
to find out the causes for why this happens. They would like to accept her into this 
program." I said, "I know what that means. Autopsies and the whole realm of test- 
ing." But we decided, how can we not do this? If I can keep one family from going 
through what we went through, it wo\ild make her Ufe have some meaning. So 
the^re doing the testing now. And because Dr. McMahon does the procedure the 
way he does, it made the testing possible. 

I can tell you one thing — after our experience, I know more than ever that there 
is no way to judge what someone else is going through. Until you've walked a mUe 
in my shoes, don't pretend to know what this was like for me — and I don't pretend 
to know what someone else is going through. Everybody's got a reason for what they 
have to do. Nobody shovild be forced into having to make the wrong decision. That's 
what you'll be doing if you pass this legislation. Let doctors be free to treat their 
patients in the way they thirJs is best, Uke my doctor did for me. 

I understand that this legislation would make my doctor a criminal. My doctor 
is the furthest thing from a criminal in the world. Many times I've called him my 
angel — they say there are angels walking around the world protecting us, and I 
know he is one. If I wasn't led to Dr. McMahon, I don't know how I would have 
lived through this. I can't imagine where we'd be without him. He saved my family, 



76 

my mental stability, and my life. I couldn't have made it through this without him, 
and I know there are a great many women out there who feel the seime way. 

I've still got my baby s room, and her memory cards from her memorial service, 
her foot and handprints. Those are good things, good memories— but she's gone. The 
best thing that I can do for her is to continue this fight. I know she would want 
me to. So, for her, I respectfully ask you to reject this legislation. 

Mr. Canady. Thank you. Ms. Morton. 

STATEMENT OF MARY ELLEN MORTON, R.N., NEONATAL 
SPECLVLIST AND FLIGHT NURSE 

Ms. Morton. Mr. Chairman, members of the committee, thank 
you for the opportunity to testify. With your permission, could I use 
slides to illustrate my testimony? 

Mr. Canady. Certainly. 

Ms. Morton. Could we lower the lights? Thank you. My name 
is Mary Ellen Morton. I am here today to challenge and to dispel 
the notion that unborn babies would not feel agonizing pain before 
they are reduced to human rubble during the partial-birth abortion 
procedure. 

Now I have practiced as a nurse for 12 years. Nine of those have 
been in the neonatal intensive care units. Taking care of babies 
like this little neonate. 

[Shde.] 

Ms. Morton. Now a neonate is defined as a baby that is bom, 
whether premature or full term, until the time they are about 4 
weeks of age. As you see, this little baby is about IVa pounds. He 
falls right into the time line of when this partial-birth abortion pro- 
cedure is routinely done. He is not even on life support systems. 
As you see, that's an adult 02 mask there for size. This little boy 
is approximately 28 weeks along at this point. 

As the chairman stated, I am a flight nurse in Columbus, OH. 
A portion of my flights is dedicated to picking up the smallest of 
premature babies and transporting them via air back to Columbus 
Children's Hospital in an isolette. Viability is an arbitrary term to 
medical people like myself. The reason for this is because it's a 
measure of the sophistication of the external life supports that is 
available to us. We know that that is ever changing. 

[Shde.] 

Ms. Morton. In fact, this little boy, Donnie, is in the midst of 
all that technology. He was born at 24 weeks. He is now at about 
3 pounds. That is him laying on his tummy under an oxygen hood. 

Now the reason viability is arbitrary, is because it varies from 
institution to institution in my experience. It also varies from baby 
to baby, because neonatologists, when they call a gram weight or 
a gestational age as when a baby is viable, you will always have 
a baby that will prove the definition wrong. It also increases, of 
course, with our sophisticated technology. 

[Slide.] 

Ms. Morton. Now this little baby, it's kind of hard to see, but 
she was born at 23 weeks gestation in Columbus, OH. She had 
multiple operations done. One of them was to restore intestines 
that were bom outside of her tummy. It is the standard of care 
that a baby like this would receive narcotic analgesics for pain con- 
trol after surgery. It is also the standard of care that these babies 
would receive skeletal muscle relaxant drugs, such as valium. Also, 



77 

that has kind of an amnesic effect, so the baby will not remember 
the painful experience. Also, an antianxiety effect. 

It is also the standard of care that these babies receive anes- 
thetic for any kind of surgical procedure. That could be from a 
central line insertion, chest tube insertion, even to a circumcision. 
Now the reason we have standards of care, nurses know that it 
promotes the physical well-being of that baby. More importantly, it 
is the compassionate thing to do for these little ones, and it holds 
the medical community accountable for what we do. 

I fought long and hard for 12 years to get adequate pain control 
for these little babies. As Dr. White can probably testify, it has 
been a long time coming. It has been a struggle. But finally, we are 
using more and more pain technology and we realize that hospitals 
should not be a place of torture and torment, but use the adequate 
pain technology available to us. 

[SHde.] 

Ms. Morton. Now I have ample experience as a nurse to assess 
the pain experience in the smallest of babies. Just to give you an 
idea from this drawing, there are breathing tubes, there are oral 
gastric tubes that need to be inserted. We do veni punctures, arte- 
rial punctures. We draw blood from the heels of these babies. Their 
skin, especially the 21- to 26- week babies, they have very sensitive 
skin. So it requires that we take much caution when we remove 
electrodes from their skin. We use electrodes for heart monitoring, 
for oxygen monitoring through the skin, for temperature monitor- 
ing. So how is it that nurses know that these little babies are in 
pain? What is it that I have discovered over the 12 years of taking 
care of them? 

[Slide.] 

Ms. Morton. Well, this just kind of sums it up for you. But basi- 
cally, we see differences in their vocalizations. There's different 
kinds of cries. Even your small babies can actually moan, just like 
an adult would. The facial expressions. We see chin quivering, eye 
squeezing, we see eye rolling, all kinds of brow bulge, a square chin 
when they are experiencing pain activity. We see differences in 
their sleep-wake cycles. We see a lack of consolability. Their suck- 
ing ability changes when they are in pain. Their general appear- 
ance, their color actually deteriorates because they deoxygenate 
their blood when they are in severe pain. We also see posture 
motor responses, such as jitteriness and arching, when they are ex- 
hibiting a pain stimulus. 

[Slide.] 

Ms. Morton. Now this little girl, Sarah, she's under a pound. 
She is only 420 grams with 454 grams being 1 pound. When she 
was bom at 23 weeks gestation, it required that she have a medi- 
cation called Ativan, which is like valium, administered to her, and 
also she was on a fentanyl drip at different points. That is actually 
a pain killer for the discomfort of all the technology. 

[Slide.] 

Ms. Morton. This is her a little bit older. As you see, it was very 
important to even swaddle her while she's on a breathing machine 
there. It was important for her parents to put a tape into her 
isopette, where she could be nurtured by the parents verbally. We 
even gave a pacifier that she can suck on around that breathing 



78 

tube. We also play internal womb sounds to these babies to kind 
of console them. 

[Slide.] 

Ms. Morton. Now here she is several years ago with the same 
little bear. As you can see, she has grown quite a bit. But nurses 
have known this for years, that babies that have adequate pain 
control, and have people, whether it just be the nurses or adoptive 
parents, whoever is caring for the child, to give them emotional 
care. Those babies fare better. They gain weight better. They have 
less incidence of intracranial bleeds. We see a lot of good outcomes. 

[Slide.] 

Ms. Morton. Now unquestionably as Dr. White has said, the re- 
search has shown that these premature babies, they possess full 
sensation. This is a summary of the research that has been done. 
I just want to show you that this validates what nurses have al- 
ways known for years. I have already told you a few of these, eye 
rolling, breath holding, jitteriness, eye squeezing, chin lip quiver- 
ing, limb withdrawal. We also see physiological changes. Their 
heart rates will race when they are in pain. Or small babies, it 
sometimes goes down. Their oxygen levels, they also have stress 
hormones that go off the wall. Cortisol, adrenalin levels, will in- 
crease during pain. 

[SHde.] 

Ms. Morton. Now this is Kelly Thorman of Toledo, OH, bom in 
1971. As you see, she doesn't require much sophistication of exter- 
nal life supports. In the 1970's, there probably wasn't very much. 

[Slide.] 

Ms. Morton. This is her at 368 grams. That is three-quarters of 
a pound. That is her nurse's wedding ring on her wrist. 

[SUde.] 

Ms. Morton. Now as depicted on the front of Life magazine. 
This is a baby that is approximately the same age and weight as 
Kelly Thorman, the baby I just showed you. I have to ask, what 
is the difference? Both of those babies, whether inside or outside 
the womb, can perceive pain and experience it. But the difference 
is, the baby outside the womb is required to have humane care in- 
side of the hospital. But this baby inside of the womb can be pulled 
violently down into a breech position, partially delivered, only to 
experience an agonizing death. 

[Slide.] 

Ms. Morton. Now this little girl from Columbus, OH, is shown 
here in two different stages of her life. At 23 weeks gestation and 
just over a pound, she is supported by technology there as you can 
see at the bottom. But you know, as a premature neonate at the 
bottom and also as a preschooler, do you know that she can experi- 
ence the same things. She can breathe, digest, swallow, taste, hear. 
This baby can feel pain at both stages in her life. In fact, at both 
of these stages in her life, she had a learned response to pain. I 
will show you one of the reasons we know this. 

[Slide.] 

Ms. Morton. This baby is having his 3-month birthday, when he 
reached about 3V2 pounds. 



79 

Mr. Canady. Ms. Morton. There's a vote taking place on the 
floor. If you could conclude your remarks in about a minute or two. 
We are going to have to go to the floor to vote. 

Ms. Morton. I am closing right now. This is the last statement. 
This baby, before he has blood drawn, it requires that we warm his 
heel as you see on his right heel. After doing this several times to 
these babies, they actually know when that pain response is com- 
ing, because they will start to become agitated. Their heart rates 
will race when we put the warm pack on. 

In closing, as a nurse and also as a mother, I am really disturbed 
that this abortion procedure could be permitted on these babies. I 
believe that I have shown that there is unmistakable humanity. I 
hope with the proposed legislation before you, that it will stop the 
partial-birth abortion procedure. Thank you. 

[The prepared statement of Ms. Morton follows:] 

Prepared Statement of Mary Ellen Morton, R.N., Neonatal Specialist and 
Flight Nurse 

Mr. Chairman, I want to thank you for inviting me to testify at this important 
hearing. My name is Mary Ellen Morton. I earned a three year diploma from the 
Mount Carmel School of Nursing in 1983, followed by a Bachelor of Science Degree 
in Nursing from Ohio State University in Columbus, Ohio. I have practiced as a 
Registered Nurse for twelve years. I have spent nine years either full- or part-time, 
in Neonatal Intensive Care Units. While working in a Traveling Nurse Corps, I had 
the opportunity to deUver patient care in Florida, California, and Hawaii, as well 
as Ohio. For the past five years, I have practiced as a Flight Nurse with an Air 
Medical Program, now known as MEDFLIGHT, in Columbus, Ohio. I assess and 
treat ill or injured patients while flying them by helicopter to definitive care. A por- 
tion of these flights has been dedicated to stabiUzing and transporting prematiire 
or iU neonates from outlying hospitals to Columbus Children Hospital. I possess nu- 
merous certifications and serve as an instructor in Pediatric Advanced Life Support. 

Over the course of my career, I have had ample opportunity to assess tlie pain 
experience in babies due to the multitude of painJFul procedures that are carried out 
in the critical care setting. These babies have ranged fix)m 21 weeks gestation and 
as small as 398 grams (14 ounces) to full term size. The undertreatment of pain in 
children has led me over the last few years to develop and present lectures on 
Neonatal and Pediatric Pain Control to my colleagues. As expected, the research 
findings have overwhelmingly agreed with the truth that seasoned niu^es have 
known for years by just caring for these little babies. The truth is neonates (includ- 
ing prematures), infants, and children can and do experience pain, and the lack of 
adequate pain management has significant consequences. The youngest or smallest 
premature himian baby deserves our compassion and the pain technology available 
through modem medicine. Thankfully, the heightened awareness of this topic 
among physicians has led us to improved Standards of Care in the hospital settings. 
In fact, adequate pain control has become the central theme in Continuous Quality 
Improvement monitors for hospital accreditation. The concept of holding nurses and 
physicians accoxintable for pediatric pain management is alleviating a great deal of 
suffering among these babies. 

As a nvu-se, I serve as an advocate for the elderly, demented, cognitively impaired, 
frail, preverbal or nonverbal child, or any human who cannot defend themselves. I 
am greatly disturbed that the same gestational age and weight, human babies that 
I nxirture in the NICU, can suffer unimaginable agony at the hands of an abortion- 
ists before they are put to death, during the Partial-Birth Abortion Procedure. I 
have read the detailed medical description of this procediu-e as presented by the au- 
thor, Dr. Haskell, for the National Abortion Federation Risk Management Seminar 
in 1992. He calls it the "Dilation and Extraction" method. This procedure is per- 
formed on unborn babies 20 weeks and beyond. Here is the reaUty of what takes 
place, simply put. It requires that a baby who is moving about in the protective bag 
of water can be suddenly and brutally pulled down the birth canal using forceps 
with jaws clamped on his or her little limbs. The baby is pulled out of the mother's 
body until the trunk is delivered as in a breech delivery. Now the chest moves in 
and out in an attempt to breathe but the baby is struggling because the head is 
lodged in the vaginal tract unable to open its airway. While this baby is suffocating. 



80 

a hole is gashed into the base of the skull and widened with scissors until a catheter 
can fit so the brain contents can be suctioned into a container. The skull is then 
manually collapsed so his or her httle body can be completely removed. This baby 
is reduced to human rubble in my opinion. 

I have to ask myself, how is it that this act of irrational violence towards a life 
with unmistakable humanity, is currently legal. I believe many people are woefully 
ignorant of the way this particular abortion procedure is carriea out, and are even 
more unaware of what that Uttle baby is capable of experiencing. So I testify on the 
behalf of the victims. 

Viability is an arbitrary term because it is a measure of the sophistication of the 
external life supports available to a premature baby. Viability is defined differently 
by institutions in my experience, and is ever changing due to the technological ad- 
vances. Viability definitions based on weight or age will always be challenged by a 
neonate with a strong will to live or miracle by God. One neonatalogist I worked 
with based viability on the ability to successfully ventilate the baby's little lungs. 
The hospitalization time and outcomes have markedly improved over the years for 
prematures because of "Jet Ventilation Therapy." In recent years, we have available 
artificial surfactant that reduces time on the "Life Support System" or ventilator 
drastically. Probably one of the greatest advancements I have seen is in the area 
of comfort. We know from reliance on facial expression, crv, postvu-e, jitteriness, 
breath-holding, and physiologic variables such as heart-rate, blood pressxire, oxygen 
saturation levels, and palmar sweating that these babies need treatment for pain 
and anxiety. Niu"ses know that when a baby is medicated adequately for pain they 
gain weight faster and have fewer complications. 

As 1 stated earlier, nurses have always known instinctively what the research is 
now revealing. Even the one pound babies have distinct signs when they are in pain 
and resolve when treated. They possess a memory and a learned response. For ex- 
ample, we put warm packs on their heels to make blood draws easier. After several 
times of this, they learn that a painfiil event is coming soon after a warm pack is 
applied, and will show signs of distress (increased heart-rate, grimacing, agitation, 
etc.) in anticipation. Years ago, I was told by well-meaning surgeons that these 
small babies did not feel pain because their "nerve myehnization was not complete." 
I knew in my heart this did not make sense because the assessment cues I noted 
were telling me that these precious babies were indeed suffering. It was a struggle 
well worth the effort to get Morphine for these babies that underwent surgery, or 
muscle relaxants for those on mechanical ventilation. Now studies reveal that young 
babies are more sensitive to pain because the nerves that control pain are not fully 
developed. Furthermore, their inhibitory pathways are not functional so the pain 
sensation is more prolonged than an adult's. If a neonate, whether prematvire or 
fuUterm, is not adequately given the benefit of our pain technology their recovery 
process is delayed. Pain Tools" are managed adequately for discomfort. One par- 
ticular scoring system requires that nurses assess and score the foDowing criteria: 
sleep-wake cycles, facial expression, motor activity, excitability and responsiveness 
to stimulation, flexion of fingers and toes, sucking tone, and consolabUity. 

Being a Neonatal Intensive Care Nurse or Transport Team Niu-se requires that 
we have advanced clinical skills in order to assess, report appropriately, commu- 
nicate, and carry out necessary interventions. But in the midst of all the technology, 
these Uttle babies need our gentle stroking. As they gain weight and stabilize, we 
move them from the radiant warmer to the heated isolette, and nest them in a 
"swaddler" and allow gentle message. Then some "preemies" by 28 weeks are al- 
lowed to be coddled and rocked by parents even if they are on a ventilator so that 
the baby will feel non-stressful human touch. A pacifier is given to the smallest of 
babies because sucking is so satisfying and soothing. They will even nurse on the 
breathing tube in their mouth to comfort themselves. We also play recordings of in- 
ternal wombs sounds to mimic a mother's heart-beat. This has a tremendous posi- 
tive effect on neonates. In my opinion, if you would survey nurses, lab technicians, 
or respiratory therapists who routinely care for these babies, you would most cer- 
tainly find that they agree neonates of all sizes possess a unique personality from 
the time we receive them into this outside world. 

So what is the difference between a 21-40 week baby inside the womb suffering 
or outside the womb suffering? They both have the capabihty to perceive and experi- 
ence excruciating pain when inflicted. However, the baby outside the womb has civil 
or human rights, and is required to be given humane care. 

As an American, I have felt comforted by the fact that the United States has in- 
tervened and upheld Human Rights for persons everywhere. Since the horrific 
crimes against human Ufe in WWII, we have had to rescue people from atrocities 
in Kuwait, Bosnia, Haiti, and numerous other places. However, on our own home- 
front, there is an unbehevable evil taking place in abortion clinics when this Partial- 



81 

Birth Abortion Procedure is being done. Not even one fetus should have to suffer 
this unnecessary cruelty in my opinion. 

Mr. Chairman, I have included a copy of Neonatal Pain Management, by Dr. Con- 
stance Houck, with my written statement. Thank you. 

Neonatal Pain Management 

(By Constance S. Houck, M.D.) 

DEVELOPMENT OF PAIN PATHWAYS IN THE FETUS AND NEONATE 

There is substantial evidence to show that development of the physiologic mecha- 
nisms and pathways for pain perception takes place during late fetal and neonatal 
life. The pathways required for pain perception may be traced from sensory recep- 
tors in the skin to sensory areas in the cerebral cortex of newborn infants. Cutane- 
ous sensory perception appears in the perioral area of the human fetus as early as 
the 7th week of gestation and spreads to include all cutaneous and mucous surfaces 
by the 20th week. This onset of cutaneous sensation is preceded by the development 
of synapses in the dorsal horn of the spinal cord representing afferent connections 
between sensory fibers and intemeurons, which first appear during the 6th week 
of gestation. 

In vivo studies of neonatal cerebral metabolism suggest that the maximum meta- 
bolic activity is localized in the regions associated with sensory perception 
(sensorimotor cortex, thalamus, and midbrain-brainstem regions). Although most of 
a newborn's behavior appears to be controlled at subcortical levels, several modes 
of behavior imply cortical function and learning during the neonatal period. Thus 
the possibility of some manner of cortical perception of pain is not excluded by ana- 
tomic, physiologic, or behavioral data, even for the smallest prematiu-e neonates. 

Clinical evidence and recent studies in newborn rats suggest that cortical immatu- 
rity with lack of development of inhibitory pathways may actually increase the in- 
tensity and diiration of the painfial stimulus. Studies in newborn infants suggest 
that infants may develop prolonged responses to painfiil procedures that far outlast 
the stimuli by hours or days. Infants undergoing procedures such as newborn cir- 
cumcision and heel lancing without the benefit of anesthesia or analgesia appear to 
develop what has been described as an estabUshed pain response. This is illustrated 
by the following examples: 

(1) premature infants mount a metabolic stress response postoperatively that 
can be blocked by intravenous opioids, 

(2) increased crying and behavioral changes occur for days after circumcision 
all of which can be blocked with the use of regional anesthesia, 

(3) sensitivity of the heel to repeated lancing appears to increase, causing a 
hyperalgesic response to injury. 

The underlying causes of this prolonged response to painful stimuli are currently 
under investigation, but recent studies in the newborn rat suggest that descending 
inhibitory fiber tracts from the brainstem, which act to reduce the activity of spinal- 
cord cells evoked by noxious inputs are not functional in the newborn. Though the 
tracts appear to be present before birth, their delayed function is speculated to be 
a result of low transmitter levels and low pharmacological receptor function. 

Of great interest is the recent discovery of longterm responses in the newborn rat 
to tissue injury. These responses are permanent ones leading to structural and func- 
tional reorganization of the nervous systems. Developing sensory neurons are de- 
pendent on the trophic support of their peripheral target tissues. If a cutaneous sen- 
sory neuron is damaged during development, this can result in irreversible death 
of the corresponding dorsal root ganglion cells. The death of these peripheral neu- 
rons leads to deafferentation in the spinal cord which alters connections in the 
thalamus and somatosensory cortex, permanently distorting the representation of 
the body surface in the brain. These permanent changes in the central nervous sys- 
tem may have important impUcations for human premature and fiill-term infants 
who must undergo repeated painful procedures in the neonatal intensive care unit. 

BEHAVIORAL MEASURES OF PAIN 

It has been suggested that the changes in behavior associated with painful cir- 
cumstances be labeled "stress" or "distress" rather than "pain." For descriptive con- 
venience and thorough documentation of the relevant clinical signs in children, be- 
havioral changes associated with pain may be classified as simple motor responses, 
facial expressions, crying, and complex behavioral changes. 



82 

SIMPLE MOTOR RESPONSES 

Some early studies reported that newborns responded to pinpricks by a "diffuse 
body movement" rather than purposeful withdrawal of the limb, whereas other stud- 
ies found reflex withdrawal to be the most common response to newborn infants. 
It is important to note that newborn infants may respond to any stimulus (including 
pain) by a generalized body movement, and this response is altered by different be- 
havioral states. More recently, the motor response of 124 normal term neonates to 
a pinprick in the lower limb was documented as flexion and adduction of the upper 
and lower hmbs and was associated with grimacing and crying. 

FACIAL EXPRESSIONS 

Contrary to popular belief, newborn infants appear to have the ability to associate 
distinct facial expressions with pleasure, pain, sadness, and surprise. An objective 
method for classifying different facial expressions in infants was designed by Izard 
and co-workers; the expression associated with pain in newborns was 'Tarows down 
and together, nasal root broadened and bulged, eyes tightly closed and the mouth 
angular and squarish." This method was validated by other workers in a study of 
infants undergoing immunization. Grunau and colleagues, in another study, which 
identified nine specific facial movements every 3 seconds, documented brow bulge, 
eye squeeze, nasolabial furrow, and lip parting in 96 to 98 percent of neonates un- 
dergoing a heel lance. 



Because crying is the primary method of communication in infants, it may be elic- 
ited by several stimuli other than pain. It is, however, the most obvious and domi- 
nant expression of pain in infants, and several studies have attempted to classify 
crying according to the type of distress indicated and its spectrographic properties. 
These studies have shown that cries due to pain, hunger, or fright can be differen- 
tiated by subjective evaluation or spectrographic analysis and that the interpreta- 
tion of infant cries can be enhanced by simple training of observers. Evaluation of 
infant crying therefore has been used as a measure of pain in numerous studies. 

The pain cry was described behaviorally as beginning with a deep inspiration and 
an expiratory cry, followed by further expiratory cries of variable duration. Wasz- 
Hockert and co-workers defined the spectrographic properties of the pain cry in 
healthy term neonates and found that the pain cries of neurologically impaired 
preterm and term neonates were markedly different. In well designed studies of the 
cry response, sensitivity to pain appeared to be significantly greater in neonates 
than in older infants, and the latency from painful stimulus to cry response in 
newborns was similar to that of older infants. This finding supports the contention 
that slower conduction in neonatal nerves (due to incomplete myelinization) is offset 
by the smaller intemeuron distances the impulse travels. Similarly, other studies 
of neonates subjected to heel lancing or circumcision without anesthesia found short 
latencies to crying (1.3 seconds) and other motor responses (0.3 second); these be- 
havioral responses were decreased or aboUshed in infants given local anesthesia. 

COMPLEX BEHAVIORAL RESPONSES 

Alterations in complex behavior and in sleep-wake cycles have been studied in 
newborn infants and toddlers undergoing painful procedures without anesthesia, 
e.g., circumcision. Emde and co-workers observed that painful procedures were fol- 
lowed by prolonged periods of non-rapid eye-movement (NREM) sleep; they con- 
firmed this observation in a controlled study of newborns undergoing circumcision 
without anesthesia. The authors proposed that this represents a conservation-with- 
drawal response, which has also been noted in adults undergoing prolonged stress. 
Subsequent studies found increased wakefulness and irritability for an hour follow- 
ing circumcision. The sleep-wake state was also altered by heel stick procedures in 
term and preterm neonates. Randomized controlled studies using the Brazelton 
Neonatal Behavior Assessment Scale (NBAS) found marked, prolonged changes in 
the behavior of neonates subjected to circumcision without anesthesia; neonates 
given anesthesia during circumcision were more attentive to various stimuH and 
had greater orientation, better motor responses, lesser irritability, and a greater 
ability to quiet themselves when disturbed. These differences persisted for more 
than 24 hours after the procedure, an observation that has been interpreted by some 
investigators to indicate that painful procedures may have prolonged effects on the 
neurologic and psychosocial development of neonates. 



83 

PHYSIOLOGIC MEASURES OF PAIN 
Cardiorespiratory Changes 

Significant changes in cardiovasoilar parameters, transcutaneous oxygen, and 
palmar sweating have been noted in infants and children undergoing painful cliniced 
procedures. In newborns undergoing heel lancing or circumcision the heart rate and 
blood pressvu-e were markedly increased during and after the procedure. These re- 
sponses may be related to the intensity and duration of the stimulus and to the in- 
dividual temperaments of the babies. Provision of pain relief in the form of local an- 
esthesia decreased or eliminated these changes, whereas giving a pacifier to preterm 
neonates did not decrease their cardiovascular or respiratory responses to pain. Fur- 
ther studies in newborn and older infants showed that noxious stimuli were associ- 
ated with an increase in the heart rate, whereas nonnoxious stimuh (which elicit 
the attention or orientation of infants) caused a decrease in the heart rate. Cardio- 
vascular responses in infants may therefore depend on the differential effects of 
handUng or heel lancing, the behavioral state of the infant, or other specific factors. 
Recent studies have focused on measures of "vagal tone" in newborns as a more sen- 
sitive indicator of stress and pain. During cardiovascular monitoring, the amplitude 
of respiratory sinus arrhjrthmia represents one component of heart rate directly me- 
diated by the parasympathetic branch of the autonomic nervous system by way of 
the vagus nerve. It has shown promising results as an index of pain. In healthy in- 
fants undergoing circumcision, the ampUtude of respiratory sinus arrhythmia was 
noted to decrease, paralleling increases in the invasiveness of the procedure. During 
the postoperative period, vagal tone as measured by respiratory sinus arrhythmia, 
again returned to baseline. 

In older children, the pulse rate and blood pressure were found to be sensitive, 
reliable measures of the distress (which may include anxiety as much as pain) just 
before bone marrow aspiration. Similarly, Mischel and co-workers found good cor- 
relations between the heart rate and behavioral measures of pain/distress in chil- 
dren undergoing banding of teeth by an orthodontist. 

Large fluctuations of the transcutaneous PO2 occur during surgical procedures in 
neonates and young children, above and below an arbitrary safe range of 50 to 100 
mmHg. Marked decreases in transcutaneous PO2 also occur during circumcision in 
neonates, and such changes can be prevented by giving local anesthesia. Awake 
intubation in preterm and term neonates also causes a significant decrease in the 
transcutaneous PO2 together with increases in arterial blood pressure and 
intracranial pressure. Although there are no data on suppression of the responses 
to trachael intubation, the cardiovascular responses to tracheal suctioning were 
abolished by opiate analgesia in infants. 

Palmar sweating has also been used as a physiologic measure of the emotional 
state of term neonates and is closely related to the state of arousal and crying activ- 
ity. Substantial changes in palmar sweating were observed in neonates undergoing 
heel sticks, and in a subsequent study a mechanical method for heel lancing was 
found to be less painful than the routine manual methods. In older children the 
Palmar Sweat Index has been used for measuring the degree of anxiety/distress re- 
lated to surgical or dental procedures. 

Hormonal-Metabolic Changes 

Hormonal and metabolic changes have been measured mainly in infants and chil- 
dren undergoing surgery, although there are additional Umited data on their re- 
sponses to venipuncture and other minor procedures. Plasma renin activity was in- 
creased significantly 5 minutes after venipuncture in newborns and returned to 
basal levels 60 minutes thereafter; no changes occurred in plasma Cortisol, epineph- 
rine, or norepinephrine following venipuncture. In ventilated preterm neonates, 
chest physiotherapy and endotracheal suctioning produced a significant increase in 
plasma epinephrine and norepinephrine; this response was decreased in sedated in- 
fants. In neonates undergoing circumcision without anesthesia, plasma Cortisol val- 
ues increased markedly during and after the procedure. 

Further detailed hormonal studies carried out in premature and full-term neo- 
nates subjected to surgery under minimal anesthesia documented a marked release 
of catecholamines, growth hormone, glucagon, Cortisol, aldosterone, and other 
corticosteroids together with suppression of insulin secretion. These responses re- 
sulted in the breakdown of carbohydrate and fat stores, leading to severe, prolonged 
hjrperglycemia and markedly increased blood concentrations of lactate, pjrruvate, ke- 
tone bodies, glycerol, and free fatty acids. Protein breakdown was documented by 
changes in plasma amino acids, increased nitrogen excretion, and increased 3- 
methyUiistidine/creaunine ratios in the urine. There were also significant dif- 
ferences between the responses of neonates undergoing different degrees of surgical 



84 

stress. The neonatal stress responses were three to five times greater than those 
of adult patients, although their duration was shorter. 

Randomized controlled trials of different anesthetic techniques were subsequently 
designed to investigate if the massive hormonal-metaboUc responses of neonates 
could be inhibited by giving potent anesthesia dvuing surgery. These stress re- 
sponses were decreased by halothane anesthesia in term neonates undergoing gen- 
eral surgery and were abolished by fentanyl anesthesia in preterm neonates under- 
going patent ductus arteriosus ligation. The responses of term neonates undergoing 
cardiac surgery were also decreased in a randomized trial of high-dose fentanyl an- 
esthesia. These trials demonstrated that the stress responses resulting from svirgery 
under minimal anesthesia could be inhibited by potent anesthesia; one interpreta- 
tion is that nociceptive stimuli during surgery precipitate the stress responses at all 
ages. More importantly, there was a suggestion that there were improved cUnical 
outcomes: neonates given potent anesthesia in these randomized trials were more 
stable during surgery and had fewer postoperative compUcations than neonates 
given minimal anesthesia. 

Similar hormonal and metabolic changes have also been dociunented in older in- 
fants and children undergoing various surgical procedures. Increases in plasma con- 
centrations of beta-endorphin, adrenocorticotropin, vasopressin, growth hormone, 
catecholamines, and Cortisol together with the suppression of insuhn secretion, have 
been documented. These hormonal changes precipitated several metabolic adjust- 
ments characterized by significant increases in blood concentrations of glucose, lac- 
tate, pyruvate, free fatty acids, and a negative nitrogen balance. These changes bore 
greater similarity to the adiilt stress responses and were substantially different 
from the neonatal responses described above. 

Such physiologic changes may merely represent reflexes to noxious stimulation 
without necessanly implying subjective distress, whereas pain is generally viewed 
as a subjective phenomenon. Nevertheless, in several studies, plasma hormones 
(e.g., Cortisol) were correlated with the behavioral state of newborn infants, suggest- 
ing integration of the physiologic and behavioral responses to noxious stimuli fi"om 
early life. 

DEVELOPMENTAL ISSUES IN ANALGESIC PHARMACOLOGY 

Althoug;h most of the major organ systems are anatomically well developed at 
birth, their functional maturity is often delayed. In the first months of life in both 
preterm and fiillterm newborns, these systems rapidly mature, most approaching a 
functional level similar to adults before 3 months of age. General principles of new- 
bom physiolog3' and its effects on the pharmacology of opioids and local anesthetics 
are sununarized below: 

(1) Most analgesics are conjugated in the liver. Newborns, and especially 
prematures have delayed maturation of enzyme systems involved in drug con- 
jugation, including siUfation, glucuronidation, and oxidation. The cytochrome 
P450 system and the mixed-function oxidases which catalyze these reactions in 
the Uver do not reach fiinctional adult levels until after the first month of life. 

(2) Glomerular filtration rates are diminished in the first week of life, but 
generally are sufficiently matiire to clear medications and metaboUtes by two 
weeks of age. 

(3) Newborns have a higher percentage of body weight as water and less as 
fat than older patients. Water soluble drugs, therefore, often have larger vol- 
umes of distribution. 

(4) Newborns have reduced plasma concentrations of albumin and alpha- 1 
acid glycoprotein than older children and adults. In some circvunstances, this re- 
sults in a greater availabihty of active drug at receptors, and increased risk of 
acute toxicity. 

(5) Brain and viscera account for a greater proportion of body mass, and mus- 
cle and fat account for smaller proportions of body mass than in adults. In term 
neonates and especially in prematures, there is increased passage into the brain 
of naturally occurring toxins, such as bilirubin, as well as drugs, such as mor- 
phine. 

(6) Newborns, and especially prematures, have diminished ventilatory re- 
sponses to hypoxemia and hypercarbia. 

Acetaminophen (paracetamol) remains the most popular nonopioid analgesic in in- 
fants and children and has been found to be safe and effective in newborns as well. 
In fact, the immatiuity of hepatic metabolic systems in the newborn may be protec- 
tive and lead to diminished production of the toxic metabolites of this drug. The 
elimination rate of unchanged acetaminophen is similar in neonates, children and 
adults (93). Doses of 10-15 mg/kg every four hours given orally and 20-25 mg/kg 



85 

every four hours given rectally produce relatively low plasma levels and provide an- 
algesia similar to the NSAIDs. 

The use of opioids for the treatment of pain in infants mandates an understanding 
of the unique pharmacokinetics of opioids in these patients. Though less is known 
about the newer synthetic opioids, the pharmacokinetics of morphine have been ex- 
tensively studied in newborns and chiloren. In the first week of Ufe, the elimination 
half-life of morphine is more than twice as long in newborns than older children or 
adults, and even longer in premature infants. This appears to be due to several fac- 
tors, most important of which is the immaturity of the newborn infant's hepatic en- 
zyme systems. Clearance of morphine is dependent on conjugation of the drug to the 
inactive metaboUte morphine-3-glucuronide and the active metabolite morphine-6- 
glucuronide. This reaction is catalyzed by mixed function oxidases and the 
cytochrome P450 system, which, though present, have attained only a portion of 
their full function. Infants who undergo procedures to repair such congenital anoma- 
lies as gastroschisis, omphalocele, or intestinal malrotation will have an ever further 
reduction in opioid cleairance due to the reduction in hepatic blood flow that accom- 
panies these procedxires. Glomerular filtration rate is also reduced in the first week 
of life leading to slower eUmination of these drugs. 

Studies in newborn rats suggest that newborns are less sensitive to the analgesic 
effects of morphine but more sensitive to the respiratory depressant effects of this 
drug than older rats. This is speculated to be a result of age-related changes in the 
number and subt5T)es of mu receptors. In addition, morphine is approximately 20% 
bound to serum protein in preterm and fullterm infants younger tnan five days of 
age, as compared to 35% in adults, allowing a greater proportion of active drug to 
penetrate the blood brain barrier. These physiological differences, combined with the 
known delay in clearance, appear to account for the greatly increased risk of res- 
piratory depression when morphine is administered to newborn infants. This has led 
one author to recommend cardiorespiratory monitoring and careful observation 
whenever opioids are administered to infants less than 2 months of age. 

Less is known about the receptor properties of the other commonly used opioids 
in infants and children but elimination appears to be delayed in a fashion similar 
to morphine. Fentanyl, sufentanil, meperidine and methadone all undergo 
biotransformation in the liver and therefore will have prolonged elimination until 
hepatic enz5Tne systems mature. 

The most frequently used local anesthetics for postoperative pain relief are lido- 
caine and bupivacaine, both amide local anesthetics. Bupivacaine has the advantage 
of a prolonged duration of action and, perhaps, in dilute concentrations, a relative 
preference for sensory blockade over motor blockade. 

Caution must be exercised when local anesthetics are administered to neonates 
and young children. Neonates have low concentrations of albumin and alpha i -acid 
glycoprotein which can lead to decreased protein binding of local anesthetics and in- 
creases in the plasma concentrations of the unbound drug. As well, amide local an- 
esthetics are metaboUzed by the microsomal P450 enzyme system in the liver which 
does not exhibit full activity for weeks after birth. This combined with a decrease 
in Uver blood flow found with respiratory diseases and cardiac insufficiency can lead 
to a significantly prolonged terminal half-Ufe of these agents in sick newborns. 

Ester local anesthetics (procaine, chloroprocaine and tetracaine) are broken down 
by plasma choUnesterases. Since the activity of these enzjmnes is diminished in the 
first six months of Life, clearance of the ester local anesthetics may theoretically be 
prolonged. However, a recent study of the use of 2-chloroprocaine for continuous 
caudal anesthesia revealed that neonates have the ability to clear this drug effec- 
tively even at high infusion rates. 

Infiltration of the wound edges with bupivacaine is an effective adjunct providing 
postoperative analgesia for common pediatric surgeries such as inguinal 
herniorrhaphy. The pain relief with this method was indistinguishable fi-om that 
provided by ilioinguinal nerve block for inguinal herniorrhaphy in one series. One 
must take care to avoid toxic doses of local anesthetics when performing wound in- 
filtration, especially in newborns and younger infants and no more than 2.0-2.5 mg/ 
kg of bupivacaine should be administered. This is equivalent to approximately 0.5 
ml/kg of 0.5% bupivacaine or 1.0 mg/kg of 0.25% bupivacaine. More dilute solutions 
are generally used in younger children to provide adequate spread of the anesthetic 
without exceeding the recommended limits. Epinephrine containing solutions are de- 
sirable in highly vascular areas to slow vascular uptake of local anesthetics and to 
prolong the duration of effect. However, they shovild be avoided when procedures are 
performed on the distal extremities or penis to avoid ischemic injury to these areas 
(e.g. when performing digital and penile blocks). 

Penile nerve blocks for the performance of neonatal circumcision have gained pop- 
ularity in recent years with the advent of studies suggesting there are adverse be- 



86 

havioral and physiological effects of circumcision performed without the benefit of 
anesthesia. Two methods have generally been advocated for use in the neonatal pop- 
ulation. 

The dorsal nerve block of the penis is performed by injecting local anesthetic im- 
mediately below the symphysis pubis, 0.5 to 1.0 cm lateral the midline. A small nee- 
dle is inserted through the two layers of the fascia superficialis and approximately 
0.05 cc/kg of bupivacaine is injected on each side. Care must be taken to avoid acci- 
dental puncture of either the paired dorsal arteries or dorsal vein, which lie deep 
to Buck's fascia. Two cases of gangrene of the skin of the glans were reported after 
circumcisions performed with dorsal nerve blocks. 

This complication has led one author to advocate the use of a simple ring block 
of the penis. This is performed by injecting local anesthetic giround the shaft of the 
penis near the base with a small (23 gauge) needle. Superficial vascvilar structures 
are avoided and frequent aspirations are performed during infiltration to minimize 
intravascular injection. Though one institution has had excellent results with this 
technique, a higher volume of local anesthetic is generally required and increased 
swelling at the base of the penis has been noted. 

Mr. Canady. Thank you, Ms. Morton. I want to thank all the 
members of this panel. As you know, there is a vote taking place 
on the floor of the House. The members of the subcommittee must 
go to the floor to vote. We will return and reconvene as soon as the 
vote is concluded. The committee will now stand in recess. 

[Recess.] 

Mr. Canady. The subcommittee will come to order. I apologize to 
our panel for the interruption. I will also tell you that the sub- 
committee will have to conclude its proceedings somewhat in ad- 
vance of 1 o'clock due to the fact that the full Judiciary Committee 
has a meeting scheduled at that time. I regret that. I wish we 
could have an extended session here of questions, but that is not 
going to be possible. 

In light of that, I would like to at this point recognize Mr. Hyde. 
We're going to switch places, and I'll let Mr. Hyde proceed with 
questions at this point. Then when it would have been Mr. Hyde's 
turn, it will be my turn. Mr. Hyde. 

Mr. Hyde. Well, I thank you for that gesture. Dr. White, I have 
yet to find a doctor who performs abortions that calls himself an 
abortionist. They all say they specialize in reproductive health. I 
have racked my brain and I try to find something reproductive 
about abortion. It is contrareproductive. Of course health is irrele- 
vant for the fetus that has been exterminated. It just seems ironic 
that this is the surgery that dares not speak its name. 

Dr. Robinson, over the years, about how many abortions have 
you performed? 

Dr. Robinson. I really have great difficulty going back to 1953 
when in New York City, we didn't do them except under rather 
limited and special conditions when a committee of four or five 
physicians would get together and have a vote concerning was this 
a reasonable reason for this young woman to interrupt this preg- 
nancy, just as we had committees to decide whether a woman could 
have her tubes tied or not. This was all done by committee. 

In Korea, since I was working with the Presbyterian Church, I 
was active in teaching, therefore others in the community were 
doing the abortions. 

When I came back in 1981 or 1971, then at City Hospital I began 
getting involved in it. I can't give you any sense. It has not been 
a major job. On the other hand, I have on many occasions intro- 
duced myself at church meetings as an abortionist. 



87 

Mr. Hyde. You have? 

Dr. Robinson. Oh yes. 

Mr. Hyde. You are the first then. 

Dr. Robinson. I'm a Christian abortionist. 

Mr. Hyde. That is an interesting juxtaposition. 

Dr. Robinson. Well, we have Christian crusaders. We have the 
Christian inquisition in Spain. We have a lot of Christian mili- 
tants. We have lots of Christians 

Mr. Hyde. Some more nominal than others, I dare say. 

Dr. Robinson. I dare say. 

Mr. Hyde. I have read a statement by Dr. Bernard Nathanson, 
who was one of the founders of the modem abortion movement and 
who ran the biggest abortion clinic in New York for years. He said 
that he can't escape the notion, he said, I can't escape the notion 
that I have presided over 50,000 deaths. Do you think your record 
could equal that? 

Dr. Robinson. I doubt it. 

Mr. Hyde. Or is Dr. Nathanson ahead of you? 

Dr. Robinson. I doubt if that number — on the other hand, the 
thing that he left out of his statement is that he found 50,000 
women who were incredibly pleased. 

Mr. Hyde. Who were what? 

Dr. Robinson. Incredibly pleased with the outcome. 

Mr. Hyde. No doubt. 

Dr. Robinson. One of the pleasures of doing abortions is that no 
longer do I have to go to a committee. When women leave on the 
occasions that I have been involved or where the units do, these 
are very happy women. 

Mr. Hyde. Do you ever find that remorse sets in? Do you ever 
find women who have had an abortion are troubled by it in later 
years? 

Dr. Robinson. I find remorse occurs in many women. I do a 
hysterectomy in women and they grieve later on, because they have 
lost their ability. Grieving over illness and problems is very com- 
mon. I think careful studies have indicated that grieving over this 
issue, as Koop said many years ago as Surgeon General, that this 
isn't any more common than anybody else. It is an event of life. 

Mr. Hyde. You have said that you have spent in your medical 
experience, you have witnessed women who have died from botched 
abortions. We are aware that that happens. The statistics are 
there. The mortality rate for the unborn in abortions is 100 percent 
though. Isn't it? 

Dr. Robinson. It better be. 

Mr. Hyde. It had better be? 

Dr. Robinson. Yes. 

Mr. Hyde. Thank you, Doctor, I have no more questions. 

Mr. Canady. Thank you, Mr. Chairman. I would like to continue. 
Dr. Robinson, with a couple questions for you. 

Dr. Martin Haskell prefers an abortion technique which he calls 
dilation and extraction. Dr. James McMahon prefers a similar tech- 
nique and calls it intact dilation and evacuation. The same basic 
technique has also been called interuterine cranial decompression. 
Are you familiar with the abortion techniques that are used by Dr. 



88 

Haskell and Dr. McMahon that are referred to by these particular 
terms? 

Dr. Robinson. I must confess, Mr. Chairman, that up to about 
a week ago, I had never heard anything about this at all. I am in 
an academic center in which varying issues are discussed. I was to- 
tally unaware that people were talking about it. 

Mr. Canady. Well that was a week ago. So you didn't know any- 
thing about the subject you came to testify on today until starting 
a week ago? 

Dr. Robinson. I know a lot about abortion. I know a lot about 
the attempts to describe what is being done. But as a medical piece 
of information, this is not widely known. It is not generally known. 
It has not been published in literature. It has not been published 
in scientific journals. It hasn't even been mentioned in throwaway 
journals. 

Mr. Canady. Let me ask you this. Would you consider yourself 
to be familiar, have some familiarity with the subject now? You 
have been expressing opinions on it. 

Dr. Robinson. I am very familiar with the subject right now. 

Mr. Canady. OK. Very good. Glad to hear that. Now are you fa- 
miliar with the paper by Dr. Haskell entitled, "Second Trimester 
DNX 20 Weeks and Beyond," which was presented as part of the 
National Abortion Federation's Second Trimester Abortion From 
Every Angle Risk Management Seminar held in September 1992? 

Dr. Robinson. As I have testified before, I did not attend that 
particular meeting of NAF. I was not present. I have not seen that 
publication. 

Mr. Canady. Oh. You have not seen Dr. Haskell's publication on 
that subject at all? 

Dr. Robinson. I have not seen what he has published. 

Mr. Canady. Have you consulted any other literature on this 
subject? 

Dr. Robinson. There is no published literature in what we con- 
sider the normal medical literature. If I did a Med-Line search, I 
would not find this term anywhere in the Med-Line search covering 
about 6,000 medical journals. 

Mr. Canady. What term is that? 

Dr. Robinson. Med-Line search, it's a way 

Mr. Canady. No, no, no, no. You said you would not if you did 
a Med-Line search find this term. 

Dr. Robinson. The term being used in the legislation. 

Mr. Canady. I refer to some other terms. Dilation and extraction, 
intact dilation and evacuation, interuterine cranial decompression. 
What about those terms? 

Dr. Robinson. If I was to look up the words dilation and extrac- 
tion, a standard D&E, this is an accepted and considered by many 
one of the safer methods of accomplishing a second-trimester abor- 
tion. With that I am familiar and have done it. 

Mr. Canady. Dilation and extraction? 

Dr. Robinson. D&E. 

Mr. Canady. OK. Let me ask you this. Now a letter has been 
sent out by the National Abortion Federation in which you were 
quoted as saying that the drawings in some materials that I dis- 



89 

tributed, which are identical to these drawings on the posters, had 
little relationship to the truth or to medicine. 

Now in your prepared testimony, which you submitted to the 
subcommittee, you said I have seen the sketches that have been 
passed around. They are medically inaccurate and not designed to 
advance proper understanding of a surgical procedure. Rather, they 
are designed to be upsetting and inflammatory to the lay person. 
Now there you said they were medically inaccurate. When you 
were giving your testimony a few minutes ago, I thought you said 
something a little different than what is in your written statement. 
Could you tell me what your current view is of these? 

Dr. Robinson. I apologize to the committee. Coming down here 
I took advantage to read what I had prepared and did a little main- 
taining. 

Mr. Canady. I have no problem with people changing their 
minds if they get additional information that convinces them that 
an earlier view is not correct. 

Dr. Robinson. My view is essentially that those drawings would 
not appear in a textbook. These drawings would not appear in a 
journal. 

Mr. Canady. Do you think they are technically correct? 

Dr. Robinson. They describe, the first one where he is reaching 
up there. I think they have taken some artistic license to sort of 
move things around. 

Mr. Canady. But you do think they are technically correct? 

Dr. Robinson. That is exactly probably what is occurring in the 
hands of the two physicians. 

Mr. Canady. OK, well, I appreciate that. I think that's a very dif- 
ferent thing than what was referred to in the letter sent out by the 
National Abortion Federation, in which you were quoted as saying 
they had little relationship to the truth or to medicine. I am glad 
to clarify that point. 

Now, there's some controversy here about whether a baby is in 
fact being delivered or whether it is correct to call this partial-birth 
abortion. I just want to quote this paper you have not seen. I will 
be happy to provide a copy of it to you, you might find it of interest, 
that was prepared by Dr. Haskell, in which in describing this pro- 
cedure he says, '*With the lower extremity in the vagina, the sur- 
geon uses his finger to deliver the opposite lower extremity, then 
the torso, the shoulders, and the upper extremities." The term "de- 
liver" is specifically used by, I think, one of the leading practition- 
ers of this particular procedure. I just wanted to note that. 

I will now turn to Mr. Frank and recognize him. 

Mr. Frank. Thank you, Mr. Chairman. I'd like to ask I guess Ms. 
Smith, Dr. White, Ms. Morton, your opposition to abortion on the 
various grounds, does that extend beyond this particular procedure, 
Ms. Smith? 

Dr. Smith. Dr. Smith, please. 

Mr. Frank. Sorry. Dr. Smith. 

Dr. Smith. Excuse me. You want to know whether or not I have 
a problem with abortion in general? 

Mr. Frank. Do your objections extend beyond this particular pro- 
cedure? 



90 

Dr. Smith. OK I was asked today to come and speak about this 
procedure. 

Mr. Frank. I understand, but I'm asking you to talk about other 
things. 

Dr. Smith. As the president of the American Association of Pro- 
Life Ob/Gyns, I think that it should be quite obvious that I have 
a problem with abortion. 

Mr. Frank. I will be honest with you. I don't always read peo- 
ple's biographies. I like to ask them questions and get answers. 

Dr. Smith. I'm sorry. I thought you knew. 

Mr. Frank. I'm sorry you find that an imposition, but I'm asking 
you your position. I won't do that again, if that's bothersome. Dr. 
White. 

Dr. White. The answer is yes. 

Mr. Frank. Now do you feel that one of the points you made and 
I heard Ms. Morton make too, was that the fetus, the baby, feels 
pain. That is true with regard to other procedures besides this one, 
I assume? That the fetus would feel pain? 

Dr. White. I so testified. 

Mr. Frank. Yes. Again, I apologize. I can't always be everywhere 
at the same place. So the pain point then applies to others as well. 
Ms. Morton. 

Ms. Morton. You are saying the babies, that would undergo any 
other surgical procedure? 

Mr. Frank. Would also feel pain? 

Ms. Morton. Yes. They certainly do. 

Mr. Frank. OK. Well, my point then is that if there is consensus 
that pain is felt in every situation, to my mind that does not be- 
come a basis for differentiating between abortion and this situation 
and abortion elsewhere. I understand there are people who think 
abortion is wrong. But the question is, why we would single this 
out. 

Let me then ask also the three witnesses whom I just addressed. 
This particular legislation says that not only would the pregnant 
woman be subject to no penalties whatsoever, but she could in fact 
sue the doctor who performed the procedure. 

Dr. White, do you think that is appropriate, that a woman who 
decided to have this done, sought out the doctor, went to the doc- 
tor's office voluntarily, submitted to the procedure, and then with 
no malpractice or an3^hing, we're not talking here about mal- 
practice, because I don't want to get doctors really upset. We are 
talking only about the doctor performs the procedure exactly as de- 
scribed and it has exactly the results projected, and the woman 
then can sue him. Do you agree with that part of the law? 

Mr. Canady. Could I just 

Mr. Frank. If I get extra time. 

Mr. Canady. Absolutely. You'll get extra time. It is my under- 
standing that under tort law, it is generally the ccse that it is con- 
sidered malpractice to perform a procedure which is illegal. I just 
would point that out. 

Mr. Frank. Yes. I understand. But this statute, if it was simply 
general tort law you wouldn't have to do it in the statute. I assume 
this is not going on my time, because I am responding to the gen- 
tleman, but what the gentleman is saying is, please don't pay at- 



91 

tention to the law I broke. I mean if that was general tort law, 
what did you put it in the statute for? You clearly meant to do 
more than general tort law. That's the principle that is explicitly 
written in here. 

So, Dr. White, do you think that a woman in that situation 
should be allowed to recover damages from the doctor who per- 
formed the procedure exactly as she asked him to? 

Dr. White. I'm no legal expert, Mr. Frank. 

Mr. Frank. This is a matter of policy. It is not a question of what 
the law is. 

Dr. White. But I find the procedure so inhumane and so 
nonscientific, that if this particular part of the bill became law, I 
could accept it. 

Mr. Frank. You think the woman should be allowed to sue. Dr. 
Smith. 

Dr. Smith. I would like to answer your question. First of all, I 
don't know how the people who do abortions do their practice. I do 
know that most of the times when women ask about abortion, and 
people do come to me and talk to me about it, they don't usually 
go in saying I want a particular procedure. They usually go in say- 
ing I don't want to be pregnant anymore, or in a particular case 
if they find out that they have a baby that has an abnormality that 
is incompatible with life, they generally don't ask you, do you do 
D&E's. 

Mr. Frank. What if they do? Ms. Watts said she did, and she 
had it explained to her. 

Dr. Smith. I'm telling you 

Mr. Frank. I understand, but I am asking the question. 

Dr. Smith. I am answering your question. 

Mr. Frank. No you are not. Dr. Smith. 

Dr. Smith. Well, let me try to. OK? 

Mr. Frank. You are not answering it. Let me explain to you why. 
Maybe I better rephrase the question better. The bill covers every 
situation. You are talking about there may be a situation where 
the woman was misled. The bill would allow the woman to sue in 
situations where it was explained to her exactly, as it apparently 
was to Ms. Watts. 

My question to you is, where it was explained to a woman ex- 
actly what was going to happen, and that's what happened, should 
she be allowed, as this bill would allow her, to sue the doctor? 

Dr. Smith. If the doctor is doing something illegal and he hurts 
the woman, then first of all, if it's a law, he is breaking the law. 

Second, if he is doing an experimental procedure. 

Mr. Frank. No 

Dr. Smith. I am trying to answer your question. If he is doing 
an experimental procedure 

Mr. Frank. You are not answering my question. 

Dr. Smith [continuing]. He must tell the woman that this is what 
I am doing, and therefore, do you agree to it. Most patients do not 
ask their doctors for a specific abortion technique. 

Mr. Frank. You are evading the question. 

Dr. Smith. They ask, I don't want to be pregnant. 

Mr. Frank. Yes, Dr. Smith. You are deliberately evading the 
question. 



92 

Dr. Smith. I am not evading the question. 

Mr. Frank. Excuse me, Dr. Smith. I am going to finish. You are 
dehberately evading the question. I said to you where we have cir- 
cumstances where the woman expUcitly is told by the doctor what 
is going to happen, it's not experimental, et cetera. 

Mr. Canady. The gentleman's time is expired. 

Mr. Frank. With my extra time? 

Mr. Canady. Yes. I think you got more than the time I took. 

Dr. Smith. Can I just ask a question? Can I ask him a question, 
please? 

Mr. Canady. No. I'm sorry. We're going to have to recognize Mr. 
Inglis at this point. Then we'll have another round of questions. 
Hopefully, Mr. Frank will have another opportunity on the second 
round. Mr. Inglis. 

Mr. Inglis. I would love for you to ask your question. 

Dr. Smith. I would like to know, you are setting up a situation 
where you are telling me that my patient is coming in and asking 
me to do something that I know is against the law. And then you 
are supposing that the doctor knows this is against the law and 
then is going to ask, in cahoots with the patient, to do something 
that is against the law when they have another ^temative to help 
that person if they don't want to be pregnant not to be pregnant. 

I guess the reason I didn't understand your question is that I 
don't assume that doctors break laws that they Imow they are not 
supposed to be breaking. So if you are asking me if two people 
want to conspire together to do something that is criminal, I don't 
know how to respond to that. You'd have to ask a doctor who does 
that. I don't do that. 

Mr. Frank. Would the gentleman yield for me to answer the 
question? 

Mr. Inglis. Sure. Just briefly though. I've got another question. 

Mr. Frank. Well, you yielded to her to ask me a question. It 
would seem to be only fair. 

The answer to you is that you seem to think it was a stupid 
question. But what you really mean is that it is a stupid bill, be- 
cause I asked you the question that came from the bill. It is the 
bill that sets up those circumstances. You say you are presuming 
these circumstances. I am reading from the bill. The bill is the one 
that assumes that there will be a doctor who will do that and the 
woman will sue. So your discussion 

Mr. Inglis. Let me reclaim my time. 

Mr. Frank [continuing]. Is about the bill itself. I was asking you 
a circumstance from the legislation. 

Mr. Inglis. I'm going to reclaim my time and 5deld to the chair- 
man for a response to that attack on the bill. 

Mr. Canady. I hope and presume that there will never be any 
prosecutions under this law once it is enacted. I believe that re- 
spectable practitioners will not violate this law. So I think what we 
have in the bill is a mechanism to ensure that there is a con- 
sequence if they do. That will encourage their compliance with the 
law. I will yield back to the gentleman 

Mr. Frank. Will the gentleman yield? 

Mr. Inglis. No, no. I am going with the question. I have got an- 
other question. I am very interested in, and understand I am run- 



93 

ning back and forth between two subcommittee hearings, but I un- 
derstand that, Dr. Robinson, you testified that partial birth is a 
misnomer, that this is not really what it is. I would ask you, sir, 
distinguish for me the difference between the child let's say on 
these charts that is — I'm not a medical expert, but I assume it's 
about 5 inches, maybe less than that. Maybe 2 inches difference. 

In other words, when the child is once delivered, which is a mat- 
ter of inches I take it, can you explain to me the difference in your 
opinion, between the child that has been delivered and the dif- 
ference, between the child whose head is still in utero? 

Dr. Robinson. Actually, I am not clear what the question is. 

Mr. Inglis. You said that there was not a 

Dr. Robinson. We have — in our tradition we have other terms. 
I am surprised the term "partial extraction" was not used. This is 
a standard term in obstetrics that we use for delivering. That could 
have been used. The use of the word "living," these type of 

Mr. Inglis. Let me refine the question a little bit. Do you under- 
stand that if you did this procedure it would be legal, but if the 
child were delivered out of the canal, and you took your same in- 
struments and whacked off its head, do you understand a legal dif- 
ference between the way you might be treated there? 

Dr. Robinson. Well, as a younger resident before we had a lot 
of sophisticated techniques, I was often faced with the delivery of 
a breech, in which I found the baby at that point still alive, with 
an enormous head. Yes. I have upon occasion 

Mr. Inglis. No, no, no, no, no. You are missing the question. Let 
me explain the question. I want you to explain to me the difference 
between the child that you may legally kill inside, with its head in- 
side the canal, and the situation that would occur if you were once 
it was delivered those last few inches, to whack off its head. What 
is the difference between what would happen to you? 

Dr. Robinson. If the law was passed, I have no idea what would 
happen. The law has not passed. I know that I am, under law right 
now, permitted to meet my patient's needs in providing her an 
abortion. 

Mr. Inglis. OK. Let me ask you this. Now we are talking about 
the legal. Tell me how you justify in your own soul, if you will, the 
difference in treatment between the last few inches. I mean de- 
scribe for me the status difference of that human being. What is 
the difference in status? One, it's almost all out. In fact, I think the 
shoulders are out, are they not, and the head is simply in. In the 
other, the head is out. 

I have witnessed four beautiful births of my four children. I re- 
call that that's a rather triumphant moment. Can you tell me the 
difference in the status, in your own mind, between those children? 
The one that's head is inside, and the one that's head is outside? 

Mr. Canady. If you could do so briefly, please, because the gen- 
tleman's time is expired. 

Dr. Robinson. In my situation, I am dealing with a woman who 
has come to me for reasons that she wants to interrupt her un- 
planned, unwanted pregnancy. There are congenital anomalies. In 
some cases, the babies may be partially dead or won't live when it 
is on the outside. The conditions under which I, my staff, the 



94 

nurses in which we are delivering this, as was described, the sup- 
porii and the concern. 

The other that you are describing when I am deahng with a pa- 
tient who is desperately trying to have a live child, and through 
the mistake of nature, delivers early, prematurely. In most cases, 
I would probably not have delivered that baby this way. I would 
have done a cesarean section. 

Mr. Canady. The gentleman's time is expired. Mr. Hoke. 

Mr. Hoke. Dr. Robinson, you had stated that in no case is pain 
induced to the fetus. The fetus feels no pain at all. We have heard 
a lot of conflicting testimony regarding that from a nurse and a 
neuroscientist. 

If the baby is alive right up until the very end of the procedure, 
do you still stand by that testimony? 

Dr. Robinson. I am not a neuroscientist. I have read some of the 
literature, although it's not an area that I spend a great deal of 
time at. I have listened to the nurse testify as to what instinctively 
she has learned. Instincts, of course, are not the way we learn. 

Mr. Hoke. On what do you base your statement that there is no 
pain? 

Dr. Robinson. Because I'm not sure I know what pain is. 
Spinosa called it a chronic condition. I am an expert in chronic 
pain. I deal with a lot of people with chronic pelvic pain. What is 
it, where does it start? 

Mr. Hoke. How about if you took a knife and you were cutting 
a tomato and you sliced into your finger, would you experience 
something that you might describe as pain? 

Dr. Robinson. That would be an acute pain reaction. Yes. 

Mr. Hoke. All right. Well then let's use that definition, which I 
think is probably one with which many people agree. Using that 
kind of definition, are you saying that in no case is that kind of 
pain induced to the fetus? Is that what you meant by your testi- 
mony? 

Dr. Robinson. I am sure that if you had the fetus outside and 
had it sophisticated, you would see EKG changes, you would see 
certain reactions. But this simply the passage of information from 
a no-susceptive sensor up to the brain. Whether that is pain or not 
pain, I do not know the answer to that. 

Mr. Hoke. Dr. White, the testimony that we heard from Dr. Rob- 
inson was that if there was pain — and apparently there is some 
question in Dr. Robinson's mind about that — the pain wouldn't be 
felt because there's an anesthetic that has been given to the pa- 
tient, the woman. Would local anesthesia affect the fetus? 

Dr. White. Well, there are certain pharmacological agents that 
are administered as anesthetics, mainly in the use of general anes- 
thetics, which do transfer through the placenta, and at a signifi- 
cantly reduced amount do reach the child. 

There isn't the number of studies that we need on that. I think 
the difficulty is that under these circumstances and the evidence 
we have in terms of cardiovascular responses, certain blood chem- 
istries values that have been drawn from the fetus under these cir- 
cumstances, demonstrate the fact that there is considerable stress 
and indeed, overwhelming pain. 



95 

There are enough studies in children of this age. Much in the age 
range that the nurse has demonstrated to us. I think there is really 
very little argument any longer that the fetuses that we are talking 
about in this gestational age, do receive pain and appreciate it. I 
don't want to bore you, certainly in the question period, but the evi- 
dence I personally think, is incontrovertible. 

But going back to what is said here, that when you actually at- 
tempt to divide, and it's not clear whether it's the spinal cord or 
the brain stem, and then suck out the brain, in a sense, modem 
medicine feels that the brain is the very essence of human exist- 
ence. That is what the concept of brain death is based on and 
equals human death. You might as well cut the head off under 
those circumstances, because you are destroying the very organ 
that is the essence of humanhood. 

But it is the procedure itself The idea as Dr. Smith has shown, 
of a scissors being introduced into this area. I doubt these people 
even know where they are operating. I need a microscope to see 
this area. So it is very possible they could be removing this brain 
in this tragic way of extraction, sucking, whatever you want to call 
it, when the child is still alive under those circumstances. 

Mr. Hoke. I guess what I don't understand when I hear the testi- 
mony of those who are proponents of the procedure is why they are 
trying to jump through such extraordinary hoops to say that it is 
not painful or that it is not inhumane. Let's call this exactly what 
it is, and then if in fact under those circumstances, it's something 
that a nation can tolerate, then that's fine. But let's not pretend 
that somehow this is not grotesquely painful to the fetus. 

Dr. White. Sorry to interrupt. You are absolutely correct. Be- 
cause the two papers that have been cited over and over again, and 
unfortunately Dr. Robinson hasn't read them, are authored by the 
two experts in this field that do this sort of abortion. You will note 
that in their papers they do not stress the fact that because of the 
anesthesia administered to the mother, if indeed any, that the 
child, the infant, the fetus, is not suffering pain. That is not a part 
of their written remarks. 

Mr. Canady. The gentleman's time has expired. The time for this 
meeting has about expired. We're going to have to adjourn this 
hearing. 

Mrs. SCHROEDER. Mr. Chairman. 

Mr. Canady. I'm sorry. There's a 

Mr. Frank. Excuse me, Mr. Chairman. I thought we had a 1 
o'clock meeting of the full committee. But Mrs. Schroeder not to be 
able to ask questions, we do have until 1? 

Mr. Canady. The Republicans on the committee have a caucus 
which we are late for at this point, preliminary to the meeting. 

Mrs. Schroeder. Mr. Chairman. 

Mr. Frank. Mr. Chairman, I do have to object. You guys sched- 
uled these two meetings. To deprive our Members of a chance to 
ask questions. Then be a few more minutes late or leave one person 
behind. But to deprive Mrs. Schroeder and Ms. Jackson Lee of a 
chance to ask questions while the panel is here, over 10 minutes. 

Mr. Canady. Mrs. Schroeder, you will be recognized for 5 min- 
utes. I'm sorry, Ms. Jackson Lee, you are not a member of this sub- 



96 

committee. We will have to conclude at the end of your 5 minutes. 
Please proceed. 

Mrs. SCHROEDER. Well, Mr. Chairman. I appreciate that. I was 
a little startled. I am sorry. I had an amendment on the floor so 
I was a little late getting back. 

But let me just say my understanding is while I was gone, that 
the witnesses who testified for the bill said they really were 
against abortion at any stage. I take it that all of you would agree 
with the premise that this bill should go forward even if a doctor 
were to ascertain this medical procedure was much better for a 
woman who was seeking abortion. Is that correct? 

Dr. Smith. No. First of all, there has been no proof that this pro- 
cedure is safe for anybody. 

Mrs. SCHROEDER. Wait a minute. Let me take back my time. 
That was not my question. I said if it is proven, and if a doctor 
says this is safer for the woman, would you still want this to pass? 
You still want to outlaw this procedure? 

Dr. White, I don't think that is possible. It is not scientific. I 
mean, you are going to violate science. 

Mrs. SCHROEDER. I mean we have two big views of what science 
really is. We are hearing about pain. My understanding, birth is 
also painful for babies. 

But one of the things I think we should do as we — Dr. Robinson, 
I understand you had some slides. Is that correct? 

Dr. Robinson. Just pictures of congenital anomalies such as has 
already been adequately discussed here. I don't think it would nec- 
essarily enhance the proceedings. It would prolong it. They are 
simply standard pictures of babies in very poor shape. 

Mr. Frank. If the gentleman would yield, we could put them in 
the record. 

Mrs. SCHROEDER. I would be delighted if you would put them in 
the record, because of the interest. 

Dr. Robinson. Will do. 

Mrs. SCHROEDER. Because of the interest. I think it is very im- 
portant that we have some balance there. 

Dr. White, when you were talking about humanity comes from a 
brain. Does that mean if a baby does not have a brain then this 
procedure would be OK? Is that then not human? 

Dr. White. Well, even the anacephalic child has a brain stem. 
While we have a great deal of difficultly defining brain death, as 
we can do in adults, in children and certainly in infants, it is not 
true that under ordinary circumstances, a child would be born or 
would be at these gestational ages, totally without even a brain 
stem. I mean it's not impossible, but I wish to stress, in general, 
the anacephalic child has a brain stem. Therefore, they have a part 
of a brain. 

Going to your question, would I consider this appropriate under 
those circumstances, that is, with the brain stem retained. My an- 
swer would be no. 

Mrs. SCHROEDER. And then what if it were a mole? Well, never 
mind. 

Dr. White. I don't know what you mean. 

Dr. Smith. He doesn't know what a mole is. 



97 

Mrs. SCHROEDER. I guess I feel a lot of pressure because the 
chairman doesn't want me to ask questions. I have got many ques- 
tions that I want to ask here. 

One of the things I am so troubled by is I think as Congress 
moves in and starts micromanaging what ob/gyn's can teach, what 
the medical profession is saying, what kind of procedures are legal 
and illegal, where is the line, are you going to have Federal people 
in these operating rooms watching this? 

You know what I think is going to happen is it is going to be 
very difficult to get high-quality docs ever wanting to deal with 
women's issues, women's health issues, because who needs this, 
who needs this. It is the only area of medicine where I know that 
there is this kind of micromanaging. 

I see two distinguished members of the medical profession sitting 
side by side. I think traditionally you would say that they have had 
very high ethics. You have had your own oath, you have had your 
own policing. 

Mr. Canady. There are three physicians here and another medi- 
cal practitioner. 

Mrs. ScHROEDER. Three physicians, I'm sorry. Three sitting side 
by side and a nurse. So we have four, OK. But let me say, you have 
had high standards. I don't think we probably need to get Congress 
into micromanaging down to the details of what is going on. That 
is why I am very troubled by this beginning, because I see this as 
a tremendous erosion. I see it as a backsliding. 

I have talked to many deans of medical schools who are very 
troubled by this, who say, you know, we're not sure we really want 
to continue even dealing with obstetrics and gjoiecology. Long term, 
I think that hurts all women, because you don't have the safe 
standards. We know women's health has not been dealt with very 
well in this country anyway. To begin this, I think is very trou- 
bling. 

So, Mr. Chairman, I have a lot of questions that I would like to 
ask for the record, if that's OK, since you would like me to be quiet. 
I would like to yield the remaining time to Ms. 

Mr. Canady. I have not wanted you to be quiet. As a matter of 
fact, we recognized you at the beginning of the hearing, and you 
will have the last word in the hearing as well, because your time 
is now expired. The full committee is commencing a meeting in 
about 2 minutes. In light of that, we're not going to be able to con- 
tinue with this subcommittee meeting. I wish we could. 

There's an additional witness. Prof. David Smolin of the Cum- 
berland Law School, who has come for the hearing today. I apolo- 
gize to you. Professor, that due to this meeting of the full commit- 
tee, which was only scheduled yesterday because of our inability to 
finish the work, we will not be able to continue. 

So I thank you for being here. Without objection, your statement 
will be made a part of the record of the hearing. 

[The prepared statement of Mr. Smolin follows:] 

Prepared Statement of David M. Smolin, Professor of Law, Cumberland Law 
School, Samford University 

Mr. Chairman and members of the Committee, I am honored to have been invited 
to testify regarding the proposed prohibition of partial-birth abortions. The following 
testimony represents my own views as a law professor, teaching and writing in the 



98 

area of constitutional law, and is not intended to represent the views of my em- 
ployer, Cumberland Law School of Samford University. 

My testimony will concentrate on two constitutional questions: First, is the prohi- 
bition of this abortion method constitutional under Planned Parenthood v. Casey 
and other binding precedent?; and second, does Congress possess the authority, 
under the Commerce Clause of the Constitution, to enact this law? 

I. CONSTITUTIONALITY OF PROHIBITING PARTIAL-BIRTH ABORTIONS UNDER PLANNED 
PARENTHOOD V. CASEY AND OTHER BINDING PRECEDENTS 

My conclusion is that a prohibition of partial-birth abortions, such as the one pro- 
posed by Chairman Canady, is constitutional under current United States Supreme 
Court precedent, including in particular Planned Parenthood v. Casey, 112 S. Ct. 
2791(1992). 

The proposed prohibition of this particular method of abortion constitutes, in con- 
stitutional terms, a regulation of abortion. The proposed law would merely alter the 
manner in which a minority of the small minority of abortions occurring in the sec- 
ond half of pregnancy are performed. See, e.g.. Centers for Disease Control, Abortion 
Surveillance— United States, 1990, 42 Morbidity and Mortality Weekly Report 29, 
31 (December 17, 1993) (approximately one percent of abortions performed at or 
after 21 weeks; four percent performed at 16 to 20 weeks); see Martin Haskell, Sec- 
ond Trimester D & X, 20 Weeks and Beyond, Presentation to National Abortion 
Federation (Sept. 13, 1992) (partial-abortion method designed for abortions at twen- 
ty weeks and beyond). Thus, the law would potentially alter the method of abortion 
used in less than twenty thousand abortions per year, out of the more than 1.5 mil- 
lion annual abortions; as a practical matter, given cvurent preferences for other 
methods, the law would probably have some influence in the choice of method in 
less than five thousand abortions annually. Thus, although the proposed law is in 
statutory terms a prohibition of certain conduct, in constitutional terms it is a regu- 
lation of abortion. 

This conclusion is supported by a comparison of the proposed law with the Su- 
preme Court's 1976 invalidation of a ban on saline abortions after twelve weeks, in 
Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 75-79. The Supreme 
Court concluded in Danforth that 68% to 80% of all post-first- ti imester abortions 
employed the saline method. 428 U.S. at 77. Thus, the ban in Danforth prohibited 
the dominant abortion method for this period of pregnancy. Further, the primary 
alternative method relied on by Missouri, that of prostaglandin instillation, was at 
that time a new method, and was not proven to be available in Missouri; further, 
the Court interpreted the saline abortion prohibition as possibly also prohibiting 
prostaglandin abortions, as well as potentially safe future methods. Id. at 77-78. 
Thus, the Court concluded that the post-twelve week saline abortion prohibition 
"was designed to inhibit, and ha[d] the effect of inhibiting, the vast majority of abor- 
tions after the first 12 weeks." Id. at 79. Under these circimistances, the Missouri 
law was held unconstitutional. 

By contrast. Dr. Martin Haskell's September 13, 1992 presentation to the Na- 
tional Abortion Federation introduced partial-birth abortions as a new alternative 
to the standard techniques employed in post nineteen week abortions. Dr. Haskell's 
paper notes that current methods at this stage include induction methods, classic 
D & E abortion, abortion, and two modified methods of D & E abortion; Dr. Haskell 
specifically states that "most late second trimester abortions are performed by an 
induction method." Martin Haskell, supra, at 28. Further, Dr. Warren Hem, author 
of the much-cited text. Abortion Practice, has clearly outlined a modified D & E pro- 
cedure, employing "adjunctive urea amnioinfusion," as an effective method for these 
late term abortions. See Warren Hem, Abortion Practice 127, 144-46 (1990) (cited 
in Martin Haskell, supra, at 28). Thus, it is clear that a prohibition of partial-birth 
abortions would leave in place the currently standard and dominant methods of 
abortion during the second half of pregnancy. Thus, the current law cannot be 
viewed, as was the law in Danforth, as having the propose or effect of inhibiting 
the majority of abortions during a certain period. The proposed ban on partial-birth 
abortions is a true regulation, and not in any way a prohibition, of abortion. 

The present proscription appears constitutional even under the standards applied 
by Justice Blackmun in Danforth; it is even clearer that the law is constitutional 
under the less stringent constitutional standards decreed in Casey. Danforth applied 
Roe's trimester approach, which forbade any regulation of second-trimester abortion 
in the interest of the fetus. See Danforth, 428 U.S. at 61 (citing Roe v. Wade, 410 
U.S. 113 (1973)). Casey, by contrast, overruled Roe's trimester system, and held that 
it was permissible to regulate abortion throughout pregnancy in the interests of the 
fetus, or unborn child, so long as any previability regulations did not constitute an 



99 

"undue burden" on the abortion liberty. See 112 S.Ct. at 2818-20 (joint opinion); 
see, e.g., Planned Parenthood v. Casey, 114 S.Ct. 909, 910 fn 2 (1994) (Souter, J.) 
(joint opinion sets constitutional standard under Marks v. United States, 430 U.S. 
188 (1977)). Thus, the prohibition on partial-birth abortions could be constitutional 
even if such prohibition did not specifically serve the interests of maternal headth. 

The proposed prohibition on its face applies throughout pregnancy; however. Dr. 
Haskell claims to have developed the method for use at twenty weeks and beyond, 
and has noted that a colleague uses "a conceptually similar technique" "up to 32 
weeks or more." Martin Haskell, supra, at 27-28, 33. Thus, the method apparently 
is only applicable to the period shortly before, and the period after viability. Con- 
stitutional analysis of the prohibition under Casey therefore requires a bifurcated 
approach. 

Under Planned Parenthood v. Casey, previability regulations of abortions are con- 
stitutional so long as they do not constitute an undue burden on the abortion lib- 
erty. See 112 S.Ct at 2819-21. The essence of the undue burden test is the question 
of whether the law, on its face, places a "substantial obstacle" on the woman's lib- 
erty that effectively deprives her of the right to make the "ultimate decision" of 
whether or not to abort. See id. Given the existence of several standard abortion 
techniques for previability abortions, other than partial-birth abortions, it is clear 
that this prohibition would not constitute an undue burden. There is no indication 
in the case law that women possess a constitutional right to demand that the fetus 
they carry be killed in the birth canal. If women lack such a constitutional right 
to demand that the unborn child they carry be killed in the birth canal, then physi- 
cians lack any corollary right to kill fetuses in the birth canal. The abortion Uberty 
exists for the woman, and physicians are constitutionally protected from regulation 
only to the degree necessary to protect the constitutional liberties of the woman. 

The primary application of this regulation of abortion to the second half of preg- 
nancy further suggests a lenient constitutional standard of review. The Supreme 
Court in Webster v. Reproductive Health Serv., 492 U.S. 490, 513-20 (1989), upheld 
a viability testing requirement at twenty weeks, based on the common tendency to 
miscalculate gestational age by as much as four weeks; Justice O'Connor's concur- 
ring opinion stressed the permissibility of a presumption of viability at twenty 
weeks, and the permissibility of regulating abortion during the period when "viabil- 
ity is possible." See 492 U.S. at 525-31. It appears that regulations of abortion oper- 
ating at the periphery of viability (which can occur as early as 23 to 24 weeks ac- 
cording to Casey, 112 S.Ct. at 2811) benefit in some ways from the more lenient 
standards applicable to postviability abortions. 

Further, it should be underscored that any claims that partial-birth abortions are 
superior to the standard existing techniques must be evaluated separately for 
previability, and postviabihty, abortions. The undue burden standard is only rel- 
evant to previability abortions; after viability, the state may actually proscribe some 
abortions. See Casey, 112 S.Ct. at 2816-17, 2821. Thus, for example, Dr. Haskell's 
concern regsirding the "toughness of fetal tissues" at "twenty weeks and beyond," 
making dismemberment (and hence classic D&E abortion) difficvilt, at some point 
becomes less significant, for within several weeks, the toughening fetal tissues com- 
prise a viable fetus, or, as the Casey joint opinion described it, an "independent . . . 
second life," or "developing child." 112 S.Ct. at 2817. To gain the burden of the 
undue burden standard, a physician would have to demonstrate that there was no 
medically-viable alternative method of abortion, during this short period from twen- 
ty weeks to viability at twenty-three to twenty-four weeks. Yet, even Dr. Haskell's 
paper documents the alternatives of induction methods, and of Dr. Hem's technique 
for softening the fetal tissues prior to D&E abortion. 

Upon viability, the state can proscribe some abortions, because "the independent 
existence of the second life can in reason and ail fairness be the object of state pro- 
tection that now overrides the rights of the woman." Casey, 112 S.Ct. at 2817; see 
also Roe v. Wade, 410 U.S. 113, 163-64 (1973). The proposed ban on partial-birth 
abortions is merely a regulation of abortion, and therefore is, in its appUcation to 
the abortion of viable fetuses, well within constitutional limits. The Supreme Court 
has never given women the right to demand that the viable "developing child," 
Casey, 112 S.Ct. at 2817, be killed in the birth canal. 

Both before and after viability, the statute would, in the broad sense, be subject 
to lenient rational basis review, which would require that the prohibition of partial- 
birth abortions be rationally related to some legitimate governmental interest. This 
is the same lenient review applied in the modem era to economic regulatory review, 
and laws are almost always found constitutional under this standard of review. I*ub- 
lic morality, for example, is a legitimate governmental interest. Thus, a sense of 
particular moral outrage at partial-birth abortions would be a sufficient reason to 
sustain the law. The spectre of partially delivering a fetus, and then suctioning her 



100 

brains, may mix the physician's disparate roles at childbirth and abortion in such 
a way as to particularly shock the conscience. In childbirth the physician considers 
the fetus her "second patient," and thus works to guard and protect the life and 
health of the fetus; by contrast in abortion the physician often acts directly to kill 
the fetus as a part of the abortion procedure. Proscribing a procedure that seems, 
even momentarily, to evoke simultaneously these disparate roles is itself a "legiti- 
mate governmental purpose." 

Further legitimate purposes for the law would include protecting respect for 
human life, and for constitutional persons, by not permitting a fetus present in the 
birth canal to be deliberately assaulted and killed. The birth canal represents, in 
constitutional terms, the passage from constitutional nonpersonhood to recognition 
and protection as a constitutional person; even a viable fetus is not a constitutional 
person within the womb, while even a nonviable fetus aborted or bom alive appar- 
ently is a constitutional person upon birth, particularly if the fetus is of substantial 
size and development. See, e.g.. Showery v. State, 690 S.W.2d 689 (Tex. App. 8 Dist. 
1985) (upholding murder conviction when physician, subsequent to abortion, killed 
infant; noting that viability is irrelevant upon birth). A physician deliberately killing 
a fetus whom the physician has moved partway on the journey from nonpersonhood 
to personhood, and who is physically literally on the verge of constitutional 
personhood, undermines respect for human life and for constitutional personhood, 
because such a fetus appears indistinguishable from a constitutional person. Requir- 
ing that the fetus be killed within the womb, rather than within the birth canal, 
in a small way widens the Line between permissible and impermissible conduct. It 
undermines respect for constitutional persons, and for human hfe, to deliberately 
bring a fetus within proximity of constitutional personhood, and then, as such fetus 
lies literally within inches of constitutional personhood, assault and kill her. 

It is possible that at least some of the fetuses killed by partial-birth abortions are 
constitutional persons. The Supreme Court in Roe v. Wade held that "the word 'per- 
son,' as used in the Fourteenth Amendment, does not include the unborn." 410 U.S. 
at 158. The Court, however, has never addressed the constitutional status of those 
who are "partially bom." Indeed, in Roe the Court noted that the following Texas 
statute had not been constitutionally challenged: "Art. 1195. Destroying unborn 
child. — Whoever shall during parturition of the mother destroy the vitality or Ufe 
in a child in a state of being bom and before actual birth, which child would other- 
wise have been bom alive, shall be confined in the penitentiary for life or for not 
less than five years." 410 U.S. at 118 n. 1. 

"Parturition" means "the act or process of giving birth to offspring," Webster's 
Seventh New Collegiate Dictionary 615 (1967). Typical legal definitions of "live 
birth" require complete explusion or extraction, whether or not the umbilical cord 
has been cut or the placenta is attached; the neonate must, after such explusion, 
evidence signs of life such as breathing, heartbeat, pulse, or voluntary movement. 
Significantly, "duration of pregnancy" (and hence viability) are exphcitly stated as 
irrelevant to the definition of live birth. See, e.g., 111. Rev. Stat., ch. Ill 1/2 para. 
7»-l(5); Fla. Stat. Ann. §382.002(10). 

It seems reasonable to suppose that an infant who has been only partially ex- 
tracted from the mother, and hence not yet legally bom, might be considered a con- 
stitutional person, even though (for example) only the head and shoulders have been 
extracted from the mother. It would certainly seem wrong to remove all legal protec- 
tion from such a partially-born neonate, and thereby subject her to being killed, as- 
saulted, or the subject of medical experimentation, upon the direction of another. 
In the same way, it would not be unreasonable to find that a fetus delivered into 
the birth canal has already become a constitutional person. A fetus delivered into 
the birth canal has commenced the journey toward legal personhood and hence legal 
protection; indeed, where such a fetus is or may be viable, she or he is literally 
inches away from maintaining a sustainable, developing, independent life com- 
pletely apart from her mother. It seems odd to demand that such a journey be com- 
pleted before legal recognition and protection are assumed. 

However, it is important to underscore that the partial-birth abortion prohibition 
is fully constitutional, under current standards, even if the Court were to hold that 
all of the fetuses protected were NOT constitutional persons. Even if the infant in 
the birth canal (or partially extracted from the mother) is NOT a constitutional per- 
son, the government nonetheless may be concerned with her fate, and with the 
wider implications of permitting killing within the birth canal or during the process 
of birth. The decision of abortion rights litigants not to challenge the Texas prohibi- 
tion of killing the unbom during the process of birth suggests a broad agreement 
that there is no constitutional right to kill during the process of birth; the proposed 
prohibition on partial-birth abortion extends this reasoning only slightly, by pre- 



101 

venting physicians from delivering the unborn into the birth canal, and then killing 
them. 

Indeed, one notable feature of the proposed legislation is that it is supportable by 
a variety of legitimate state interests, which in turn reflect a variety of views of the 
status of the fetus. Animal cruelty laws can regulate the manner in which cattle 
and other sources of meat are cared for and slaughtered; thus, one who believes the 
human fetus to be morally equivalent to a cow, pig, or other animal source of food 
could rely on the legitimate governmental purpose in not unnecessarily subjecting 
living creatures to pain, cruelty, or indignity, even in the process of lulling them. 
In addition, the proposed ban is rationally related to the legitimate government pur- 
pose of protecting the value of constitutional persons by drawing a clearer and 
broader line between abortion and childbirth, and between the fetus in the womb 
and the neonate outside of the mother. Those concerned with the integrity of the 
medical profession could support the statute because it lessens the confusion be- 
tween the roles of physician in abortion and in childbirth, and hence alleviates the 
fear, moral outrage, and potential moral degradation that occurs by mixing these 
roles. By contrast, those who consider the human fetus to be a form of hvunan life 
could rely on the purpose of providing a modicum of protection for human life, by 
proscribing a particularly cruel and/or painful form of killing, or by granting some 
protection to the developing human within the birth canal. (Under Casey and Web- 
ster government may legislate in the interests of the fetus, and based on the view 
that the fetus is human life, so long as the law does not substantively violate the 
abortion right. See Casey 112 S.Ct. at 2817-25; Webster, 492 U.S. at 504-07.) Fi- 
n£illy, those who believe that at least some of these procedxires may involve the kill- 
ing of a constitutional person, would also possess a legitimate purpose for the law, 
although this latter purpose should, to assvu-e constitutionality, be supplemented by 
at least one of the other clearly legitimate purposes. 

Under rationality review, the Courts would not be free to undermine the constitu- 
tionality of the law because it did not proscribe other seemingly "shocking," painful, 
or cruel abortion techniques, such as the dismemberment of the fetus in D & E 
abortion. Under rationality review, the legislature is free to address a portion of a 
problem, while leaving other parts of the problem unaddressed. In addition, there 
are rational reasons for distinguishing between partial-birth abortion, and other 
forms of abortion. Methods of abortion that kill the fetus within the womb do not 
present the same degree of confusion created by mixing the roles of the physician 
and abortionist within the same procedure; nor do they present the same degree of 
confusion present by a killing of the fetus who is physically partially bom, and 
present within the birth canal. Similarly, the dismemberment of the fetus within 
the womb, however morally shocking to some, does not, to the same degree, blur 
the line between fetus and neonate, as does the kilHng of the fetus in the birth 
canal. Moreover, it appears clear that the banning of the previously-existing, stand- 
ard methods of abortion would, under Danforth and Casey, present a closer constitu- 
tional question. Thus, it makes constitutional sense to proscribe the most recent, 
and most shocking, method of abortion. 

II. CONGRESSIONAL AUTHORITY UNDER THE COMMERCE CLAUSE 

Congress possesses ample authority under the Commerce Clause of the Constitu- 
tion, U.S. Const., Art. I, §8, cl. 3, to enact the proposed prohibition of partial-birth 
abortions. 

As a starting point, the testimony of the Attorney General, regarding the then- 
proposed Freedom of Access to Clinic Entrances Act, is useful: 

"The provision of abortions services is commerce. The entities that provide these 
services, including clinics, physician's offices, and hospitals, purchase or lease facili- 
ties, purchase and sell equipment, goods, and services, employ people, and generate 
income. Not only do their activities have an effect on interstate commerce, but they 
engage directly in interstate commerce. It should be easy to document that they pur- 
chase medicine, medical supplies, surgical instruments, and other supplies produced 
in other States. 

"Moreover, it is well-established that many serve significant numbers of patients 
from other States. For example, in Bray v. Alexandria Women's Health Clinic, 113 
S.Ct. at 762, the Supreme Court accepted the district court's finding that substan- 
tial numbers of patients at abortion clinics in the Washington, DC, area traveled 
interstate to obtain the services of the cUnics. In Wichita, KS, the Federal district 
court found that some 44 percent of the patients at one clinic came from out of 
State. See New York State NOW v. Terry, 886 F.2d 1360 (many women travel fi-om 
out-of-State to New York clinics). Thus, there can be Uttle doubt that abortion pro- 
viders are engaged in interstate commerce and Congress should not have difficvilty 



102 

developing a legislative record allowing it to make such a finding." Prepared State- 
ment of Attorney General Janet Reno, Hearing Before the Committee on Labor and 
Human Resources, United States Senate, 103rd Congr., 1st Sess., on the Freedom 
of Access to Clinic Entrances Act of 1993, May 12, 1993, at 16. 

The relatively few number of abortion providers who perform partial-birth abor- 
tions appear particularly likely to be involved in serving out-of-State patients, given 
the relatively specialized nature of the services they provide. Some providers of 
abortion services do not perform abortions in the second half of pregnancy, during 
the period for which partial-birth abortions were designed; thus, those abortion pro- 
viders who provide late term abortions are even more likely to receive referrals, and 
patients, from outside of their immediate geographical area. 

The Supreme Court's recent decision in United States v. Lopez, 115 S.Ct. 1624 
(1995), does not alter the conclusion that Congress possesses the authority to enact 
the proposed ban on partial-birth abortions. Lopez concerned the proscription of a 
noncommercial activity: the possession of a firearm in a school zone. The United 
States argued unsuccessfully that this noncommercial activity substantially affected 
interstate commerce because of its negative impact upon education. 115 S.Ct. at 
1632. The Court rejected the dissent's view that schools (including public schools) 
are commercial. 115 S.Ct. at 1633. The Court also noted the lack of any "jurisdic- 
tional element which would ensure, through case-by-case inquiry, that the firearm 
possession in question affects interstate commerce." 115 S.Ct. at 1631. 

Lopez does not present any reason to question the Attorney General's conclusion 
that "[t]he provision of abortion services is commerce, "see supra, at least where 
payment is received, from some source, for the services. Abortion services would 
generally be classed within the broader category of medical and health care services, 
for purposes of commerce clause analysis. Health care constitutes, as the Congress 
well knows, a large and significant portion of the national economy, and it would 
seem absurd to hold that an industry comprising one-seventh of the national econ- 
omy could not be regulated under the commerce clause. 

The regulation of abortion services is therefore a regulation of commerce, and this 
alone sufficiently distinguishes the proposed ban from Lopez, which concerned an 
attempted regulation of noncommercial activity. The proposed statute, moreover, 
limits its reach to "[wjhoever, in or affecting interstate or foreign commerce," per- 
forms a partial-birth abortion, and thus the statute contains the individualized ju- 
risdiction requirement lacking in Lopez. Such an individualized determination is 
probably unnecessary to safeguard the constitutionality of the statute, but its exist- 
ence further brings the statute well within the ambit of Congressional authority 
even after Lopez. 

Mr. Canady. I want to again thank all of the members of this 
panel for being here. We appreciate your valuable testimony. The 
subcommittee is adjourned. 

[Whereupon, at 12:58 p.m., the subcommittee adjourned.] 



APPENDIXES 



Appendix 1.— Statement of Hon. Sheila Jackson Lee, a 
Representative in Congress From the State of Texas 

Resolving to terminate a pregnancy in the later stages of 
fetal development is a personal and emotional decision. Many women 
having abortions after the first trimester are ending planned and 
wanted pregnancies because of devastating fetal anomalies, or 
because their own lives or health are at grave risk. 

Such determinations are made only after consultation with a 
physician in a trusted doctor/patient relationship. We should not 
legislate barriers to medical procedures. Responsible physicians 
will not initiate surgical procedures if they cannot conclude them 
in whatever ways are safest for their patients. To criminalize a 
physician for concluding a surgical procedure in the way he or she 
deems to be safest for the patient--the woman--is tantamount to 
legislating malpractice. 



(103) 



Appendix 2.— Letter Dated July 11, 1995, to Chairman Canady, 
From Watson A. Bowes, Jr., M.D., Professor, University of 
North Carolina at Chapel Hill 



THE UNIVERSITY OF NORTH CAROLINA 

AT 
CHAPBt MILL 



July 11, 1995 

The Honorabla Charlaa Canady 

Chairman, Subconanittee on the Constitution 

House Committee on the Judiciary 

1222 Longworth House Office Building 

Washington, D.C. 20515 

PAX: (202 225-3746) 

Dear CoxigresBnan Canady: 

I have reviewed the Partial-Birth Abortion Ban Act (HR 1833, 
S. 939) and the related materials that you submitted to ma. 

Your bill would baa the use of the "partial-birth abortion" 
method, which you define as "an abortion in which the person 
performing the abortion partially vaginally delivers a 
living fetus before Jcilling the fetus and coii?)leting the 
delivery. " 

Afl reerarda the use of the term "partial -birth ataortien" to 

daacrihs liha pcgcedurfli 

The term "partial -birth abortion" is accurate as 
applied to the procedure described by Dr. Martin 
Haskell in his 1992 paper entitled "Dilation and 
Bxtraction for Late Second Trimester Abortion, " 
distributed by the National Abortion Federation. (1) 
Dr. Hasicell himself refers to that procedure as 
dilation and extraction, " but that is only a term, as 
he wrote, he "coined." Another practitioner. Dr. James 
McMahon, who uses a similar technique, uses the term 
•Intact dilation and evacuation." (2) 

There is no standard medical term for this method. The 
method, as described by Dr. Haslcell in his paper, 
involves dilatation of the uterine cervix followed by 
breech delivery of the fetus up to the point at which 
only Che head of the fetus remains undelivered. At 
this point surgical scissors are inserted into the 
brain through the base of the slcull, after which a 
suction oar.liAr.Ar Is inaartod CO remove the brain of the 
fetua. This results in collapse of the fetal a)cull to 
facilitate delivery of the fetus. frata this 



(104) 



105 



Congressman canady/page 2 

description there is nothing misleading about 
daacribing this procadure as a "partial -birth 
abortion, " because in most o£ the cases the fetus is 
partially bom while alive and then dies as a direct 
result o£ the procedure (brain aspiracion) which allows 
completion of the birth. 

AB raoard a when fetal death occurs during thlfl procedure; 

Although I have never witnessed this procedure, it 
seems likely from the description of the procedure by 
Dr. Haskell that many if not all of the fetuses 
involved in this procedure are alive until the ecisaors 
and the suction catheter are used to remove brain 
tissue. (1) Dr. Haskell, explicitly contrasts his 
procedure with two other late abortion methods that do 
induce fetal death prior to removal of the fetus (these 
alternative methods being Intra-amniotic infusion of 
urea, and rupture of the membranes and severing of the 
umbilicea cord) . (1) Also, Doctors Haskell, in an 
interview with Diane Gianelli of American Medical Hews 
that the majority of the fetuses aborted this way are 
alive until the end of the procedure." (2) This is 
consistent with the observations of Brenda Shafer, R.N. 
who, in a letter to Congressman Tony Hall, described 
partial -birth abortions performed by Dr. Haskell which 
(3) 



Moreover, in a document entitled "Testimony Before 
the House Subcommittee on the Constitution", June 23, 
1995, Dr. James McMahon states ttot narcotic analgesic 
medications given to the mother induce "a medical coma" 
in the fetus, and he implies that this causes "a 
neurological fetal demise." (3) This statement 
suggests a lack of understanding of maternal /fetal 
pharmacology. It is a fact that the distribution of 
analgesic medications given to a pregnant woman result 
in blood levels of the drugs which are leas than those 
m the mother. Having cared for pregnant women who for 
one reason or another required surgical procedures In 
the second trimester, Z know that they were often 
heavily sedated or anesthetized for the procedures, and 
the fetuses did not die. 

Or. Dru Carlson, a maternal/fetal medicine 
specialist from Cedars- Sinai Medical Center in Los 
Angeles, writes that she has personally observed Or. 
McMahon' perform this procedure. In a letter to 
congressman Henry Hyde she described the procedure and 
wrote that after the fetal body is delivered, it is 
removal of cerebrospinal fluid from the brain that 
causes Instant brain herniation and death. (5) This 
statement clearly suggests that the fetus is alive 
until the suction device is inserted into the brain. 



106 



Congressman Caiudy/page 3 



Ab reoarda whather tha fatua experiences pain during ehin 
pracndurfl : 

Or. McMahon states that ttia fetus feels no pain through 
the entire series of procedures. (4) Although it is 
true that analgesic medications given to the mother 
will reach in the fetus and presumably provide some 
degree of pain relief, the extent to which this renders 
this procedure pain free would be very difficult to 
document. I have performed in-utero procedures on 
fetuses in the second trimester, and in these 
situations the response of the fetuses to painful 
stimuli, such as needle sticks, suggest that they are 
capable of experiencing pain. Further evidence that 
the fetus is capable of feeling fatal pain is the 
response of extremely preterm infanta to painful 
stimuli. 

^B rgqardfl tfta accuracy qC the illuatratAiflap ot this 

procedure which have been diatrlbutad by the National Rial^t 

to faits cqmnUctBflL 

Z have read the letters dated June 12, 199S and 
June 27, 1995 sent to members of Congress by the 
National Abortion Federation, which state that the 
drawings of the partial -birth abortion procedure that 
have been distributed by you and by the National Right 
to Life CoBinittee are "highly imaginative. . .with little 
relationship to the truth" and "misleading." (6,7) 

Having read Dr Haelcell's paper (X), I can assure 
you that these drawings accurately represent the 
procedure described therein. Furthermore, Dr. Haskell 
la reported as saying that the illustrations were 
accurate "from a technical point of view," (2) First 
hand renditions by a professional medical illustrator, 
or photographs or a video recording of the procedure 
would no doiibt be more vivid, but not necessarily more 
instructive for a non-medical person who is trying to 
understand bow the procedure is performed. 

Ap reqarti taa incact oC the faanainq or the procedure on 

other ia<»ieafce«l <.f».^>laT->< madical proeedureB; 

Critics of your bill who say that this legislation 
will prevent doctors from performing certain proceduraa 
which are standard of care, such as cephalocentesis 
(removal of fluid from the enlarged head of a fetus 
with the most severe form of hydrocephalus) are 
mlstalcen. In such a procedure a needle is Inserted 
with ultrasound guidance through the mother's abdomen 
Into the uterus 2md then into the enlarged ventricle of 
the brain (the space containing cerebrospinal fluid) . 



107 



Congresaman Caz^ady/page 4 

Fluid is Chen withdrawn which rcBulta in reduccion in 
the size of the head so Chat delivery can occur. This 
procedure is not intended to kill the fetus, and. In 
Cacc, is usually associated with the birth of a live 
infant. This is an important distinction between a 
needle cephalocentesia which is intended to facilitate 
Che birth of a living facus as contrasced with the 
procedure described by Doctors Haskell and McMahon, 
which is intended to kill a living fetus which has been 
partially delivered. 

The technique of Che parcial-birch cUoorclon could be 
used Co remove a fetus chat had died in ucero of 
natural causes or accident . Such a procedure would not 
be covered by the definition in your bill, because it 
would not involve i;'*'^>-i«Hy lieliveving a live fcCuc and 
then killing ic. 

As regards viability of prgewrm infanta in the second 

trimeeter af prggnancx; 

I have reviewed a "fact sheet" distributed by the 
National Abortion and Reproductive Rights Action League 
(HAKAL) in opposition to your legislation. (8) This 
document states, "Very few premature infants bom at 24 
weeks' gestation actually survive. The chance for 
survival at 25 weeks' gestation is lO-lSt; one week 
later -- at 26 weeks -- the chances of survival double 
to 24-45%. A survival rate of 50% is achieved only in 
live births at 27 or more weeks gestation." These 
figures are outdated and misleading, in a recent study 
from the National Institute of Child Health and Human 
Development Neonatal Network, survival was documented 
in a large number of premature infants bom at the 
seven participating institutions. (9) At 23 weeks 
gestation the neonatal survival was 23 percent and at 
24 weeks' gestation survival was 34 percent. As you 
can see in Figure 3 in the enclosed article by Maureen 
Hack ec al., there are wide inter- institutional 
variations in neonatal survival at each gestational 
age. For exarq)le, at 24 weeks' gestation neonatal 
survival varied from a low of 10 percent to a high of 
57 percent. This data applies to Infants bom without 
major congenital defects. 

I trust this information will be helpful . 

Respectfully, / ^C^. Watson Botres. an internationally 

/a / /I TP A recognized authority on maternal and fetal 

^^>C4VK '/ ije^tM^l aedicine, is a professor of both obstetrics/ 

Vntman II Bow^a iW M D gynecology and pediatrics. He is co-editor 

Professor of obstetrical and a^necolocical Sur^.u . ,„„ 

/las served on the Congressional Biomedical 
Ethics Advisory Committee.] 



Appendix 3 —Letter, With Enclosure, Dated June 8, 1995, to 
Keri D Harrison, Assistant Counsel, Subcommittee on the 
Constitution, From Eve Surgical Centers Medical Corp. 



^^k ^^ Eve Sursical Centers 






-fta -2^?-^'''^'^''^'^^^^ . /^ ^ -f^^^J 



10150 National Boulevard • West Um Ani 
18411 Clarlt Street • Suite 102 • Tarzar 



109 



% Flawed Fetus Vs. LOG 




Length Of Gestation 

(Weeks) 



Graph A 



Percentage that are flawed fetuses vs. length of gestation. 

This demonstrates that as the length of gestation increases, the 
percentage of fetuses that are flawed increases also. 

After 26 weeks, those pregnancies that are not flawed are still non- 
elective. They are interrupted because of maternal risk, rape, 
incest, psychiatric or pediatric indications. 



Graph A 



110 



Fetal Indications 



XANEOUS (66 Types) 


Incidence 


2 vessel cord 




abdominal eventrition 




abdominal tumor, non-specific 




abdomino-thoracopagus twins 




abdomino-thoracopagus twins/ sing heart 




alpha thalassemia major 




amniotic band syndrome 




anasarca 


12 


anhydramnios 


16 


anophthalmia 




ascites 


17 


asymmetrical growth retardation 




atretic umbilical cord at attachment 




Bachman-Comelia-Delange Syndrome 




Beckwith Weideman syndrome 




bicephaly 




bilateral hydrothorax 




bowel obstructionn 




choroid plexus cysts 




cleft lip/plate 




clover leaf syndrome 




conjoined twins 




cord accidents 


21 


Cri du Chat syndrome 




cystic adenomatoid malformation 




cystic fibrosis 




cystic hygroma 


24 


cystic placenta 




diaphragmatic hernia 




Duchenne's muscular dystrophy 




duodenal atresia 




dysmorphic facies 




epidermolysis bullosa 




fetal to fetal transftision 




Eraser's sjmdrome 




Fryn's syndrome 




galactocerebrosidase deficiency 




gastroschisis 





Page 1 



Ill 



Fetal Indications 



MISCELLANEOUS (66 Types) (Cont'd) 



Incidence 



Holt-Oram syndrome 1 

hydrops fetalis 9 

hypophosphotasia 1 

ichthyosis 1 

intrauterine fetal demise 128 

incfauterine growth retardation 1 

Krabbe leukodystrophy 1 

limb-body wall defect 2 

liver tumor, non-specific 1 

Meckel-Gruber syndrome 3 

meconium peritonitis 1 

Merzbacher disease 1 

multiple congenital anomalies, non-specific 25 

Neu-Laxova syndrome 2 

Noonan's syndrome 1 

occular hypoplasia of the orbits 1 

oligohydramnios 52 

omphalocoele 7 

placental insufficiency I 

polyhydramnios 22 

pulmonary atresia 1 

sacrococcygeal teratoma 2 

sirenomelia 2 

Sjogren-Larsson syndrome 1 

Smith-Lemli-Optiz syndrome 1 

Tay Sachs 1 

teratogenic exposure 22 

viral exposure 1 



Total 



ANEUPLOIDYS (50 Types) 



Incidence 



46XX14qt 


1 


47XYY 


5 


5p syndrome 


1 


aneuploidy, NOS 


11 


chromosome 8 with an extra p 


1 



Page 2 



112 



Fetal Indications 



ANUEPLOIDYS (50 Types) (Cont'd) 



Incidence 



chromosome 6 with pericentric inversion 

chromosome 8, with q inversion 

deletion 5p partial 46XXY 

deletion, chromosome 1 1 

deletion, partial of chromosome 10 

fragile X 

isochrome Y 

isodicentric X chromosome 

Klinefelter's (XXY) 

marker chromosome 

monosomy 18p 

monosomy, partial 1 3 

mosaic 1 5 inversion 

mosaic 45 XO (25%) 

mosaic karyotype, non-specific 

mosaic KJinefelters 

mosaic ring 18 

mosaic trisomy 20 (53%) 

mosaic trisomy 21 

mosaic Turners 

mosaic, isochrome 1 8p marker 

partial Y chromosome 

ring 19 chromosome 

ring chromosome 20 

translocation, balanced 21; 22 

translocation, balanced 3/17 

translocation, occult 18p or 13q 

translocation, paternal balanced 11-18 

translocation,unbalanced chromosome 13 

translocation,X/17 (q21.2:pl2) 

tnploidy 

trisomy 5p 

trisomy 7 

trisomy 9 

trisomy lip 

trisomy 12 

trisomy 13 

trisomy 15 



28 




Pages 



113 



Fetal Indications 



ANEUPLOIDYS (50 Types) (Cont'd) 



Incidence 



trisomy 18 

trisomy 20 

trisomy 21 

trisomy 21p 

trisomy 22 

trisomy X 

Turner's syndrome (45, XO) 



38 

1 

175 

1 

2 

7 

14 



Total 



359 



NEURAL TUBE DEFECTS (18 Types) 



Incidence 



agenesis of corpus collosum 
anencephaly 


2 
29 


Arnold - Chiari malfonnation 


3 


brachycephaly 
cerebral ventriculomegaly 
cistema magna cyst 
cortical agenesis 
Dandy- Walker syndrome 


1 
2 
1 
1 
10 


dolichocephaly 
encephalocoele 
holoprosencephaly 


4 

14 

18 


hydrocephaly 
intracranial teratoma 


72 
2 


meningomyelocoele 


15 


microcephaly 

neural tube defect, non-specific 

porencephalic cyst 

spina bifida 


6 

9 

1 
28 



Total 



215 



OSTEODYSPLASIA (18 Types) 



Incidence 



achondrogenesis 
achondroplastic dwarfism 



Page 4 



114 



Fetal Indications 



OSTEODYSPLASIA (18 Types) (Cont'd) 



Incidence 



agenesis lumbo-sacral spine 
arthrogryposis 
camptomelic dysplasia 
caudal dysplasia 
digital agenesis 
dwarfism, non-specific 
dwarfism, thanatophoric 
dysmorphic upper extremities 
focal femoral hypoplasia 
focomelia (Thalidomide) 
hypoplastic lower extremity 
micromelia, non-specific 
osteodysplasia punctata 
osteogenesis imperfecta 
rhizomelia, non-specific 
skeletal dysplasia, non-specific 



Total 



CONGENITAL HEART DEFECTS (17 Types) 



Incidence 



3 chambered heart 
atrio-ventricular defect 
cardiomyopathy 
CHD - non specific 
coarctation of the aorta 
dextro cardia 
Ebstein's anomaly 
hypoplastic left heart 
hypoplastic right heart 
pericardial effiision 
pulmonic atresia vs. stenosis 
translocation of the great vessels 
tetrology of fallot 
tricuspid atresia 
tricuspid regurgitation 
ventricular septal defect 
ventriculomegaly 



Pages 



115 

Fetal Indications 

CONGENITAL HEART DEFECTS ( 1 7 Types) (Cont'd) Incidence 



58 



RENAL DISEASE (13 Types) 

adrenal hypoplasia 

bilateral renal agenesis 

fetal nephropathy 

hydronephrosis 

megacystis 

multicystic kidneys 

nephrosis 

polycystic kidneys 

Potter's syndrome 

prune belly syndrome 

renal dysplasia 

urinary outlet obstruction 

uro-rectal malformation sequence syndrome 

Total 



41 



Page 6 



116 

Maternal Indications 



LLANEOUS (47 Types) 


Incidence 


abortion failure 




abruptio placenta 


11 


acute amnionitis 




acute varicella 




alpha thalassemia 




anesthesia/radiation exp. 




anti-phosphoUpid syndrome 




aplastic anemia 




auto accident 




auto immune disease 




cardiomyopathy 




coagulation disorder 




consanguinity 




depression 


39 


diabetes mellitus 




didelphic uterus 




dyspnea on exertion 




eclampsia 




electrolyte disturbance 




hemoptysis 




hyperemesis gravidarum 




hypofibrinogenemia 




impending spontaneous abortion 




incest 




incompetent cervix 




incomplete spontaneous abortion 




induction failure 


14 


malignant melanoma 




meningioma 




mental retardation 




metastatic breast carcinoma 




metastatic lung cancer 




paranoid schizophrenia 




pediatric pelvis 




pituitary tumor 




progressive dyspnea 




prolapsed uterus 




PROM 


15 



Pagel 



117 



Maternal Indications 



MISCELLANEOUS (cont'd) 
ruptured appendix 


Incidence 
1 


SA hemoglobinopathy 
sexual assault 


1 
19 


spont. septic ab 1 


spousal drug exp. 


2 


subchorionic hematoma 1 


substance abuse 


7 


TBC, pulmonary 1 


thrombocytopenia 


1 


UGl bleeding 


1 




Total 


175 



Page 2 



118 



# 


160 
140 
120 
100 

80 

60 

40 

20 - 



Major Complications 












H - Hemorrhage 




I -Infection 




H 




H 




I 




llll "" ** 


-.11 


llil.l. . . . 


Length Of Gestation 

(Weeks) Graph B 



Major complications. 

In this series, there were five major complications. 

The background is generated by a bar graph which shows the 
number of cases at each length of gestation. 

The first Hsted (see Table 1) was an infection that occurred the 
second week after surgery. It persisted in spite of outpatient 
antibiotics. Using a trans-esophageal ultrasound vegetations on the 
cardiac valves were seen consistent with subacute bacterial 
endocarditis. She was treated with intravenous antibiotics for six 
weeks, two weeks in the hospital and four weeks as an outpatient. 
She recovered without sequelae. 

The remaining four complications involved hemorrhage. Two 
occurred during the dilatation process and two during the 
extraction. The latter two were caused by disseminated 
intravascular coagulopathy (DIC). Three out of the four were 
transfused. The one at 40 weeks had ftilminant fibrinolysis and had 
over 100 units of blood products administered. The other two 
patients needed transfusions of four units each. The longest 
hospitalization was 14 days. 



Graph B 



119 



Major Complications 



Case# 


Date 


LOG 


Age 


G 


P 


A 


C-Section 


Dx 


Time & Type of Complication 


' 


12/28/91 


28 


33 


4 


1 


3 


Yes 


Omphalocoele 


Time 
Type 


Delayed 
Infection 


2 


2/6/92 


32 


37 


4 


2 


' 


Yes 


Hydrocephaly 


Time 
Type 


Dilatation 
Hemorrhage 


3 


3/9/93 


28 


30 


6 


2 


4 


Yes 


Fetal Anasarca 
Polyhydramnios 


Time 
Type 


Dilatation 
Hemorrhage 


4 


4/14/93 


40 


39 


3 


1 


2 


Yes 


Fetal Demise 
Die 


Time 
Type 


Extraction 
Hemorrhage 


5 


12/9/94 


24 


43 


9 


5 


4 


Yes 


Potter's Syndrome 
Die 


Time 
Type 


Extraction 
Hemorrhage 



Case# 


Acute Blood Loss 


Transfusion No. of Units 


Days of Hospitalization 


Final Disposition 




75 cc 





14 


Recovered 




1500 cc 


4 


5 


Recovered 




500-600 cc 





1 


Recovered 




>1500cc 


>100 


12 


Recovered 




650cc 


4 


3 


Recovered 



The above tabulates the main characteristics of the 5 major complications in 
this series of more than 2,000 IDE cases. 

All were more than 30 years old, had children by prior c-section and were more 
than 5 1/2 months pregnant. 

Although this limited experience is not statistically significant, our major 
complication rate using intact D&E is approximately 1% at extreme lengths of 
gestation ( 24 to 40 wks). 



* Major complications are defined as death, hysterectomy, unscheduled surgery, persistent temperature greater than 101° for 
three days or blood loss requiring transfusion. 



120 





Average Estimated Biood Loss Vs. LOG 




160 




f-l 'SO 


l-W 




« 


T 


160 


120 

100 

# 80 




Avg»63ccs / 


^ 


140 
120 

""CCS 


60 
40 




ll> 


-— 


60 
40 


20 



:riii 


Hill.... 




20 


:::;2:£2S?JS;5SSS!;? 


s 






Length Of GesUtion 
(Weeks) 


Graph C 



Average estimated blood loss vs. length of gestation. 

This figure shows two things. The background is a bar graph in 
which the number of cases is shown at each length of gestation. 
Overlying this is a line graph whose points are made up of the 
averages of blood loss for each length of gestation. 

In general, the blood loss increases as one proceeds from 12 to 40 
weeks, but does not increase substantially. The horizontal line 
shows the average blood loss for the entire case population, which 
was 63 cc. 



Graph C 



121 



Intrauterine Cranial Decompression 

CSF REMOVED VS LOG 



LOG Weeks 


Average 


Maximum 


11-16 


13 cc 


104 cc 


17 


20 cc 


53 cc 


18 


26 cc 


122 cc 


19 


32 cc 


177cc 


20 


39 cc 


180cc 


21 


54 cc 


200 cc 


23 


80 cc 


200 cc 


24 


103 cc 


405 cc 


25-29 


142 cc 


600 cc 


30-34 


260 cc 


505 cc 


35-40 


320 cc 


725 cc 



Based upon our experience, this table provides a general 
guide to the surgeon as to the average amount of cerebral 
spinal fluid to remove before intact delivery of the calvarium 
can be expected. 

It should be noted that the necessary amount is at times four 
times the average due to some extreme conditions in which 
the brain is essentially absent and replaced by liquid. 



Table 2 



Appendix 4. — Statement of National Right to Life Committee, 

Inc. 



gnolioAol 
RIGHT TO LIFE 



12293 - 12021 626-88(§/ Jlk/(9J7.9189 or 3<7 5907 



cemmilUCfinc. 



(202) 626-8820 



PARTIAL-BIRTH ABORTIONS; MISIHFORmTIOW AND REBUTTAL 

Over the past several uteeks, pro-abortion advocacy groups such as the National 
Abortion Federation and NARAL have disseminated a litany of misinformation 
regarding the partial-birth abortion procedure and the Partial-Birth Abortion 
Ban Act (HR 1833, S. 939). Some journalists have uncritically reported some of 
these claims as fact. This memo summarizes some of this misinformation and 
provides rebuttal documentation. 

MISINFORMATION; THE BILL AFFECTS ONLY ■TWIRD-TOnCSTER- ABORTIONS' 

MISINFORMATION; Los Angeles Times, June 16: "The procedure [banned by Rep. 
Canady's bill] makes up only 0.04\ of all abortions performed after 24 weeks of 
gestation, or about 200 a year.° 

CRITIODE; This statement incorrectly conveys that the Partial-Birth Abortion 
Ban Act would ban use of the procedure after 24 weeks. In fact, the partial- 
birth method is generally used starting at 20 weeks (four and one-half months, 
or halfway through the second trimester)— and the bill bans use of the method 
at any stage of development. As Congressman Canady pointed out in his statement 
opening a June 15 hearing before the House Judiciary Constitution Subcommittee: 

Some press accounts have already erroneously reported that this is a bill 
to, quote, "ban third-trimester abortion," unquote. That is incorrect. 
The bill is addressed to a particular class of abortion procedures... This 
bill would prohibit the deliberate killing of a baby who has already been 
partly delivered into the birth canal, whatever the gestational age. 

MISINFORMATION; THERE ARE "ONL Y' 200 SUCH ABORTIONS A YEAR 

MISINFORMATION; Los Angeles Times, June 16: "The procedure [banned by Rep. 
Canady's bill] makes up only 0.04* of all abortions performed after 24 weeks of 
gestation, or about 200 a year." 

CRITIQUE: With respect to the bill, the pertinent question is not how many 
third-trimester abortions there are, but how uny partial-birth abortions there 
are— whether they are perforaed in the second trimester or the third trimester. 

One of the most complete reports on the procedure appeared in the June 5, 1993 
edition of American Medical News, the official newspaper of the "pro-choice" 
American Medical Association. The AM Nei^ reporter interviewed Dr. James 
McMahon— who claims to have invented the method— and Dr. Martin Haskell, who 
wrote a monograph explaining how to perform the procedure that was distributed 
by the National Abortion Federation in 1992. Their statements will be referred 
to repeatedly in this memo. 

Dr. McMahon has circulated literature in which he refers to having performed a 
"series" of "more than 2,000" abortions by the partial-birth method (which he 
calls "intact dilation and evacuation"). 



(122) 



123 



THE PARTIAL-BIRTH ABORTION BAN ACT. MISINFORMATION AND REBUHAL. PAGE 2 

(However, In the article by Karen Tumulty that appeared In the January 7, 1990 
issue of Los Angeles Tims Magazine, Dr. McMahon was quoted as saying, "Frankly, 
I don't think I was any good at all until I had done 3,000 or 4,000,' referring 
to abortions "in later pregnancies." The article also reported that Dr. McMahon 
performs 400 "later abortions" a year. In literature he has circulated seeking 
abortion referrals. Dr. McMahon strongly advocates the partial-birth method for 
late abortions, so presumably most of his late abortions are being done using 
this method.) 

As for Or. Haskell, he said In his 1992 paper that he had performed "over 700" 
such abortions. His wife recently told an Ohio paper that he performs 'less 
than 200" a year. 

At least 'a handful' of other doctors also use the procedure (AM News), but have 
not chosen to circulate papers or give interviews as have Drs. Haskell and 



Thus, the total number of partial-birth abortions perforaed Is 
certainly substantially exceeds the figure used In the Los Angeles Tim^. 

How many third- trimester abortions are there? Nobody really knows. As American 
Medical News reported (July 5, 1993): 

Accurate figures on second- and third-trimester abortions are elusive 
because a number of states don't require doctors to report abortion 
statistics. For example, one-third of all abortions are said to occur in 
California, but the state has no reporting requirements. The 
Guttmacher Institute [an arm of Planned Parenthood] estimates there were 
nearly 168,000 second- and third-trimester abortions in 1988... with 10,660 
at week 21 and beyond. 

There is a particular debate over the number of third-trimester abortions. 
Former Surgeon General C. Everett Koop, MD, estimated in 1984 that 4,000 
are performed annually. The abortion federation [National Abortion 
Federation] puts the number at 300 to 500. Dr. Haskell says that 'probably 
Koop's numbers are more correct.' 
[Emphasis added] 



^!^ 



^nOW; PABTI AL-BIRTW ABOWTI OIIS ARE 0».Y PERFOWB) 
TH^ WTHffl'? UFE OR on F^SK "HO C*IWOT ^URV^YS 



mSIHFOBHAnOII; Los Angeles Times, June 16, 1995: 'Typically, it is used in 
late pregnancies to save a mother's life or after the detection of severe fetal 
abnormalities." 

MISmFORMATIOII; The New York Times (June 19, 1995): '[HR 1833 / S. 939 is] a 
bill to outlaw one of the rarest types of abortions— a highly specialized 
procedure that is used in the latter stages of pregnancy to abort fetuses with 
severe abnormalities or no chance of surviving long after birth.' 

CRITIQUE; These two newspapers uncritically accepted claims made in a 
■factsheet' distributed by NARAL at the June 15 hearing. But these statements 
are inconsistent with the plain language of the bill and with public statements 
by the most visible practitioners of the partial-birth abortion procedure, Dr. 
James McMahon of Los Angeles and Dr. Martin Haskell of Dayton. * 



124 



THE PARTIAL-BIRTH ABORTION BAN ACT, MISINFORMATION AND REBUHAL, PAGE 3 

In the 1993 American Medical Netts article cited above, neither Or. Haskell nor 
Or. McMahon has said that they use the method only in such cases. On the 
contrary, as AM Nevis reported: 

Dr. Haskell said he performs abortions "up until about 25 uteeks' gestation, 
aost of thea elective. Dr. McMahon does abortions through all 40 Meeks of 
of pregnancy, but said he mon' t do an elective procedure after 26 t*eeks. 
About 50% of those he does after 21 weeks are nonelective, he said. 

Tlius, Dr. Haskell said that most of the partial-birth abortions that he perforas 
are— even by his own definition— "elective." Or. McMahon acknoMledged that, 
even after 21 Meeks, 20* of the partial-birth procedures he perforas are— even 
by his expansive standards— "elective." 

Dr. McMahon has also produced literature in which he explains sone of the 
reasons that he regards as "non-elective," including "depression," "pediatric 
indications" (i.e., the mother's youth), and a wide variety of fetal or maternal 
health problems that are not life threatening. 

After conducting interviews with Dr. McMahon, reporter Karen Tumulty wrote in 
the Los Angeles rimes Magazine (January 7, 1990): 

If there is any other single factor that inflates the number of late 
abortions, it is youth. Often, teen-agers do not recognize the first signs 
of pregnancy. Just as frequently, they put off telling anyone as long as 
they can. 

It is also noteworthy that when NRLC originally publicized the partial-birth 
abortion procedure in 1993, the then-executive director of the National Abortion 
Federation distributed a memorandum to the members of that organization which 
acknowledged that such abortions are performed for many reasons: 

"There are many reasons why women have late abortions: life endangerment, 
fetal indications, lack of money or health insurance, social-psychological 
crises, lack of knowledge about human reproduction, etc." [emphasis added] 

The June 12, 1995 letter from NAF to members of the House of Representatives 
noted that late abortions are sought by "very young teenagers... who have not 
recognized the signs of their pregnancies until too late," and by "women in 
poverty, who have tried desperately to act responsibly and to end an unplanned 
pregnancy in the early stages, only to face insurmountable financial barrier.* 

[At the June 15 Constitution Subconmittee hearing. Dr. Pamela Smith, director of 
medical education in the Department of Obstetrics and Gynecology program at Mt. 
Sinai Hospital in Chicago, testified that in a true life-endangering emergency, 
no physician would rely on this method, which must be performed across three 
days (including the two days of preparation).] In any event, the bill contains 
a 1 if e-of -mother exception. 

MISIWFORMATIOM; THE DRAWINGS ARE INACCURATE 

MISINFORMATION; On June 12, the National Abortion Federation— an association 
of abortion providers— sent a letter to House members in which NAF claimed-- on 
the authority of Or. J. Courtland Robinson of Johns Hopkins— that the drawings 
of the partial-birth abortion procedure distributed by Congressman Canady in « 
letter to House members were "highly imaginative" and "misleading." 



125 



THE PARTIAL-BIRTH ABORTION BAN ACT, MISINFORMATION AND REBUTTAL, PAGE 4 

CRITIQUE; At the June 15 hearing before the House Judiciary Constitution 
Subcomnittee, Dr. Robinson— testifying on behalf of the National Abortion 
Federation— retreated from this charge. Dr. Robinson agreed with Congressman 
Canady's statement that the drawings— which were arrayed on posters next to the 
witness table— were "technically accurate." Dr. Robinson also testified 
regarding the drawings: 

That is exactly probably what is occurring at the hands of the two 
physicians involved. 

After interviewing partial-birth abortion method specialist Dr. Martin Haskell, 
American Medical News reported: 

Dr. Haskell said the drawings were accurate "from a technical point of 
view." But he took issue with the implication that the fetuses were 
"aware and resisting." 

Professor Watson Bowes of the University of North Carolina at Chapel Hill, who 
is an internationally recognized authority on fetal and maternal medicine, also 
reviewed Dr. Haskell's 1992 monograph on how to perform the procedure, and wrote 
that these drawings are "an accurate representation of the procedure described 
in the article by Dr. Haskell." 

MISINFORMATION; THE BABIES ABE DEAD 
BEFORE THE PARTIAL DELIVERY IS PERFORMED 

MISINFORMATION; The June 12 National Abortion Federation letter claims that 
"fetal demise is virtually always induced by the combination of steps taken to 
prepare for the abortion procedure." 

CRITIQUE; In interviews with the American Medical News, Doctors Haskell and 
McMahon "told AM News that the majority of fetuses aborted this way are alive 
until the end of the procedure." 

Dr. Haskell himself, in an interview published in the Dec. 10, 1989 Dayton News, 
referred to the scissors thrust as the lethal act. 

'When I do the instrumentation on the skull... it destroys the brain 
sufficiently so that even if it (the fetus) falls out at that point, it's 
definitely not alive," Dr. Haskell said. 

Dr. Watson Bowes of the University of North Carolina at Chapel Hill, professor 
of maternal and fetal medicine and co-editor of the Obstetrical and 
Gynecological Survey, reviewed Dr. Haskell's 1992 monograph and noted that Dr. 
Haskell quite explicitly contrasts the partial-birth procedure with other late- 
term abortion methods that do induce fetal death within the uterus. Professor 
Bowes concluded that the fetuses are indeed alive at the time that the procedure 
Is performed. 

MI?IHFqRM^TIQW: THE BABY DQ^'T FEg. PAIH DURINg TK. WRT^QH 

Dr. J. Courtland Robinson, the obstetrician who testified on behalf of the 
National Abortion Federation on June 15, insisted, "In no case is pain induced 
to the fetus. If neurological development at the stage of the abortion being 



126 



THE PARTIAL-BIRTH ABORTION BAN ACT, MISINFORMATION AND REBUTTAL, PAGE 5 

performed even made this possible, which in the vast majority of cases it does 
not, analgesia and anesthesia given to the woman neutralize any possibility of 
fetal pain." However, Or. Robinson retreated substantially from this assertion 
under questioning from subcommittee members. 

(Note: Dr. Haskell's 1992 paper explicitly states that he performs the 
procedure "under local anesthesia" and nitrous oxide, which would have no effect 
on the baby.) 

Professor Robert Hhite, Director of the Division of Neurosurgery and Brain 
Research Laboratory at Case Western Reserve School of Hedicine, told the 
Constitution Subccoiittee, 'The fetus within this tiae fraae of gestation, 20 
Meeks and beyond, is fully capable of experiencing pain." Dr. White analyzed 
the partial-birth procedure step-by-step and concluded, "Without doubt, this is 
a dreadfully painful experience for any infant subjected to such a surgical 
procedure." [Prof. White's testimony is available from NRLC upon request.] 

DOES THE BILL VIOUTE SUPREME COURT PRECEDEWTS? 

In written testimony submitted to the House Judiciary Constitution Subconnittee, 
David Smolin, a professor at Cumberland Law School at Samford University, 
testified that he believed that the Partial-Birth Abortion Ban Act could be 
upheld even under the Supreme Court precedents that block most government 
limitations on abortion. 

"The spectre of partially delivering a fetus, and then suctioning her brains, 
may mix the physician's disparate roles at childbirth and abortion in such a way 
as to particularly shock the conscience," he said. "It is possible that at 
least some of the fetuses killed by partial-birth abortions are constitutional 
persons. The Supreme Court held in Roe v. Hade that the word person, as used in 
the Fourteenth Amendment, does not include the unborn. The Court, however, has 
never addressed the constitutional status of those who are 'partially born." 
[Prof. Smolin's complete testimony is available on request.] 

However, pro-abortion advocacy groups insist that the partial-birth abortion 
procedure is completely protected by Roe v. Hade. If this is true, it will be 
news to a lot of people, and is a powerful argument for re-examining Roe v. 



WHAT SHOULD THIS PROCEDURE BE CALLED? 

Dr. Martin Haskell, in his 1992 NAF paper on how to perform the procedure, wrote 
that he "coined the term dilation and extraction" or "0 & X." However, that 
nomenclature is rejected by Dr. James McMahon of Los Angeles, who has claimed 
that he invented the method and has performed it thousands of times. Or. 
McMahon refers to the method as "intact dilation and evacuation" and as 
"intrauterine cranial decompression." (Or. Haskell's paper refers to Dr. 
McMahon's approach as "a conceptually similar technique.") 

The bill creates a legal definition of "partial-birth abortion" that Mould ban 
any variation of the procedure — no aatter what new Idiosyncratic naae any 
abortionist Invents for It— If It Is "an abortion in which the person 
perforalng the abortion partially vaginally delivers a living fetus before 
killing the fetus and coapletlng the delivery." 



127 



THE PARTIAL-BIRTH ABORTION BAN ACT, MISINFORMATION AND REBUHAL, PAGE 6 



Thus, it is incorrect to report that the bill would "ban D & X' abortions, 
because the term "0 & X" refers to only one doctor's "coined" phrase for a 
sub-class of the abortion procedures that would be banned by the bill. 

In any event, is referring to the procedure as a "partial-delivery" or "partial- 
birth" accurate, or misleading? In his 1992 paper explaining how to perform the 
procedure, Dr. Martin Haskell wrote; 

With a lower [fetal] extremity in the vagina, the surgeon uses his fingers 
to deliver the opposite lower extremity, then the torso, the shoulders and 
the upper extremities, [emphasis added] 

Dr. J. Courtland Robinson, testifying at the June 15 hearing Constitution 
Subcommittee on behalf of the National Abortion Federation, testified, "Never in 
my career have I heard a physician who provides abortions refer to any technique 
as a 'partial-birth abortion." But Dr. Robinson's objection seems a mere 
quibble, as he also testified: 

In our tradition we have other terms. I am surprised the word 'partial- 
extraction' was not used. This is a standard term in obstetrics that we 
use for delivering. That [term] could have been used. 

Obstetrician Dr. Pamela Smith of Mt. Sinai Hospital in Chicago testified: 

There is no uniformly accepted medical terminology for the method that is 
the subject of this legislation. Dr. McMahon does not even use the same 
term as Dr. Haskell, while the National Abortion Federation implausibly 
argues that there is nothing distinctive about this procedure. The term 
you have chosen, "partial-birth abortion," is straightforward. 



Appendix 5. — Statement of Kathryn Kolbert, Vice President, 
THE Center for Reproductive Law & Policy 

Mr. Chairman and members of the Committee, my name is 
Kathryn Kolbert. I am Vice President of the Center for 
Reproductive Law & Policy, a public interest law firm dedicated 
to protecting and advancing reproductive rights. Attorneys at 
the Center have been involved in nearly every abortion case 
decided by the Supreme Court since i?OG v. wade. Most recently, I 
argued Planned Parenthood v. Casey, the landmark Supreme Court 
decision reaffirming i?OG and establishing the undue burden 
standard as the test by which to measure the constitutionality of 
government restrictions on the right to choose abortion. Thank 
you for this opportunity to submit testimony in opposition to the 
proposal to ban so-called "partial-birth" abortions. 

H.R. 1833, the "Partial-Birth Abortion Ban Act," represents 
an unprecedented expansion of Congressional regulation of health 
care. Never before has Congress intruded directly into the 
practice of medicine by outlawing a safe medical procedure that 
is necessary in some circumstances to protect the lives or health 

1 



(128) 



129 



of pregnant women. Creation of a felony for performing a certain 
type of abortion procedure, and establishment in federal law of 
tort claims for violations of the ban, would significantly shift 
the historical balance of federal and state power. Even in the 
days before Roe v. Wade,^ it was states, not the federal 
government, which established policy on abortion, adopting varied 
policies about the legalization of the procedure. 

The ban would affect only the small number of women who 
seek abortions at twenty weeks or later in their pregnancies. 
The women who seek these late abortions do so because of dire 
circumstances; many are terminating wanted pregnancies. Women 
who seek abortions this far into pregnancy do so because of 
severe fetal anomalies, fetal death, illness exacerbated by 
pregnancy, pregnancies that sure the result of rape or incest, or 
extreme youth.' For these women, any restriction which limits 
the discretion of their physician to provide the best possible 
medical care or which limits access to services only compounds 
their physical and emotional trauma. 

Targeting these vulnerable women by sacrificing their health 
to the political agenda of those who would ban abortion 
altogether, while at the same time dramatically expanding 
Congressional control into an area of traditional state 
governance, is an ill-conceived idea which we strongly urge the 



MIO U.S. 113 (1973). 

'Warren M. Hem, MD, Late Abortion for Fetal Anomaly, 81 
Obstetrics & Gynecology 301, 304 (Feb. 1993). 



130 



CoHunittGe to reject. Most importantly, we believe that this 
proposal is an unduly burdensome and thus unconstitutional 
restriction on the reproductive rights of women, and is likely to 
be invalidated in the federal courts. 

I. -nie Partial-Birth Abortion Ban Act of 1995 

H.R. 1833 would ban the use of a particular abortion method, 
described in the bill as a partial-birth procedure. The bill 
defines "partial-birth abortion" to mean "an abortion in which 
the person performing the abortion partially vaginally delivers a 
living fetus before killing the fetus and completing the 
delivery." A person, other than the pregnant woman, "in or 
affecting interstate or foreign commerce" who knowingly violates 
the ban is subject to fines and up to two years imprisonment. In 
addition, the bill creates a civil cause of action for monetary 
and statutory deunages against those who violate the ban that cam 
be maintained by the pregnant woman, the father, or the parents 
of a minor woman, even if the woman or these third parities 
consent to the eUsortion. 

The bill provides an affirmative defense, %rtiich must be 
proved by a preponderance of the evidence, that the physician 
"reasonably believed": 

(1) the partial-birth abortion was necessary to save 
the life of the woman upon whom it was performed; and 

(2) no other form of abortion would suffice for that 
purpose . 



131 



bill,* is in fact simply a variation of the dilation and 
evacuation (D & E) abortion method, which is widely used for 
procedures done throughout the second trimester. The dilation 
and extraction procedure, however, is only employed for 
pregnancies at twenty weeks or later. Abortions performed past 
20 weeks make up only a small fraction of abortions performed in 
this country. Thus, this procedure is rarely used. 

In some circumstances, the dilation and extraction (D & X) 
method is the safest alternative for women requiring late 
abortions, and is preferable to the standard D & E method. 
Instillation and induction procedures, which are also used for 
late abortions, can be more traumatic* and pose greater health 
hazards to the woman.* In each instance, only the physician 
will be able to determine the most appropriate and safest 
procedure, based on the totality of the woman's circumstances. 



^The procedure is also referred to as dilation and 
extraction (D & X) and intact dilation and evacuation. 

*One of the disadvantages of the instillation or induction 
techniques is that the patient experiences labor, which in many 
instances is substantially more uncomfortable than normal labor 
at term. Alan F. Guttmacher, MD, The Genesis of Liberalized 
Abortion in New York: A Personal Insight, in Abortion Medicine 
and the Law 229, 244 (J. Douglas Butler and David F. Walbert eds. 
1986) . 



*Warren M. Hern, MD, Late Abortion for Fetal Anomaly, 81 
Obstetrics & Gynecology 301 (Feb. 1993). 



132 



procedure, based on the totality of the woman's circumstances, 
the available facilities, and his or her own skills. Prohibiting 
the use of the D & X method will increase the medical risks for 
some women, and prevent physicians from employing the abortion 
method that will ensure the best outcome. 



II. H.R. 1833 Creates an Undue Biirden for Moaen Seeking Post 
Twenty-Week Abortions 

In 1992, the United States Supreme Court in Planned 

Parenthood v. Casey reaffirmed what it characterized as the 

"central holding" of i?oG v. wade: 

Regardless of whether exceptions are made for 
particular circumstances, a State may not prohibit any 
woman from making the ultimate decision to terminate 
her pregnancy before viability. 

We also reaffirm Roe's holding that "subsequent to 
viaUaility, the State in promoting its interest in the 
potentiality of human life may, if it chooses, 
regulate, and even proscribe, abortion except where it 
is necessary, in appropriate medical judgement, for the 
preservation of the life or health of the mother."* 

In Casey, the Supreme Court adopted the "undue burden" 

standard for assessing state laws or regulations that restrict 

abortion. A state regulation will impose an undue burden, and 

thus be invalid under the federal constitution, if it has "the 

purpose or effect of placing a substantial obstacle in the path 

of a woman seeking em abortion."' The court explained: 

A finding of an undue burden is a shorthand for the 
conclusion that a state regulation has the purpose or 



•112 S. ct. 2791, 2821 (1992) (citations omitted). 
''Casey at 2820. 

5 



133 



effect of placing a substantial obstacle in the path of 
a woman seeking an abortion of a nonviable fetus. A 
statute with this purpose is invalid because the means 
chosen by the State to further the interest in 
potential life must be calculated to inform the woman's 
free choice, not hinder it. And a statute which, while 
furthering the interest in potential life or some other 
valid state interest, has the effect of placing a 
substantial obstacle in the path of a woman's choice 
cannot be considered a permissible means of serving its 
legitimate ends.* 

In determining whether an undue burden exists, the focus is 
on the burden the restriction places on those women affected, 
even if that group is only a fraction of the women seeking 
abortions.' The fact that only a small number of women would be 
affected by the ban on the D & X method does not, therefore, 
preclude a claim that it constitutes an undue burden. 

The bill would impose em undue burden on women seeking post- 
twenty week abortions by limiting the physician's discretion to 
choose the most appropriate method of abortion based on the 
medical needs of his or her patient. The Supreme Court has 
consistently held that physicians must retain broad discretion to 
determine the course of treatment for women seeking abortions. 

Rob stressed repeatedly the central role of the 
physician, both in consulting with the woman about 
whether or not to have an abortion, and in determining 
how any eUiortion was to be carried out. We indicated 
that up to the points where important state interests 
provide compelling justifications for intervention, 
"the aJbortlon decision in all its aspects is 
inherently, and primarily, a medical decision. "'^'^ 



*Casey at 2820. 
*Casey at 2830. 



'^"colautti V. Franklin, 439 U.S. 379, 387 (1979) (citations 
omitted ) ( emphas i s added ) . 



134 



In Planned Parenthood of central Missouri v. Danforth, the 
Supreme court held unconstitutional a ban on the use of saline 
aunniocentesls after the first 12 weeks of pregnemcy, In part 
because "It forces a woman and her physician to terminate her 
pregnancy by methods more dangerous to her health than the method 
outlawed."" 

The Supreme Court has made clear that even for post- 
viability abortions the state may not make its interest in the 
fetus paramount to women's health or require a "'trade-off 
between a woman's health and fetal survival."" Thus, a law 
requiring a physician performing an abortion to employ the 
abortion technique "which would provide the best opportunity for 
the unborn child to be aborted alive unless . . . that technique 
would present a significantly greater medical risk to the life or 
health of the pregnant women," is unconstitutional." 

Banning D & X abortions would require this same "trade-off" 
of women's health condemned by the Court in Thornburgh.'^* In 



"428 U.S. 52, 78-79 (1976). 

'^Thornburgh v. Amer. Coll. of Obst. & Gyn. , 476 U. S. 747, 
769-70 (1986), overruled in part. Planned Parenthood v. Casey, 
112 s. ct. at 2823, citing, Colautti v. Franklin, 439 U.S. at 

400. 

"Thornburgh at 768-70. 

^•Although in Casey the Court overruled those parts of 
Thornburgh which directly conflicted with its ruling on the 
mandatory delay and biased counseling requirements, the Co\irt let 
stand the remaining provisions of the ruling and in fact relied 
on rhornJburgh when defining the boundaries of permissible state 
laws on abortions. See Casey at 2817 (reaffirming the "central 
premise" of Thornburgh that prior to viability a «ioman "has a 
right to choose to terminate her pregnancy"). 



135 



some instances, both before and after viability, the statute 
would prevent physicians from employing the safest abortion 
method available, thus prohibiting the physician from making the 
mother's health his or her paramount concern. Just as the State 
cannot "interfer[e] with a woman's choice to undergo an eUx>rtion 
procedure if continuing her pregnancy would constitute a threat 
to her health,"" it cannot impose unnecessary restrictions that 
increase the risk of the procedure. 

The decision in Casey does not undermine earlier Supreme 
Court decisions invalidating restrictions that directly interfere 
with a physician's ability to make the woman's health the 
paramount concern in providing care. The Pennsylvania Abortion 
Control Act at issue in Casey created an exception to the twenty- 
four hour delay in cases of medical emergency, defined as: 

that condition which, on the basis of the physician's 
good faith clinical judgement, so complicates the 
medical condition of a pregnant woman as to necessitate 
the immediate aUx>rtion of her pregnancy to avert her 
death or for which a delay will create serious risk of 
substantial and irreversible impairment of a major 
bodily function. 

The Supreme Court upheld this definition of medical 

emergency only because the Court of Appeals interpreted it to 

apply to circumstances that "in any way pose a significant threat 

to the life ac health of a woman. "'t The Court noted: 

Petitioners argue that the definition is too narrow, 
contending that it forecloses the possibility of an 
immediate abortion despite some significant health 



"Casey at 2822. 

^•Casey at 2822 (emphasis added). 



136 



risks. If the contention were correct, we would be 
required to invalidate the restrictive operation of the 
provision, for the essential holding of Roe forbids a 
State from interfering with a woman's choice to undergo 
an abortion procedure if continuing her pregnancy would 
constitute a threat to her health. 

. . . While the definition could be interpreted in an 
unconstitutional manner, the Court of Appeals construed 
the phrase "serious risk" to include those 
circumstances. It stated: "we read the medical 
emergency exception as intended by the Pennsylvania 
legislature to assure that compliance with its abortion 
regulations would not in any way pose a significant 
threat to the life or health of a woman."" 

The decision therefore reaffirms that the Court will not 

countenance restrictions that subordinate women's health to state 

interests by imposing "any significant risk." 

These cases demonstrate not only that the ban on D & X 

procedures imposes an undue burden on women seeking post-twenty 

week abortions, but also the indisputable inadequacy of the 

affirmative defense. Under H.R. 1833, the affirmative defense is 

only available to a physician who reasonably believed that the 

procedure was necessary to save the woman's life. Thus, D & X 

procedures are prohibited even in' cases in which the physician 

reasonably believes that the use of any other method would pose a 



"Casey at 2822 (citations omitted). When reviewing the 
medical emergency exception, the Court did not distinguish 
between its application to pre- versus post-viability abortions. 
In fact, the Court made clear that even after viability the 
protection of women's health takes precedence over the State's 
interest in potential life. Casey at 2804. Moreover, in 
assessing the validity of restrictions that adversely affect 
women's health, the Court has never adopted a different standard 
for post-viability abortions. 



137 



significant risk to the woman's health. Such a result is 
patently unconstitutional. 

III. No Legit iaate state Interest Supports The Ban On D & X 
Procedures 

Prior to viability, the Supreme Court has recognized only 

two state interests that can justify restrictions on abortion: 

To promote the Stakte's profound interest in potential 
life, . . . the state may take measures to ensure that 
the woman's choice is informed, ... as long as their 
purpose is to persuade the woman to choose childbirth 
over abortion. . . . 

As with any medical procedure, the State may enact 
regulations to further the health or safety of a woman 
seeking an abortion. Unnecessary health regulations 
that have the purpose or effect of presenting a 
substantial obstacle to a woman seeking an abortion 
impose an undue burden on that right." 

The prohibition on D & X procedures serves neither of the 

interests identified by the Supreme Court as legitimate grounds 

for restricting abortion. As a pre-viability restriction, it 

cannot be characterized as furthering the state's interest in 

potential life because it does nothing to affect a woman's 

decision whether to choose childbirth over abortion. Nor does 

the bill purport to promote maternal health or safety. In fact, 

by inhibiting the physician's determination of which aJxtrtion 



"Casey at 2821. While a state may express it's preference 
for childbirth over abortion by adopting a statute declaring that 
"tu]nbom children have protectable interests in life, health, 
and well-being," such a statute cannot justify an otherwise 
invalid restriction on abortion. See Webster v. Reproductive 
Health services, 492 U.S. 490, 505-506 (1989). 

10 



138 



method is in the patients' best interest, the proposal overtly 
undermines maternal health. 

Various justifications presented to the Committee in support 
of the proposal, including preventing unnecessary cruelty to the 
fetus, and "moral outrage at partial birth abortions," directly 
conflict with the limited state interests recognized by the 
Supreme court. If these justifications provided a legitimate 
grounds for regulation of abortion. Congress would be equally 
justified in banning abortion completely, a result which is 
clearly precluded by the Casey decision." 

IV. HR 1833 Would Create Unprecedented Civil Liability 

HR 1833 would also establish federal tort claims for 
monetary and statutory damages for the performance of a D & X 
abortion. These actions may be maintained by "[t]he mother, 
father, and if the mother has not attained the age of 18 years at 
the time of the abortion, the maternal grandparents of the fetus, 
. . . even if any party consented to the performance of an 
abortion." Under the broad scope of the statute, a physician who 
performs a D & X abortion because it is the safest procedure in 
light of the woman's circumstances, with her full knowledge and 
informed consent, could nevertheless be liable to her for civil 
damages . 



^'Casey at 2811 ("the divergences from the factual premises 
of 1973 have no bearing on the validity of Roe's central holding, 
that viability marks the earliest point at which the state's 
interest in fetal life is constitutionally adequate to justify a 
legislative ban on nontherapeutic abortions"). 

11 



139 



The bill also creates unprecedented civil liability by 
allowing other third parties — the father of the fetus or a 
parent of a minor woman — to maintain a civil action. In cases 
where the pregnancy is the result of rape or incest, or where the 
father or parent has completely abandoned the pregnant woman, 
these third parties would nonetheless have standing to seek 
damages from the physician. 

The United States Supreme Court has refused to grant either 
the husband of a woman seeking abortion or the parents of a minor 
seeking an abortion absolute veto power over the woman's 
decision." In Casey, the Court struck down a mandatory husband 
notification provision in the Pennsylvania law, finding that the 
requirement would act "to prevent a significant number of women 
from obtaining an abortion,"" and thus created an "undue 
burden." Allowing fathers a cause of action based on a violation 
of the prohibition on D & X procedures is directly contrary to 
these holdings. 

The provision allowing civil suits for violations of HB 1833 
is also notable for its omission of an exception for the pregnant 
woman from civil liability. Unlike the section addressing 
criminal penalties, it appears that a woman could be sued for 



"See Planned Parenthood of Central Mo. v. Danforth, 428 
U.S. 52, 69 (1976) (a state may not require a woman to obtain her 
husband's consent before an abortion); Planned Parenthood Assn. 
ot Kansas City v. Ashcroft, 462 U.S. 476, 491 (1983) (a statute 
requiring parental consent must provide an alternate procedure 
for the minor to demonstrate she is mature or the abortion is in 
her best interests). 

"^Casey at 2829. 



140 



participating in a D & X abbrtion, threatening her ability to 
make an independent decision to choose abortion, as guaranteed by 
J?oe V. wade and its progeny. 

V. Conclusion 

We strongly urge the Committee to reject this unprecedented 
expansion of Congressional regulation of health care. Physicians 
performing abortions must be afforded a full opportunity to 
provide the safest and most appropriate care to their patients. 
Women seeking legal reproductive health care should not be made 
to sacrifice their health for those who oppose abortion for 
ideological reasons. To do so is not only dangerous public 
policy, but an unconstitutional burden. 



Appendk 6. — Statement of Marion Syversen, President, 
Feminists for Life of Maine 

Abortion hurts women. I know because ds a teen I was pregnant three tJmes before I was eighteen. 
Two of those pregnancies ended In abortions, one ended through a miscarriage after an episode of 
paternal abuse. 

In addition to my own abortion experiences, I have spoken to hiundreds of post-aborted women in 
tiie last ten /ears as I have shared my experiences and chey have told me of nightmares, suicide 
attempts, promiscuity, drug abuse all because of tiieir feelings of personal dirtiness after tlieir 
abortions. 

The scientific studies available as well as our own experiences demonstrate that the more difficult a 
woman's circumstance (abuse, rape, incest); the less support or information she receives ti>e more 
serious her trauma for YEARS following the abortion. Abortion is not the answer to ANY question 
or circumsance. 

I was pregnant at fifteen to escape the horror of my life at home which Included my physically 
abusive father and my mentally ill mother Though I sought out the advise of several adults for help, 
even a minister, all I got was cash for the procedure. Seeing nowhere to turn I aborted my first 
child. 

At seventeen when I became pregnant again and tried to run off with the father of the child, my 
mother took me to an abortion clinic instead where I begged for help in avoiding the abortion. I 
was told repeatedly by the "counselor" tiiat adoption services were not provided here, and that I 
needed to decide now or get out. I aborted again. 

At eighteen I became pregnant yet again and In a terrible scene, my father beat me so badly that I 
miscarried the child. 

I didn't have a D & X procedure. I don't believe for a minute that I need to have killed my child only 
In that way to have any authority on abortion and women. 

The post-aborted woman who testified in opposition to the bill at the public hearing on June 1 5th 
was badly treated by the medical community if she was permitted, as her testimony indicates, to 
make a decision to take her baby's life on the heals of learning the potentially difficult circumstances 



PRO WOMAN • PRO LIFE 

P.O Boi 446, Hampden, ME 04444 • Phone (207) 862-2820 • F«» (207) 862-2951 



(141) 



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Page 1 of 

Tejtimony of Marlon Syversen 

Dati:d6/I6/9S 

of her daughter's birth. Within minutes, and with her mocher-in-law assisting in the discussion, an appoinunenc 
was made for the NEXT DAY to abort the little girl 

Here in Maine we have better consumer law than was afforded to that unfortunate woman Consumer decisions 
arising from high pressure sales are ayoided with three day cool off periods for merchandise, and yet this woman 
was victimized by a doctor who assembled her family to break the news and who then promptly made an 
appointment for murder. 

The severity of her deed has hardly had a chance to setde upon her as the studies Indicate clearly, as does my own 
experience, that women generally take years, usually five to ten. before tiiey really grieve over their actions In an 
abortion 

Since I have spent so many years assisting women who suffer from sometimes paralyzing guilt over abortion my 
testimony focuses on them, on us. But I am fully aware of the agony which the unborn child endures in abortion. 

For healing to come to women who abort an honest look at the abortion performed on their child Is the best 
road to liberty and D & X abortions will pose a very difficult stumbling block for those who undoubtedly already 
have a story to tell since an earlier procedure was not pursued. 

Those stories will not all be like the one we heard of familial support. Instead they will consist of younger, abused 
and less sophisticated women, who in a variety of dysfunctional settings avoided the truth of their pregnancies, 
only to end up with a D & X abortion. 

It Is because of my own personal pain and the stories of so many women, and even In listening to the opponents of 
the legislation, ti^at I support the partial birth abortion ban and wish to really, really thank you Congressman 
Canady and members of itiis committee who are supporting this bill. 



o 



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