Y 4. J 89/1 : 104/31 ^^^^^^^^^^^
Partial-Birth Abortioni Serial Ho
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
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
Y 4. J 89/1; 104/31 ^^^^^^^^^^^
Partial-Birth fibortion* Serial Ko
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIAEY
HOUSE OF REPRESENTATIVES
ONE HXnroRED FOURTH CONGRESS
JUNE 15. 1995
Serial No. 31
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
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
June 15, 1995 1
Canady, Hon. Charles T., a Representative in Congress from the State of
Florida, and chairman. Subcommittee on the Constitution 1
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-
Watts, Tammy 71
White, Robert J., M.D., professor of surgery, Case Western Reserve Univer-
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
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
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
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
THURSDAY, JUNE 15, 1995
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
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
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
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
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
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«
Congregg of ttje ©niteb States; '"S«:^r.u
COMMITTEE ON ACRICULTUBE
Jlouse of iReprwfentatibw
ai«a£rt)ington. ffiC 20515-O912
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.
Charles T. Canady ^ Barbara Vucanovich /
Member of Congresff Member of Congress
June 12, 1995
U.S. House of Representatives
Washington, DC 20515
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
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
Vicki Saporta Gary Prol^aska, MD
Executive Director Chair
Medical Education & Advisory Committee
THE UNIVERSITY OF NORTH CAROLINA
National Right to Lif* News
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.
Watson A Bowas
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.]
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-
• The language and graphics in tfaa
'Much of I
er. IS r
invoked if one were (o liaicn to
odier surgical procedure involving bkMd.
Only Or. HmImU. JamM T. McMn-
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-
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-
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.
ea dM tiak of p erfor a iioa. leviai
hemorrhafiag. ha said. So he
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>
Continued from preceding page
at week 21 and beyond, the institute
says. Estimates were based on actual
gestational age, as opposed to last
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
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.
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."
"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
nical skilL I can taj,
hostafe to my tech-
im, *No, I won't do
Dr. Haskell, however, says whatever
qualms he has about third-thmester
abortions are "only for technical rea-
sons, not for emotional reasons of fetal
"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
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.
m m m
fli ill! ifi pi*
ef iiii iW Hi
11, 1 ii 1 i
THE UNIVERSITY OF NORTH CAROLINA
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
Fsdsral L«glslatlv« Dlrsctor
National Right to Life Comnittaa, Inc.
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.]
Second Trimester Abortion:
From Every Angle
Fall Risk Management Seminar
Presentations, Bibliography & Related Materials
Dilation aad Extraction
for Late Secood Trimester Abortion
Marti-i Haskell. MD.
Presented at th« National Abortion Federauon
Risk Managemeot Stnitnar. September 13, 1992
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
The author has performed over 700 o f these procedures vitb a bw rate of
complications. j jJLj^
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
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
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
DESCRIPTION OF DILATION AND EXTRACTION METHOD
Dilation and extraction takes place over three days. In a DutsbeU. O&X caa be
described as (bllows:
Raal-ttme ultrasound wisualizatioD
Versiea (as Deeded)
Fetal skull deeompreaaioa
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.
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-
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 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,
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
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
Patients allergk to tatracydinca are not given preplylactic aatibiotws.
Ergotrata 0.2 ragm by mouth four times daily Car three days is dispensed to
Pitocin 10 lU intramuscularly is adminiatered upon removal of the Dilapan on
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
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
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
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
:.- 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.
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
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
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.
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
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
Congressman Charles D. Canady
June 22, 1995
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.
Martin Haskell, MD^
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.
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
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
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?
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
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...
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,
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-
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-
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
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.
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
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
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
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.
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
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
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
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.
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.
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
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
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-
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
Mr. CONYERS. Thank you, Mr. Chairman. I would yield to Mr.
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
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
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
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
of the mother. So I look forward to this hearing, Mr. Chairman.
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
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.
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
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-
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-
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
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-
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
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
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-
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.
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
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
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
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-
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-
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
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
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
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.
Guided by ultrasound, the abortionist
grabs the baby's leg with forceps.
The baby's leg is pulled out into the birth
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.
THE UNIVERSITY OF NORTH CAROLINA
TM um>«nuy or Nonh CiraUu ai CliwK H
CB< 'iTO. 214 M«cNid«r Buildill«
Fcdaral Legislative Director
National Right to Life Comalttae, Inc.
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
THE UNIVERSITY OF NORTH CAROLINA
Th« School of MtdiaiK The Uiii>*niiy of Nonh Onliu m
National Right to Life News
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.
Watson A Bowes J». , M.D.
[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
F. Gary Cunningham, MD
Professor and Chairman, Department of Obstetncs
Jack A. Pritchard Professor of Obstetncs & Gynecology
The University of Texas Southwestern Medical Center
Chief of Obstetrics & Gynecology. Parkland
Paul C. MacDonald, MD
Professor. Department of Obstetrics & Gynecology
Cecil H. and Ida Green Distinguished Chair in
The Lniversity of Texas Southwestern Medical Center
Attending Staff. Parkland Memorial Hospital
Norman F. Gant, MD
Professor, Department of Obstetncs & Gynecology
The Lniversity of Texas Southwestern Medical Center
Attending Staff, Parkland Memorial Hospital
Executive Director, Amencan Board of Obstetrics
Kenneth J. Leveno, MD
Gillette Professor, Department of Obstetrics
The Uni\ersity of Texas Southwestern Medical Center
Chief of Obstetrics, Parkland .Memonal Hospital
Larry C. Gilstrap m, MD
Professor, Department of Obstetncs & Gynecoiog\-
Director of .Maternal-Fetal .Medicine Fellowship and
The University of Texas Southwestern Medical Center
Attending Staff, Parkland .Memonal Hospital
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
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
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
• 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 «
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
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.
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*
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
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.
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-
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
25 TECHNIQUES FOR BREECH DELIVERY
Fig. 2S-». Bfeech
aownward traction. The
subsequently, the arm can be delivered as described
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
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
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
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
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-
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
25 TECHNIQUES FOR BREECH DELIVERY 58J
n,. 25-». Extracoon ot a
. 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-
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«.
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
25 TECHNIQUES FOR BREECH DELIVERY
Figs. 25-11 to 25-15). B. Forceps delivery
of aftercoming head, ^4ota the direction of
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
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
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
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
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, 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
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
VarOofsteo and collaagues (1981 )
Bnicks and associates (1984)
Van Vaaton and co-wortters (1989)
•*aho»n«l and coUatwratOfS (1991 )
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,
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 *
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).
■^mon E. Sibaj BM. Anderson GD: How pcrinatologiso manage
the problem of the presenting breech. Am J Pcrlnatol 5:247.
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,
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-
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.
Flamm BL Fried MW. Lonky NM. Giles WS: External cephalic
version after previous cesarean section. Am J Obstet Gyne-
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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
Hetlstrom AC. Nilsaon B, Stange U Nylund L When does ex-
ternal cephalic version succeed.' Acta Obstet Gynecol Scand
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
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
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Iffv- L. Apuzzio JJ. CohcnAddad N. Zwolska Demczuk B.
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KiwischFH BeiiragezurGeburtskunde(>«ur7burg) I 69. 1846
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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
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term A randomized controlled tnal usmg tocolysis. Br J
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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
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PlentI AA. Stone RE; Bracht maneuver Obstet Gynecol Surv
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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
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
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-
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
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
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-
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
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
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.
[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
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
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,
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
upon as someone trained and experienced in pediatric neurosurgery
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
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
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-
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
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
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
[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),
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
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-
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
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
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
was not the end, that we could have children just as we had
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
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
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
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
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,
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
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.
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.
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.
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,
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.
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?
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.
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.
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
tube. We also play internal womb sounds to these babies to kind
of console them.
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.
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.
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.
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.
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.
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.
Ms. Morton. This baby is having his 3-month birthday, when he
reached about 3V2 pounds.
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
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.
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-
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
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.
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.
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.
PHYSIOLOGIC MEASURES OF PAIN
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 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
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
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
(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-
(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
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-
havioral and physiological effects of circumcision performed without the benefit of
anesthesia. Two methods have generally been advocated for use in the neonatal pop-
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.
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
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.
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
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.
Haskell and Dr. McMahon that are referred to by these particular
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
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
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
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-
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-
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
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,
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-
Dr. Smith. OK I was asked today to come and speak about this
Mr. Frank. I understand, but I'm asking you to talk about other
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.
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. 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
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-
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.
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
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
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,
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
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-
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
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
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
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
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-
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.
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
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-
committee. We will have to conclude at the end of your 5 minutes.
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
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
Dr. White. I don't know what you mean.
Dr. Smith. He doesn't know what a mole is.
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
Mr. Canady. There are three physicians here and another medi-
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-
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
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.
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
"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
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
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-
venting physicians from delivering the unborn into the birth canal, and then killing
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
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
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.]
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
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
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
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
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
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.
Congressman Caiudy/page 3
Ab reoarda whather tha fatua experiences pain during ehin
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
^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) .
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
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
% Flawed Fetus Vs. LOG
Length Of Gestation
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.
XANEOUS (66 Types)
2 vessel cord
abdominal tumor, non-specific
abdomino-thoracopagus twins/ sing heart
alpha thalassemia major
amniotic band syndrome
asymmetrical growth retardation
atretic umbilical cord at attachment
Beckwith Weideman syndrome
choroid plexus cysts
clover leaf syndrome
Cri du Chat syndrome
cystic adenomatoid malformation
Duchenne's muscular dystrophy
fetal to fetal transftision
MISCELLANEOUS (66 Types) (Cont'd)
Holt-Oram syndrome 1
hydrops fetalis 9
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
placental insufficiency I
pulmonary atresia 1
sacrococcygeal teratoma 2
Sjogren-Larsson syndrome 1
Smith-Lemli-Optiz syndrome 1
Tay Sachs 1
teratogenic exposure 22
viral exposure 1
ANEUPLOIDYS (50 Types)
chromosome 8 with an extra p
ANUEPLOIDYS (50 Types) (Cont'd)
chromosome 6 with pericentric inversion
chromosome 8, with q inversion
deletion 5p partial 46XXY
deletion, chromosome 1 1
deletion, partial of chromosome 10
isodicentric X chromosome
monosomy, partial 1 3
mosaic 1 5 inversion
mosaic 45 XO (25%)
mosaic karyotype, non-specific
mosaic ring 18
mosaic trisomy 20 (53%)
mosaic trisomy 21
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
ANEUPLOIDYS (50 Types) (Cont'd)
Turner's syndrome (45, XO)
NEURAL TUBE DEFECTS (18 Types)
agenesis of corpus collosum
Arnold - Chiari malfonnation
cistema magna cyst
Dandy- Walker syndrome
neural tube defect, non-specific
OSTEODYSPLASIA (18 Types)
OSTEODYSPLASIA (18 Types) (Cont'd)
agenesis lumbo-sacral spine
dysmorphic upper extremities
focal femoral hypoplasia
hypoplastic lower extremity
skeletal dysplasia, non-specific
CONGENITAL HEART DEFECTS (17 Types)
3 chambered heart
CHD - non specific
coarctation of the aorta
hypoplastic left heart
hypoplastic right heart
pulmonic atresia vs. stenosis
translocation of the great vessels
tetrology of fallot
ventricular septal defect
CONGENITAL HEART DEFECTS ( 1 7 Types) (Cont'd) Incidence
RENAL DISEASE (13 Types)
bilateral renal agenesis
prune belly syndrome
urinary outlet obstruction
uro-rectal malformation sequence syndrome
LLANEOUS (47 Types)
auto immune disease
dyspnea on exertion
impending spontaneous abortion
incomplete spontaneous abortion
metastatic breast carcinoma
metastatic lung cancer
spont. septic ab 1
spousal drug exp.
subchorionic hematoma 1
TBC, pulmonary 1
H - Hemorrhage
llll "" **
llil.l. . . .
Length Of Gestation
(Weeks) Graph B
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.
Time & Type of Complication
Acute Blood Loss
Transfusion No. of Units
Days of Hospitalization
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.
Average Estimated Biood Loss Vs. LOG
Length Of GesUtion
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.
Intrauterine Cranial Decompression
CSF REMOVED VS LOG
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.
Appendix 4. — Statement of National Right to Life Committee,
RIGHT TO LIFE
12293 - 12021 626-88(§/ Jlk/(9J7.9189 or 3<7 5907
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").
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
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.'
^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
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. *
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
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."
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
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
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
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."
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
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).
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
(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
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.
*Warren M. Hern, MD, Late Abortion for Fetal Anomaly, 81
Obstetrics & Gynecology 301 (Feb. 1993).
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
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.
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
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 ) .
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
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
"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").
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
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).
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.
significant risk to the woman's health. Such a result is
III. No Legit iaate state Interest Supports The Ban On D & X
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).
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
^'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").
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
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.
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.
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
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
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
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
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
Page 1 of
Tejtimony of Marlon Syversen
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
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.
BOSTON PUBLIC LIBRARY
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