Back to Partial Birth Abortion Cases Index of Transcripts

2745
46M5NAT1
1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 -----------------------------x
2
3 NATIONAL ABORTION FEDERATION,
3 MARK I. EVANS, M.D.,
4 CAROLINE WESTHOFF, MD, MSC;
4 CASSING HAMMOND, MD,
5 MARK HELLER, MD,
5 TIMOTHY R.B. JOHNSON, MD,
6 STEPHEN CHASEN, MD,
6 GERSON WEISS, MD,
7 on behalf of themselves and
7 their patients,
8
8 Plaintiffs,
9
9 v. 03 Civ. 8695 (RCC)
10
10 JOHN ASHCROFT, in his official
11 capacity as Attorney General
11 of the U.S., along with his
12 officers, agents, servant,
12 employees, and successors
13 in office,
13
14 Defendants.
14
15 ------------------------------x
15 New York, N.Y.
16 June 22, 2004
16 10:00 a.m.
17
17 Before:
18
18 HON. RICHARD CONWAY CASEY
19
19 District Judge
20
20
21 APPEARANCES
21
22 THE ROGER BALDWIN FOUNDATION OF THE ACLU, INC.
22 Attorneys for Plaintiffs
23 BY: LORIE A. CHAITEN
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2746
46M5NAT1
1 APPEARANCES (continued)
2 WILMER CUTLER PICKERING HALE AND DORR, L.L.P.
3 Attorneys for Plaintiffs
3 2445 M Street, N.W.
4 Washington, D.C., 20037-14 20
4 (202) 663-6235
5 BY: A. STEPHEN HUT, JR.
5 AMY KREIGER WIGMORE
6 KIMBERLY A. PARKER
6
7
7 SHEILA M. GOWAN, ESQ.
8 ELIZABETH WOLSTEIN
8 SEAN LANE
9 JOSEPH PANTOJA
9 Attorneys for Defendants
10 U.S. Department of Justice
10 86 Chambers Street, 3rd floor
11 New York, New York 10007
11 (212) 637-2800
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2747
46M5NAT1
1 (Trial resumed)
2 THE DEPUTY CLERK: Plaintiffs ready?
3 MR. HUT: Yes, sir. Plaintiffs are ready.
4 THE DEPUTY CLERK: Defendants ready?
5 MS. GOWAN: Yes, your Honor.
6 THE DEPUTY CLERK: Counsel, please identify yourselves
7 for the record.
8 MR. HUT: Stephen Hut for the plaintiffs, your Honor.
9 MS. PARKER: Kimberly Parker for the plaintiffs.
10 MS. WIGMORE: Amy Wigmore for the plaintiffs.
11 MS. LIU: Mimi Lieu for the plaintiffs.
12 MS. CHAITEN: Lorie Chaiten for the plaintiffs.
13 MS. STERNBERG: Julie Sternberg for the plaintiffs.
14 THE COURT: Good morning to you all.
15 MS. GOWAN: Assistant United States Attorney Sheila
16 Gowan for the defendant.
17 MR. LANE: Assistant United States Attorney Sean Lane
18 for the defendant.
19 MR. PANTOJA: Assistant United States Attorney Joseph
20 Pantoja for the defendant.
21 MS. WOLSTEIN: Assistant United States Attorney
22 Elizabeth Wolstein for the defendant.
23 THE COURT: Good morning to you all.
24 All right, Mr. Hut. You may proceed.
25 MR. HUT: Thank you, your Honor, and may it please the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2748
46M5NAT1 Summation - Mr. Hut
1 Court.
2 The evidence that this Court has heard over the course
3 of the three-week trial in April shows two principal points and
4 it shows them overwhelmingly.
5 First, the intact variation of dilation and evacuation
6 or intact D&E is performed by responsible physicians because,
7 in their view, it is a form of second trimester abortion that
8 is safer for their patients than the alternatives. It is
9 taught at leading medical schools across the nation and its
10 safety has been confirmed by a now published peer-reviewed
11 study.
12 On such an evidentiary showing Stenberg v. Carhart
13 requires that the law be enjoined for want of health exception.
14 This Court recognizes much in its TRO order when it
15 concluded that the plaintiffs were substantially likely to
16 prevail on the merits. And, a fair reading of Stenberg really
17 makes this, your Honor, an easy case on the evidence presented
18 to the Court.
19 THE COURT: Mr. Hut, I wouldn't try and interpret the
20 Court's granting of a TRO unless I said so.
21 But before you go any further, let me ask you, who
22 bears the burden of demonstrating that the act must include a
23 health exception?
24 MR. HUT: I don't know that the cases speak directly
25 to that, your Honor, but I am prepared to assume for purposes
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2749
46M5NAT1 Summation - Mr. Hut
1 of the argument and going forward today that we do. But I
2 think we have.
3 Now, in addition to the evidence bearing on health
4 exception and despite the linguistic contortions performed by
5 the government in its proposed findings, the language of --
6 THE COURT: Did Congress' factual findings satisfy the
7 burden for the government?
8 MR. HUT: No, they do not, your Honor, for a variety
9 of reasons that I can elaborate here or later at such time as I
10 was planning to get there.
11 THE COURT: It is your position that you, the
12 plaintiffs, have the burden.
13 All right, go ahead.
14 MR. HUT: As I said, I am prepared to assume that
15 burden for today because I think we amply meet it for the
16 reasons that I will show to the Court.
17 The language of the statute that is before the Court,
18 and this is the second language that I will show later today to
19 the second that it can be understood at all is so wrong as to
20 reach procedures performed in more than 99 percent of second
21 trimester abortions. These include not just intact D&E but
22 also dismemberment D&E and even induction abortions. And the
23 Act reaches those procedures whether they are used for induced
24 abortion or to treat spontaneous abortion or miscarriage.
25 Accordingly, the ban places an undue burden on a
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2750
46M5NAT1 Summation - Mr. Hut
1 woman's right to reproductive autonomy and is void for
2 vagueness, is therefore unconstitutional on both those grounds
3 as well.
4 Now, in a very important sense, Judge Casey, there
5 were unheard-from actors in the trial. Those actors are the
6 thousands of women who each year need safe second trimester
7 abortions. The evidence shows --
8 THE COURT: They aren't before me, are they, Mr. Hut?
9 It makes for a good argument but they're not before me, are
10 they?
11 MR. HUT: They are not parties, but the plaintiffs --
12 THE COURT: Nor are there any evidence before the
13 Court to that point.
14 MR. HUT: There is ample evidence as to why women seek
15 second trimester abortions, your Honor, and the plaintiff's
16 asserted rights of their --
17 THE COURT: The patients of those who testified. But
18 when you start talking about women across the country, that is
19 great rhetoric but it is not before this Court.
20 MR. HUT: I don't think I talked about women across
21 the country, I talked about thousands of women who seek second
22 trimester abortions.
23 THE COURT: Well, I won't be picky as to what the
24 exact words were but just the same you are arguing things not
25 before the Court.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2751
46M5NAT1 Summation - Mr. Hut
1 MR. HUT: I think on the contrary they are most
2 certainly before the Court. They are before the Court because
3 plaintiffs assert the rights of themselves and the rights of
4 their patients to safe treatment.
5 The evidence shows, and there is ample evidence to
6 this point, your Honor, that women have abortions in
7 midtrimester pregnancy for a variety of reasons and it is
8 indisputably true, your Honor, that many of those reasons are
9 born of circumstances that are undeniably tragic for what is an
10 issue in many of the instances testified to by the plaintiffs
11 in this courtroom and by the government's witnesses as well, is
12 the unfortunate need to end wanted pregnancies.
13 The Court heard, for example, from Dr. Grunebaum and
14 Dr. Chasen, each of whom practice maternal fetal medicine at
15 New York Presbyterian and teach at Weil-Cornell Medical
16 College. Each testified that some 95 percent of his patients
17 are ending wanted pregnancies. They are usually doing so
18 because their fetuses will be born with abnormal conditions.
19 Many of those like trisomy 13 and 18 are incompatible with life
20 or incompatible with life free from pain, or are ultimately a
21 cruel and harrowing early death.
22 Often, as the Court has heard, these conditions are
23 not diagnosed until the middle of the second trimester because
24 even technological advances like amniocentesis, like
25 ultrasound, do not permit earlier diagnosis.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2752
46M5NAT1 Summation - Mr. Hut
1 Women seeking second trimester abortions are also
2 sometimes doing so because they have to make the horribly
3 wrenching choice between their own health endangered by
4 conditions like heart disease, like cancer, and continuing a
5 very much wanted pregnancy.
6 Can any of us imagine having to make such a decision?
7 To be sure --
8 THE COURT: The government wasn't able to test any of
9 that, were they, because at every turn where medical records
10 were sought, the medical institution resisted the production of
11 the records, is that not right?
12 MR. HUT: That is not true, your Honor. The
13 University of Michigan did not. It searched for records, it
14 had no records.
15 It is true that New York --
16 THE COURT: That's because everything was done down
17 the street at the clinic, isn't that correct?
18 MR. HUT: That's not entirely true, your Honor, I
19 don't think. A good deal of --
20 THE COURT: Isn't that true, they don't do abortions
21 at University of Michigan, they do them down the street I think
22 at the Planned Parenthood clinic.
23 MR. HUT: They do do abortions at University of
24 Michigan, they certainly do induction abortions at the
25 University of Michigan.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2753
46M5NAT1 Summation - Mr. Hut
1 The government's inquiry sought to inquire about that,
2 there turned out to be no documents responsive to the demand.
3 It is true that New York --
4 THE COURT: And the abortions done down the street by
5 the testimony of Dr. Johnson, isn't that correct?
6 MR. HUT: Many or most surgical abortions are done
7 down the street. That was not the sum and substance of the
8 government's discovery. With respect to New York Presbyterian,
9 it is true that they resisted. It is also true that before
10 resolution of the matter --
11 THE COURT: Isn't it also true of Northwestern? Isn't
12 it true of the situation in Philadelphia?
13 MR. HUT: It is true of the situation in Philadelphia.
14 But with respect to the situation in Philadelphia, Dr. Evans
15 did not testify so ultimately that became a moot point.
16 It is true with respect to Dr. Hammond at
17 Northwestern. It is also true that the Seventh Circuit upheld
18 the institution's right not to produce documents affirmed the
19 quashing of the subpoena.
20 It is also true that with respect to New York
21 Presbyterian, the government ultimately abandoned its subpoena
22 despite --
23 THE COURT: They were resisted at every turn for the
24 production of those records which is the only means anyone
25 could have of checking the testimony of these doctors, isn't
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2754
46M5NAT1 Summation - Mr. Hut
1 that correct?
2 MR. HUT: No. No, it is hardly the only means.
3 One does not, when an expert comes into court and
4 testifies on the basis of the enormity of his past medical
5 experience typically --
6 THE COURT: Yes, but all the records are claimed to be
7 hospital records, not the doctor's records. And the hospitals,
8 in turn, availed themselves --
9 MR. HUT: That's quite true.
10 THE COURT: -- of the production on HIPAA and resisted
11 production, therefore the government could not obtain the
12 records, they could only obtain the oral testimony of the
13 doctors, isn't that correct?
14 MR. HUT: It is true, your Honor, as with every expert
15 that I know of who has testified on medical maters in a trial.
16 Parties are not able to delve behind expert testimony
17 by forcing or requiring, pursuant to subpoena, that expert to
18 cough up all of her or his background medical records that
19 speak to their experience.
20 THE COURT: I don't know about that, Mr. Hut, but in
21 my experience doesn't it also go to the fact that if anybody
22 wanted to do a controlled study they couldn't get records?
23 Isn't that so?
24 MR. HUT: No, they could get at the records if they
25 submitted --
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2755
46M5NAT1 Summation - Mr. Hut
1 THE COURT: If the patients consented.
2 MR. HUT: Or if the institution's institutional review
3 board reviewed the relevant submitted protocol and determined
4 that the matter could go forward.
5 Controlled studies of surgical procedures.
6 THE COURT: And if they didn't it wouldn't go forward,
7 correct?
8 MR. HUT: That's correct, your Honor.
9 THE COURT: Okay. Go ahead.
10 MR. HUT: Controlled studies of surgical procedures
11 are extraordinarily difficult to accomplish.
12 There was testimony about the inability of the noted
13 obstetrician gynecologist Dr. David Grimes to accomplish a
14 controlled study with respect to comparison of D&E and
15 induction because women refused to participate and to enroll
16 and to consent to participation in the study.
17 It is very difficult to do, as Dr. Nuland testified,
18 and it is also for reasons that I will elaborate on later,
19 extraordinarily unnecessary in order to conclude that a
20 particular procedure is safe or safer than other available
21 alternatives.
22 Now, in addressing the health exception issue I want
23 to set out my argument this way, your Honor. I want first to
24 discuss three legal points. First is the Stenberg standard. I
25 then want to address two ways in which the government misreads
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2756
46M5NAT1 Summation - Mr. Hut
1 and, I respectfully suggest, your Honor, confuses Stenberg and
2 after that I will turn to summarizing the extensive evidence
3 that the Court heard on the health issue to show that the
4 correct application of Stenberg compels the conclusion that
5 health exception is required.
6 And then I want finally to discuss the legal issue
7 that concerns the appropriate treatment of Congressional
8 findings concerning medical facts in light of Stenberg to which
9 I made reference a moment ago in response to the Court's
10 question.
11 Now, the question in this case is whether women in the
12 circumstances I just described confronting the wrenching
13 decision whether to terminate a pregnancy will have access to a
14 procedure that their doctors regard as offering safety
15 advantages for them. Or, are they consigned to alternative
16 procedures that, while they may be safe, are viewed by their
17 treating physicians as less safe either in general or for their
18 particular condition?
19 THE COURT: Well, the only controlled study which we
20 now have, correct, Dr. Chasen's study, basically comes down to
21 the bottom line that both D&X and D&E are safe, correct?
22 MR. HUT: Absolutely.
23 THE COURT: And they're about even, according to
24 Dr. Chasen's testimony, correct?
25 MR. HUT: Dr. Chasen's study and his testimony reflect
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2757
46M5NAT1 Summation - Mr. Hut
1 that the complication rate of both at about 5 percent to a
2 statistical significance level of about 99.9 percent are the
3 same.
4 THE COURT: Didn't all of your clients --
5 MR. HUT: However --
6 THE COURT: Just one second, please.
7 Before you go any further, when did you receive the
8 Chasen study? When did you as lawyers for the plaintiff
9 receive the Chasen study?
10 MR. HUT: I would have to check for sure, your Honor,
11 but I think January, a couple of weeks --
12 THE COURT: When was it completed?
13 MR. HUT: That I don't know, your Honor. There is no
14 testimony or evidence in the record on the subject.
15 THE COURT: I didn't ask the record, Mr. Hut, I'm
16 asking you, you're their lawyer.
17 MR. HUT: I don't know.
18 THE COURT: When you filed the lawsuit in November --
19 MR. HUT: And I did not know at the time.
20 THE COURT: You never heard of the Chasen study.
21 MR. HUT: Correct, your Honor. You are absolutely
22 right.
23 THE COURT: When did you find out about it?
24 MR. HUT: As I said a moment ago, your Honor, January.
25 THE COURT: So at that point in time, as of January of
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2758
46M5NAT1 Summation - Mr. Hut
1 this year, that study was in the possession of the plaintiffs,
2 correct?
3 MR. HUT: At approximately a week or two later in the
4 possession of the government.
5 THE COURT: But I am only trying to establish for the
6 Court, Mr. Hut, the significance of when you received it. And
7 that's January of this year, so it was in the possession of the
8 plaintiffs as of that time, is that not correct?
9 MR. HUT: That's correct.
10 THE COURT: Okay, go ahead.
11 MR. HUT: The Supreme Court jurisprudence from Roe v.
12 Wade and Planned Parenthood v. Casey and through Stenberg v.
13 Carhart has steadfastly emphasized concern for maternal health
14 as its touchstone.
15 Following that guidepost, Stenberg, as the Court
16 observed in its summary judgment order, holds that where a
17 significant body of medical opinion believes that a procedure
18 may have safety benefits for some women in some circumstances
19 and states the reasons for this belief, then the legislature
20 cannot ban that procedure without an exception for women's
21 health. The Act impermissibly fails to include such an
22 exception and so the issue in this case is not whether in some
23 platonic sense the intact D&E variation is safer than for some
24 women in some circumstances, though we think that the evidence
25 shows that it is. And it is not whether the plaintiffs have
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2759
46M5NAT1 Summation - Mr. Hut
1 proved by a preponderance of the evidence that intact D&E has
2 safety advantages, those we think that we have. The question
3 is, instead, as the Court recognized on summary judgment
4 this --
5 THE COURT: I wish you would not be referring to what
6 I recognized, Mr. Hut.
7 First of all, the Chasen study was not attached to
8 your papers for your application of the temporary restraining
9 order, was it?
10 MR. HUT: No, your Honor.
11 THE COURT: Okay. Then, I wouldn't draw any
12 conclusions. I wouldn't keep referring to that. It was
13 granted.
14 MR. HUT: Talking about the summary judgment order,
15 your Honor, which was denied but in which the Court staked out,
16 in clear terms, the operative controlling Stenberg test.
17 Now, with respect to the Chasen study, let me harken
18 back to that, although I was going to speak to it later but you
19 have raised it again, Dr. Chasen's study shows and he testified
20 that the complication rates for the two groups are the same but
21 what he testified to, what Dr. Grunebaum testified to and what
22 Dr. Westhoff testified to -- Dr. Westhoff, I should say, by the
23 way, is an epidemiologist. She holds a position at the Mailman
24 School in Public Health at Columbia University. She was the
25 only witness qualified to testify as an expert in epidemiology.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2760
46M5NAT1 Summation - Mr. Hut
1 What the three witnesses testified to, your Honor, and
2 what is significant, is the difference in gestational ages
3 between the two cohorts that were examined.
4 THE COURT: I am stopping you there. Not one of them,
5 other than Dr. Chasen -- even though the Chasen report was in
6 the possession of the plaintiffs -- not any one of them
7 testified concerning the Chasen report, did they?
8 MR. HUT: Absolutely they did, both of them. They
9 testified in the way I am about to describe. Both Grunebaum
10 and Dr. Westhoff said that what is significant about the Chasen
11 study is the difference in gestational age of two cohorts.
12 The intact D&E group had average gestational age of 23
13 weeks. The dismemberment D&E group had an average gestational
14 age of, I think it is between 20 and 21 weeks. That is an
15 extraordinary difference. Fetuses grow substantially during
16 that intervening two weeks. A fetus at the age of 23 weeks,
17 testimony shows, is about 50 percent larger than in 21 weeks
18 the procedure undertaken.
19 THE COURT: As to the risk of premature birth?
20 MR. HUT: I'm sorry, your Honor?
21 THE COURT: Pointed out in the Chasen study, did any
22 of them testify to that?
23 MR. HUT: Surely Dr. Chasen --
24 THE COURT: Not talking about Dr. Chasen, the other
25 doctors.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2761
46M5NAT1 Summation - Mr. Hut
1 MR. HUT: No, they were not examined of that.
2 THE COURT: No, they were not but the report was in
3 your hands.
4 MR. HUT: And in the government's hands.
5 THE COURT: Yes, but not asked by you. Did you not
6 have an obligation to bring that out?
7 MR. HUT: Absolutely not and I will tell you why. Let
8 me first make the point I was going to make about the
9 complication rate, because it is a critical one.
10 The procedures at 23 weeks are much more difficult.
11 There is much more risk attached to them so it would have been
12 expected, as each of these doctors testified, that the
13 complication rate would have been substantially higher for the
14 intact D&E cohort. The fact, the proven fact that the
15 complication rates were the same therefore shows, in the
16 opinions of the three doctors that I have identified, that
17 intact D&E is a far safer procedure. That's the question on
18 the complication rate.
19 Let me address, since your Honor has raised it, the
20 question of subsequent preterm delivery.
21 The point of the Chasen study, the point that
22 Dr. Chasen makes in the study is that there is no statistical
23 significance between the different occurrences in the two
24 cohorts. None.
25 When there is no statistical significance, your Honor,
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2762
46M5NAT1 Summation - Mr. Hut
1 that means, as Dr. Howell explained on rebuttal, there is no
2 scientific significance, none.
3 THE COURT: I noticed in your rebuttal you didn't --
4 you called Dr. Howell, you didn't call Dr. Chasen. You didn't
5 call the coauthor of the report. You didn't call the peer
6 reviewer. You called a doctor who is not even an obstetrician
7 gynecologist, is that not true?
8 MR. HUT: It is absolutely true, your Honor.
9 Dr. Howell is --
10 THE COURT: I know what he is but he is not any of
11 those things.
12 MR. HUT: No. All he does is run the scientific and
13 medical research program at the University of Michigan.
14 THE COURT: He is an administrator.
15 MR. HUT: No. He is an expert, a qualified expert
16 that the Court recognized as such in the interpretation of
17 scientific studies.
18 THE COURT: But he isn't an obstetrician or
19 gynecologist and had nothing to do with that report.
20 MR. HUT: And it didn't matter whether he did or not.
21 THE COURT: Well, that's your position.
22 MR. HUT: That is absolutely my position and let me
23 explain it, your Honor. It didn't matter because the sole
24 purpose of his testimony was to make clear on the record and to
25 the Court the concepts of statistical significance and why,
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2763
46M5NAT1 Summation - Mr. Hut
1 when there is no statistical significance there is no
2 scientific significance.
3 And it is just laughable to hear such intellectual
4 dishonesty as this Court heard from Dr. Clark on the other
5 proposition. That man purported to be shocked -- shocked -- by
6 what he saw in terms of the statistical disparity with respect
7 to preterm delivery.
8 THE COURT: And you weren't?
9 MR. HUT: I was not that shocked, your Honor. It was
10 about as real as the shock expressed by Captain Louis Renault
11 in Casablanca upon discovering that there was gambling going on
12 in Rick's Cafe. There was simply no basis for that shock.
13 THE COURT: Please.
14 MR. HUT: And there was no basis for the worry because
15 that man --
16 THE COURT: According to you?
17 MR. HUT: According to me, according to Dr. Howell and
18 the evidence you heard because that man knows. He knows --
19 THE COURT: Would it have been much weightier had you
20 called a coauthor?
21 MR. HUT: Not to testify ---
22 THE COURT: If you had called a peer reviewer who was
23 an obstetrician gynecologist?
24 MR. HUT: Well, in the first place, your Honor --
25 THE COURT: Who had personal knowledge of the study?
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2764
46M5NAT1 Summation - Mr. Hut
1 MR. HUT: There is testimony on the record from
2 Dr. Chasen about the insignificance of the point.
3 THE COURT: Well, you laugh at Dr. Clark, Mr. Hut, but
4 according to the record which I reviewed, he appears to be the
5 most qualified of any witness called in the entire trial, more
6 credentials than anybody who took that stand.
7 MR. HUT: I beg to differ, your Honor. On the
8 contrary, among other things he has performed at most a dozen
9 surgical abortions.
10 THE COURT: Well, as long as you bring that up, do you
11 think that no one is qualified to testify concerning abortion
12 unless they perform them?
13 MR. HUT: I think that nobody is as qualified to
14 testify --
15 THE COURT: Does that mean that a pathologist isn't
16 qualified to testify in a murder trial because he has never
17 committed a murder?
18 I mean, that is a little absurd, isn't it, Mr. Hut?
19 You laced the papers with that statement that every witness,
20 they haven't performed an abortion so therefore they aren't
21 qualified to talk about the subject.
22 MR. HUT: The proposition you asserted, your Honor, is
23 absolutely true, but it has nothing to do with the proposition
24 here. We are not talking about testimony about murder, your
25 Honor, we are talking about testimony concerning surgical and
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2765
46M5NAT1 Summation - Mr. Hut
1 medical procedures, as to which and I would beg to say, that
2 those who perform them on a daily basis are more qualified to
3 testify as even Dr. Lockwood agreed, that than those who do
4 not.
5 So, with respect to Dr. Clark, my submission to you is
6 that on the subject of the --
7 THE COURT: One of the experts called in the original
8 Supreme Court case, as I read Stenberg, doesn't even have
9 credentials to practice at any hospital, that being Dr. Carhart
10 himself. Isn't that a fact?
11 MR. HUT: I have no idea what Dr. Carhart's
12 credentials are.
13 THE COURT: If you read that in the Supreme Court
14 opinion -- I assume you read that before you came to court?
15 MR. HUT: I have read it many, many times.
16 THE COURT: And do they not say that in the opinion,
17 that he does not have privileges at any hospital, he performs
18 his service at a clinic? Isn't that true?
19 MR. HUT: He may very well do that.
20 THE COURT: It is in the opinion. Mr. Hut, please
21 don't play games with me. Do you deny that it is in the
22 opinion?
23 MR. HUT: No. I don't remember, your Honor.
24 THE COURT: Go ahead. Go on.
25 MR. HUT: But it hardly matters.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2766
46M5NAT1 Summation - Mr. Hut
1 You heard from nine or 10 doctors on the plaintiff's
2 side, each of whom are privileged to perform their medical arts
3 at the most distinguished hospitals in the country.
4 My submission to you, with respect to Dr. Clark is, to
5 put it bluntly he lied to the Court. He told you that just as
6 there is only -- as there is as high as a 30 percent likelihood
7 that the difference in cohorts with respect to subsequent
8 preterm delivery resulted by random chance that there is a 70
9 percent likelihood that it didn't. That is just bunk. It is
10 just wrong. It is wrong for the reasons that Dr. Howell said.
11 THE COURT: Wouldn't it have been more meaningful if
12 what you say is true if you had the author or his coauthor or
13 his peer come and say that as an obstetrician gynecologist?
14 MR. HUT: Two answers to that, your Honor. No and, we
15 did. We had it in the direct examination and on
16 cross-examination for Dr. Chasen.
17 THE COURT: Mr. Hut, Dr. Clark hadn't testified to
18 that point.
19 Go ahead. Move on.
20 MR. HUT: The question on the health exception then is
21 whether the evidence shows that a significant body of
22 responsible physicians practice in and who are familiar with
23 the area of medicine believe that intact D&E is safer for some
24 women and whether that belief is founded on reason.
25 If plaintiffs have shown that there is a reasonable
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2767
46M5NAT1 Summation - Mr. Hut
1 debate among a substantial number of responsible physicians
2 knowledgeable about abortion then we have prove what we are
3 required to prove under Stenberg. If so, the ban must be
4 struck down beyond any question we have.
5 Now, to be sure, the Roe case against Stenberg all say
6 that a health exception is required whenever the banned
7 procedure is, "necessary and appropriate medical judgment," to
8 preserve maternal life or health.
9 The government here proposes findings constructed on
10 the notion that what this means is that so long as there exists
11 some other medical procedure that can terminate a pregnancy,
12 then a D&E involving intact extraction is not medically
13 necessary.
14 The logic of the government's position would justify a
15 ban on any abortion procedure whenever a hysterotomy were
16 available even though the government, to be sure, does not
17 press the logic that far.
18 Instead, the government posits that for many -- but as
19 I shall show, not all -- for many women induction or D&E with
20 dismemberment are available and safe procedures or second
21 trimester abortions. This is the constant refrain of the
22 government's description of its evidence. It talks about acute
23 fatty liver pregnancy, for example, it says D&E or medical
24 abortion would be appropriate. The same for cancer, same for
25 heart disease and on and on.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2768
46M5NAT1 Summation - Mr. Hut
1 So, the government argues that a procedure may be
2 banned so long as it is not the only option to preserve
3 maternal health.
4 THE COURT: Not the only option. Chasen's study,
5 albeit witnesses question asking the sufficiency of the power
6 of the study. It does point out that they're equal as far as
7 risk, the D&E and the D&X, and it does reflect the possibility,
8 again maybe under power, but risks to a woman in premature
9 births, does it not?
10 MR. HUT: No, it does not, to either of those. It
11 certainly does not to the second.
12 THE COURT: Well, witnesses testified that it did and
13 if so, do you maintain there is no obligation on the doctor in
14 the interest of full disclosure and consent to a woman that
15 they have to report that too, the reports of that controlled
16 study?
17 MR. HUT: In describing the alternatives between
18 dismemberment D&E?
19 THE COURT: Yes.
20 MR. HUT: And in fact D&E?
21 THE COURT: When you sit down with a woman and she is
22 considering an abortion, isn't the obligation of a physician,
23 the only controlled study out there, to tell her the findings?
24 I don't say every line every word, but the findings of that
25 only existing controlled report and study?
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2769
46M5NAT1 Summation - Mr. Hut
1 MR. HUT: There is certainly no obligation to report
2 the results which are not findings, I don't believe the
3 purported data points --
4 THE COURT: They don't have an obligation to tell them
5 while setting forth their options?
6 MR. HUT: I'm sorry, I did not finish. They don't
7 have an obligation with respect to data that the authors'
8 studies and people who testified in this courtroom say are
9 statistically insignificant. Those are not findings.
10 THE COURT: Dr. Howell did. I didn't hear one
11 obstetrician say it was insignificant.
12 MR. HUT: The report, the study says so, your Honor,
13 and there is certainly no obligation to disclose those.
14 The question of informed consent and disclosure.
15 THE COURT: How can you give informed consent if you
16 don't tell them, Mr. Hut that -- aren't we putting, as you
17 started at the opening, aren't we putting thousands of women
18 and their babies at risk if we don't have an obligation to tell
19 women who are considering abortion?
20 MR. HUT: Absolutely not, your Honor, because there is
21 nothing to tell with respect to the results as to preterm
22 delivery. Those results are statistically insignificant.
23 And of course there is one other point, a point that
24 Dr. Clark neglected to tell the Court until it was brought out
25 on cross-examination; that is that the women in the intact D&E
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2770
46M5NAT1 Summation - Mr. Hut
1 cohort were at substantially greater risk for subsequent
2 preterm delivery than were the counter-parts in the
3 dismemberment D&E cohort.
4 THE COURT: You have that backwards. It was your
5 client's report. You bring out anything you want. You didn't
6 question or -- your colleague questioned Dr. Clark about it but
7 you had the obligation to bring that out.
8 MR. HUT: I don't think we had any obligation to bring
9 anything out with respect to statistically insignificant data.
10 When the government brought it out --
11 THE COURT: And you don't think there is an obligation
12 to tell women, when obtaining so-called informed consent?
13 MR. HUT: No.
14 THE COURT: You don't think there is an obligation, or
15 there is one today to tell them of that report?
16 MR. HUT: To tell them about the data with respect to
17 subsequent preterm delivery? No, because it is not
18 statistically significant.
19 The whole concept of informed consent is a matter that
20 the act at issue before this Court doesn't deal with. This is
21 not an informed consent statute. I have not talked to and
22 certainly did not examine --
23 THE COURT: I didn't say it was, Mr. Hut. I am just
24 asking what your position was on it.
25 MR. HUT: And our position is clear. That those
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2771
46M5NAT1 Summation - Mr. Hut
1 particular findings don't have any scientific significance, so
2 I hardly know what the woman who received informed consent
3 about them would be expected to make of them.
4 Does a woman who is told these data but then told, oh,
5 but by the way, those are data only to a P value of .3. What
6 in God's name, your Honor, is she supposed to do with that
7 piece of information?
8 I can't imagine a woman going through the agony of
9 having made a decision to terminate a wanted pregnancy being
10 exposed if a doctor, in his or her best judgment, decides it is
11 a part of the informed consent process.
12 THE COURT: Have you explained it in terms that she
13 can understand?
14 MR. HUT: No, because when he explains it or she
15 explains it in terms of the woman can understand, the bottom
16 line is that there is nothing to these data so I can't imagine
17 what there is to explain.
18 To the point that the government makes that the banned
19 procedure, in order to garner a health exception must be the
20 only option, that misunderstands Stenberg which in fact
21 addresses and undermines the government's point.
22 THE COURT: Let me stop you one more time and I will
23 let you go on.
24 But referring to Stenberg, the Supreme Court opinion,
25 the Supreme Court did not have, since it was only published
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2772
46M5NAT1 Summation - Mr. Hut
1 last month didn't have the Chasen report before it in the
2 record they had, correct?
3 MR. HUT: That's true, your Honor.
4 THE COURT: And they didn't have before it the
5 testimony of Dr. Anand concerning fetal pain, did it? He had
6 hadn't testified in this case at that point.
7 MR. HUT: That's absolutely true.
8 THE COURT: So, it is a different record.
9 And in the Stenberg case itself, other than
10 Dr. Carhart, was the only other doctor who testified on behalf
11 of Dr. Carhart, Dr. Stubblefield.
12 MR. HUT: I'm not sure he was the only other one. I
13 thought Dr. Doe testified in that case as well. I may be wrong
14 about that.
15 THE COURT: That's why I am asking you.
16 MR. HUT: I will get to Dr. Anand's testimony.
17 THE COURT: I am sure you will but I just wanted to
18 make sure that I didn't forget that I had it clear in my mind
19 as to what the record was before the Supreme Court and what the
20 record is here.
21 MR. HUT: Well, I am certain that Dr. Anand did not
22 give testimony in the Stenberg trial.
23 THE COURT: Okay.
24 MR. HUT: I will double check with my colleagues
25 concerning who, if anyone, other than Dr. Stubblefield.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2773
46M5NAT1 Summation - Mr. Hut
1 THE COURT: The Court, meaning the District Court
2 which the Supreme Court makes reference to on at least two if
3 not more occasions, they did not have any findings concerning
4 the Chasen report because it didn't exist and they didn't have
5 any findings concerning Dr. Anand, correct?
6 MR. HUT: Correct.
7 THE COURT: Go ahead.
8 MR. HUT: Let me speak to the Chasen report in two
9 respects, your Honor, however.
10 First, had they had the Chasen report it would have
11 only fortified the decision that the Court in Stenberg made.
12 THE COURT: Oh, I wouldn't be so presumptuous as to
13 say what happened in the minds of other people, Mr. Hut.
14 MR. HUT: Well, sometimes you have to be, your Honor.
15 THE COURT: You can say what you think but I don't
16 think I would be so presumptuous.
17 It is sort of like your submission to me of findings
18 of fact in which they are proposed by you but you phrased them
19 on numerous occasions that "the Court finds." I didn't make
20 any finding at all. It is a little presumptuous on your part.
21 It is a style perhaps, you might wish to say.
22 MR. HUT: It is a style. It was one I was advised
23 early on by my seniors to adopt. It is a style that numerous
24 other Courts before whom I have been privileged to appear have
25 not only welcomed but actually adopted. If it gave offense to
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2774
46M5NAT1 Summation - Mr. Hut
1 your Honor, I'm sorry.
2 THE COURT: If they adopted, that's fine, but if they
3 don't.
4 MR. HUT: They are only proposed for your Honor's
5 adoption. You, obviously I don't have to tell you, are free to
6 do with them what you will.
7 THE COURT: Thank you.
8 MR. HUT: Back to the Stenberg point, however, which
9 is the legal point and what to make of the suggestion that a
10 banned procedure must be the only one in order to make it
11 medically necessary. That is simply not what Stenberg says.
12 This is a legal point. I think it is quite divorced
13 from the factual record but what the Stenberg Court says is
14 that the word necessary -- and I am quoting from page 937 U.S.,
15 in phrase, necessary and appropriate medical judgment for the
16 preservation of the life or health of the mother cannot refer
17 to an absolute necessity.
18 THE COURT: That's based on the opinion of doctors
19 that didn't have, aside from what your interpretation of the
20 Chasen study is, it is a medical profession that did not have
21 either Dr. Anand's testimony or that report, so we don't know
22 what the medical interpretation would have been.
23 MR. HUT: The point here, your Honor, is that a banned
24 procedure to require a health exception need not be the only
25 medical option and so, for example, the fact that induction is
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2775
46M5NAT1 Summation - Mr. Hut
1 a safe option or dismemberment D&E is a safe option, neither of
2 which proposition is disputed by the plaintiffs, simply doesn't
3 address the question whether if, as we have shown, intact D&E
4 is a safer option than the constitutional jurisprudence that
5 the Supreme Court requires a health exception.
6 THE COURT: It is a riskier option because premature
7 birth to the mother and the child --
8 MR. HUT: If a Court were to conclude that there is
9 evidence by a preponderance from responsible medical
10 authorities that it were riskier, then I suppose that a
11 legislature could determine that a health exception is not
12 required.
13 THE COURT: And you thought it was a draw. Should we
14 allow it to continue at the risk of thousands of women out
15 there? Maybe hundreds of thousands?
16 MR. HUT: You keep referring to the risk to women but
17 there is no evidence of that because --
18 THE COURT: Well you don't interpret it that way but
19 there was testimony. I am saying if it were, say, a study with
20 more power and it was a fact.
21 MR. HUT: If it were a fact, if it showed risk --
22 THE COURT: Then the Court says that there is a draw
23 in posing that question, a draw as to opinion.
24 MR. HUT: No. No. If there is a draw then the
25 default, a tie goes to the doctor and the doctor's patient and
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2776
46M5NAT1 Summation - Mr. Hut
1 the doctor's good faith judgment in the safety of the procedure
2 he recommends.
3 THE COURT: Should not the protection of women,
4 Mr. Hut, a draw shouldn't go to them?
5 MR. HUT: No, because there is no --
6 THE COURT: What are they supposed to say, what the
7 heck, let them try it?
8 MR. HUT: No, your Honor.
9 THE COURT: So there is a risk.
10 MR. HUT: By the very premises of the Court, if there
11 is a draw that means that there is as much evidence suggesting
12 that the procedure is safer and that by denying a woman and her
13 doctor the liberty to choose the safer procedure, that that is
14 how the legislature is placing a woman's health at risk and so,
15 if there is a draw, the Supreme Court's jurisprudence, I think
16 says, as Stenberg substantially does say, you resolve.
17 THE COURT: I don't think it says that at all. It
18 says, there is a difference of opinion on the record they have.
19 MR. HUT: Yes, there is a difference of opinion on the
20 record they have. The difference of opinion here clearly shows
21 that there is a reasonable, at a minimum a reasonable debate
22 amongst qualified doctors as to whether the intact D&E
23 procedure provides to women safety advantages. And under those
24 circumstances Stenberg says a health exception is required.
25 Let me come back, by the way, to Dr. Clark one more
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2777
46M5NAT1 Summation - Mr. Hut
1 time, because what the record shows with respect to the Clark
2 testimony is that he ultimately conceded the statistical
3 irrelevance and therefore the scientific irrelevance of the
4 subsequent preterm delivery data and the government does not
5 even make anything of those disparities, of that disparity in
6 its proposed findings.
7 So, I think the Court would be on, respectfully, very,
8 very shaky and thin ice if it were to conclude that that study
9 shows anything at all that is worthwhile or valid on that
10 subject.
11 Now, the government is also wrong when it proposes
12 conclusions that would permit the Court to uphold the ban
13 without health exception on the ground that whatever safety
14 benefits may be offered by intact D&E, those safety benefits
15 are now somehow "significant."
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2778
46menaf2 Summation - Mr. Hut
1 MR. HUT: The government reads Stenberg to ask whether
2 the ban procedure is, quote, significantly safer, unquote, than
3 the alternative procedures, such that the ban would, quote,
4 create significant health risks, unquote.
5 That formulation, your Honor, is not the Stenberg
6 test. And it also ignores other cases in the Supreme Court's
7 abortion jurisprudence. Even if it were the standard, the
8 evidence shows that the ban would create an -- increased safety
9 risks that are indeed significant.
10 First, focussing on Stenberg. The operative test, as
11 articulated by the Court, which I have quoted above, does not
12 contain the significant risk language. It refers to the belief
13 of a significant body of medical opinion that a procedure may
14 bring with it greater safety for some patients and explains the
15 medical reasons supporting that view.
16 Later, in the same opinion, it refers to, quote, where
17 medical or substantial medical authority supports the
18 proposition that banning a particular abortion procedure could
19 endanger women's health. Casey requires a health exception.
20 So there's nothing with respect to the significant language in
21 the operative Stenberg test.
22 Second, Thornberg vs. American College of
23 Obstetricians and Gynecologists emphatically and unambiguously
24 rejects the government's formulation. There the statute under
25 review permitted the banned procedure only when the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2779
46menaf2 Summation - Mr. Hut
1 alternatives posed, quote, a significantly greater medical risk
2 to the life or health of the pregnant woman, unquote. The
3 Supreme Court ruled this significant risk formulation, the same
4 as proposed here by the government, was not good enough. It
5 was inadequate because the statute would require a, quote,
6 trade-off, unquote -- the Court's language -- between a woman's
7 health and fetal survival. It did not make a woman's health
8 the paramount determinate as statutes were required to do.
9 Third, the evidence here meets a significant risk test
10 in any event. For one thing, the theme that underlies some of
11 the government's proposed findings, that many of the conditions
12 that the evidence addresses are rare, that's of no consequence.
13 The Courts have made short shrift of the notion that the
14 statutory health exception can be dispensed with just because a
15 particular condition that can be treated with the banned
16 procedure is greater.
17 Stenberg itself, for example, 530 US 934, quote from
18 Justice Breyer, the D&X is an infrequently used health
19 procedure, but the health exception question is whether
20 protecting a woman's health requires an exception for those
21 infrequent occasions. A rarely used treatment might be
22 necessary to treat a rarely occurring disease that could strike
23 anyone. The State cannot prohibit a person from obtaining
24 treatment simply by pointing out that most people do not need
25 it.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2780
46menaf2 Summation - Mr. Hut
1 Likewise, Chief Judge Posner writing in Hope Clinic
2 vs. Illinois for the side that ultimately prevailed in the
3 Supreme Court said, and I'm quoting, it is slight consolation
4 to be told while the state has forbidden the optimal treatment
5 of your medical problem, that problem happily is rare.
6 So, any permissible inquiry about significance must be
7 qualitative: How serious the condition potentially avoided or
8 more safely addressed by using the banned procedure is; and not
9 the quantitative question: How many or how few people suffer
10 from it. And once understood this way, it becomes clear that
11 the Supreme Court has already decided the question.
12 If the Stenberg Court did apply a significant benefit
13 or significant risk test, it found the risks in question
14 significant. It is decided safety benefits offered by intact
15 D&E are indeed significant, the very same safety benefits
16 advocated, and I submit proved and demonstrated here.
17 THE COURT: But a woman's health is the paramount
18 concern according to Stenberg, correct?
19 MR. HUT: Absolutely. And women's health means the
20 safety of a woman undergoing a procedure. It means whether, as
21 we have shown in numerous respects, an intact D&E is generally
22 safer for most women. And I'll get to those reasons, and they
23 are very substantial and they are very significant, in a
24 moment.
25 Now, the Court heard much at trial about the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2781
46menaf2 Summation - Mr. Hut
1 procedures available to a woman for a second trimester
2 abortion. I had outlined points that I was going to make very
3 briefly about those, but my time is running short.
4 THE COURT: Go right ahead.
5 MR. HUT: I think I'll just let the record speak for
6 itself.
7 As the Court knows, those are essentially medical
8 abortion or induction on the one hand, surgical abortion or D&E
9 on the other.
10 THE COURT: I'd be happy to have you go into it.
11 MR. HUT: I'm just trying to allocate my time
12 appropriately, your Honor.
13 THE COURT: I haven't restricted you on any tight
14 times.
15 MR. HUT: I understand that, your Honor.
16 THE COURT: I'd be interested to hear that, because I
17 was rather taken with the description, although you say it's
18 not relevant here, of informed consent as to the options given
19 by your clients when they described how the different
20 procedures would be performed and what they entail. And I
21 remember very clearly how witnesses testified in connection
22 with, say, D&E, that they were -- they would disarticulate the
23 fetus. And when I pressed them as to whether or not they told
24 the woman considering this very, very personal and serious
25 decision that what that meant was you were going to tear the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2782
46menaf2 Summation - Mr. Hut
1 fetus limb from limb, they espoused that, no, they wouldn't do
2 that. And there were witnesses who also testified that
3 probably, as I recall it, the women might not understand the
4 word disarticulation.
5 MR. HUT: And I don't think, in my recollection, that
6 the witnesses ever said that they used that word that a woman
7 would --
8 THE COURT: Some did, some didn't. But they didn't
9 tell the witness in simple, unsugarcoated, if there were such a
10 word, language that what you're doing is tearing the arms and
11 legs off the baby.
12 MR. HUT: And it should be understood, your Honor --
13 let me address this point. I was --
14 THE COURT: So I'd be happy to have you go into the
15 different procedures and what's necessary and the benefits.
16 MR. HUT: Very well.
17 THE COURT: And I think the same was true when they
18 described what happens in a D&X or partial birth abortion,
19 whatever your choice of the procedure's label; that they insert
20 a pair of scissors in the base of the skull of the baby and
21 then suck his brain out, or use such term as reducing the fetal
22 skull, which means crushing it. All of these choice of terms
23 are interesting to me.
24 MR. HUT: Well, this is not, of course, a statute that
25 regulates the informed process, informed consent process or
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2783
46menaf2 Summation - Mr. Hut
1 that mandates any particular disclosures.
2 But on the subject of the testimony that was offered
3 at trial, and I certainly do recall questions from the Court on
4 the subject, I think what you heard is that there were a
5 variety of different procedures. I think that what you heard
6 is the informed consent is largely a matter of the individual
7 judgment of the doctor based on his or her well informed
8 assessment of his or her patient, and that patient --
9 THE COURT: Didn't it sound more, Mr. Hut, as if the
10 doctors were informed and the women consented?
11 MR. HUT: I don't think so at all, your Honor. I
12 think this is a very delicate issue as to which sophisticated,
13 experienced doctors bring to bear years and years of judgment
14 that we lawyers -- we lawyers cannot begin to appreciate.
15 THE COURT: It's not the doctor's consent, it's the
16 woman's consent.
17 MR. HUT: And it's the doctors that understand the
18 women that are patients and those patients --
19 THE COURT: Isn't that terribly patronizing when it's
20 the woman who's making the decision?
21 MR. HUT: I think it's hardly patronizing or
22 paternalistic in any way as compared to the arrogance of
23 legislature that would dictate to a doctor and to a woman what
24 safe procedure they may or may not be.
25 THE COURT: Those are legislators who are elected by
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2784
46menaf2 Summation - Mr. Hut
1 men and women of this country, are they not?
2 MR. HUT: Certainly they are, and they didn't speak to
3 the informed consent process.
4 THE COURT: And are they not carrying out the will of
5 their constituents, or supposedly, theoretically?
6 MR. HUT: Theoretically, of course.
7 THE COURT: So I assume when they do that, they're
8 trying to carry out the desires, whereas the doctor, by not
9 telling them in simple, clear language, I find the subject of
10 informed consent a misnomer.
11 MR. HUT: Well, I don't think there is anything in the
12 testimony here that would support that determination, your
13 Honor. What you heard on the subject, for example, from
14 Dr. Nuland on the first day of the trial, from many of the
15 physicians who testified --
16 THE COURT: He never performed an abortion either, did
17 he?
18 MR. HUT: Excuse me?
19 THE COURT: Go ahead.
20 MR. HUT: I missed the question, your Honor.
21 THE COURT: He's not an obstetrician, is he?
22 MR. HUT: No, he's not. He's a surgeon who's written
23 on the history of surgery --
24 THE COURT: Yes, I recall.
25 MR. HUT: He won a Pulitzer Prize.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2785
46menaf2 Summation - Mr. Hut
1 THE COURT: I know, you brought that up.
2 MR. HUT: I certainly hope we did, your Honor.
3 THE COURT: A lot. Didn't have anything to do with
4 obstetrics, but it was interesting.
5 MR. HUT: I think it does qualify the quality of the
6 judgments that he brings to bear on his speciality in the
7 history of medicine.
8 But in any event, the specific judgment --
9 THE COURT: I think in the old days they'd call that a
10 stage-setter.
11 Go ahead.
12 MR. HUT: I hope it was.
13 The specific judgment of the physicians that you heard
14 varies substantially. For example, you heard from
15 Dr. Grunebaum. He said that he tells the patient everything,
16 including each and every graphic detail. I believe you asked
17 him about the scissors. I believe you asked him in terms of
18 limb from limb, and I think he told you he used those words.
19 Others don't do that by their own candid admission.
20 Dr. Lockwood, the government's expert, the first one
21 that they led off with, told you that he believed that from an
22 ethical perspective, the greater harm to the patient, unless
23 that patient specifically asked, would be to disclose what he
24 described as the graphic details. That's his language, not
25 mine.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2786
46menaf2 Summation - Mr. Hut
1 However the Court may see the relevance of informed
2 consent disclosures, however, there is no legal basis for
3 sustaining the Act as constitutional based on what the Court
4 may perceive to be deficient disclosures by doctors.
5 Let me now come back to the procedures we're talking
6 about here. Why, for example, do doctors perform D&Es at all?
7 Why don't they instead use inductions? Two broad possibilities
8 were advanced at the trial: Either the doctors work in
9 consultation with their patients to decide what procedure is
10 best, given the patient's circumstances, the safety of the
11 procedure, the physician's expertise; or they choose D&E
12 because they can get more women in and out of the operating
13 room faster and make more money doing so. To state these
14 alternatives, of course, is to answer the question.
15 There is not an iota of evidence, none, that profit
16 motive animates physician preference for D&E. The plaintiffs'
17 witnesses who addressed the issue squarely refuted any such
18 notion. And Dr. Lockwood, the only government witness to
19 address the issue, and the only one to head a department that
20 actually performed intact D&E, Dr. Lockwood treated the very
21 idea with derision.
22 The record is replete with the actual and compelling
23 reasons why patients in consultation with their physicians
24 choose D&E over induction, and they do so by a factor of
25 something like 19 to 1; 95 percent. Inductions, as many
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2787
46menaf2 Summation - Mr. Hut
1 witnesses acknowledge, require hospitalization; D&E doesn't.
2 Inductions take from a low of 4 to as many as 48 hours or more.
3 The surgical performance of the D&E as described by
4 Dr. Westhoff takes 20 minutes or so.
5 THE COURT: But you throw out the statistic 19 to 1,
6 but we have no basis of knowing whether those women who chose
7 it were informed that the procedure requires dismemberment or
8 tearing the fetus limb from limb. We don't know that, do we?
9 MR. HUT: We do not know --
10 THE COURT: And we don't know whether or not the
11 doctor told them in compiling these 19-to-1 statistics that
12 they were informed of the testimony of the study of Dr. Anand
13 that if that fetus is beyond 20 weeks, that it has cognitive
14 ability and feels pain. So we don't know when a woman made
15 that choice 19 to 1, that she knew her baby was going to be
16 torn limb from limb and could feel the pain of that procedure,
17 do we, Mr. Hut?
18 MR. HUT: We don't know because the record does not
19 tell us what the woman --
20 THE COURT: That's all I want to make sure that the
21 record now tells us.
22 MR. HUT: Let me address, since your Honor has raised
23 it a number of times, and let me take it up out of order, the
24 testimony of Dr. Anand.
25 Dr. Anand acknowledged that no one could be sure that
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2788
46menaf2 Summation - Mr. Hut
1 fetuses do feel pain. Your Honor mentioned 20 weeks. That was
2 not the testimony of Dr. Anand. The 20-week figure is from
3 gestation, and I believe that the record reflects that, in
4 fact, what Dr. Anand was talking about was as measured from the
5 last menstrual period, as all of the other witnesses who
6 testified spoke to.
7 Dr. Anand, of course, as you point out with
8 Dr. Nuland, Dr. Anand is not a gynecologist. Dr. Anand
9 testified that the actual gestational age about which he was
10 offering his opinion that fetuses might at that age feel pain
11 was 22 weeks, LMP. Dr. Anand --
12 THE COURT: Going back we still don't know if the
13 woman 19 to 1 who chose the procedure was told this.
14 MR. HUT: No, and what would the woman be told? That
15 there are doctors who think that after 22 weeks, although
16 acknowledging that we cannot be sure that technology does not
17 permit us the sophistication to know, that there is some
18 possibility, some theoretical basis of thinking the fetus can
19 feel --
20 THE COURT: Mr. Hut, no one can see pain, can we?
21 MR. HUT: I think people actually can.
22 THE COURT: You can't see -- you can see reaction to
23 pain, can't you, but you can't see pain.
24 MR. HUT: I don't know whether there are not internal
25 measurements.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2789
46menaf2 Summation - Mr. Hut
1 THE COURT: Not even a human being, just talking in
2 terms of a baby or fetus.
3 MR. HUT: I don't know, your Honor.
4 THE COURT: You don't know --
5 MR. HUT: I would not be at all surprised to learn
6 that there may be ways of imaging nerve or neuron reactions.
7 THE COURT: Do you know of any?
8 MR. HUT: I certainly do not, and I haven't
9 investigated it, though it's a problem I worry about a lot.
10 THE COURT: When you have a headache, can you see it,
11 Mr. Hut?
12 MR. HUT: Of course I cannot see it, but I don't know
13 if I --
14 THE COURT: You feel it, though, don't you?
15 MR. HUT: I don't know if I were hooked up to some
16 machine that a doctor taking the relevant medical measurements
17 could not see my headache.
18 THE COURT: This is a fetus in a woman's body, right?
19 MR. HUT: Of course.
20 THE COURT: Quite a different step.
21 But nonetheless, we don't know if that statistic that
22 you threw out so glibly of choosing it 19 to 1, going back to
23 the basic point, we don't know whether the woman who made the
24 decision was aware of the details of the procedure or that it
25 might cause fetal pain to the baby.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2790
46menaf2 Summation - Mr. Hut
1 MR. HUT: Yes, that's true. But a couple of
2 additional points here, your Honor, as long as we are here.
3 One, you mentioned Dr. Anand's testimony about the cognitive
4 ability of a fetus. I think that Dr. Anand was careful to
5 admit he had no information at all whether fetuses experience
6 the level of consciousness that is required in order for pain
7 to be experienced.
8 Second, what he clearly did say is that -- and
9 acknowledged is that if there is any pain felt by a fetus at 22
10 weeks LMP or beyond, that pain would be much more severe in the
11 procedure that your Honor was just now addressing; that is, the
12 dismemberment D&E, much more severe than it would be in an
13 intact D&E. He also said --
14 THE COURT: But also that maybe as you're doing a D&X,
15 could feel the pain of the scissors being inserted.
16 MR. HUT: Yes.
17 THE COURT: One might be more severe than the other,
18 but he could feel it. And in that instance he's experiencing
19 the pain in a different context.
20 MR. HUT: So -- on the doctor's supposition and
21 hypothesis, but what rationality could there possibly be to a
22 procedure that is designed supposedly to alleviate some
23 hypothetical fetal pain that it would, in fact, drive doctors
24 and their patients to a procedure that imposes more severe pain
25 by the acknowledgement of the government's own expert? That
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2791
46menaf2 Summation - Mr. Hut
1 cannot make rational sense. It cannot be a Constitutional
2 justification for a ban like this. Not only did Dr. Anand
3 acknowledge and admit that a dismemberment D&E would create
4 more severe pain for a fetus on the hypothetical assumption --
5 THE COURT: An induction would cause less, right?
6 MR. HUT: No, on the contrary. He did not say. He
7 did not make a comparison between induction and D&E.
8 THE COURT: He said there was a possibility of it, did
9 he not?
10 MR. HUT: I don't know that he did say that. He
11 acknowledged that induction, which of course is the expulsion
12 of the fetus through forceful titanic contractions, and
13 which --
14 THE COURT: Same ones that occur in child birth,
15 right?
16 MR. HUT: No. At the second trimester they are more
17 severe. That's the clear and unrefuted testimony of the
18 witnesses you heard, that that asphyxiation and that
19 contraction process causes and imposes great pain, or pain
20 certainly, on the fetus. I don't think he was asked to make a
21 comparison between the level of pain in an induction and a D&E
22 intact or by dismemberment. But induction-caused pain led to
23 the cytocidal agents --
24 THE COURT: An injection with an agent that would kill
25 it before the expulsion, correct?
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2792
46menaf2 Summation - Mr. Hut
1 MR. HUT: That, too, yes. And he acknowledged
2 that that, too, would cause pain, the administration of the
3 injection.
4 THE COURT: A pin prick.
5 MR. HUT: I don't think he described it that way. And
6 I don't -- frankly, I've never had a KCI injection in my heart;
7 I hope I never do. So I don't know, I don't think anybody
8 does.
9 On the subject of induction of fetal demise, let me
10 say this: I think the whole question of fetal demise in this
11 case shows that what Congress purports to say about its concern
12 for the health of a woman is just simply a phoney.
13 Here's what Congress has said: We worry about
14 cervical incompetence. Well, there is no testimony that there
15 is any rational basis for any such concern. There are no
16 controlled studies on the subject of controlled studies.
17 THE COURT: You're calling Congress' concern phoney?
18 MR. HUT: I am calling it phoney, and I will tell you
19 why. And I am calling their concern about excessive dilation
20 phoney.
21 And the reason it's phoney is because the way to avoid
22 this ban, this ban that has been enacted for these supposed
23 reasons, is to effect fetal demise seconds or moments before
24 you perform the procedure, so that the same dilation, if
25 accompanied by fetal demise, is going to take place. And it's
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2793
46menaf2 Summation - Mr. Hut
1 going to have the same consequences, whether or not there is
2 fetal demise, only in one circumstance the doctor will not have
3 violated the statute and in the other he will. That, to me, is
4 crystal clear evidence that Congress and the congressional
5 manifestation of concern about excess dilation makes no sense.
6 Likewise, internal podalic version, that's going to
7 occur whether or not the doctor has induced fetal demise, and
8 with the same medical consequences. We believe that it's
9 perfectly clear, once again, there are no controlled studies
10 and each of the witnesses who testified here, including the
11 government's own witnesses, expressed the view that there were
12 no support, or substantially no support for Congress' findings.
13 But if there are problems with internal podalic version, those
14 problems don't get eliminated because the government induces
15 fetal demise. The same, the very same medical consequences
16 will result on the assumption, unproven, untested and simply
17 imagined that there are medical consequences.
18 Now, there are other reasons why women choose D&E over
19 induction. Inductions, unlike D&E, carry the pain and the
20 discomfort of labor. Dr. Clark acknowledged they are
21 psychologically draining. Unlike labor at term, induction
22 involves the labor and delivery process without the joy of live
23 birth at its conclusion. They are even often performed, the
24 testimony describes, on the labor floor, so that women
25 undergoing abortions and grieving a dead fetus may be
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2794
46menaf2 Summation - Mr. Hut
1 surrounded by joyous mothers welcoming a healthy new-born.
2 Now, to be sure this combination of factors is --
3 THE COURT: But this is a dead fetus that they ordered
4 killed, correct?
5 MR. HUT: I certainly wouldn't describe it that way,
6 your Honor, but it is certainly the dead fetus, and it was
7 certainly the decision of the woman to cause the fetal death.
8 THE COURT: It didn't -- we aren't talking about where
9 a fetus dies in the mother's womb without any interference or
10 action by a physician. This is where a doctor performs an act
11 that causes the death of the fetus, right?
12 MR. HUT: The doctor causes the death of the fetus,
13 often a very much wanted one. If the suggestion is --
14 THE COURT: I didn't say that, but in this instance,
15 this isn't where there's a stillbirth. This is where the
16 doctor performs an abortion.
17 MR. HUT: Of course, your Honor, but it may be -- it
18 is a fact, it may be an inconvenient fact but it is still a
19 fact, that many of these dead fetuses, as you describe them,
20 are wanted fetuses. So the cruelty that is involved in
21 consigning the woman for the labor to have an induction --
22 THE COURT: Mr. Hut, please, don't talk through me.
23 It was a mother who ordered the abortion, correct?
24 MR. HUT: Stipulated, your Honor.
25 THE COURT: All right.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2795
46menaf2 Summation - Mr. Hut
1 MR. HUT: That does not -- but it begs the question,
2 with all respect, your Honor, that does not make the process of
3 going through an induction that could last up to a matter of
4 days on the labor floor surrounded by happy mothers a prospect
5 that I would willingly consign anyone to. And I don't think
6 that constitutionally Congress can either.
7 Some women cannot have inductions even if they
8 otherwise wanted to. Virtually all witnesses on both sides
9 agree with this proposition. Women who have certain prior
10 uterine scarring, for example, are usually advised not to have
11 inductions. As plaintiffs -- excuse me. As plaintiffs'
12 witnesses and as Drs. Lockwood and Sprang and Clark agree, that
13 kind of scarring can result, for example, from Cesarean
14 sections of which more than a million are performed each year,
15 or they can result from uterine surgery like myomectomy or
16 hysterectomy -- excuse me, hysterotomy.
17 The classic or vertical C-section scar is the one that
18 places the woman at the greatest risk of uterine rupture caused
19 by the force of contractions during subsequent labor regarding
20 induction. And while the classic scar is not common, even
21 Dr. Clark acknowledged that it results in 1 to 2 percent of all
22 Cesareans.
23 And so the government's own evidence shows that from
24 10,000 to 20,000 women each year have Cesarean sections
25 resulting in classic scars, making inductions considerably more
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2796
46menaf2 Summation - Mr. Hut
1 dangerous for them than D&E. That is a very, very large and
2 each year self-replenishing pool of women for whom induction is
3 contraindicated and for whom D&E is much preferred.
4 No one, your Honor, suggests that uterine scarring
5 itself is a condition that will require an end to pregnancy.
6 That and other circumstances similarly described by the
7 government is assembling a straw mat. But if a woman with a
8 scarred uterus needs a second trimester abortion, then the
9 experts overwhelmingly agree that she should not have an
10 induction.
11 Induction is, likewise, not advisable for a woman
12 diagnosed with placenta previa, as the Court will remember as
13 the condition in which the placenta seals off the cervix. It's
14 a dangerous condition in which labor must be avoid and for
15 which D&E is preferable. And women at increased risk of
16 bleeding or infection ought not undergo induction, as
17 Dr. Johnson, whose own hospital himself performs more
18 inductions as D&Es, as he testified.
19 And contrary to the opinion you heard from Dr. Clark,
20 the evidence shows that women at risk for bleeding can more
21 easily undergo the relatively short surgery involved with D&E
22 than they can with induction. They can do so because, as Drs.
23 Westhoff and Hammond, from Western Medical School testified,
24 for a short period of time drugs can be used that supply
25 clotting capability in lieu of missing platelets, but such
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2797
46menaf2 Summation - Mr. Hut
1 drugs cannot be used through the entire potentially lengthy
2 period required for induction, a procedure that itself and
3 incontrovertibly involves a lot of bleeding.
4 There are other indications, of course, for which, in
5 the view of numerous witnesses, inductions are absolutely or
6 relatively contraindicated. Those are set out in our findings,
7 paragraph 94, among others.
8 Finally, some inductions fail, and when they do, the
9 doctor is required to perform a D&E in any case, and there is a
10 very distinct possibility ranging as high as one in three that
11 the placenta will not deliver by induction. And it will
12 require surgical removal.
13 There is also a chance that the fetus itself will not
14 deliver or become stuck and will have to be removed surgically.
15 Thus, because of both patient preference and safety
16 considerations, as I said earlier, more than 95 percent of
17 women who undergo second trimester abortion choose D&E.
18 And because of that, your Honor, the availability of
19 induction is no answer to a ban that reaches D&E. Period. The
20 Supreme Court has unequivocally made that clear. As the Court
21 held in Stenberg, if a ban reaches D&E, it places an undue
22 burden on a woman's right to terminate her pregnancy, and it
23 must fall, notwithstanding the availability of induction.
24 Now, it may well be that there is a debate in the
25 medical community about whether a particular condition is a
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2798
46menaf2 Summation - Mr. Hut
1 contraindication for induction. Indeed, the trial evidence at
2 times presents precisely such a debate.
3 But the point is not which doctor may be correct about
4 which condition may be contraindicated; the point is that in
5 medicine there may not be only one correct answer about which
6 is better, which is safer for a particular maternal condition.
7 Different doctors may have different judgments. The same
8 condition may merit different treatment for different patients.
9 In the words of Dr. Cook, this is why we are familiar with the
10 phenomenon of seeking a second opinion.
11 And so long as reasonable, doctors must be given the
12 leeway to recommend particular ways to terminate a pregnancy.
13 So women must be allowed to choose D&E. And as between
14 dismemberment D&E and intact D&E, there is widespread agreement
15 among experts in D&E practice who testified in this courtroom
16 that intact D&E is safer.
17 The plaintiffs and their experts who performed D&E
18 first base their views on their own clinical experience. Among
19 plaintiffs' witnesses, as we describe at length in our
20 findings, that experience is extensive. Five of the
21 plaintiffs' witnesses actually performed the intact D&E
22 variation, and these and other among plaintiff's witnesses also
23 have extensive experience with dismemberment D&Es.
24 That experience stands in sharp contrast to the four
25 obstetrician gynecologists who testified for the government.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2799
46menaf2 Summation - Mr. Hut
1 Among them they have never performed an intact D&E, except for
2 Dr. Clark, who as I mentioned earlier has performed at most a
3 dozen dismemberment D&Es. None of them has ever done a
4 dismemberment D&E on a live fetus. Not only that, but except
5 for Dr. Lockwood, who did converse at some length with a doctor
6 he hired --
7 THE COURT: You persist in this rationale, but you
8 have to have done it in order to be able to be capable of
9 giving an expert opinion.
10 MR. HUT: No.
11 THE COURT: And I suggested to you before that a
12 pathologist doesn't go out and commit murders but he's
13 perfectly capable, or she is, of testifying as to what happened
14 and what the cause of death was.
15 MR. HUT: No. What I suggest to your Honor is not
16 that they are incapable, but that there are doctors, when they
17 have performed the medical procedure or surgical procedure in
18 question, who are more capable.
19 To the point on the pathologist, a pathologist or
20 coroner make --
21 THE COURT: It may be that some of these doctors that
22 testified for the government, I'm not going to argue with you
23 but it's very possible their credentials are far superior to
24 those who were plaintiffs in this action, even though they
25 don't perform; but they are highly educated, highly trained,
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2800
46menaf2 Summation - Mr. Hut
1 highly experienced physicians in the field of obstetrics.
2 MR. HUT: Some are, some are not.
3 THE COURT: And you tried to put this barrier that
4 they aren't capable. I don't know that that applies.
5 MR. HUT: I resist the characterization that they are
6 not capable. I don't think I've said that. I don't think I've
7 used that term. What I do say is that --
8 THE COURT: So you dismiss them, it would appear, out
9 of hand because they don't perform. It's a nice way of getting
10 rid of them, but I don't think it holds water.
11 MR. HUT: Well, I don't necessarily dismiss it out of
12 hand. That's not my term. I do say that the weight of their
13 testimony is far less than the weight of doctors who actually
14 do the work in question, the work that is the subject of the
15 lawsuit. They did not even, except for Dr. Lockwood, talk to
16 any intact provider.
17 Dr. Lockwood, of course, did. He not only talked to
18 the woman doctor that he hired at NYU to manage the abortion
19 practice at that hospital and who did do intact D&Es during his
20 chairmanship. They say that they read the Haskell and McMahon
21 procedure, those are nine and eleven years old. And they are
22 outdated.
23 And none of them ever saw an intact D&E performed --
24 THE COURT: But you didn't offer any proof that
25 although they may be some years ago, that they're inaccurate or
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2801
46menaf2 Summation - Mr. Hut
1 erroneous. You offered no witness on fetal pain, did you?
2 Isn't that a fact, Mr. Hut?
3 MR. HUT: We offered no witness -- did you say on
4 fetal pain, your Honor?
5 THE COURT: Yes.
6 MR. HUT: That's correct. As I --
7 THE COURT: That's all I wanted to make sure, that I
8 hadn't missed something.
9 MR. HUT: As our motion in limine makes clear, your
10 Honor, as I hope I made clear a moment ago, we don't --
11 THE COURT: I ruled on that, but I asked you simply,
12 did you offer any witness to contradict Dr. Anand? The answer
13 is you're just saying it's all old. You aren't saying it's
14 inaccurate, you're just saying that he did it some years ago.
15 MR. HUT: Well, I think -- let's divide those two
16 things. We did not offer a witness in response to Dr. Anand
17 because we did not think that Dr. Anand and the evidence that
18 he offered was consequential or appropriate.
19 THE COURT: That's your judgment, but you didn't, is
20 the basic bottom line.
21 MR. HUT: With respect to the Haskell and McMahon
22 papers, each and every one of the doctors that testified, or at
23 least the five that did, do intact D&Es. Currently I believe
24 all of them do; that would be Dr. Westhoff, Dr. Grunebaum,
25 Dr. Chasen, Dr. Hammond and Dr. Frederiksen. All of them
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2802
46menaf2 Summation - Mr. Hut
1 testified to the ways in quite some detail that they perform
2 intact D&Es.
3 And I think the Court will find if it examines the
4 testimony, and I don't have it available to me readily, that
5 the ways in which they perform intact D&Es are markedly
6 different from the ways Drs. Haskell and McMahon perform D&Es
7 as described in their papers.
8 The intact D&E assessment of safety by the plaintiffs'
9 witnesses is confirmed by the carefully considered views of
10 their professional association, that is, the American College
11 of Obstetricians and Gynecologists, or ACOG. Those views were
12 first expressed in 1987.
13 THE COURT: I'm glad you brought that up. ACOG, the
14 organization you just mentioned, American College of
15 Obstetricians and Gynecologists, their policy papers is 1997,
16 correct?
17 MR. HUT: And it's been reaffirmed twice in 2000 and
18 2002.
19 THE COURT: But that was their policy and they refused
20 to testify in this case, correct, as did Dr. Carver. Mr. Hut,
21 you're on the record as having told me they refused.
22 MR. HUT: Yes.
23 THE COURT: On more than one occasion.
24 MR. HUT: We asked both of them and they declined to
25 come to New York.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2803
46menaf2 Summation - Mr. Hut
1 THE COURT: Now, going back to their report, you also
2 put into your papers that this organization represents 44,000,
3 I believe, obstetricians?
4 MR. HUT: I believe that's the correct number, your
5 Honor, yes.
6 THE COURT: Now, this particular policy that you
7 referred to in 1997, as we found out in the course of the
8 trial, was done by a panel, correct, and then submitted to the
9 board for their approval?
10 MR. HUT: Correct. It was a panel of very
11 well-credentialed physicians, some of whom were abortion --
12 THE COURT: We've never had introduced what the vote
13 of the board was, did we?
14 MR. HUT: I don't believe we did, your Honor.
15 THE COURT: And I don't believe, as the testimony
16 pointed out, there was never a vote of the 44,000 members, was
17 there?
18 MR. HUT: Correct, as there never is with respect to
19 the adoption of any policy --
20 THE COURT: I don't care whether there is or isn't.
21 There wasn't.
22 MR. HUT: That's true.
23 THE COURT: So when you puff up your chest and say
24 ACOG, 44,000 members, that isn't really what happened because
25 it's a board of a limited number of, what was it, 12 or 15?
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2804
46menaf2 Summation - Mr. Hut
1 MR. HUT: I think the Court's recollection is correct
2 on that score.
3 THE COURT: And they approved it at an unknown vote
4 that could have been 75, for all we know.
5 MR. HUT: It could have, for all we know, but that
6 certainly adds a good 7 more to that body of substantial
7 medical opinion.
8 THE COURT: But in any event, when we introduce it in
9 the papers and waved 44,000, that isn't quite accurate, is it?
10 MR. HUT: I think it is, your Honor, and I think --
11 THE COURT: Any organization that has 44,000
12 members -- but they were not consulted in the sense that they
13 were asked to vote on it.
14 MR. HUT: And not in that sense, that's right, your
15 Honor. There are two points to be made on that subject.
16 THE COURT: Well, they could come to a meeting and
17 object if they wanted to, right?
18 MR. HUT: No. There are internal ways, there are ways
19 through written communications, written communications through
20 which they were --
21 THE COURT: But they weren't solicited in the form of
22 a vote.
23 MR. HUT: That's true. And what Dr. Lockwood
24 testified on the subject is that, given the representativeness
25 and the qualifications of those physicians who comprise the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2805
46menaf2 Summation - Mr. Hut
1 executive board of ACOG, he is certain that there was a
2 substantial minority -- excuse me, majority, though he
3 recognizes there may have been some dissenters, but that the
4 dissenters were nothing like a majority.
5 THE COURT: He never testified he was present or had
6 the results, did he?
7 MR. HUT: Present where, your Honor?
8 THE COURT: It's just his belief.
9 MR. HUT: Yes, his belief based on a fellow of the
10 college --
11 THE COURT: And when the Supreme Court wrote in
12 Stenberg and referenced ACOG several times, they didn't point
13 out there that there was no vote of the organization. There
14 was just the board voted on a report issued by a panel that we
15 have no knowledge as to the makeup of the panel, no knowledge
16 of the vote of the panel. We have no knowledge of the makeup
17 of the board and no knowledge of the vote of the board. Is
18 that not correct?
19 MR. HUT: I'm trying to remember whether Dr. Cain, who
20 of course gave deposition testimony in this proceeding, and
21 that's the basis, I think, for some of the Court's questions.
22 THE COURT: Yes.
23 MR. HUT: Whether she described --
24 THE COURT: Part of it.
25 MR. HUT: Whether she described the makeup of the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2806
46menaf2 Summation - Mr. Hut
1 executive board. She may simply have described or
2 characterized that board as made up of high --
3 THE COURT: I believe it was her belief also, correct?
4 MR. HUT: I think she knows the board members, that
5 they are made up of very well-credentialed -- and she was the
6 designated Rule 30(B)(6) deponent on the subjects, including
7 the nature of the vote --
8 THE COURT: But she didn't know the vote and she
9 didn't know how many of each character -- category, namely
10 those opposed to abortion, those who provided abortion, those
11 who were pro-choice --
12 MR. HUT: I don't know if there was any vote opposed
13 to the adoption of the policy.
14 THE COURT: We don't know.
15 MR. HUT: What we --
16 THE COURT: That's the whole point, Mr. Hut, we don't
17 know, except that it was approved.
18 MR. HUT: Yes, by a group that is representative,
19 according to Dr. Lockwood, of the district and national
20 composition of ACOG and comprised of very well-credentialed
21 physicians --
22 THE COURT: But he never testified who they were or
23 established that they were, in fact, representative. It was
24 just his opinion, correct?
25 MR. HUT: That's true, but unless the Court is
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2807
46menaf2 Summation - Mr. Hut
1 prepared to assume somehow that ACOG was captured by some rogue
2 group of abortion providers and their fellow travellers, I
3 can't see there is any basis --
4 THE COURT: You're suggesting. I don't know if it's
5 true. If you know that, I wish you'd tell me.
6 All I'm saying is we have to face what we have, and
7 what we have is that the board approved the policy. But I
8 don't want the record to be unclear that that was not based on
9 a vote of the 44,000 members. So we should know exactly what
10 its value is.
11 MR. HUT: Yes. Here's what I think we know: That
12 this -- the policy statement was drafted by a well-credentialed
13 task force. It was drafted and then submitted to and
14 reviewed -- the task force reviewed it after surveying the
15 relative literature and talking amongst themselves about some
16 25 or 30 instances. It was then submitted to the executive
17 board. That is a representative body comprised also of
18 capable, well-credentialed physicians.
19 THE COURT: If one person says it isn't, it was never
20 tested, was it?
21 MR. HUT: How do you test it except on the examination
22 of a particular witness? How would you have tested it if
23 Dr. Cain had been in this courtroom, except on her testimony to
24 the same end, as I assume?
25 THE COURT: I might have asked what basis she had to
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2808
46menaf2 Summation - Mr. Hut
1 make that conclusion --
2 MR. HUT: Indeed.
3 THE COURT: -- as she appeared here.
4 MR. HUT: And so could the litigant in this case, the
5 government, done deposition testimony, and had they done so, it
6 could have presented that testimony to the Court for
7 consideration, but apparently it was not asked.
8 THE COURT: True.
9 MR. HUT: But what happened here is that this task
10 force prepared this report. It was submitted to the executive
11 board pursuant to the regular protocols of the board; that is a
12 representative well-credentialed body, and the testimony --
13 THE COURT: You keep adding in these adjectives that
14 really aren't established, "well-credentialed body." You know,
15 you haven't established that. You have one person who says
16 they believe it without identifying any of the people or
17 proving that. I just wouldn't overstate it, Mr. Hut, what is
18 really established here.
19 MR. HUT: I think I'm, respectfully, not overstating
20 it, your Honor. But obviously the Court will make the findings
21 and the Court will make its own determination.
22 THE COURT: That's why I ask the questions of you. I
23 want to make very clear, very clear what is actually
24 established here, what has been proven, what has not been
25 proven and whether this record is different from Stenberg,
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2809
46menaf2 Summation - Mr. Hut
1 whether it's a different record, what evidence was here that
2 was not there and what evidence perhaps that was in Stenberg
3 now has been brought into question.
4 MR. HUT: I think the record --
5 THE COURT: That's why I ask the questions, Mr. Hut.
6 MR. HUT: Let me just say one more thing about ACOG
7 and then talk about the record comparatively with Stenberg, and
8 that is, once again, to identify Dr. Lockwood.
9 Dr. Lockwood is a fellow of the college. Dr. Lockwood
10 has served on a number of, I believe, committees or task forces
11 of the college. He is the dean of -- I'm sorry, a chair of the
12 department at Yale medical school. He is former chair of the
13 department of OB-GYN at NYU. He is, by all accounts, a
14 well-credentialed, and by our candid acknowledgement, a
15 well-credentialed OB-GYN.
16 The record here is somewhat different than it was in
17 Stenberg. In Stenberg, as your Honor has described, there were
18 relatively few testifying OB-GYNs. Here you had a very
19 substantial number. I believe the credentials of doctors who
20 spoke here on the basis of their clinical experience will speak
21 for itself.
22 In short, and this was understandable because we're
23 several years later, we know a lot more and we have a lot more
24 information to put in the record. I think it is a far more
25 fulsome record and far more fulsomely supports the safety
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2810
46menaf2 Summation - Mr. Hut
1 methods of the intact D&E than the record did in Stenberg, a
2 record that was thought less sufficient by the Supreme Court
3 because it reflected clearly there was a substantial or
4 significant body of opinion that believed that there were
5 safety benefits, and then he stated the reasons therefore.
6 So no one in this courtroom wants this record to be
7 clearer, your Honor, I can assure you, than the plaintiffs do,
8 because we think the clarity in the record overwhelmingly
9 demonstrates the proposition I started out with at the outset,
10 that this is really a easy case given the Stenberg rule.
11 (Continued on next page)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2811
46M5NAT3 Summation - Mr. Hut
1 MR. HUT: Let me touch upon that but let me also raise
2 a concern that I have. I have been at pains to respond to the
3 Court's questions. I hope I have done so candidly and
4 forthrightly. I apologize to the extent I have stepped over
5 the Court in colloquy.
6 THE COURT: It happens, Mr. Hut. I am not going
7 anywhere.
8 MR. HUT: Somehow, I didn't think so, your Honor.
9 I have not gotten through the entirety of my argument.
10 THE COURT: Mr. Hut, I am not cutting you off. Go
11 right ahead and finish it. Please do. I want the benefit of
12 everything you have to say. This is too important an issue and
13 I, in no way, intend to treat it lightly. It is of the gravest
14 importance to the people of this country and I think those
15 involved should make every effort to have everything considered
16 as seriously as we possibly can, so please do not concern
17 yourself with time.
18 And if I have interrupted you, take a deep breath and
19 head right back in.
20 MR. HUT: I apologize to the Court about giving the
21 impression if I have been breathless at any point.
22 THE COURT: No, I am not suggesting that. I just say
23 sometimes a good deep breath. You know how it is, sort of like
24 time out between plays.
25 Go right ahead.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2812
46M5NAT3 Summation - Mr. Hut
1 MR. HUT: I think a cleansing breath is I think what
2 the yogas call it.
3 Let me touch upon the safety advantages that I think
4 the evidence overwhelmingly shows here attached to the intact
5 D&E method or variation.
6 First, fewer passes with the forceps with intact D&E
7 means greater safety because there is less risk of uterine
8 perforation and less risk of cervical laceration.
9 Second, no dismemberment means that bony feel
10 fragments are avoided and thus those as well as a source of
11 perforation and laceration.
12 Third, one of the most difficult aspects of the D&E is
13 the extraction of the fetal head. That sometimes requires many
14 extra instrument passes to extract. The intact variation of
15 D&E avoids that problem if the head remains attached and it is
16 extracted along with the rest of the fetal body.
17 Fourth, dismemberment risks, fetal parts being left
18 behind in the uterus, and those can be a source of serious
19 infection. Numerous experts testified that that risk is not
20 eliminated by the use of ultrasound but with intact removal it
21 is.
22 Fifth, providers who are familiar with both intact and
23 dismemberment D&E agree that the intact variation can typically
24 be completed in a shorter period of time. A shorter procedure
25 has substantial patient safety benefits including less blood
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2813
46M5NAT3 Summation - Mr. Hut
1 loss, reduced risk of trauma, reduced infection and reduced
2 exposure to anesthesia. And those risks may not be common in
3 any absolute sense but when they occur they are, the testimony
4 makes this clear beyond question, serious. Avoiding them
5 unambiguously promotes women's health.
6 Six, as between the two variations of D&E abortion,
7 the intact variation, if successful, will provide a
8 substantially intact fetus and so intact D&E permits pathologic
9 testing for fetal anomalies in ways that the dismemberment
10 variation will not. Of course, while some anomalies are
11 chromosomal and will not benefit for diagnostic purposes for
12 intact fetus, others are structural and clearly do.
13 The Court heard from Dr. Baergen, professor of
14 clinical pathology and laboratory medicine and chief of
15 perinatal pathology at Cornell Weill Medical College, testified
16 to the benefits that intact fetus can supply.
17 THE COURT: By the way, as a pathologist I don't think
18 she had ever performed an abortion either, correct?
19 MR. HUT: Correct. She was here to testify about the
20 benefits that an intact fetus can afford for pathological
21 testing purposes.
22 THE COURT: I understand that.
23 MR. HUT: Seventh, and relatedly we have talked about
24 this to this extent already, some women have terminated
25 pregnancy because their fetus had anomalies and want to grieve,
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2814
46M5NAT3 Summation - Mr. Hut
1 to hold the fetus. The intact variation D&E allows this
2 because the face and front of the fetal head remain intact as
3 Dr. Westhoff and Grunebaum testified despite the suctioning of
4 the intercranial contents.
5 THE COURT: Are you arguing that this is reason -- and
6 I questioned this during the trial, Mr. Hut -- you are saying
7 the argument, one of the reasons why D&X is better is because
8 telling me that -- and doctors said this -- that women who have
9 ordered, after full disclosure, have ordered the killing of
10 their baby by reason of the D&X, that the doctor force a pair
11 of scissors into the base of the skull of their baby and then
12 suction off, suck out its brain whereas Dr. Frederiksen said
13 she does it with her finger, pulls the brain out of the skull;
14 these women want to hold that fetus they've ordered killed as
15 part of the mourning process? Is that what you are telling me?
16 MR. HUT: That is absolutely what I am telling you,
17 your Honor, and --
18 THE COURT: All right, I just want that record to be
19 absolutely clear.
20 MR. HUT: As do I. This is an increasingly important
21 aspect of the way pregnancy terminations are dealt with at
22 major hospitals from which you heard attending physicians
23 testify. They are increasingly focusing on facilitating the
24 grieving process and intact D&E aids in that effort.
25 THE COURT: We aren't talking about a fetus that is a
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2815
46M5NAT3 Summation - Mr. Hut
1 stillborn fetus, this is one they've ordered killed.
2 MR. HUT: Yes. Under the circumstances that I
3 described at the outset.
4 THE COURT: Okay.
5 MR. HUT: Now, in addition to the safety advantages to
6 which I have just made reference, Judge Casey, which benefit
7 really any and all women, there are also safety benefits to
8 intact D&E testified to by the witnesses that will benefit
9 women with particular health conditions.
10 Plaintiffs' experts, for example, agree that women at
11 heightened risk for hemorrhage or infection will do better with
12 intact D&E for it, as I just mentioned, reduces the risk of
13 bleeding and sepsis.
14 Even more specifically, women with a condition called
15 chorioamnionitis about which the Court heard -- and a plague
16 for the court reporters -- regrettably, are particularly likely
17 to do better with intact D&E.
18 Dr. Lockwood gave substantial testimony to this point
19 and to the advantage that intact D&E presents for such a woman
20 whose uterine wall may be, as he described it, damaged and thin
21 from that condition.
22 Certain fetal anomalies are also more safely addressed
23 with intact D&E than with the dismemberment variation. A fetus
24 with severe hydrocepahly was one example testified to by a
25 number of the witnesses in the courtroom.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2816
46M5NAT3 Summation - Mr. Hut
1 There was, in addition to the live testimony that you
2 heard in court, your Honor, deposition testimony that was read
3 into the record and that supports these very same safety
4 advantages, testimony supplied by Dr. Paul, Planned Parenthood
5 Golding Gate, who was editor in chief on the leading text on
6 abortion procedures; testimony by Dr. Creinin, professor of
7 obstetrics, gynecology and reproductive science at Pittsburgh
8 Medical School; and testimony as well from Dr. Joanna Cain, who
9 testified on behalf of ACOG, is herself a director for the
10 Center of Women's Health, Oregon Health Sciences University and
11 who supported the very same safety benefits.
12 In addition to the testimony from the plaintiffs based
13 on their own clinical experience, you have also heard testimony
14 about the ACOG position and we have discussed that here this
15 morning at great length and I will go through that again.
16 THE COURT: The witnesses who testified by way of
17 deposition, were they supplied with copies of Dr. Chasen's
18 study before their depositions were taken?
19 MR. HUT: I know that, although I am not sure it
20 appears on the record, but I can assure the Court that
21 Dr. Creinin was supplied a copy because I believe and I hope I
22 am --
23 THE COURT: Before?
24 MR. HUT: Well before his deposition -- I hope I am at
25 liberty to disclose it but I will disclose it in any event. He
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2817
46M5NAT3 Summation - Mr. Hut
1 was, we believe, one of the peer-reviewers for one of the
2 journals of the Chasen study.
3 So, we are certain that he had --
4 THE COURT: The one that rejected his study or the one
5 that accepted it?
6 MR. HUT: That I don't know.
7 THE COURT: Because his study was rejected by a
8 journal first and then resubmitted to a second journal, isn't
9 that a fact, as I recall the testimony?
10 MR. HUT: That is correct, your Honor. And I believe
11 there is also testimony about the process of submission to
12 journals that establishes that that is a very, very, very
13 common process.
14 THE COURT: I am just saying it was rejected and then
15 it was accepted by the second journal it was submitted to but
16 we don't know which journal Dr. Creinin was reviewer for, is
17 that correct?
18 MR. HUT: That is correct.
19 THE COURT: Okay. So it may be that Dr. Creinin
20 rejected it, huh?
21 MR. HUT: I also know that he did not -- but I don't
22 really want to testify, it is not appropriate for me to do so.
23 THE COURT: We don't know.
24 MR. HUT: I think the record, the testimony does make
25 clear that at least in the belief of Dr. Chasen, that the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2818
46M5NAT3 Summation - Mr. Hut
1 OB/GYN Journal turned the article down not for substantive
2 reasons but for space purposes.
3 THE COURT: Again, we don't know and I don't think it
4 is fair to put it in the record if it is the operation of
5 people's minds that we haven't had here in Court to question.
6 We don't know.
7 MR. HUT: That's true, so I suppose there is nothing
8 to infer from the fact of that rejection.
9 Now, the Court also is aware of the statements in the
10 record in the legislative history which is Plaintiff's Trial
11 Exhibit 1 by the American Medical Women's Association with
12 10,000 women, physician and medical student members, and the
13 American Public Health Association with 50,000 members, each of
14 which speaks to the safety advantages for intact D&E.
15 THE COURT: Again, let me interrupt. Do we know
16 whether any of those organizations were given copies of the
17 Chasen report?
18 MR. HUT: I don't know, your Honor.
19 THE COURT: Do we know? I believe the testimony
20 reflected, despite these enormous numbers and everything else,
21 again, it was a board that issued these letters and policy
22 statements without a vote of these large numbers of members,
23 correct?
24 MR. HUT: Correct.
25 THE COURT: There is nothing in the record reflecting
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2819
46M5NAT3 Summation - Mr. Hut
1 50,000 or 12,000 or anything ever voted on these things but a
2 majority of some board approved them.
3 MR. HUT: No, and I think we can assume from the
4 record that there wasn't 50,000 or 10,000 storming the halls of
5 Congress about this legislation either, but I think it is
6 equally inferrible that --
7 THE COURT: If you are going to throw these numbers
8 out, Mr. Hut, I think the record has to be clear, lest we will
9 find it in a Supreme Court opinion that this organization of
10 44,000 or this organization of 50,000 endorsed this or that and
11 that isn't what happened. For whatever it is worth the board
12 approved it, fine. For whatever weight it should be given,
13 fine. But I am just a little hesitant when people start
14 throwing huge numbers around.
15 MR. HUT: I think your Honor is understating,
16 respectfully, the significance of those actions. These are
17 duly constituted governing bodies.
18 THE COURT: I didn't say they weren't duly
19 constituted. I merely wanted to state exactly what it is
20 worth.
21 MR. HUT: As do I, and they were appointed or elected.
22 THE COURT: Nothing more, nothing less.
23 MR. HUT: For the purpose of expressing, amongst other
24 things, the views publicly of the organization and it is one of
25 their purposes.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2820
46M5NAT3 Summation - Mr. Hut
1 THE COURT: We don't know that.
2 MR. HUT: I think we do, your Honor.
3 THE COURT: That is going into the operation of the
4 members' mind and we don't know that. They were elected to the
5 board, they were given this power, they did --
6 MR. HUT: I believe there is testimony, I have not
7 double checked it in the deposition transcripts, with respect
8 to the powers of the boards of the organization.
9 THE COURT: But these could all be, as we have in
10 courts today, 5/4 opinions. We don't know because it was never
11 introduced.
12 MR. HUT: Correct, nor were the opinions or expression
13 and views ever called back despite the fact that as we know
14 there is an ACOG process for doing so.
15 THE COURT: Fine.
16 MR. HUT: Now, the Court heard also briefly --
17 THE COURT: Just, again, I want the record to be
18 exactly what it is. No puffing, just what it is.
19 MR. HUT: I think I have been careful, I hope I have,
20 not to puff. The numbers are what the numbers are. As
21 Dr. Lockwood said, it is fair to --
22 THE COURT: I am not going to fault you, I want to
23 make that record harsh. You are an advocate and you are doing
24 what you should be doing and that's okay, but it is my job to
25 try and cut through the facts and separate the wheat from the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2821
46M5NAT3 Summation - Mr. Hut
1 chaff.
2 MR. HUT: Here is just another additional kernel of
3 wheat. I have lobbed the kernel once before or perhaps twice
4 before, let me do it again.
5 You have the informed view of Dr. Lockwood that he
6 believes that the views of the ACOG board represent a majority
7 of the views of the ACOG fellows so I think we can count 22,000
8 of one at a minimum.
9 THE COURT: Maybe. He is one anyway and again it is
10 his opinion which was less than solid, but we will get into
11 that and I will actually give you and your opponent an advance
12 warning. I never was able to figure out why he was called as a
13 government witness but, that being the case, it was done.
14 MR. HUT: We do rely on substantial portions of his
15 testimony, your Honor.
16 THE COURT: Yes, I certainly have noticed that.
17 MR. HUT: You also heard --
18 THE COURT: I think you slipped him into the pile and
19 they didn't see it. He has been your expert witness for years.
20 MR. HUT: I wish I had thought to be so clever, your
21 Honor.
22 The American Medical Association, there has not been
23 much mention of that that we do know that that statement that
24 is in the legislative record as are all these others, by the
25 way, offered not for the truth but merely for the fact that the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2822
46M5NAT3 Summation - Mr. Hut
1 organization said what they said.
2 The AMA's decision-making is prudently the result of
3 the decision-making process gone amuck. They hired or retained
4 Booz Allen to investigate the AMA's process and Booz Allen
5 determined that it was the least democratic, least systematic
6 decision-making process.
7 But the AMA does not support the act here and it has,
8 is on record as describing intact D&E as something that may
9 minimize trauma to the uterine, cervix and other vital organs
10 and may be preferred by some physicians.
11 THE COURT: And none of these groups have the Chasen
12 study, correct?
13 MR. HUT: At the time of the statements that has to be
14 so, your Honor, yes.
15 THE COURT: So, for whatever it is worth.
16 MR. HUT: There is other evidence that there is a
17 significant body of medical opinion. Within the meaning of
18 Stenberg we know that intact D&E is taught at leading medical
19 schools -- NYU, Columbia, Cornell, Michigan, Northwestern.
20 Albert Einstein.
21 We know that there are additional materials in the
22 legislative history including the views of a number of other
23 doctors experienced as abortion providers who have submitted
24 written views to Congress and, in some cases, testified.
25 Defendants' own experts admit that there are
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2823
46M5NAT3 Summation - Mr. Hut
1 substantial number of second trimester abortion providers, the
2 aforementioned Dr. Lockwood in comprising a responsible group
3 of physicians, that is, Dr. Wattson Bowes retained by the
4 government but not called to Court here by it for reasons that
5 appear, from the record and to us, at least to be perfectly
6 understandable.
7 By any measure, your Honor, there is, we suggest, a
8 responsible debate among doctors and a significant body of
9 medical evidence that believes that the intact D&E variation
10 provides safety benefits to some patients and that is all that
11 Stenberg requires.
12 We have talked about the Chasen study. That study, as
13 you know, appeared in the American Journal of Obstetricians and
14 Gynecology. That journal is one of the two leading journals on
15 the subject in the area and so I'm not going to dwell at length
16 on the construct of the study.
17 You also know, I am certain, that the only three very
18 serious complications discerned the authors arose in the
19 dismemberment cohort. The authors, however, do not ascribe
20 statistical significance to that fact. They do not conclude
21 this distribution itself proves the intact variation is safer
22 and I suggest that it is equally appropriate to infer, as the
23 government wrongly asks the Court to infer, that the less
24 serious complication of cervical laceration which was in fact
25 observed more frequently in the intact group will occur more
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2824
46M5NAT3 Summation - Mr. Hut
1 often with that variation. Again, no statistical significance
2 ascribable to those numbers.
3 I have mentioned to the Court the significance that
4 not only Dr. Chasen but also Dr. Westhoff and Dr. Grunebaum
5 ascribed to the fact that the complication rate was the same
6 even though the gestational age in the cohort made it very
7 likely in their estimation that there should have been more
8 complications with the intact group.
9 I have described the correct way to view the data
10 points -- not findings, not conclusions -- reported in the
11 Chasen study about the incidence of subsequent preterm delivery
12 in the cohort undergoing intact D&E and the reason why that is
13 without scientific significance including the fact --
14 THE COURT: Let me ask you one more time.
15 Assuming, as the government or certainly Dr. Clark,
16 that the three-fold chance of having premature birth after D&X
17 procedure, three-fold chance for woman consistent with
18 Stenberg, is it incumbent as Stenberg says, the health of the
19 woman is the primary concern that the Court must take this into
20 consideration? Assuming it is correct three-fold, that this is
21 a serious health threat?
22 MR. HUT: No, it is not.
23 THE COURT: If it is accurate, I said. Is that not a
24 serious health threat to women?
25 MR. HUT: If it is statistically significant.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2825
46M5NAT3 Summation - Mr. Hut
1 THE COURT: I said if it is accurate.
2 MR. HUT: It is accurate, your Honor. There is the
3 numbers are the numbers and these are careful reputable
4 scientists and they are reporting what they find.
5 THE COURT: And I know there is the attack, for lack
6 of power, but say it was done with a larger group and the study
7 held up, would that not be a serious threat to the health of
8 women?
9 MR. HUT: No, your Honor, because the Stenberg test is
10 not defeated by one set of data like this.
11 THE COURT: I didn't ask you Stenberg test, I asked
12 you is it not a serious threat to the health of women and then
13 we will move on to Stenberg.
14 MR. HUT: You know, I cannot speak to the seriousness
15 of the health threat. I think that we know that preterm
16 delivery is not a good thing and the risk --
17 THE COURT: It is bad, isn't it? Do you dispute that
18 Dr. Clark says that it is one, if not the most, I think he said
19 serious health threat in obstetrics and pediatrics today? That
20 means the woman and the child? Do you dispute that statement?
21 MR. HUT: I have no basis to dispute it, your Honor.
22 No.
23 THE COURT: Okay.
24 MR. HUT: So I am prepared to assume that it is bad.
25 I am not prepared to assume that the premise is incorrect.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2826
46M5NAT3 Summation - Mr. Hut
1 THE COURT: I understand. I postured the question if
2 it were true. I understand.
3 MR. HUT: And I am not prepared to assume that it
4 would have consequence, or Stenberg, which I thought was the
5 departure point for the Court's question because Stenberg --
6 THE COURT: Did the Court not say that the primary
7 concern was women's health?
8 MR. HUT: Yes, as determined by the opinion of a
9 significant body of responsible physicians.
10 THE COURT: But he was dealing with a totally
11 different record and no Chasen study, so we don't know what the
12 Court might say to that, but.
13 MR. HUT: This Court --
14 THE COURT: Or the Court did.
15 MR. HUT: -- has had before it testimony from numbers
16 of doctors, all of whom were familiar with the Chasen study and
17 the plaintiffs' experts, including Dr. Westhoff, including
18 Dr. Grunebaum, including Dr. Chasen and others, all stated that
19 they believe, despite that familiarity and actually in large
20 part because of their familiarity with the safety benefits
21 reported in the Chasen study, that intact D&E provided greater
22 safety to their patients.
23 That, I respectfully suggest, in addition to the
24 testimony from the ACOG representative who reiterated that the
25 views expressed in the ACOG policy statement in 1997 remain the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2827
46M5NAT3 Summation - Mr. Hut
1 views of that of the college today.
2 THE COURT: Yes, but he didn't or she didn't, rather,
3 have the report.
4 MR. HUT: There is no record in evidence to suggest --
5 THE COURT: Remember she didn't so we can't attach
6 that to it. She wasn't confronted with it. I didn't know
7 about it or I wasn't asked but she wasn't here.
8 That's why I encouraged you over and over again, as
9 the government, to have them here in Court because maybe we
10 could have had all of the answers but, alas, we have to deal
11 with what we have.
12 MR. HUT: We did our best and the government was
13 represented at deposition by very able counsel.
14 I want to spend a little time on the significant body
15 standard in Stenberg and the government's rejoinder to the
16 effect, as I understand it, that that really is not operative
17 because Congress, according to the government, is free to reach
18 conclusions about safety benefits of intact D&E contrary to
19 what the Supreme Court said in Stenberg, and is that the Court,
20 under that circumstance, must give substantial deference to the
21 findings of Congress as supposedly mandated by the Supreme
22 Court in the Turner cases.
23 I think the government misreads those cases and that
24 any such approach would lead the Court into serious error. Let
25 me tell you four or five reasons why.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2828
46M5NAT3 Summation - Mr. Hut
1 First, the notion that Congress can undo
2 constitutional adjudication by the Supreme Court by purportedly
3 finding facts differently from what the Court found and relied
4 on would, if accepted, cause great mischief.
5 The Supreme Court has condemned the substantial
6 equivalent of that kind of effort in City of Hurney and
7 elsewhere.
8 This is especially true because the factual record
9 before Congress was essentially identical to the materials
10 before the Supreme Court in Stenberg. In the three years
11 following Stenberg, for example, Congress heard a grand total
12 of three hours of additional testimony and the only two
13 physicians who testified to Congress after Stenberg and in
14 support of the ban had expressed their views on materials that
15 were already before the Supreme Court in the Stenberg case.
16 Second, the government fails to reconcile the Stenberg
17 and Turner cases. On one level the approach mandated by
18 Stenberg and the approach in Turner are very difficult to
19 reconcile. Turner seems to say that so long as there is
20 substantial evidence supporting Congress, Congress' fact
21 finding must stand even if there is persuasive evidence
22 supporting the view opposite the one that Congress chose.
23 But, under Stenberg, a key question is whether there
24 is substantial medical opinion that intact D&E offers safety
25 advantages, opinion that need not be unanimous or even
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2829
46M5NAT3 Summation - Mr. Hut
1 preponderant.
2 In other words, whereas the existence of a reason to
3 debate under Stenberg requires a health exception, a reasoned
4 debate is irrelevant under Turner. And to the extent that the
5 two approaches are inconsistent, it is Stenberg which
6 prescribes the substantive constitutional test that must
7 control. But the incompatibility, if there is one between
8 Stenberg and Turner, I think need not concern the Court here
9 because Turner is distinguishable on a number of bases. We
10 have outlined these in our proposed conclusions but let me
11 touch on it.
12 First of all, in many cases where it is examined,
13 Congressional finding, the Supreme Court has not relied on
14 Turner or applied Turner-style deference. Instead it has
15 engaged in full plenary independent review, most notably in
16 United States v. Morrison which invalidated the Violence
17 Against Women Act, notwithstanding findings by the Congress
18 that these actions affected or were interstate commerce.
19 The Court simply said because Congress may conclude,
20 "that a particular activity substantially affects interstate
21 commerce does not necessarily make it so."
22 A second fundamental distinction is that whereas this
23 case involves a very unusual Congressional effort to curtail
24 constitutionally protected activity, Turner involved a law that
25 was appropriately understood as a content-neutral regulation
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2830
46M5NAT3 Summation - Mr. Hut
1 intended, actually, to protect speech.
2 And so this case, in the view of the plaintiffs, is
3 better analogized to those First Amendment cases like Landmark
4 Communications v. Virginia where the Court declined to defer to
5 legislative determinations but certain kinds of speech were
6 harmful and should be curtailed.
7 Also, Turner, by its terms, directs courts to give
8 substantial deference to, "predictive judgments" of Congress.
9 In this area the Court recognized a superior institutional
10 capacity in the legislature to draw predictive conclusions
11 about inherently unknowable matters.
12 It is important too, to recall that, Turner was
13 decided against a background that Congress described as
14 "involving Congressional judgments concerning regulatory
15 schemes of inherent complexity and assessments about the likely
16 interaction of industries undergoing rapid economic and
17 technological change." Neither of those factors -- not a need
18 to make predictive judgments, not the history was evident in
19 Turner of long, more than 50 years. In fact, Congressional
20 familiarity with regulation of and oversight of the
21 telecommunications industry is present here.
22 So, for all of those reasons, Turner-like deference
23 would be inappropriate.
24 Fourth, if it were possible to reconcile --
25 THE COURT: Are you suggesting no deference to the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2831
46M5NAT3 Summation - Mr. Hut
1 findings of Congress whatsoever?
2 MR. HUT: Yes. I am exactly suggesting that for the
3 reasons that I have just articulated that Turner does not
4 require it, that other cases more directly analogous to this
5 one don't require it.
6 THE COURT: Despite what Turner talks about, their
7 abilities for fact finding, the hearings they held here over a
8 number of years despite your reference to its most recent
9 witnesses, etc., but also the very limited record, as I
10 understand it, that formed the basis of the Stenberg opinion?
11 We have got two doctors, maybe three but only in my
12 record two that I know of, and this goes up. And other than
13 that, the Court had policy opinions of groups we now know is
14 just a board with a vote, we don't know what it is. It could
15 have been as close as five to four and that is a pretty skimpy
16 record.
17 So I am wondering, shouldn't we give some deference to
18 Congress' findings under Turner?
19 MR. HUT: No, your Honor; for the reasons I said --
20 THE COURT: These are coequal branches of government.
21 You don't think the Court -- how about this Court, I should
22 give some deference to the hearings they held, various people
23 came before them?
24 MR. HUT: The hearings that the Court held as our
25 proposed findings I think clearly demonstrate, and the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2832
46M5NAT3 Summation - Mr. Hut
1 materials that were before the Congress were substantively not
2 different than the record or from the record that the Supreme
3 Court had before it in Stenberg from which it reached abundant
4 conclusions about the safety benefits of the intact D&E.
5 Congress had, at most, I think just slightly in excess
6 of 20 of hearings. The materials submitted to the Congress
7 were essentially recycled over and over again.
8 The witnesses, the only witnesses testifying to
9 Congress --
10 THE COURT: The reports were recycled to the Supreme
11 Court, were they not? I mean, we can't knock them on the one
12 hand and say they must be given great deference on the other
13 because the Supreme Court read them. They're the same reports,
14 aren't they? Didn't ACOG file with Congress?
15 MR. HUT: Yes, ACOG filed an amicus brief.
16 THE COURT: ACOG filed a lot, which seems to me --
17 MR. HUT: With the Supreme Court, and the ACOG amicus
18 brief was also ignored and were in toto by the Congress, even
19 though to us it --
20 THE COURT: We don't know that it was ignored,
21 Mr. Hut. Again, you are going into the operation of their
22 minds. They had it. I assume somebody read it but I don't
23 know that either but they had it.
24 MR. HUT: No, but at a minimum it establishes I would
25 think, in and of itself, a significant body and the reasons for
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2833
46M5NAT3 Summation - Mr. Hut
1 the opinion held by the significant body.
2 THE COURT: We have some boards, as we have seen, that
3 have voted in an unknown vote.
4 MR. HUT: Let me address the question of deference
5 too, your Honor.
6 THE COURT: Yes.
7 MR. HUT: If it were possible to reconcile Stenberg
8 and Turner, Congress would be required to make findings that
9 address the substantively material constitutional test --
10 whether there exists a significant body of medical opinion.
11 Had Congress made that finding one way or the other, then it
12 might be argument that Turner requires some deference to it.
13 But Congress didn't. Congress ignored the substantively
14 controlling test.
15 It did find, in paragraph 14B, that there is no
16 credible evidence that partial birth abortions are safe or
17 safer than other abortion procedures but by credible evidence
18 in that context Congress seems to have meant that there were
19 then --
20 THE COURT: Exactly what the Chasen study showed,
21 right?
22 MR. HUT: No, not at all.
23 THE COURT: I mean, does Chasen support Congress'
24 finding?
25 MR. HUT: Certainly Chasen's study supports a
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2834
46M5NAT3 Summation - Mr. Hut
1 proposition that directly refutes Congress' assertion that
2 there is no credible evidence that partial birth abortions are
3 safe. They are astoundingly safe. The complication rate was
4 reported to a statistical significance level of 99.9 to be the
5 same very low 5 percent.
6 THE COURT: Three-fold greater. It is not all the
7 same?
8 MR. HUT: Your Honor, I think we are going over plowed
9 ground here, you and I. If you ignore notions of statistical
10 significance. And you not only have to ignore notions of
11 statistical significance, you have to ignore them by a wide
12 mile.
13 Recall, if you will, that the P value for that finding
14 is .3. That means a 30 percent possibility that those are
15 random results.
16 THE COURT: Or 70 percent chance.
17 MR. HUT: Not at all. That is not what the 70 percent
18 means.
19 The 70 percent means that it is 70 percent likely that
20 the two cohorts would in fact have closer results. That's what
21 Dr. Howell testified to and unambiguously, that is correct.
22 If the Court would have access to statistical
23 treatises you will see that the Dr. Clark's reference of the 70
24 percent is intellectually dishonest. There is just no other
25 way to say it -- with all respect to him.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2835
46M5NAT3 Summation - Mr. Hut
1 THE COURT: He didn't bring Chasen back or a co-author
2 or peer reviewer to say that, did you?
3 MR. HUT: We brought the expert on statistics and
4 statistical significance.
5 THE COURT: I noticed that. I noticed that.
6 MR. HUT: Whatever Congress may have brought about the
7 existence of non-controlled studies on the subject of safety,
8 it is constitutionally irrelevant under Stenberg which also
9 noted the absence of studies but dismissed that absence as
10 inconsequential.
11 In short -- and I, with trepidation, harken back, your
12 Honor, to your order on the TRO but, as you determined,
13 Congress never made a substantively probative find. And to the
14 extent Congress meant to say in paragraph 14B that there were
15 no physicians, no credible physicians who thought that
16 so-called partial birth abortion was safer than other
17 techniques, there is no need to defer to that finding because
18 it is patently unreasonable and it is unworthy of deference.
19 A Court does not have to defer to a finding by
20 Congress that something is black when it is clear to everybody
21 that it is white. The incorrect finding is demonstrable from
22 the Congressional record itself. It is demonstrable from the
23 evidence introduced at trial in this courtroom.
24 I have a series of notes, your Honor, on the subject
25 of the patent deficiencies in the Congressional findings which
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2836
46M5NAT3 Summation - Mr. Hut
1 are very important because, as the Court has observed, the only
2 way that Congress can lawfully undo the Court's holding in
3 Stenberg is through the compilation of a factually compelling
4 set of findings and it has not done that.
5 I have made mention of the fact that the record that
6 Congress in fact compiled was remarkably slight. 24 hours of
7 hearings in eight years. Seven witnesses giving testimony on
8 the safety of intact D&E. Only two of those had experience in
9 regularly performing abortions and each opposed the ban.
10 Indeed, as the 11 physicians who submitted views to
11 Congress based on their experience as abortion providers --
12 excuse me, of those, whether oral or written in that
13 submission, all but one opposed the ban.
14 The government's own witnesses also undermine their
15 findings and they do so dramatically.
16 Dr. Lockwood, about whom the Court has made
17 observations, said that he agrees with very little in the
18 findings that Congress made about the potential risks of
19 partial birth abortion and he said, specifically, that Congress
20 exaggerated those risks.
21 Dr. Clark testified that he disagrees with almost all
22 the findings in Section 14A of the Act which sets forth a
23 laundry list of alleged risks of partial birth abortion.
24 And Dr. Bowes, about whom I made observations,
25 testified by deposition that there was no evidence supporting
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2837
46M5NAT3 Summation - Mr. Hut
1 many of the Act's findings including the findings in paragraphs
2 14A, 14B and 14F.
3 I have made reference to some of the deficiencies in
4 the finding, let me tick off a few others.
5 First, and the easiest example, is the inaccurate
6 finding as to the teaching of intact D&E in medical schools.
7 Paragraph 14B says that, in part, there are currently
8 no medical schools --
9 THE COURT: Well, it is a limited number, is it not?
10 It is not taught at a vast majority of medical schools, is it?
11 MR. HUT: Five or six of some of the most prominent
12 medical schools in the nation.
13 THE COURT: I am not saying they're not prominent, it
14 is a limited number.
15 MR. HUT: It is not none as Congress stated.
16 On the subject of controlled studies, Stenberg renders
17 that question irrelevant, assuming it was still accurate, which
18 it is not, and let me note that it is passing strange that the
19 government and Congress would assert the absence of studies
20 when Congress made findings about alleged safety risks that
21 are, themselves, utterly unsupported by any studies.
22 There has been some reference to Dr. Nuland. He gave
23 testimony, the Court has it in the record, about why the
24 shortage, and at the time Congress has studied the absence of
25 controlled studies, is neither surprising nor should it be
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2838
46M5NAT3 Summation - Mr. Hut
1 worrying to the Court. I am not going to summarize that
2 testimony, it is in the record and we have made proposed
3 findings.
4 THE COURT: Going back to what we discussed before,
5 there are a surprising absence but also it would appear that
6 those you represent could keep it from ever happening and so we
7 would never get beyond, we would never be able to pierce the
8 shield, isn't that true?
9 MR. HUT: Well, I guess I have two responses to that,
10 your Honor. First of all, it would certainly never happen if
11 the procedure is banned because there won't be anybody who can
12 legally perform it.
13 Second, I suppose that over the past decade it would
14 have been possible for scientists, all of whom were performing
15 with what seemed to them intuitively and then in case studies
16 to be a very promising procedure that they could have all
17 gotten together and conspired not to perform studies and to
18 suppress any confounding thoughts they had but for what
19 possible reason? Because they are anxious in their --
20 THE COURT: How many years has it been since
21 Dr. Haskell did his? He did the first one, did he not?
22 MR. HUT: I think he did in 1992, I think, or 1995.
23 So, it was --
24 THE COURT: That's when he appeared before the NAF,
25 wasn't it? Didn't he do it back in '89?
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2839
46M5NAT3 Summation - Mr. Hut
1 MR. HUT: I think it was 1992. My colleagues are
2 reassuring me that my recollection is, in this case at least
3 accurate, of course.
4 THE COURT: It is a lot of time and it doesn't seem
5 like anybody is rushing to get conclusive evidence.
6 MR. HUT: And the reasons are not difficult to
7 understand. It is difficult to do these studies.
8 THE COURT: And it is difficult to get the information
9 to do these studies too.
10 MR. HUT: That's part --
11 THE COURT: As we have seen.
12 MR. HUT: That is exactly part of the problem, your
13 Honor.
14 It is also difficult to get women to sign up for them.
15 Dr. Grimes was unable to do that down at North Carolina.
16 THE COURT: Is that justification to just let it
17 continue?
18 MR. HUT: It is just --
19 THE COURT: It seems to me it is pretty risky if you
20 were to give some weight again back to the Chasen study. It
21 seems an enormous risk that you are asking women to take.
22 MR. HUT: I think, your Honor --
23 THE COURT: This lack of study by people who are in
24 this profession.
25 MR. HUT: With respect, you must put the data in the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2840
46M5NAT3 Summation - Mr. Hut
1 Chasen study in appropriate perspective. These were two women
2 who were --
3 THE COURT: And I understand all of that. I said if
4 it is true.
5 MR. HUT: Let me make clear the record in this
6 respect.
7 They were already at risk based on their terminal
8 history of risk of premature birth.
9 They, in subsequent pregnancies, actually went beyond
10 the point where they had gone in the pregnancy that was subject
11 of the study or of the data point in the Chasen study so that
12 if you draw anything, any conclusion from that you might say
13 that the intact D&E enhances their chances of successful
14 pregnancy.
15 THE COURT: See, that wasn't the opinion. And
16 probably the most highly credentialed witness in this case who
17 was very concerned -- very concerned -- how would this sound --
18 MR. HUT: I know, your Honor. He was shocked.
19 THE COURT: I know it is a grim humor to you and I
20 enjoy Casablanca too, but it just might be that he is. I
21 believe he has written 278 peer-reviewed papers. He was voted
22 one of the top 10 doctors in the nation and he is concerned and
23 you sort of shove this off with a cavalier comical attitude. I
24 am a little more concerned about those women that he is
25 concerned about and I'm not sure what to do yet, but it does
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2841
46M5NAT3 Summation - Mr. Hut
1 give me serious concern despite your allusions to Rick's Place.
2 And I think a little more deference to those women, it
3 would behoove you to give them that.
4 MR. HUT: Well, your Honor, we have engaged in
5 colloquy about this. I obviously mean no disrespect to these
6 women. I believe that I am serving them better by standing at
7 this podium and telling you about the testimony, reminding the
8 Court about the testimony concerning the profound safety
9 benefits that accrue to women from the availability of this
10 procedure.
11 I am telling you that the evidence demonstrates that
12 there is no statistical significance to the numbers than appear
13 to have concerned the Court.
14 THE COURT: The best I can do is let it go on and let
15 malpractice cases resolve what perhaps this Court should be
16 facing up to?
17 MR. HUT: Rather than let the Congress deprive
18 thousands of women of a safe property, sure.
19 THE COURT: The same report said there are other safe
20 procedures, it was a wash between the D&E and the D&X. A wash?
21 MR. HUT: And the clinical experience of the doctors
22 who testified here and their professional association and their
23 judgment that in fact a wash clearly understates the benefits
24 of intact D&E all militate so clearly --
25 THE COURT: Are you saying there is no merit to what
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2842
46M5NAT3 Summation - Mr. Hut
1 Dr. Chasen found?
2 MR. HUT: I am not saying that there is --
3 THE COURT: Are you saying his conclusion that the
4 threats to women's health is even, that it is a wash? Are you
5 saying that it is not worthy of belief?
6 MR. HUT: No. There is considerable merit to what
7 Dr. Chasen found.
8 What Dr. Chasen found is that on the most conservative
9 view they are equally safe so Congress would be taking away
10 from them a safe procedure.
11 Then, on the appropriate view, the data tend to show
12 that intact D&E is safer and so Congress would be taking away a
13 safer procedure and Congress would be doing --
14 THE COURT: You are not attacking it for lack of
15 power, you say it ought to be accepted?
16 MR. HUT: On the complication. Let's distinguish
17 here, your Honor, between the side of the study that assess
18 complications.
19 THE COURT: Some parts are more valid than others.
20 MR. HUT: Some parts are more powered, some parts have
21 statistical significance, some parts don't. The one that shows
22 equal complication rates --
23 THE COURT: It is accepted by peers, was it not?
24 After peer-review it was published, right?
25 MR. HUT: Yes, but the peers and the authors were at
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2843
46M5NAT3 Summation - Mr. Hut
1 pains to say that with respect to the data on preterm delivery
2 that that is not statistically significant.
3 If anything, it tends to show --
4 THE COURT: Did she say that in the study?
5 MR. HUT: Yes, they did. That's the P equals .3.
6 THE COURT: I know.
7 MR. HUT: It is what is set forth in the study
8 together what this shows, your Honor.
9 THE COURT: The power significant in the rest of the
10 study?
11 MR. HUT: The study on the complication rate is amply
12 powered and the data is of high statistical significance, that
13 is, the data that equates the complication rates
14 notwithstanding the difference and disparity in gestational
15 age.
16 The sum and substance of what you have before you,
17 your Honor, and the reason why you should strike this law is
18 because you have the debate amongst reasonable medical experts,
19 including the debate, if you want to credit Dr. Clark for all
20 of his testimony is worth -- I think it is worth very little --
21 including debate of the significance of those data.
22 And where you have debate, the resolution is in favor
23 of the need for health exception. Stenberg could not be
24 clearer on the point.
25 THE COURT: It should be in favor of health risk to
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2844
46M5NAT3 Summation - Mr. Hut
1 women? In you turn and look at it the other way?
2 In other words, to allow your clients to keep applying
3 your trade shouldn't we allow this risk to continue if we
4 accept Dr. --
5 MR. HUT: Stenberg says that you do, yes, your Honor,
6 so long as there is a debate, so long as you conclude that
7 there is an absence of debate or that the reasons for the
8 debate and for the belief of a significant body that there are
9 safety advantages that are not unworthy.
10 Your Honor, let me turn, if I can -- I apologize to
11 the Court for the time -- on the language of the Act.
12 THE COURT: No need.
13 MR. HUT: The language of the Act presents two
14 separate, though related, constitutional deficiencies. I
15 referred to those at the outset.
16 First, the terms of the Act cause the ban to be
17 intolerably vague and so it fails to give fair warning to
18 potential violators and fails, appropriately, to circumscribe
19 the discretion of law enforcement.
20 Second, to the extent that it can be understood, the
21 ban constitutes an undue burden because it covers virtually all
22 second trimester abortion methods including dismemberment D&Es,
23 inductions, in addition to intact D&E, which is purported to be
24 the focus of the Congressional concern.
25 The Court heard testimony for doctors that the terms
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2845
46M5NAT3 Summation - Mr. Hut
1 of the act were vague. The Court heard no testimony from any
2 doctor to the contrary. For one thing, the Act uses terms that
3 are nebulous and medically unknown terms like partial birth
4 abortion, like overt act.
5 But, in addition to the problem with the terms, there
6 was a confounding lack of symmetry between what the findings
7 say the act prohibits and what the words of the ban themselves
8 say, an absence of symmetry that fosters understandable
9 confusion.
10 For example, the findings describe a procedure
11 performed on a fetus whose body has been delivered up to the
12 head which remains in the womb.
13 The language of the Act bans an overt act, to kill a
14 fetus or any part of the fetal trunk past the navel that has
15 been delivered outside the body of the woman.
16 (Continued next page)
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2846
46menaf4 Summation - Mr. Hut
1 MR. HUT: The findings describe the overt act that is
2 criminal as usually the puncturing of the fetal skull. But the
3 ban itself prescribes only an overt act that the doctor knows
4 what killed the fetus. The findings describe the use of a
5 sharp instrument. The ban does not. The findings specify
6 conversion to a footling breech. The ban note makes no mention
7 of any such conversion.
8 The testimony by Dr. Lockwood was eloquent affirmation
9 of the vagueness at the core of the Act. The Court may recall
10 that he testified that when he first read the act in the quiet
11 of his study, he thought that the Act was vague and would ban
12 far more than D&E with intact removal. It was only after he
13 conferred with government counsel and learned --
14 THE COURT: Their offices weren't quiet.
15 MR. HUT: You'll have to put that question to
16 Miss Gowan.
17 THE COURT: You do add a certain color.
18 MR. HUT: I don't want to answer that, Judge.
19 THE COURT: I can see that whole panel study now.
20 MR. HUT: Quiet or not, it was only after conferring
21 with government counsel, learning government counsel's views
22 about the intent requirement, that he thought --
23 THE COURT: Maybe Dr. Lockwood needed your assistance.
24 MR. HUT: But doctors who face prosecution under the
25 Act would not, of course, have the same luxury of consulting
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2847
46menaf4 Summation - Mr. Hut
1 with government counsel in a quiet study or a noisy place about
2 the possible scope and nuances of this law. They would have to
3 cope with the language as written, and they cannot be made, I
4 respectfully suggest, to do so consistently with the
5 Constitution.
6 The government defends the Act against a void for
7 vagueness challenge on the ground that its supposed intent or
8 scienter requirement saves it from Constitutional attack and
9 makes essentially the same argument in defense of the Act
10 against our claim that it imposes an undue burden on a woman's
11 right to abortion. And so in a few minutes I will address the
12 intent-based argument in that context.
13 Here I just want to identify for the Court the line of
14 holdings, including in such cases as Verniero, a state partial
15 birth abortion ban case cited in our papers, which Court held
16 that a scienter requirement does not work to save a vague
17 statute, quote, if it is satisfied by an intent to do something
18 that is itself ambiguous. That is the vice here.
19 With respect to undue burden, the overwhelming and
20 unrebutted testimony before the Court establishes that the
21 definition of partial birth abortion in the Act reaches not
22 only intact D&E but also dismemberment D&E, and even induction.
23 And it reaches induction -- excuse me, it reaches not only
24 induced abortions but also surgical treatment of miscarriage.
25 Now, the Supreme Court has made clear again in
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2848
46menaf4 Summation - Mr. Hut
1 Stenberg that only the definition of partial birth abortion in
2 the Act matters for purposes of construing the statutory scope.
3 General assumptions about the meaning of partial birth abortion
4 or what Congress could conceivably have intended are
5 irrelevant. The Act's explicit definition of partial birth
6 abortion, is it therefore significant to note, makes no mention
7 of intactness. The Act nowhere requires that a fetus be intact
8 for the physician to have performed a partial birth abortion.
9 Likewise, the Act's definition of partial birth
10 abortion makes no mention of fetal viability. Indeed, it makes
11 no mention whatever of any gestational age. Procedures
12 performed at any point in the second trimester, as early,
13 therefore, as 14 weeks, are banned, as long as they encompass
14 the steps that are set forth in the definition.
15 Now, the Court heard in testimony a variety of
16 examples testified to by witnesses for plaintiffs that
17 explained how even dismemberment D&Es and even inductions were
18 easily comprised within the language of the ban.
19 THE COURT: Did your clients do this in the benefit of
20 your study?
21 MR. HUT: I'm certain that I can safely say, your
22 Honor, that I never had a client in my study, no.
23 THE COURT: All right. Did the officers at the ACLU.
24 All right, go ahead.
25 MR. HUT: For example --
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2849
46menaf4 Summation - Mr. Hut
1 THE COURT: You did prepare them, didn't you?
2 MR. HUT: We certainly spoke with the witnesses in
3 advance of their testimony, yes, your Honor.
4 THE COURT: Are you afraid to use the phrase -- didn't
5 you prepare them?
6 MR. HUT: I'm certain that we did prepare them, yes,
7 your Honor.
8 THE COURT: Most trial lawyers aren't shy of that.
9 That's your job.
10 MR. HUT: Even in a dismemberment D&E, depending on
11 the extent of dilation and the size of the fetus and the
12 presentation of the fetus and the internal conditions at any
13 gestational age, the entirety of the fetal trunk may be brought
14 outside the woman's body with one pass of a forceps or
15 manually. And then, because the fetal head is lodged at the
16 surface, the physician must take one out of a number of acts
17 other than completion of the delivery that he or she knows will
18 kill the fetus.
19 As Dr. Gerson Weiss testified, every act taken by the
20 physician in a D&E is deliberate and intentional. And any
21 dismemberment D&E can encompass each of the steps set forth in
22 the Act's definition. So to take -- as an example Dr. Cassing
23 Hammond explained that in any D&E it can happen that the
24 physician is able to remove the fetus in breech presentation
25 until part of the fetal trunk past the navel is outside the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2850
46menaf4 Summation - Mr. Hut
1 body of the woman. He then may disarticulate or disjoin or
2 dismember the fetus --
3 THE COURT: Or tear off.
4 MR. HUT: Or tear off the fetus at the pelvis, for
5 example, knowing as he does so that it is a lethal act and that
6 the then living fetus cannot survive. He will then complete
7 the removal of the fetus from the uterus acting in all steps
8 deliberately and intentionally. He will accordingly have
9 violated the Act, according to the terms of the ban.
10 Take another example. Dr. Grunebaum and Dr. Westhoff
11 testified that in any dismemberment D&E the physician could
12 dismember a leg and then bring the rest of the still living
13 fetus down until the fetal trunk past the navel is outside the
14 body of the woman and the head lodges at the cervix.
15 Parenthetically, the fetal body to that extent is outside the
16 body of the woman frequently because the cervical os, or
17 opening, is usually instrumentally brought down to the vaginal
18 opening or introitus. So to say that a part of the fetus is
19 outside the woman's body is essentially or often no different
20 from saying that it is outside or beyond the cervix.
21 To revert to my example, then when the fetus or while
22 the fetus had a heartbeat, the physician could either collapse
23 the fetal head or cut the umbilical cord knowing that either of
24 those acts is lethal. The doctor would then complete delivery
25 of the fetus. These doctors testified that, of course, the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2851
46menaf4 Summation - Mr. Hut
1 steps taken at each and every point of the procedure is
2 deliberate or are deliberate and intentional.
3 Take another scenario. Under the Act's definition, in
4 any D&E with the fetus in breech presentation, the physician
5 could first grasp and remove part of the fetal abdomen, part of
6 the fetal thorax or the back, but a part beyond the navel, and
7 remove that tissue or that part from a woman. That part of the
8 fetal trunk past the navel would then be outside the body of
9 the woman. The physician could then take some step or act,
10 such as continued dismemberment, knowing that some such
11 continued act would be lethal to the fetus.
12 I made mention a moment ago on the undue burden point,
13 as in vagueness, the government argues that the intent
14 requirement works to limit the Act's reach. And the government
15 hangs its hat on the quote, "for the purpose of" language in
16 the Act arguing that, as I understand it, a physician can
17 violate the Act only if she or he forms a specific intent
18 before the delivery of the fetus to the specified anatomical
19 threshold to perform an overt act in mid-delivery of the fetus
20 at that specified threshold that will kill the partially
21 delivered fetus.
22 For several reasons, this reliance on intent or
23 scienter requirements is unavailable. First of all, and
24 perhaps most importantly, the argument rests on the fundamental
25 misunderstanding of how doctors perform abortions. In no
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2852
46menaf4 Summation - Mr. Hut
1 abortion method does the physician remove the fetus to any
2 particular anatomical point for the purpose of performing a
3 lethal act. The physician may stop the evacuation of the fetus
4 at a particular point but will do so only because further
5 delivery is obstructed and the obstruction must be removed in
6 order to continue the safe delivery.
7 So, if one, in fact, were to adopt the defendants'
8 interpretation, the Act would ban nothing at all, including
9 intact D&Es. But if the clause "for the purpose of" is meant
10 to capture D&Es involving intact removal, as of course the
11 government maintains, then it can only mean that the physician
12 removes the relevant anatomical part of the fetus knowing that
13 the safest way to proceed may be to perform a lethal overt act
14 following such removal. And in that case the act sweeps within
15 its scope all D&Es, whether used to terminate a pregnancy or to
16 treat a spontaneous abortion.
17 For that intent characterizes any D&E. In any D&E the
18 doctor may deliver a part of the fetus past the navel, whether
19 attached to the rest of the fetal body or not, and thereafter,
20 intentionally perform a lethal act on a still-living fetus.
21 The same is true as well with an induction.
22 And in the interest of time, your Honor, let me
23 respectfully refer the Court, for purposes of gaining
24 appreciation of the ambiguity and imprecision of the statutory
25 language, to the colloquy between Judge Kopf in the District of
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2853
46menaf4 Summation - Mr. Hut
1 Nebraska and government counsel. There at the conclusion of
2 that trial, if the Court has the transcript in that case, you
3 will find the colloquy at pages 1897 to 1911. If the Court
4 does not, we will be happy to supply it.
5 The case law on which the government relies, and this
6 is the second point on intent, really casts further doubt on
7 the argument. The government, for example, places heavy
8 reliance on a case called United States vs. Bailey, the case
9 from the Supreme Court. That case says, and I'm quoting now, a
10 person who causes a particular result is said to act
11 purposefully if he consciously desires that result. That
12 standard, that conscious desire standard, does not exclude from
13 the Act's ban physicians who intend to remove the fetus as
14 intact as possible. Those physicians consciously desire to
15 remove as much of the fetus in one pass as they can.
16 All of the doctors who testified in this courtroom
17 said that in the performance of any D&E, their objective is to
18 remove as much of this fetus as possible in as few passes as
19 possible, and one, if at all possible. If in effectuating that
20 objective to remove as much as possible they remove two legs
21 and part of the torso past the navel, or all of the fetus up to
22 the point of the aftercoming head before they perform the
23 lethal act, they will have violated the ban. If they wind up
24 unable to effect intact removal and to dismember the fetus
25 instead, they will not have violated the ban but their intent
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2854
46menaf4 Summation - Mr. Hut
1 is the same in both cases.
2 Third -- the case law establishes the specific intent
3 may be performed in an instant and need not exist more than a
4 nanosecond prior to the time of the prohibited act. Cases as,
5 for example, a case called Thomerson vs. AL Lockhart at 835
6 F.2d 1257, decided by the Eighth Circuit in 1997, established
7 this point.
8 Fourth time, and, again, defendants' discussion of the
9 act makes clear that he conceives of the act as reaching those
10 cases where the physician removes the fetus intact until the
11 fetus head lodges. That is the procedure that the government
12 claims is prohibited and, therefore, it's the procedure that
13 the government claims a physician must intend to perform in
14 order to violate the Act. But for reasons mentioned a moment
15 ago, this is simply not what the Act says. The Act does not
16 state that the fetus must be intact. It does not state the
17 fetus must be removed to the point of the aftercoming head.
18 Finally, your Honor, Congress's failure to enact a
19 precisely worded ban that would not impose an undue burden on
20 women is all the more objectionable because it would have been
21 so easy to narrow and tailor this statute. Congress could
22 readily have used the word intact as one obvious example.
23 Congress could readily have followed the four-part definition
24 elaborated by the American College of Obstetricians and
25 Gynecologists to cite another example. Congress could easily
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2855
46menaf4 Summation - Mr. Hut
1 have expressly excluded in terms dismemberment D&Es, as some
2 state statutes have done and as Justice O'Connor commented upon
3 in her Stenberg occurrence.
4 THE COURT: Are you saying that if they inserted the
5 word "intact," that would be perfectly acceptable with you and
6 that would be a Constitutional statute?
7 MR. HUT: No. I am not. I think that there would --
8 it certainly would --
9 THE COURT: I didn't think you were going that far.
10 MR. HUT: It certainly would not cure the vices of
11 this statute. In a more carefully and appropriately worded
12 statute, it would undoubtedly go a long way in the failure to
13 go even part of the way down that road. I think this speaks
14 volumes about what was at work with this Congress in this case.
15 I want to end -- and I really am going to end now,
16 your Honor -- these remarks where I began, and that is by
17 focussing on the patients who will be affected by the ban
18 that's being challenged today and on whose behalf the
19 individual doctors have brought this action.
20 The Court has heard testimony from doctors about women
21 who find themselves in the horrible situation --
22 THE COURT: They're bringing it on behalf of
23 themselves, aren't they? There's no woman in the title of this
24 caption.
25 MR. HUT: No, but they assert their standing, as they
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2856
46menaf4 Summation - Mr. Hut
1 are appropriately permitted to do by the case law, on behalf of
2 themselves and their patients.
3 These women, their patients, find themselves in the
4 horrible situation of having to determine whether to end a
5 wanted pregnancy. Dr. Chasen, who is in the courtroom today,
6 testified eloquently on the point. He said, and I'm quoting,
7 almost all the patients I see have desired pregnancies.
8 Planned or unplanned, they have been very happy to be pregnant
9 and at some point recently they have received some devastating
10 news.
11 He went on to explain, and I quote again, many
12 patients confide with me that what they are going to do
13 violates every moral and religious belief they may have had to
14 that point. But they are choosing to do that because they
15 think it is the most appropriate thing for them to do. That is
16 the choice that these patients have a right to make. That is
17 unambiguous, and we're not here to discuss that today. They
18 have a right to make that choice, whatever may be their reasons
19 for the decision to terminate the pregnancy.
20 THE COURT: Well, we can't get at the record so we
21 don't know whether that statement is accurate or not, do we?
22 We can't test it?
23 MR. HUT: You only have the word under oath of the
24 doctors.
25 THE COURT: Yes, I understand that. But there are
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2857
46menaf4 Summation - Mr. Hut
1 witnesses under oath here every day in every one of these
2 courtrooms in this building, and they are tested. But we can't
3 do that in this case.
4 Go ahead.
5 MR. HUT: Nor can there be a test of -- in typical
6 cases of any expert who comes in on the basis of his and her
7 compilation of records over a lifetime. But Supreme Court
8 precedent makes clear --
9 THE COURT: I don't think that's quite an accurate
10 statement. Many times they have their work records that can be
11 tested against their testimony. I think you're overstating
12 what experts do in these courtrooms in this building every day
13 of the week.
14 MR. HUT: Well, perhaps, your Honor. I am certainly
15 familiar with work records that relate to the work performed in
16 the case. And so, for example, with respect to Dr. Chasen's
17 study, his work papers were provided to the government. I am
18 not familiar with a case in which an expert is called upon to
19 cough up a lifetime worth of material on the off chance that it
20 might reflect on some opinion to which he or she has testified.
21 I defer to the Court's vastly greater experience.
22 THE COURT: You say "lifetime." There was attempt to
23 get current records and they could not get those either.
24 MR. HUT: Even going back a matter of years, if it is
25 going back beyond --
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2858
46menaf4 Summation - Mr. Hut
1 THE COURT: They didn't even get one year, did they,
2 Mr. Hut?
3 MR. HUT: They got Dr. Chasen's records and they
4 abandoned their requests for the records in the custody of
5 New York Presbyterian.
6 THE COURT: Aside from that, they didn't get them,
7 correct?
8 MR. HUT: This case, this case, your Honor -- they did
9 not get them.
10 This case, your Honor, is about what happens after the
11 patients make that decision; how a woman and how her doctor may
12 proceed in terminating her pregnancy once that heart-wrenching
13 decision has been made. In that situation everyone agrees that
14 the primary concern is finding the safest and most expeditious
15 way to accomplish the termination. To quote ACOG, quote, only
16 the doctor in consultation with the patient based upon a
17 woman's particular circumstances can make this decision,
18 unquote.
19 In this case, Congress has overstepped its bounds in
20 many respects. It has attempted to alter Supreme Court
21 precedent without following the amendment procedures mandated
22 in the Constitution. It has made findings of fact that are
23 unsupported and, in numerous cases, patently false. And it has
24 ventured into the operating room, smack into the middle of the
25 patient/doctor relationship by prescribing how medical
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2859
46menaf4 Summation - Mr. Hut
1 procedures can and cannot be performed.
2 This attempt to override the judgment of patients and
3 their physicians is dangerous and paternalistic, but it is not
4 just bad policy, and we're not here to debate the policy; for
5 it goes to the very heart of constitutional privacy concerns.
6 And it unconstitutionally deprives women of autonomy over their
7 bodies and of their ability and their right to make medical
8 choices that are safest and most appropriate for them under the
9 circumstances.
10 For all of those reasons, your Honor, the Court's
11 temporary injunction against the Partial Birth Abortion Act of
12 2003 must be made permanent and the Act permanently enjoined.
13 If the Court has no further questions, that concludes
14 my remarks.
15 THE COURT: Thank you, Mr. Hut.
16 I think we could all use a little break, given the
17 hour. I'm going to take a luncheon recess and we'll reconvene
18 with the government's argument at 2:00.
19 Court will stand in recess.
20 (Luncheon recess)
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2860
46menaf4 Summation - Mr. Hut
1 AFTERNOON SESSION
2 2:20 p.m.
3 THE COURT: Go ahead, Miss Gowan.
4 MS. GOWAN: Thank you, your Honor.
5 To be just is to search for and find the truth, and so
6 we must start at the beginning. This necessarily means, your
7 Honor, a brief survey of the legislative history focussing on
8 the hearings conducted by Congress; four by the House of
9 Representatives, one by the Senate and one held jointly.
10 But first, it is instructed to listen to the words
11 spoken by the chairman of the Senate committee on the judiciary
12 on the day it convened for a hearing on HR-1833, the Partial
13 Birth Abortion Ban Act of 1995.
14 November 17, 1995, the chairman, quote, it is
15 important to understand that the measure before us is not
16 remotely a general ban on abortion. It bans one specific
17 method of abortion.
18 The November 20, 1995, American Medical News describes
19 this method of abortion as follows: The procedure usually
20 involves the extraction of an intact fetus, feet first, through
21 the birth canal with all but the head delivered. The surgeon
22 forces scissors into the base of the skull, spreads them to
23 enlarge the opening and uses suction to remove the brain. This
24 is a method used in some second and third trimester abortions.
25 I will place in the record a September 13, 1992,
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2861
46menaf4 Summation - Miss Gowan
1 descriptive presentation entitled Dilation and Extraction for
2 Late Second Trimester Abortion by Martin Haskell, a
3 practitioner of this method. It appeared in second trimester
4 abortion from every angle prepared by the National Abortion
5 Federation in 1992. I want the record to reflect that I
6 personally invited Dr. Haskell to testify this morning. He has
7 declined our invitation, closed quote. Record at 1.
8 Previously on June 8, 1995, two members of the House
9 of Representatives sent a letter to their colleagues informing
10 them of the proposed bill. The representatives described the
11 abortion procedure in their letter and included a diagram.
12 Only days later, on June 12, 1995, NAF sent its own letter to
13 house members. The letter was signed by Vicky Saporta, NAF's
14 executive director who also submitted a TRO declaration in this
15 case.
16 Miss Saporta's letter claimed, among other things,
17 that according to Dr. Robinson from Johns Hopkins University,
18 the diagram sent to the House membership was, quote, highly
19 imaginative and artistically designed but with little
20 relationship to the truth or medicine, closed quote.
21 The letter went on to state that while in some cases
22 the fetus is removed intact from the woman in dilation and
23 evacuation abortion, quote, as with standard D&E, fetal demise
24 is virtually always introduced by the combination of steps
25 taken to prepare for the abortion procedure, closed quote.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2862
46menaf4 Summation - Miss Gowan
1 6/15/95, record at 46-47.
2 On November 7, 1995, Kate Michelman, the president of
3 the National Abortion and Reproductive Rights Action League,
4 otherwise known as NARAL, held a news conference, 3/21/96 at
5 nine. Michelman stated that there was expert testimony by
6 physicians who performed the procedure that the anesthesia that
7 is given to the woman prior to the procedure causes the death
8 of the fetus. She said, quote, these are difficult procedures
9 to talk about, but we have to try to remember these are
10 extraordinary medical circumstances that call for extraordinary
11 intervention, closed quote.
12 Anesthesia given to the woman kills the fetus before
13 the fetus is taken from the woman in the abortion?
14 Extraordinary medical circumstances call for this extraordinary
15 intervention? What was medical fact? What was fiction?
16 The plaintiffs in this case, of course, do not now
17 make any claim that the fetus is killed by the anesthesia, nor
18 do they argue that extraordinary medical circumstances call for
19 extraordinary intervention; that is, the use of this procedure.
20 These, it turns out, are phantom claims that evaporated into
21 thin air after Congress fully examined them.
22 This does not stop plaintiffs, however, from
23 criticizing Congress in their post-trial findings at number 131
24 for spending hours on the anesthesia issue, implying that
25 Congress somehow fritted away its time when it should have been
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2863
46menaf4 Summation - Miss Gowan
1 collecting other more, quote, substantial evidence, closed
2 quote.
3 It is important, your Honor, to discuss these matters
4 today, as well as other claims about the procedure made to
5 Congress, because it reveals exactly how Congress exercised its
6 fact-finding mission in legislating partial birth abortion, and
7 because it directly bears on the credibility and evaluation of
8 some of the medical evidence considered by Congress.
9 THE COURT: Miss Gowan.
10 MS. GOWAN: Yes, your Honor.
11 THE COURT: Is it true that in the eight years that
12 Congress held hearings on partial birth abortion, only seven
13 doctors testified before Congress?
14 MS. GOWAN: Your Honor, on the June 15, 1995 hearing
15 before the House, Dr. Robinson testified, Dr. Smith testified,
16 Dr. Robert White testified and a nurse testified.
17 On the November 17, 1995, Senate hearing, Dr. Robinson
18 testified, again, who I may add, testified on behalf of NAF.
19 Dr. Smith testified, again. Dr. Mary Campbell testified for
20 the first time. She's a Planned Parenthood representative,
21 your Honor. Dr. Norig Ellison testified, Dr. Nancy Romer
22 testified and a nurse testified.
23 On a March 21, 1996, House hearing, Dr. Ellison
24 testified again. The nurse, Brenda Schafer, testified again.
25 Dr. David Birnbach testified, Dr. David Chestnut, and Dr. Gene
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2864
46menaf4 Summation - Miss Gowan
1 Wright.
2 On the March 11, 1997, which was a joint hearing,
3 Dr. Curtis Cook testified for the first time.
4 On the July 9, 2002, hearing which was before the
5 House Dr. Cook testified again. Dr. Kathy Altman testified for
6 the first time.
7 On the March 25, 2003, House hearing, Dr. Mark Neerhof
8 testified for the first time. Aside from, as I understand it,
9 Dr. Campbell and Dr. Robinson, no other doctors were presented
10 by the minority membership, notwithstanding that there are
11 letters in the record from the majority membership inviting
12 opposing testimony.
13 THE COURT: But could you just tell me, there were
14 eight years of hearing, correct?
15 MS. GOWAN: Correct. Well, your Honor --
16 THE COURT: And how many doctors testified in
17 opposition to the legislation?
18 MS. GOWAN: Let me count.
19 THE COURT: I mean, I was trying but I --
20 MS. GOWAN: Well, your Honor, the doctors that
21 testified about the anesthesia weren't testifying in opposition
22 to the Act. They were testifying --
23 THE COURT: I'm just asking how many in support of the
24 Act.
25 MS. GOWAN: Oh, in support of the procedure? Two.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2865
46menaf4 Summation - Miss Gowan
1 THE COURT: Two in support. How many in opposition to
2 the Act?
3 MS. GOWAN: That, I have to count. It appears six [testified in opposition to the procedure],
4 your Honor.
5 THE COURT: OK. And am I correct in the information I
6 believe I gleaned from the papers that -- is it accurate to say
7 that since September, since the Supreme Court decided that
8 case, there have been just two doctors who testified live, as
9 opposed to people who may have submitted letters or opinions,
10 but two have testified since that decision in opposition to
11 legislation?
12 MS. GOWAN: No, your Honor.
13 THE COURT: Or in support of the legislation as
14 opposed to opposition of partial birth abortion?
15 MS. GOWAN: There would be three. The Supreme Court
16 decision was on June 28, 2000. There was a House hearing on
17 July 9, 2002, where a Dr. Cook testified and Dr. Altman
18 testified, and there was a House hearing on March 25, 2003,
19 where Dr. Neerhof testified.
20 THE COURT: Cook and Altman were re -- they had
21 testified prior to the opinion, correct?
22 MS. GOWAN: Not Dr. Altman. She testified once and
23 that was July 9, 2002.
24 THE COURT: OK.
25 MS. GOWAN: Dr. Cook, yes, your Honor, had testified
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2866
46menaf4 Summation - Miss Gowan
1 previously.
2 THE COURT: OK. And but this is the body of
3 professional testimony against the bill over that eight years
4 ban, is that correct?
5 MS. GOWAN: Yes. As we just described, certainly the
6 defenders of the procedure, if you will, as I said before, were
7 invited to bring witnesses. And there is a Senate rule that
8 permits the minority membership to bring witnesses. They did
9 bring women to testify about the procedure. And the lawyer who
10 argued the Stenberg case on behalf of Dr. Carhart, Simon
11 Heller, also came to testify. But they did not offer any
12 medical personnel concerning the procedure.
13 THE COURT: But the lawyer for Dr. Carhart in the case
14 testified?
15 MS. GOWAN: That's correct, twice post-Stenberg.
16 THE COURT: All right. Go ahead.
17 MS. GOWAN: Your Honor, as I was saying, the other
18 reason that it's important to go through, I think, these
19 matters relating to the anesthesia issue and other claims that
20 were presented to Congress was in addition to showing how it
21 informed Congress' fact-finding, it also bears on the
22 credibility and evaluation of the medical evidence that
23 Congress considered, which was weighed when it found the facts
24 that underlie its findings and conclusions that partial birth
25 abortion is never medically necessary for the health of the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2867
46menaf4 Summation - Miss Gowan
1 woman and that the fetus feels pain during the procedure and
2 that it should be banned.
3 Now, the first hearing was on June 15, 1995. The
4 chairman opened the hearing by saying that the intention was to
5 hear primarily from medical experts. And that while both
6 Dr. Haskell and Dr. McMahon had been invited to testify and
7 both had apparently initially agreed, both had cancelled at the
8 last moment.
9 The chairman referred to NAF's letter to House members
10 about the diagram and the issue of fetal death. The chairman
11 noted that these claims made by NAF that the fetus was dead at
12 the start of the procedure were inconsistent with statements
13 made by both Dr. Haskell and Dr. McMahon. And the chairman
14 pointed out that Dr. Haskell had told the American Medical News
15 that, in fact, the drawings that had been sent to House members
16 were accurate from a technical point of view. And he pointed
17 out that both Dr. Haskell and Dr. McMahon had told the American
18 Medical News that the majority of fetuses aborted in this way
19 are alive until the end of the procedure.
20 He quoted a reported statement of Dr. Haskell, quote,
21 when I do the instrumentation on the skull, it destroys the
22 brain sufficiently so that even if it falls out at that point,
23 it's definitely not alive.
24 As for the implication in NAF's letter that the
25 procedure was only performed in unusual circumstances, the
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2868
46menaf4 Summation - Miss Gowan
1 chairman said that neither Dr. Haskell nor Dr. McMahon claimed
2 that the procedure was used only in limited circumstance. The
3 record at 2 and 3.
4 Concerning the procedure itself, Dr. Robinson, an
5 OB-GYN who identified himself as testifying on behalf of NAF,
6 said that he had read Congress' description of Haskell's method
7 which he said was, quote, a very rare technique, closed quote.
8 But, he told Congress, that notwithstanding NAF's statement in
9 its letter to the House membership, that the diagram shows,
10 quote, exactly probably what is occurring in the hands of these
11 two physicians, closed quote, meaning Dr. Haskell and
12 Dr. McMahon.
13 And in response to a direct question from Congress, he
14 said, I know a lot about abortion. I know a lot about the
15 attempts to describe what is being done. But as a medical
16 piece of information, this is not widely known. It is not
17 generally known. It has not been published in literature. It
18 has not been published in scientific journals. It hasn't even
19 been mentioned in throw-away journals. Record at 64 through
20 65, 88 and 89.
21 Dr. Smith, who is the director of medical education at
22 Mount Sinai Hospital in Chicago, and who was trained at Cornell
23 University, Yale University and University of Chicago, told
24 Congress that from her perspective the procedure was strikingly
25 similar to fetal breech extraction, which is used by
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2869
46menaf4 Summation - Miss Gowan
1 obstetricians to deliver live infants in the management of twin
2 pregnancies or single-infant pregnancies complicated by
3 abnormal positions of the preborn infant.
4 She explained that when a doctor delivers a breech
5 baby, cervical entrapment is sometimes a complication. She
6 suggested that with partial birth abortion, the provider wants
7 the head to get trapped because if the baby gets past the
8 cervix and slips out of the woman, then the baby's status
9 changes from an abortus to a living person.
10 As for the suggestion that partial birth abortion is
11 only performed in unusual circumstances, such as when the life
12 of the mother is at grave risk, she told Congress that she had
13 practiced obstetrics for 15 years and had never encountered a
14 case where it would be necessary to kill the fetus this way to
15 save the mother's life. She said there are cases in which
16 acute emergencies occur during the second half of pregnancy
17 making it necessary to get the baby out fast, but that no
18 doctor would use the method as described by Haskell in those
19 circumstances. Record at 38 through 41.
20 Concerning the anesthesia question, Dr. Robinson said,
21 when an intact fetus is removed in the process of abortion, as
22 is sometimes the case, fetal demise is induced either by an
23 artificial medical means or through the combination of steps
24 taken as the procedure is begun. Thus, in no case is pain
25 induced to the fetus, closed quote.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2870
46menaf4 Summation - Miss Gowan
1 He further claimed that if neurological development at
2 the gestational age of the abortion being performed even made
3 the experience of pain by the fetus possible, analgesia and
4 anesthesia given to the woman would neutralize any pain that
5 may be perceived by the fetus. Record at 64 through 65.
6 Dr. Robert White, a brain surgeon and neuroscientist
7 trained at Harvard Medical School and the Mayo Clinic,
8 testified. He told Congress that by the 20th week of
9 gestation, the fetus has in place the neuro circuitry to feel
10 pain. He said that studies show that even at 8 weeks through
11 13 weeks there is enough neuro circuitry present so that pain
12 and noxious stimuli could be perceived by the fetus. He said
13 that beyond the 20th week of gestation, not only are the fiber
14 tracks in place from the circuits of the skin in through the
15 spinal cord and to the areas of the brain where pain can be
16 felt, but that the system, which is important in the modulation
17 and suppression of pain, is not yet mature as the system
18 conducting the pain.
19 He said that some authorities feel that fetuses at
20 that gestation can perceive pain to a greater degree than an
21 adult. He told Congress that the procedure with its
22 compression and pulling must be a painful experience for the
23 fetus as it advances into the birth canal.
24 THE COURT: When did he testify?
25 MS. GOWAN: He testified, your Honor, at the first
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2871
46menaf4 Summation - Miss Gowan
1 House hearing, June 15, 1995.
2 For him, though, what was the most disturbing was what
3 he called the surgical procedure itself. He said, quote, you
4 are talking about a brain operation on a fetus who has reached
5 an age where I would be called as someone trained and
6 experienced in pediatric neurosurgery to operate, closed quote.
7 He said, we would never consider any procedure giving us access
8 to this premium central nervous system without sophisticated
9 anesthesia. He summed up by simply saying the fetus is at an
10 age of gestation where he or she can perceive pain, and
11 possibly more exquisitely than he or she would if they were
12 allowed to be born. Record at 67 through 70.
13 November 17, 1995, the Senate held its first hearing
14 on that day. It took up the anesthesia issue, too.
15 Dr. Robinson testified again. This time he did not say that he
16 was testifying on behalf of NAF or that the diagrams Congress
17 had might in a technical sense represent an approximation of
18 what occurs in partial birth abortion. He did, however,
19 continue to claim that the fetus was killed at the start of the
20 procedure and that the anesthesia to the woman neutralizes all
21 pain to the fetus. He claimed, quote, no one doing these
22 procedures is partially delivering a living fetus, closed
23 quote. Record at 104.
24 Dr. Norig Ellison, the president of the American
25 Society of Anesthesiologists testified. He told Congress that
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2872
46menaf4 Summation - Miss Gowan
1 he was appearing for one reason only: To take issue with the
2 statement of Dr. McMahon repeated by NORAL, impliedly adopted
3 by NAF and published widely by the media, that anesthesia given
4 to the mother as part of the procedure eliminates any pain to
5 the fetus and that a medical coma is induced in the fetus
6 causing neurological fetal demise, or in lay terms, brain
7 death.
8 Why was he concerned? He was concerned that the
9 widespread publicity given to this claim might cause pregnant
10 women to delay necessary and perhaps even life-saving medical
11 procedures totally unrelated to the birthing process due to
12 misinformation regarding the effect of anesthetics on the
13 fetus. In other words, he was concerned that a pregnant woman,
14 let's say for example, needed an appendectomy, would be afraid
15 to have that procedure because her fetus might be killed by the
16 anesthesia that was given to her to remove her appendix.
17 Dr. Ellison said that the fact is that when general
18 anesthesia is administered to the woman, only a portion of it
19 reaches the fetus, and that anesthetics administered regionally
20 have little effect on the fetus. He testified that he had not
21 spoken with one anesthesiologist who agreed with Dr. McMahon's
22 conclusion and that, in his judgment, it is contrary to
23 scientific fact.
24 He also submitted this written statement, quote, drugs
25 administered to the mother, either local anesthesia
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2873
46menaf4 Summation - Miss Gowan
1 administered in the paracervical area or sedatives, analgesics
2 administered intramuscularly or intravenously, will provide no
3 to little analgesia to the fetus. Record at 107 through 108
4 and 226.
5 Medical fact or fiction?
6 Dr. Mary Campbell, the medical director for Planned
7 Parenthood, also testified at the hearing. In her prepared
8 statement she did not say anything about fetal death and
9 anesthesia. But after hearing from Dr. Ellison, Senator
10 Abraham asked Dr. Campbell if she wished to comment on
11 Dr. Ellison's statement that fetal death is not related to the
12 anesthesia that the mother received. He specifically wanted to
13 know if she thought the anesthesia caused the fetus' death.
14 She said, I do not know what causes the fetus to die. The
15 fetuses are dead when delivered.
16 Senator Abraham pressed her about a fact sheet that
17 she had prepared relating to the legislation in which she
18 claimed that the fetus dies of an overdose of anesthesia given
19 to the mother intravenously. She said -- she was quoting from
20 Dr. McMahon at the time, and that, quote, I have not said brain
21 death -- I'm not saying -- I am saying no spontaneous
22 respiration, no movement.
23 She was then confronted with the clear statement in
24 her fact sheet that the fetus dies of an overdose of anesthesia
25 and that her statement contained no qualification about
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2874
46menaf4 Summation - Miss Gowan
1 breathing. What was her response? Quote, I simplified that
2 for Congress. I do not believe that you want a full discussion
3 of when death occurs, closed quote.
4 The record shows that Congress did want a full
5 discussion of when death occurs, and Senator Abraham reminded
6 her that it was Congress' job to make those decisions. Record
7 at 153 to 154.
8 Concerning the procedure itself, Dr. Campbell told
9 Congress that partial birth abortion is safer than medical
10 induction, and that contrary to the testimony of Dr. Pamela
11 Smith, a woman is twice as likely to die with induction
12 abortion than with D&E abortion. Dr. Campbell claimed that her
13 statements were supported by an article published by
14 Dr. Grimes.
15 But the Grimes article concludes that the greater
16 comparative safety of D&E stems primarily from its advantage in
17 the 13- to 15-week interval. At 16 or greater weeks of
18 gestation, the risks of death from D&E and installation
19 abortion, which as your Honor heard at the trial was a form of
20 medical induction abortion not used today since the new
21 prostaglandins have been developed, are similar and
22 statistically indistinguishable.
23 According to the Grimes article, beyond the 13- to
24 15-week stage of pregnancy -- and I might add, which is beyond
25 that period is when partial birth abortion is performed --
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2875
46menaf4 Summation - Miss Gowan
1 quote, the distinction between D&E and installation abortion
2 blurs in terms of safety. Hence, other considerations, such as
3 cost, convenience and compassion may be more important in
4 determining the method used for second trimester abortion,
5 closed quote. Record at 100 through 124 and 132 through 133.
6 Dr. Campbell also told Congress that the threshold for
7 viability was 25 weeks. This was similar to a fact sheet
8 distributed by NORAL which claimed that very few infants
9 survive at 24 weeks; that the chance of survival at 25 weeks is
10 10 to 15 percent; and that a 50 percent survival rate is only
11 achieved when the fetus reaches 27 weeks. Record at 5499.
12 Medical fact or fiction?
13 Dr. Watson Bowes gave Congress published data showing
14 that this information was old. He gave Congress a study
15 conducted at seven institutions showing that at 23 weeks there
16 was a survival rate of 23 percent and at 24 weeks there was a
17 rate of 34 percent.
18 The study also showed that there were wide
19 interinstitutional variations in survival at each gestational
20 age. For example, at 24 weeks where Dr. Campbell and NORAL
21 posited the very few infants survive, the study showed that
22 survival rates, in fact, varied from 10 percent to as high as
23 57 percent. Record at 54.
24 Dr. Nancy Romer, an OB-GYN from Dayton, Ohio,
25 testified. She is a board certified OB-GYN and a member of
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2876
46menaf4 Summation - Miss Gowan
1 ACOG. She told Congress that the reality is that partial birth
2 abortion is not performed in rare and tragic circumstances.
3 She noted that Dr. Haskell had said that the majority of his
4 procedures were elective.
5 She testified that she was the vice chair of a
6 hospital where over 5,000 deliveries are performed annually;
7 that the hospital has an active high-risk pregnancy practice
8 where second trimester abortions were performed from maternal
9 and fetal indications. She said that she and her colleagues
10 had never found it necessary to perform the procedure and had
11 always found safe alternatives. Record at 109.
12 She also told Congress about Dr. Haskell's center in
13 Dayton. She said that Dr. Haskell was not board certified;
14 that he was a family practitioner who did not have hospital
15 privileges in the Dayton area. She said that because the
16 abortions were being done in his outpatient facility, there was
17 no objective quality review of the indications, complications
18 or outcomes of his procedures. She told Congress that there
19 were no studies in the medical literature describing the
20 procedure or reporting on its complications and safety. Record
21 at 109 through 112.
22 (Continued on next page)
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2877
46M5NAF5 Summation - Ms. Gowan
1 MS. GOWAN: Congress asked all of the doctors whether
2 they knew of Dr. Warren Hern of Colorado, the author of the
3 text, abortion practice.
4 Dr. Robinson spoke favorably of Dr. Hern's competency
5 and reputation. He said that Dr. Hern published about
6 late-term abortions and that his book had detail about the
7 risks and benefits and safety of these abortions. He said that
8 Dr. Hern is good.
9 Congress asked about statements attributed to Dr. Hern
10 in the AMA's publication, American Medical, in particular
11 Dr. Hern's statement that while he opposed the bill because he
12 thought that Congress had no business dabbling in the practice
13 of medicine and because more anti-abortion legislation would
14 follow, he said that he, "had very serious reservations about
15 this procedure." "You really can't defend it. I'm not going
16 to tell somebody else that they should not perform a procedure
17 but I'm not going to do it." "I think at the same time that
18 this is the safest procedure to use."
19 Congress also pointed out --
20 THE COURT: That was Dr. Hern?
21 MS. GOWAN: Dr. Warren Hern, your Honor.
22 THE COURT: All right.
23 MS. GOWAN: Congress also pointed out that Dr. Hern
24 was also quoted as saying turning the fetus to a breech
25 position is potentially dangerous. You have to be concerned
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2878
46M5NAF5 Summation - Ms. Gowan
1 about causing amniotic fluid embolism or placental abruption if
2 you do that. Record at 120.
3 Congress asked the doctors to comment on these
4 statements.
5 Dr. Campbell from Planned Parenthood disputed that
6 Dr. Hern is a leading authority on third trimester abortion.
7 She claimed that "his reference to the podalic, internal
8 podalic version as being dangerous showed that he was unaware
9 that the podalic version is not procedure of choice in doing
10 intact D&E."
11 Dr. Robinson, the NAF representative, said I think he
12 has not done obstetrics for a long time so his concepts of
13 internal podalic version are rather old. He said, I don't
14 think Dr. Hern thinks of himself as the expert, although he
15 certainly has been tremendously involved. But he conceded that
16 Dr. Hern's comments about the legislation, "are going to be a
17 burden for us."
18 For her part, Dr. Romer pointed out that in February
19 1993 Dr. Hern had published an article in ACOG's publication.
20 That article was entitled, "Outpatient Abortion for Fetal
21 Anomaly and Fetal Death from 15 to 34 Menstrual Weeks'
22 Gestation, Techniques and Clinical Management."She told
23 Congress that the article neither describes nor mentions
24 partial birth abortion. Record at 119-121.
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2879
46M5NAF5 Summation - Ms. Gowan
1 Senator Hatch specifically asked the doctors if they
2 believed the procedure was ever medically necessary. Both
3 Dr. Romer and Dr. Smith said no. Senator Hatch said that he
4 was pursuing the question because of some of the hard cases
5 that Congress had been told about, about the women who had come
6 to testify, cases of women carrying fetuses with severe
7 abnormalities.
8 Dr. Smith told a senator that while she had cared for
9 patients with fetuses with these very same abnormalities she
10 used induction abortions with prostaglandin and oxytocin and
11 that the patients delivered in 12 hours in the hospital where
12 they were comforted and cared for.
13 Senator Hatch asked whether, "There were any
14 circumstances in which a deformed baby's head might be so large
15 as to require this procedure and if that is, what would the
16 doctor recommend as an alternative?"
17 Dr. Romer said the one condition she could imagine
18 where the size of the baby's head would be a consideration
19 would be hydrocephaly. She told Congress that standard
20 treatment for that is not using a suction catheter to remove
21 the brains but instead to use a small needle to drain the fluid
22 from the head to permit delivery. Record at 156-158.
23 Senator Lee sent the doctor some written questions
24 after the hearing. One question asked, what conditions
25 involving the life or health of the mother would justify a
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2880
46M5NAF5 Summation - Ms. Gowan
1 third trimester abortion, that is, abortion after 25 weeks or
2 post viability?
3 Dr. Romer and Dr. Smith responded: None.
4 They responded that while there may be circumstances in which
5 separation of the fetus from the woman is required, death of
6 the fetus is not required and there were simply no advantage to
7 delivery of a dead fetus over a live one. As Dr. Romer put it,
8 "We deliver a live pre-term infant and allow both mother and
9 infant to receive the intensive care that they need to survive.
10 The success rate in level III intensive care nurseries for
11 babies born in the third trimester are all universally good and
12 keep us from having to choose between the life of the mother
13 and the life the baby in the third trimester." Record at
14 216-217 and 229.
15 March 11th, 1996. The House held its second hearing.
16 Once again it took up the anesthesia issue. The hearing was
17 held because, in the words of the chairman, "I believe that it
18 is important to the health of pregnant women to set the record
19 straight." Congress' concern was phony?
20 The chairman referred to a NAF fact sheet setting
21 forth questions and answers about a particular type of late
22 abortion procedure to be banned by Congress that posited the
23 facts this way. "What are the misconceptions about this
24 procedure? Anti-abortion groups claim that the fetus is still
25 alive until the very end of the procedure. This is absolutely
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2881
46M5NAF5 Summation - Ms. Gowan
1 untrue. Neurological fetal demise is induced either before the
2 procedure begins or early on in the procedure by the steps
3 taken to prepare the woman for surgery. This includes narcotic
4 analgesia, extensive cervical dilation and rupture of
5 membranes."
6 The chairman referred to NARAL's statement, "the other
7 side grossly distorted the procedure. There is no such thing
8 as partial birth abortion. The fetus, I mean, it is a
9 termination of fetal life. There is no question about that and
10 the fetus is, before the procedure begins -- the anesthesia
11 that they give the woman already causes the demise of the
12 fetus. That is, it is not true that they are born partially.
13 This is a gross distortion and it is really a disservice to the
14 public to say this."
15 The chairman referred to Dr. Campbell's printed
16 statement. "The fetus dies of an overdose of anesthesia given
17 to the mother intravenously. The mother gets the anesthesia
18 for each insertion of the dilators twice a day. This induces
19 brain death in a fetus in a manner of minutes." Fetal demise
20 occurs at the beginning of the procedure while the fetus is
21 still in the womb. Record at 1-5.
22 The fetus is killed with narcotic analgesic?
23 Extensive cervical dilation? Ruptured membranes? It is not
24 true that fetuses are born partially? Medical fact or fiction?
25 Dr. Birnbaum, the director of obstetric anesthesiology at St.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2882
46M5NAF5 Summation - Ms. Gowan
1 Luke's Roosevelt Center here in New York President of
2 anesthesia and perinatology told Congress that there was no
3 scientific or clinical evidence that a properly administered
4 maternal anesthetic causes fetal death.
5 Dr. Chestnut, the editor of the medical textbook
6 obstetric anesthesia, principles and practice, told Congress
7 there was no scientific basis for the claim that the fetus dies
8 from the anesthesia and that the statements made by
9 Dr. Campbell were, "false claims."
10 As for NAF's claim that the dilation of the cervix or
11 ruptured membranes kills the fetus, Representative Coburn, a
12 practicing physician who has delivered more than 3,000 babies
13 told his colleagues that this statement is, "absolutely
14 untrue."
15 Dr. Coburn testified that while rupture of the
16 membranes could lead to fetal death, this would only occur if
17 infection set in or if there was some other complication
18 associated with the abortion procedure itself. Record at 140,
19 143-146, 147.
20 Concerning the issue of fetal pain. Dr. Chestnut said
21 that giving the drugs Verced and Fentanyl to the woman may
22 provide some pain relief to the fetus. The extent to which
23 this renders the procedure pain free is unknown. He noted that
24 obstetricians observed fetal withdrawal responses during the
25 performance of invasive procedures in utero. Record at 144.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2883
46M5NAF5 Summation - Ms. Gowan
1 Dr. Wright, the medical director of Eggleston
2 Children's Hospital at Emory testified about the developmental
3 aspects of pain in the neonate, the increased sensitivity of
4 preterm infants to pain as compared to term infants and the
5 effects of maternal anesthesia on the infant. Record at
6 146-147.
7 Congress asked the doctors about a letter that it had
8 received from Dr. Mitchell Creinin. Dr. Creinin was one of the
9 plaintiffs' experts in this case before your Honor. In his
10 letter Dr. Creinin wrote, "I can assure you that there is no
11 such thing as pain to a fetus, plain and simple. Pain does not
12 exist to a fetus. Any doctor who states otherwise is flat out
13 lying and twisting medical data." He went on to say that a
14 fetus in the uterus has no level of consciousness therefore the
15 fetus can experience no pain. Record at 289.
16 Dr. Ellison had this to say. I read that letter over
17 there, I find it inconceivable that any physician would make or
18 would attach his name to a letter like that.
19 Dr. Burnbach, having administered anesthesia for fetal
20 surgery, I know that on occasion we need to administer
21 anesthesia directly to the fetus because even at these early
22 ages the fetus moves away from the pain of the stimulation so I
23 cannot agree at all.
24 Dr. Chestnut. I agree with my colleagues and would
25 also note that at the University of California at San
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2884
46M5NAF5 Summation - Ms. Gowan
1 Francisco, which is the leading center in the world for
2 performance of fetal surgery, that even though the mother is
3 receiving heavy, deep doses of general anesthesia, those
4 physicians give additional anesthetic drugs directly to the
5 fetus during surgery in order to make certain that the fetus
6 does not experience pain.
7 Dr. Wright. There is no science to substantiate that
8 letter. I believe that all of us submitted to you journal
9 articles that have been reviewed by our peers. There is no
10 science behind that claim by Dr. Creinin.
11 Record at 288.
12 Congress had invited Dr. Haskell and Kate Michelman
13 from NARAL to testify to the subject of fetal pain but they
14 declined. Indeed, the Congressional majority had invited the
15 minority to bring expert witnesses to testify on the subject
16 but no such experts were offered. Record 302, 304 and 307.
17 March 11th, 1997. On March 11th, 1997, Congress held
18 a joint hearing. In the words of the chairman, the members of
19 the House and Senate judiciary committees helped to "set the
20 record straight, correct the false statements and clarify any
21 resulting misconceptions about the timing method and frequency
22 of partial birth abortion." Record at 1.
23 The presence of NARAL and Planned Parenthood and Vicky
24 Saporta of NAF testified together with representatives of the
25 National Conference of Catholic Bishops and the National Right
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2885
46M5NAF5 Summation - Ms. Gowan
1 to Life Committee, as well as some women who had undergone
2 abortions.
3 Renee Chilean, the administrator of three abortion
4 centers in Detroit also testified. She told Congress that,
5 "for those rare but necessary" partial birth abortions
6 performed after 20 weeks "doctors must be able to use this
7 method because of a serious health threat posed to the patient
8 or because of severe fetal anomaly."
9 Ms. Chilean was confronted with the statement that she
10 had made previously. That statement, as it relates to medical
11 necessity, was as follows: The spin out of Washington was that
12 it was done only for medical necessity, even though we knew it
13 wasn't so. I kept waiting for NAF to clarify it and they never
14 did.
15 She said, we knew the numbers were no longer those
16 very, the small numbers that were talked about in the rare
17 cases. I knew that they were being done and so did other
18 providers, that this method was being performed pre-viability
19 or between 20 and 24 weeks. Record at 18, 74-75.
20 Vicky Saporta claimed that NAF has always said that
21 the procedure was used both pre and post-viability and that
22 post-viability, the procedure was being performed for the
23 reasons, "we have brought forward women like Vicky Wilson,
24 Vicky Stella, Tammy Watts and Corrine Costella, all who
25 testified before the subcommittee." Record at 79.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2886
46M5NAF5 Summation - Ms. Gowan
1 Dr. Cook, who of course appeared before your Honor,
2 testified for the first time at that hearing. He told Congress
3 that he had gotten involved in the issue of partial birth
4 abortion when the medical misinformation about anesthesia began
5 circulating. He said that he was concerned about the use of
6 multiple dilators put in a woman's cervix leading to potential
7 cervical complications. He expressed concern about the
8 internal podalic version.
9 He said that as a maternal fetal specialist he cares
10 for patients with the same diagnoses given to the various women
11 who have testified at Congress about their abortions and that
12 he did not think that partial birth abortion was required to
13 care for the patients. He could think of no reason why the
14 procedure would ever be a medical necessity. Record at
15 121-122.
16 For her part, Vicky Saporta criticized Dr. Cook for
17 giving his opinion about the women who testified because he had
18 not reviewed their medical records or personally physically
19 examined them. Ms. Saporta claimed that Dr. Cook could not say
20 "with certainty or responsibly" whether partial birth abortions
21 were medically necessary in those cases. But the record before
22 Congress and this Court is clear that those women would not
23 release their medical records. Record at 34, 102, 103, 132-33;
24 142; trial transcript at 2510.
25 And while, in Ms. Saporta's words "the women were
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2887
46M5NAF5 Summation - Ms. Gowan
1 brought forward to testify," neither NAF, NARAL, Planned
2 Parenthood nor anyone else brought their doctors forward to
3 testify about the medical necessity for these abortions.
4 July 9th, 2002.
5 On July 9th 2002 the House held a hearing to consider
6 the Partial-Birth Abortion Ban Act of 2002. In his opening
7 remarks the chairman stated that to address concerns raised by
8 the Supreme Court in Stenberg, the new proposed bill contained
9 a more precise definition of the ban procedure and that it
10 contained a section setting forth factual findings based on
11 evidence that had been received during the 104th and 105th
12 Congressional hearings. He said that the hearing was convened
13 so that Congress could take additional testimony on the new
14 bill. Record at 1-2.
15 That is when Congress heard for the first time from
16 Dr. Cathy Altman. Congress heard again from Dr. Cook and, as I
17 mentioned before, Simon Heller, Dr. Carhart's lawyer in the
18 Supreme Court as well as another law professor.
19 Dr. Altman is an OB/GYN. She had previously served as
20 a medical director for Planned Parenthood. She previously
21 performed D&E. She testified that partial birth abortion was
22 not medically necessary, that it had not been subject to any
23 peer reviewed controlled studies comparing risks and benefits
24 to other methods and that there was an adequate data on its
25 mortality and morbidity rates.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2888
46M5NAF5 Summation - Ms. Gowan
1 She told Congress that the risks of partial birth
2 abortion were similar to the risks of D&E, namely hemorrhage,
3 infection, embolus, retained tissue and cervical incompetence
4 but that she believed that there was an increased risk because
5 the procedure was being done at later gestational ages.
6 She also submitted a lengthy statement in which she
7 described, in detail, the partial birth abortion procedure as
8 well as other second trimester and first trimester abortion
9 methods and cephalocentesis which, as your Honor knows is the
10 procedure used to drain fluid from the brain of the fetus with
11 hydrocepahly. Record at 4-8, 10-11 and 33.
12 Congress asked Dr. Altman whether she agreed with the
13 statement by the AMA. The procedure is not medically indicated
14 in any situation. She said, Yes, I do.
15 And I think there is one thing to remember here, that
16 if, I can't imagine, I cannot imagine where this would occur
17 but if there ever was an instance where it was critical for
18 some woman's health, the one easy thing that can be done is the
19 fetus can be given an intracardiac injection of potassium
20 chloride or injection of digoxin or the cord could be cut
21 before the beginning of the procedure. Record at 30.
22 Dr. Altman said that when she was first asked to
23 testify in 2002, one of the questions posed to her was, Had
24 there been any change, any studies on the procedure? She told
25 Congress that she had performed an extensive literature search
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2889
46M5NAF5 Summation - Ms. Gowan
1 and found nothing at all. Record at 42.
2 Dr. Cook told Congress that in his high-risk clinical
3 practice he treated women with diabetes, high blood pressure,
4 cardiac disease and cancer and women carrying fetuses with
5 severe fetal anomalies but he never experienced a clinical
6 situation where partial birth abortion was required or
7 considered superior to some other method. Record at 25-26.
8 March 25th, 2003. On that day Congress held its last
9 hearing on partial birth abortion and heard from Dr. Mark
10 Neerhof, an associate professor of obstetrics and gynecology at
11 Northwestern University Medical School. He told Congress that
12 he had practiced maternal fetal medicine for 14 years and is
13 familiar with the methods of terminating pregnancy.
14 Concerning medical necessity, Dr. Neerhof told
15 Congress that there are no credible studies that evaluate or
16 attest to the safety of partial birth abortion. He said that
17 patients who undergo the procedure are at risk for the
18 potential complications associated with any surgical abortion.
19 He said that in addition to these complications, the
20 procedure put patients at risk for two additional
21 complications -- an increased risk of uterine rupture from the
22 use of the internal podalic version which he said carries risks
23 of uterine rupture, abruption, amniotic fluid embolus and
24 trauma to the uterus, risks which had never been adequately
25 quantified.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2890
46M5NAF5 Summation - Ms. Gowan
1 He also said that the procedure posed a risk of
2 laceration and hemorrhage caused by the physician's use of
3 scissors to puncture the fetus' skull while lodged in the birth
4 canal.
5 Once again, as he said, risks that have never been
6 quantified. He said that none of these risks are medically
7 necessary because there are other procedures available for late
8 abortion.
9 He told Congress that the appropriate way to evaluate
10 the safety of any obstetrical or gynecological procedure would
11 be to take a group of patients, randomize the procedure, have
12 end points of comparison for complications such as hemorrhage,
13 blood loss, infection and perforation. Record 6-7 and 22.
14 Now, the record for this hearing also contains two
15 letters signed by Dr. Gerson Weiss, a plaintiff in this case.
16 For the most part the letters are the same. There are a few
17 key differences. The first letter, dated March 10th, 2003,
18 which he signed in his capacity as a professor and chair at the
19 New Jersey Medical College says, "there is a dearth of data on
20 D&X as it is an uncommon procedure." Government Exhibit B6 at
21 S-3656.
22 Dr. Weiss went on to claim, however, that it is
23 sometimes a doctor's preferred method because there is "a
24 decreased risk of injury to the woman as the procedure is
25 quicker than induction and involves less use of sharp
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2891
46M5NAF5 Summation - Ms. Gowan
1 instruments in the uterus providing decreased chance of uterine
2 perforations or tears and cervical laceration."
3 The second letter, dated March 12th, two days after
4 the first letter, which he signed together with a number of
5 doctors including Dr. Marilyn Frederikson who also testified
6 before your Honor, abandons the dearth of data statement and
7 instead says, "there is limited medical literature on D&X."
8 Government Exhibit B3 at S-3385.
9 Well, first of all, your Honor, Congress certainly
10 knew that as of March 12th that the truth was that there was no
11 medical literature at all on the procedure. In fact, there was
12 a dearth of data.
13 Moreover, instead of simply saying that D&X is an
14 uncommon procedure as did the first letter, the March 12th
15 letter says that the reason is that there is limited
16 literature, "because D&X is an uncommonly used variant of D&X."
17 A variant of D&X? That's what the letter says.
18 I submit, your Honor, that in their zeal to obfuscate
19 the signatories of the letter made a typographical error and
20 changed the word "procedure" in the March 10th letter to a
21 variant of D&X in the March 12th letter. I'm sure they meant
22 to type a variant of D&E which of course, as your Honor knows,
23 is just another name for the procedure that has been bandied
24 about by the plaintiffs in this case. More semantics I submit.
25 But, most importantly, the second letter seeks to link
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2892
46M5NAF5 Summation - Ms. Gowan
1 the statement about the purported advantages over induction to
2 ACOG. It now reads as to the alleged decreased risk that "the
3 American College of Obstetricians and Gynecologists address
4 this in their statement in opposition to so-called partial
5 birth abortion when they said that D&X may be the best or most
6 appropriate procedure in similar circumstance."
7 Of course, there is no evidence at all that ACOG's
8 official position is that partial birth abortion carries with
9 it a decreased risk, and Congress certainly knew that.
10 The 2003 hearing record also contains a statement that
11 Dr. Westhoff's colleague, Dr. Davis gave to Congress, as was
12 shown at trial. The statement in part is very similar to the
13 TRO affidavit that Dr. Westhoff submitted in this case. It
14 identifies various maternal conditions of which there is no
15 evidence that partial birth abortion is medically necessary.
16 The statement, Dr. Davis' statement, also makes a
17 wholly unsupported claim that, "according to ACOG, intact D&Es
18 provide the following potential safety advantages." And then
19 goes on to detail the ones plaintiffs offer in this case
20 Dr. Davis goes on to say that, "because of the safety
21 advantages ACOG has stated that intact D&E may be the best or
22 most appropriate procedure." Record at 194.
23 One again there is no evidence that ACOG has ever
24 officially identified these claimed safety advantages, let
25 alone that they relate to the policy statement and Congress
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2893
46M5NAF5 Summation - Ms. Gowan
1 certainly knew that.
2 We submit, your Honor, that the only possible source
3 for Dr. Davis' claim is the amicus brief submitted in the
4 Stenberg case. That brief, which was filed on behalf of NAF
5 and ACOG, as well as other associations, was prepared by
6 plaintiffs' counsel in this case. In that brief to support the
7 statement that partial birth abortion provides certain safety
8 advantages the primary citation is to two pages of a chapter in
9 the NAF compendium, clinician's guide. That chapter was
10 written by Dr. Martin Haskell who, in turn, footnotes to
11 Dr. McMahon.
12 Your Honor, we have come full circle.
13 I don't pretend to have addressed all the material in
14 the legislative record. It contains other testimonial
15 statements, letters, policy statements by various medical
16 associations, several of which have been the subject of
17 testimony in this case; scientific articles, news articles,
18 transcripts of congressional floor debate, and I have attempted
19 to address to some degree the testimony of those witnesses who
20 appear live before Congress to offer medical evidence and who
21 were questioned by Congress as well as some of the documentary
22 material.
23 To go through and discuss all of that evidence piece
24 by piece, evaluate, weigh it, as it relates to the totality of
25 the evidence would take a long time, more time than we have
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2894
46M5NAF5 Summation - Ms. Gowan
1 today. That's not the role of this Court in any event. It was
2 for Congress to weigh the factual evidence before it and makes
3 its own judgment in enacting the law and making the
4 determination that a health exception is not required. That's
5 our system of government.
6 Turner replies to this case, medical necessity is an
7 evidentiary issue and involves Congress' superior fact-finding
8 ability as in our national legislature. It is for this Court
9 to review the reasonableness of Congress' factual findings
10 about partial birth abortion and determine whether they're
11 supported by substantial evidence in the Congressional record,
12 substantial evidence means such relevant evidence as a
13 reasonable mind might accept as adequate to support Congress'
14 conclusions.
15 It is also the role of this Court to take additional
16 evidence to help this Court, as needed, to assess and
17 supplement the record before Congress in order to determine the
18 reasonableness of Congress' judgment.
19 Now, before discussing the substantive legal question
20 I want to take a moment to address the issue of the Stenberg
21 record.
22 First, that record is not controlling. Congress is
23 and was entitled to make its own record on partial birth
24 abortion so the question isn't as counsel posits it, what is
25 new here. I disagree with that formulation. But even if it
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2895
46M5NAF5 Summation - Ms. Gowan
1 were, certainly entirely different doctors testified before
2 Congress than in the Stenberg district court case or where I
3 may add, trial took one day.
4 THE COURT: The Carhart case took one day?
5 MS. GOWAN: The trial took one day, your Honor. I
6 went and checked the online docket sheet because I wasn't sure
7 if it was one or two days, and I think in the letter that we
8 previously submitted to the Court where you had asked us about
9 that I had spoken with the attorney general's office in
10 Nebraska and his recollection was it was either one or two
11 days. In fact, the trial was one day.
12 Dr. Carhart testified and your Honor is absolutely
13 correct, as pointed out in the Stenberg decision, he is
14 nonboard certified with no hospital privileges.
15 Dr. Henshaw, the statistician from Guttmacher
16 Institute, testified live and Dr. Stubblefield testified live.
17 I understand that the Court took into the record the
18 preliminary injunction hearing testimony of Dr. Jane Hodgson
19 and the preliminary injunction testimony of Dr. Riegel. And
20 then there was a video deposition of Dr. Boehm.
21 So, certainly Congress heard more from more doctors
22 than testified in Stenberg and also received many more letters
23 and considered other documentary evidence.
24 And then, if you consider, I know your Honor was
25 asking counsel about what's the new evidence before this Court.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2896
46M5NAF5 Summation - Ms. Gowan
1 I was making some notes. We have the Chasen study, we have the
2 Clark expert on women's health, we have Dr. Lockwood on
3 prematurity, we have Dr. Anand, we have the Haskell tape
4 talking about the internal podalic version. Sometimes it is
5 hard to get the conversion of the fetus. We have gone behind
6 the ACOG statement, talked to the AMA, AMWA, the APHA. We know
7 those are just policy statements. We have NAF evidence on
8 complications for D&E, we have evidence about the usefulness
9 and the trend in medical science for evidence-based medicine
10 and its importance and use in the medical community.
11 THE COURT: Is it your position that we have a totally
12 different record here in this case before this Court than was
13 had in the Stenberg case and therefore this Court is free to
14 make findings --
15 MS. GOWAN: Absolutely.
16 THE COURT: -- that are different from Stenberg?
17 MS. GOWAN: Absolutely.
18 THE COURT: Do you know the Stenberg ruling? Is there
19 still a significant body of medical evidence on both sides? Or
20 has that changed?
21 MS. GOWAN: I don't think that's the question, your
22 Honor.
23 Certainly the Stenberg Court found that on the record
24 before the District Court that in the 10 to 12 cases that
25 Dr. Carhart did that there was a significant safety advantage
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2897
46M5NAF5 Summation - Ms. Gowan
1 to his use of the procedure in those cases and that on that
2 record there was a substantial body of medical opinion, i.e.,
3 evidence that supported that there was a safety advantage to
4 his use of the procedure.
5 I think here the substantial body of medical opinion
6 that we are talking about is what is the evidence, the weight
7 of the evidence that was considered by Congress and, as needed,
8 how was that evidence supplemented by the evidence presented to
9 this Court.
10 THE COURT: Well, how do we deal with that, Ms. Gowan?
11 We had a series of how many doctors for the plaintiff, I think
12 a total of nine, some by way of deposition but I believe at
13 least six were there? Or am I wrong on that number? But in
14 that neighborhood, five or six testified live?
15 MS. GOWAN: Well, let me see. If you will just give
16 me a minute I think I can -- well --
17 THE COURT: I don't think it is crucial but it is in
18 that neighborhood, am I not correct?
19 MS. GOWAN: You know, there were an awful lot of
20 plaintiffs' witnesses.
21 THE COURT: I think there was a total of nine.
22 MS. GOWAN: Seems to me there were more than that but
23 that could be.
24 THE COURT: Well, certainly whether you agree with
25 them or not, it would appear that there is a body of evidence
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2898
46M5NAF5 Summation - Ms. Gowan
1 just by their testimony, is there not, that believe that there
2 are advantages to the D&X procedure? Is that not so?
3 MS. GOWAN: Let's take the number nine. Let's assume
4 that is the number, nine, so, sure, nine people testified that
5 they think there is advantages to the procedure. I would posit
6 in some way a lot of that testimony was cumulative but, it
7 can't be that plaintiffs just bring in 15 witnesses.
8 THE COURT: Not whether or not they say the same
9 thing, it is nine people.
10 MS. GOWAN: Nine people.
11 THE COURT: It is some sort of body, is it not?
12 MS. GOWAN: Sure. That is the body of people who
13 share that view, I would agree with that. And your Honor is
14 entitled to, as is any Court, to judge the credibility of that
15 statement, their view; to consider it, to weigh it against the
16 other evidence in the case. But just because there are nine
17 people testifying that they think that there are safety
18 advantages to the procedure doesn't all of a sudden say, okay,
19 nine as opposed to three testified that there were advantages
20 so nine wins and I vote for them. That is not how it works.
21 You have to take a look at --
22 THE COURT: How does it work? Even Justice Scalia
23 said, in the Stenberg opinion said it was a pretty low standard
24 that the Court has established, didn't he? I mean, I am not
25 quoting him but in substance?
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2899
46M5NAF5 Summation - Ms. Gowan
1 MS. GOWAN: It is not a division of medical opinion.
2 It is not whether you can come forward with 12 people and I
3 only have five people.
4 I think what you have to do is you have to take a look
5 at the evidence presented, all of the evidence, and you have to
6 make a determination about whether that evidence is reasonable
7 and supports Congress' conclusions that the procedure is never
8 necessary, i.e., that the procedure will not endanger women's
9 health, that it does not present significant risk to women's
10 health.
11 And I may add that the Supreme Court, when we cited
12 those cases in our briefs, has said in the past that it is
13 entirely in those circumstances where there is disagreement in
14 the medical profession that it is appropriate for Congress to
15 come in, take a look at the facts and legislate.
16 How can we -- it is not -- as I say, it is not nine
17 People versus my five people. That could never be the
18 standard.
19 What I would like to talk about is the substantive
20 legal question and I just alluded to it a moment ago, and that
21 is that the Supreme Court, Stenberg and the other cases, make
22 clear that the state can't legislate in the way that we create
23 a significant health risk for women.
24 So, I would posit the basic question, it is really a
25 reiteration of what I said moments ago. The question is, is
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2900
46M5NAF5 Summation - Ms. Gowan
1 there a reasonable evidentiary basis in the Congressional
2 record as supported by the trial evidence that banning partial
3 birth abortion would not impose significant harm on women? If
4 not, no health exception is required.
5 Now, the Supreme Court's legal standard requires
6 consideration of two medical issues which is the Casey
7 standard. Does the evidence show that you need partial birth
8 abortion to treat sick women? In other words, do you need it
9 because there is something about the pregnancy that is
10 threatening the health of the woman? She needs the abortion to
11 get well and you need to use this method.
12 And then the other question is, is partial birth
13 abortion significantly safer than alternative method such that
14 the ban would create a significant health risk, which we, I
15 think here in court before your Honor, sort of refer to as the
16 safety issue as opposed to the maternal medical health issue.
17 As for the first question, whether you ever need to to
18 treat sick women because there is something about the threat of
19 the pregnancy, I don't think at this point there is any serious
20 dispute that there is simply no maternal health conditions that
21 require abortion by this method to help a sick woman get
22 better, or that this would be the only method of abortion for
23 any given maternal health circumstance.
24 And certainly Congress found that to be true based on
25 the evidence presented by high risk maternal fetal medicine
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2901
46M5NAF5 Summation - Ms. Gowan
1 specialists and the trial testimony of both the government's
2 experts and the plaintiff's experts confirm that finding.
3 I would just like to refer your Honor to government
4 proposed finding number 57 where we've martialled that
5 evidence. Under no circumstance is partial birth abortion
6 necessary to preserve the life or health of the mother.
7 Dr. Clark.
8 Dr. Lockwood cannot conceive of any circumstance where
9 partial birth abortion would be necessary to preserve maternal
10 health.
11 Dr. Cook cannot think of a single maternal medical
12 condition in which partial birth abortion is medically
13 necessary.
14 Dr. Johnson, plaintiff's expert, no maternal
15 complication that would either require partial birth abortion
16 or make it the only procedure that could be performed.
17 Dr. Grunebaum, plaintiff's expert: Partial birth
18 abortion is absolutely not the only method of abortion in any
19 given circumstance.
20 Plaintiff expert Gerson Weiss cannot think of a
21 circumstance where it would be required to perform partial
22 birth abortion for a maternal health condition.
23 I would also point out, your Honor, plaintiff's
24 concessions on this score at pages 16 through 18 of their
25 opposition to defendant's motion in limine to preclude five
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2902
46M5NAF5 Summation - Ms. Gowan
1 plaintiffs from testifying at trial about the alleged necessity
2 for partial birth abortions concessions, which at the time are
3 certainly stunning to the government given plaintiffs' TRO
4 declarations. I will just briefly read from page 16.
5 As with Dr. Westhoff, however, this discussion in
6 Dr. Hammond's declaration -- that is referring to all of the
7 illnesses, the diseases -- is not tied to the performance of
8 any particular type of abortion procedure, nor does it include
9 the opinion that any particular method of abortion was
10 medically necessary.
11 Quoting further down on that same page, Dr. Hammond
12 has never said, even for these women, that performance of the
13 intact D&E variation of D&E was "required" as the only
14 availability method.
15 Page 17; but like Drs. Westhoff and Hammond,
16 Dr. Chasen has never claimed that the intact D&E variation of
17 D&E is required or medically necessary as the only available
18 approach for these women.
19 (Continued on next page)
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2903
46menaf6 Summation - Ms. Gowan
1 THE COURT: But they think, do they not, that it's
2 preferred in their opinion?
3 MS. GOWAN: They think that it's preferred --
4 THE COURT: In some conditions.
5 MS. GOWAN: Well, and I will address that. I think
6 they -- they think it has the safety advantage, which is the
7 second prong of the Casey standard and then they think that,
8 yes, it may be preferred method in certain circumstances where
9 a woman might have a medical complication.
10 THE COURT: And if that's so, does that run straight
11 into the standard set down in Denver?
12 MS. GOWAN: No, your Honor, I don't think it does, but
13 I think what plaintiffs are doing is they are really
14 bootstrapping their safety argument. They're saying, we think
15 that this procedure has safety advantages, and so, you know,
16 when a woman is -- has a particular medical complication, it's
17 even better for her because it has these safety advantages.
18 Not because it has to be done for her or it's the only
19 procedure for her or it's necessary that she have this
20 procedure; it's because these safety advantages, you know, go
21 even further with this sick woman.
22 And I would, you know, urge your Honor --
23 THE COURT: Is that the test, though, that Stenberg
24 set down? Didn't the Court say if you deny what her personal
25 physician believes is the safest, it's putting a hurdle in her
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2904
46menaf6 Summation - Ms. Gowan
1 way, is it not?
2 MS. GOWAN: Stenberg did say, look at the safety
3 advantages. And I want to take that head on right now. You
4 know, as Dr. --
5 THE COURT: Good stuff. I always appreciate head on.
6 MS. GOWAN: As Dr. Clark testified, you know, and as
7 confirmed by other evidence in the record for every single
8 condition that plaintiffs identify, except for possibly two,
9 either medical induction or D&E would be completely safe,
10 unless D&E would be contraindicated because the woman had a
11 bleeding problem with low blood platelets. The possible two
12 exceptions are in cases that are not medical indications for
13 abortions. And that's the prior classical C-section and the --
14 where, I may add, there's no scientific data to prove that
15 medical abortion is contraindicated. But certainly I would
16 agree, as the experts all testified, that there might be a risk
17 benefit to D&E in those circumstances.
18 The second case was the case of placenta previa where
19 D&E might be preferable. There's simply no evidence at all
20 that D&E cannot and is not safely performed in cases of
21 placenta previa and prior classical C-section.
22 I want to be fair to the plaintiffs, and I know
23 counsel alluded to that this morning, that, you know, they
24 claim that medical abortion might be relatively contraindicated
25 in a host of other maternal conditions, so long as they satisfy
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2905
46menaf6 Summation - Ms. Gowan
1 their claim that -- or if their claim that partial birth
2 abortion is safer than D&E is accepted, then it would be -- the
3 idea would be that partial birth abortion would be the safest
4 of all in those cases. And those cases include preeclampsia,
5 bleeding and clotting disorders, infections including
6 chorioamnionitis, acute fatty liver pregnancy, cardiac
7 ailments, pulmonary disease.
8 And, you know, I submit, your Honor, we went through
9 every single one of these conditions at trial and more. And
10 the government submits that Dr. Clark gave the definitive
11 testimony on all of them.
12 With all due respect to the plaintiffs, testimony of
13 Dr. Hammond and Dr. Westhoff and to a degree Dr. Grunebaum
14 presented most of the maternal medical condition evidence,
15 should be given less weight. Dr. Hammond has no subspecialty
16 certification in maternal fetal medicine. He doesn't have any
17 peer-reviewed articles to his credit. He's not engaged in any
18 significant, if even any, research concerning maternal health
19 conditions.
20 Similarly, to the extent that plaintiffs rely on
21 Dr. Westhoff, she has no subspecialty certification in maternal
22 fetal medicine, the care of sick women or high-risk obstetrics.
23 She doesn't have any published peer-reviewed articles on the
24 maternal medical conditions raised by the plaintiffs. She's a
25 director of a service that only provides surgical abortion.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2906
46menaf6 Summation - Ms. Gowan
1 Dr. Grunebaum is a maternal fetal specialist but he
2 doesn't currently conduct any medical or scientific research.
3 He's written just 16 peer-reviewed articles, only three of
4 which were published within the past ten years and none of
5 which dealt with any of the maternal conditions that plaintiffs
6 raised at trial.
7 I mean, as your Honor knows, Dr. Clark wrote the book
8 on critical care obstetrics. It's in its fourth edition. He's
9 presented research. He published on I would say the majority
10 of the conditions that plaintiffs raised at trial. The fact
11 is --
12 THE COURT: Well, there was some argument this morning
13 attacking him. Did he not author -- does my memory serve me
14 correctly, 278 --
15 MS. GOWAN: Your Honor, my count is 175 medical
16 articles. He has numerous book chapters and ACOG bulletins
17 that are all referenced on that. So perhaps if you counted
18 everything that's listed up on his curriculum vitae, you would
19 get to that number.
20 THE COURT: But it's 175, in any event?
21 MS. GOWAN: Medical articles, yes. And then there are
22 the books and the chapters and the bulletins beyond that.
23 And he presented research as the principal author at
24 26 scientific meetings among other scholarly and professional
25 activities. You know, I think it's very clear --
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2907
46menaf6 Summation - Ms. Gowan
1 THE COURT: What was the award he was voted for in the
2 top ten doctors?
3 MS. GOWAN: Yes --
4 THE COURT: As well as all the -- I won't belabor this
5 point, but I believe he also testified for the service on
6 committees of the National Institute of Health as well as
7 international committees.
8 MS. GOWAN: Absolutely. He's internationally known.
9 On a national basis --
10 THE COURT: I just wondered about that when the attack
11 was put upon him this morning.
12 Go ahead. I'm sorry. It's all in the record.
13 MS. GOWAN: I mean, we know, the record is -- we now
14 know, your Honor, that doctors perform partial birth abortion
15 if they want to and if they can. It has nothing to do with the
16 maternal medical conditions.
17 I just want to read to you Dr. Chasen's testimony,
18 which is cited in our proposed findings. This is the
19 transcript at 1683 to 1684, Dr. Chasen.
20 "Q. In your mind it all boils down to whether the
21 intact extraction procedure is technically feasible to perform
22 on that woman, correct?
23 "A. Yes, that's my practice."
24 And as reflected in their post-trial papers, I believe
25 it is completely fair to say that they've limited their claim
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2908
46menaf6 Summation - Ms. Gowan
1 for a health exception to the argument that the procedure has
2 safety advantages over D&E, such that the ban would
3 significantly harm women.
4 Their claim is that partial birth abortion is safer
5 than D&E. To the extent that D&E is safer than induction, they
6 claim because partial birth abortion is safer than D&E, then
7 partial birth abortion is the safest of all.
8 Just before we move on I want to address the safety
9 advantages, which, as I say, are really the heart of their
10 claim. I do want to address briefly their mention of ACOG and
11 their post-trial findings. They ask your Honor to find that
12 the ACOG select panel found that for numerous medical
13 conditions, including sepsis and certain forms of cancer, D&E
14 involving intact removal offers safety advantages over all
15 other available procedures. That's plaintiff's proposed
16 finding, 107.
17 Now, there was discussion about this this morning, but
18 we identified trial evidence in our proposed findings that
19 shows that when the five ACOG select panel members met to
20 discuss partial birth abortion, and they talked about 25 or 30
21 different types of cases where the procedure might have been
22 used; that when they made their decision as reflected in their
23 draft statement, they didn't refer to any of those cases.
24 Their statement said that they could not identify any
25 circumstances in which partial birth abortion would be the only
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2909
46menaf6 Summation - Ms. Gowan
1 option to preserve the health of the woman.
2 It cannot credibly be said, as plaintiffs suggest,
3 this select panel came to a judgment that in the case of sepsis
4 or a certain form of cancer, that this was the best or most
5 appropriate option. I mean, the evidence is that the sentence
6 best or most appropriate, may be the best or most
7 appropriate -- it's in the 1997 policy statement -- appears to
8 have been tacked on to that statement by the executive board
9 without any consultation with the select panel.
10 Now, in any event, this Court has the evidence from
11 Dr. Clark that in cases of sepsis or chorioamnionitis, women
12 are notoriously easy to put into labor and that in the vast
13 majority of these cases, if it's earlier on, the women would be
14 delivered with medical induction, but that D&E is safe, too,
15 but that if there is a bad infection with low blood platelets,
16 the last thing you would want to do is any kind of surgical
17 intervention.
18 He also told us that cancer -- first of all, it's not
19 an indication for abortion, but that if a woman with cancer
20 chooses to terminate, either medical induction or D&E would be
21 safe. So then that just takes us squarely to what are the
22 purported safety advantages over D&E? I mean, it's less passes
23 with instruments; less phoney parts resulting in a potential
24 reduction in uterine perforation, laceration; less retained
25 fetal parts resulting in a potential reduction in risk of
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2910
46menaf6 Summation - Ms. Gowan
1 infection; less operating time resulting in a potential
2 reduction in bleeding and risk of infection; time spent under
3 anesthesia. This is what plaintiffs proffer, these are
4 intuitive advantages relating to short-term risk only.
5 Congress rejected them because the procedure had not
6 been studied. You asked this morning, when did Dr. Haskell,
7 you know, first do these procedures? And we had -- the
8 evidence is in the trial record on that. We played you the
9 Haskell tape, which is from the 1992 NAF presentation. He said
10 on the tape that it had been four years earlier that he first
11 performed the procedure. That's Government Exhibit E. So
12 that's 1988. Still --
13 THE COURT: I thought I had read someplace or heard
14 testimony it occurred in the '80s.
15 MS. GOWAN: We played it for you, your Honor.
16 Lack of data to prove its efficacy is key, and there's
17 no justification at this point why it hasn't been adequately
18 cited.
19 And as your Honor -- we presented evidence that there
20 are potential risks to the procedure, particularly the risks
21 associated with the internal podalic version and the use of the
22 scissors, as well as the potential for long-term risk
23 concerning preterm birth. There's disagreement about those
24 risks. You heard from counsel this morning about that.
25 Before we talk about the preterm issue, I want to talk
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2911
46menaf6 Summation - Ms. Gowan
1 about the other short-term risk. So there's safe alternatives
2 to the procedure. That's important. It's not merely that
3 there's another method to use, it's that there are other
4 methods that have proven and scientifically documented safety.
5 Everyone agreed at trial that the reported data shows
6 that D&E is very safe. As Dr. Clark testified, the data shows
7 that it is an incredibly safe procedure with almost a
8 negligible risk of complication, that it would be difficult to
9 imagine that partial birth abortion could be safer. It's the
10 transcript at 2387.
11 Now, the well-known and documented risks associated
12 with D&E are detailed in the government's proposed findings.
13 In summary, that evidence includes, some of it from NAF as well
14 as multiple other sources, as follows: The risk of excessive
15 bleeding from D&E is no more than 1 percent. The risk of
16 cervical laceration is no more than 1.2 percent. The risk of
17 uterine perforation is reported at .2 percent to 1.4 percent
18 per 1,000, with NAF putting it at less than one-half of 1
19 percent of all cases.
20 NAF says that the risk of infection, most of which are
21 easily identified and treated, is in less than 3 percent of the
22 cases. The evidence is that when antibiotics are given
23 prophylactically, there is infection in less than 1 percent of
24 cases. Indeed, Dr. Hammond testified that infection occurs in
25 less than 1 percent of cases regardless of the number of times
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2912
46menaf6 Summation - Ms. Gowan
1 an instrument is put in a woman.
2 NAF identifies the risk of retained tissue at less
3 than 1 percent in all cases. I think that brings us to
4 Dr. Chasen's study. Besides being at best inconclusive, the
5 study does not show that partial birth abortion improves on
6 these numbers or the safety of D&E in any way. It also shows
7 that Congress was right not to give weight to letters in a
8 congressional record like those written by Dr. Chasen's
9 coauthor, Dr. Rashbaum.
10 Rashbaum wrote in a letter to Congress that, quote,
11 outlying the D&X will -- emphasis on the original -- will
12 result in higher maternal health risks and mortality, closed
13 quote. 3/21/96 at 130.
14 The only explanation he gives for that is that D&E
15 requires surgical instruments that could result in rare but
16 severe damage to the mother, and the D&X procedure does not
17 require the use of instruments.
18 Dr. Chasen's and Dr. Rashbaum's study does not prove
19 that partial birth abortion is safe. In fact, as your Honor
20 knows, when Dr. Chasen's first sent into ACOG's journal where
21 it was rejected, one of the peer reviewers criticized his
22 initial conclusion that partial birth abortion was as safe as
23 D&E. The peer reviewer said that Dr. Chasen had not proved it,
24 only that he had found that there were no obvious differences
25 between the two procedures. That's the transcript at 1659.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2913
46menaf6 Summation - Ms. Gowan
1 Dr. Chasen changed the conclusions, published
2 conclusions to, quote, our data affirmed that abortion after 20
3 weeks' gestation with intact D&X appears to have similar
4 complication rates as dilation and evacuation when performed by
5 experienced physicians. Transcript at 1661.
6 While there are no statistical differences in the
7 short-term complication rates in the two groups studied, and
8 the median blood loss and procedure time were the same, the
9 evidence shows a trend of greater cervical laceration -- excuse
10 me, cervical and genital tract trauma with partial birth
11 abortion. And those percentages are in the government's
12 proposed finding at 272.
13 You know, moreover, with all due respect to the
14 San Francisco Court, the evidence before your Honor is that the
15 Chasen study gives us absolutely no information about the major
16 health complications as compared between D&E and partial birth
17 abortion, and thus there can be no basis for any inference
18 about the mortality rate.
19 And as your Honor knows, Dr. Chasen testified that the
20 fact that the three cases have serious complications occurred
21 in the D&E group says nothing at all about the safety of
22 partial birth abortion because he could not have performed
23 partial birth abortion on those women; that is, there's no way
24 of knowing whether the outcomes would have been improved with
25 partial birth abortion. That's at the transcript, 1665 through
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2914
46menaf6 Summation - Ms. Gowan
1 1666, and his study says as much on its face. That's
2 Plaintiff's Exhibit 23A at SC0161 line 276.
3 The study also shows a statistically significant
4 difference in the amount of cervical dilation between the two
5 procedures. And it shows a three-times increase in preterm
6 birth.
7 Plaintiffs have a response on the preterm birth
8 numbers, saying the women were prone to it, but the fact of the
9 matter is that trend is concerning.
10 Your Honor recalled correctly Dr. Clark told you that
11 if 1,000s and 1,000 obstetricians came into this courtroom and
12 were asked, what's the number one problem in obstetrics and
13 pediatrics, they would all say prematurity. It accounts for
14 more morbidity and mortality than any other single condition in
15 all of obstetrics. Transcript at 2393.
16 Your Honor, we know from the statistics that the
17 majority, I would say large number of women who receive
18 abortions at or beyond 21 weeks the gestational age at which
19 partial birth abortion are performed are under 21 years of age,
20 that their reproductive lives are ahead of them. That's at
21 1736.
22 Now, Dr. Clark told your Honor -- notwithstanding
23 counsel's suggestion that no relationship between partial birth
24 abortion and preterm delivery has been proven, he said that --
25 but he is very concerned about the trend shown in the Chasen
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2915
46menaf6 Summation - Ms. Gowan
1 study. That's exactly what Dr. Cook told Congress. And
2 Dr. Clark -- excuse me, Dr. Lockwood testified about his
3 concern on this issue, too.
4 You know, your Honor, we called Dr. Lockwood as a
5 witness. We knew that he didn't agree with the government on
6 all points concerning the law. That's the problem with
7 independent experts. You can't control them. But the fact is
8 he unequivocally testified that his medical opinion is that
9 partial birth abortion is never necessary to preserve maternal
10 health, nor could he conceive of a situation where there would
11 be an advantage to it over D&E. That's the transcript at 1758.
12 Moreover, he's an expert on preterm birth, and he
13 testified that his clinical concern with partial birth abortion
14 is that it may present a long-term health concern of
15 prematurity. And we have those cites for you in our proposed
16 findings.
17 There is a foundation of evidence as potential risks
18 of partial birth abortion identified by Congress. Finally,
19 plaintiffs' argument that partial birth abortion purportedly
20 may be the safest method of all, if true, the D&E is safer than
21 induction, is just an add-on. I mean, there is simply no
22 scientific evidence that D&E is safer than medical abortion at
23 20 weeks' gestational age and greater. In fact, as we showed
24 in our proposed findings, the evidence is that the opposite may
25 be true, particularly with the advances in the types of
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2916
46menaf6 Summation - Ms. Gowan
1 medications that are used for induction.
2 I think it's appropriate, too, for a moment to touch
3 on the issue of potassium chloride or digoxin injections to
4 kill the fetus before starting the abortion. Plaintiffs
5 suggest that the government offers this as a way to permit them
6 to avoid a constitutional problem with the Act; in other words,
7 a kind of get-out-of-jail-free card.
8 The government does no such thing. We merely point
9 out that the evidence at trial confirms the evidence in the
10 congressional record. It shows that practitioners, including
11 Dr. Chasen and Dr. Frederiksen, routinely and safely use these
12 agents to kill the fetus before beginning an abortion. Thus,
13 even if one were to accept the argument that there might be
14 some as yet unknown circumstance where partial birth abortion
15 could be medically necessary, there is simply no reason to pull
16 a live fetus out of a woman to a point where it is inches of
17 live birth to kill it before completing the delivery. Where is
18 the science? What is there to back up?
19 The plaintiffs claims, in sum, your Honor, there is no
20 evidence that banning partial birth abortion would present any
21 significant risk to the health of women such that a health
22 exception is required in the Act.
23 I'd like to turn briefly to plaintiffs' vagueness
24 challenge. The Act prohibits abortion providers from knowingly
25 performing a partial birth abortion. The procedure is
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2917
46menaf6 Summation - Ms. Gowan
1 specifically defined as requiring three separate elements.
2 First, the provider must deliberately and
3 intentionally vaginally deliver a living fetus until, in the
4 case of a head-first presentation, the entire fetal head is
5 outside the body of the mother or in a breech position, any
6 part of the fetal trunk past the navel is outside the body of
7 the mother; in other words, deliver the fetus to a certain
8 anatomical point.
9 Second, the provider must deliver the living fetus to
10 that point for the specific purpose of performing an overt act
11 that the provider knows will kill the partially delivered
12 fetus; in other words, the provider intends to deliver the
13 fetus to that point to kill it.
14 Third, the other -- the provider must perform the
15 overt act other than completion of delivery that kills the
16 partially delivered fetus.
17 Now, plaintiffs take issue with the name partial birth
18 abortion. They claim there's no such procedure. The
19 San Francisco decision gives weight to plaintiffs' arguments on
20 this score and cites comments made by dissenting legislator in
21 the House report dated April 3rd, 2003, who was offering an
22 amendment to strike the provision providing for imprisonment.
23 The amendment was not for --
24 THE COURT: Providing for what?
25 MS. GOWAN: Imprisonment. It was not for definitional
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2918
46menaf6 Summation - Ms. Gowan
1 change. And it's clear from the comments of that legislator
2 that she was persuaded by arguments of doctors testifying
3 before Congress, including Dr. Davis from Columbia, on the
4 vagueness issue.
5 Your Honor, the constitutionality of the Act does not
6 depend on whether one legislator, legislator who stated at that
7 same debate that she thinks it's wrong to ban medical
8 procedures, believes that what is being banned is unclear.
9 That's at the April 3rd, 2003, House report 108-58 at 79.
10 The term partial birth abortion is a common-sense
11 plain and descriptive name for a procedure first identified by
12 Dr. Haskell and Dr. McMahon. Plaintiffs have offered more than
13 a dozen different names for the procedure. And at least as of
14 1995, when Congress first introduced the legislation, the
15 evidence in the congressional record showed that none of the
16 names plaintiffs used were in the medical literature either.
17 Moreover, under the law it is legislators that are given the
18 task of defining terms of a medical nature that have legal
19 significance.
20 I submit that nor does the fact that the operative
21 language of the Act differs from some of the factual
22 information in Finding 1 render the Act vague. That finding
23 details some of the evidence that was before Congress, in
24 particular that some doctors puncture the child's skull. But
25 Congress also had evidence that some doctors crush, as opposed
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2919
46menaf6 Summation - Ms. Gowan
1 to puncture, the skull. Your Honor mentioned this morning that
2 some doctors use their fingers. The law does not obligate
3 Congress to detail each and every possible way that a provider
4 might kill a fetus delivered to the anatomical point specified
5 in the Act. I mean, that phrase overt act is entirely
6 appropriate and its use as an element of defined offense is
7 common in our law.
8 Nor does the law require Congress to list procedures
9 that the Act does not cover. For example, to explicitly say
10 medical abortion, completing of spontaneous abortion, D&E, or
11 to adopt ACOG's way of defining partial birth abortion, when
12 the Stenberg Court suggested that that might have been a remedy
13 for the Nebraska law, it was in the context of the Court's
14 examination of a law that is different from this Act.
15 THE COURT: How is it different?
16 MS. GOWAN: That law described delivery into the
17 vagina of a living unborn child or a substantial portion
18 thereof. The vagueness focus in Stenberg had to do with what
19 constituted a substantial portion thereof that is delivered
20 into the vagina. The Court found that because D&E routinely
21 involves pulling a substantial portion of a living fetus, such
22 as an arm or a leg, into the vagina before dismembering occurs
23 D&E fell within its scope.
24 That is simply not the case here. Congress' law is
25 different.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2920
46menaf6 Summation - Ms. Gowan
1 THE COURT: Well, tell me how it's different.
2 MS. GOWAN: It is pulling -- it's the removal of a
3 fetus outside of the body of a woman to a point, to the point
4 of the umbilicus or beyond. It is not a substantial portion of
5 a fetus in the vagina.
6 As for adopting ACOG's definition there is absolutely
7 no reason why Congress is required to. The evidence at trial
8 showed that partial birth abortion does not always involve
9 conversion of the fetus, one of the steps in the ACOG
10 division -- excuse me, definition. At the relevant gestational
11 age, approximately one-third of the fetus is already presented
12 in breech. You don't need to deal with the internal podalic
13 portion, nor does the fact that the Act defines the fetus as
14 living in terms of the viability render the act vague.
15 The analysis remains the same. Does the language of
16 the Act tell physicians what they need to know ahead of time in
17 order to steer clear of the unlawful conduct? Here Congress
18 informs them to avoid liability, they must not begin an
19 abortion with the intent of delivering a living fetus to a
20 specific anatomic point outside the body of the woman for the
21 purpose of performing an overt act they know will kill it.
22 With all due respect to the San Francisco Court, your
23 Honor, I don't think you can write the specific scienter
24 requirement out of the Act. The provider must intend to do all
25 of the steps provided by the Act. And those steps define a
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2921
46menaf6 Summation - Ms. Gowan
1 procedure with specificity. They don't describe what happens
2 in the induction abortion, D&E or a spontaneous abortion. The
3 provider does not intentionally partially deliver a living
4 fetus to the specified anatomical point outside the body of a
5 woman for the purpose of performing a lethal act in a medical
6 induction abortion, in a D&E, in the treatment of spontaneous
7 miscarriage.
8 And the Third Circuit's decision in Farmer upon which
9 the San Francisco Court relies does not compel a contrary
10 result. In Farmer, the Court said that in order for the
11 scienter requirement to operate as a limit to the scope of
12 New Jersey's partial birth abortion law, the procedure itself
13 must be identifiable from the language of the Act. The
14 language of the New Jersey act is different from the language
15 of the federal act.
16 The problem with the definition in Farmer, your Honor,
17 was that the New Jersey statute defined partial birth abortion
18 as delivering into the vagina a living fetus or a substantial
19 portion thereof; the very same language that Stenberg found
20 encompassed D&E. It was the identification of this procedure
21 that could not be limited by a scienter requirement in Farmer.
22 Finally, the evidence is not that just any abortion
23 could proceed in a manner defined by the Act. The evidence is
24 overwhelming that it is a specific method of abortion.
25 Dr. Westhoff sought out someone who performed it so she could
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2922
46menaf6 Summation - Ms. Gowan
1 observe it and then she learned it.
2 Dr. Grunebaum, who's performed over 1,000 abortions
3 before he first saw someone do it in 2002, was so struck by it
4 that he said, quote, wow, this is fantastic, closed quote.
5 Dr. Chasen learned how to do it from Dr. Rashbaum, and
6 let me just do -- a side note here. I believe that the
7 reason -- your Honor asked, and why didn't plaintiffs bring
8 Dr. Rashbaum to testify in rebuttal concerning the report? As
9 I understand it, Dr. Rashbaum is plaintiffs' nontestifying
10 consulting expert in this case. That's why he wasn't brought
11 here. The government --
12 THE COURT: Say that again?
13 MS. GOWAN: Counsel approached me and asked me -- told
14 me that Dr. Rashbaum was a consulting expert for the plaintiffs
15 in this case and, therefore, would the government not subpoena
16 him to take his deposition. And I agreed because I understood
17 that there were work product issues. I think that's why
18 plaintiffs did not call Dr. Rashbaum to testify about his
19 study.
20 Back to now the procedure. Dr. Chasen learned how to
21 do it from Dr. Rashbaum. That's his trial testimony. In his
22 paper he describes the procedure as delivering a fetus in the
23 breech presentation to the same anatomical point, that is, the
24 umbilicus or cord, as identified in the Act.
25 The first study plaintiffs have come up with in more
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2923
46menaf6 Summation - Ms. Gowan
1 than a decade to show the purported safety of the procedure
2 nearly tracks the language of the Act. Plaintiffs describe the
3 serial dilation needed to permit the delivery of the fetus,
4 namely at or after 20 weeks. They describe reaching into a
5 woman, either with instruments or their fingers, to reach for
6 the fetus' feet or legs to gently pull down the fetus using
7 gauze to improve their grasp or wrapping a towel around the
8 fetus because it's slippery, rotating the fetus to sweep its
9 arms down.
10 They describe taking a scissors or some other
11 instrument or their fingers and puncturing the back of the
12 fetus' skull or crushing it. They describe sucking out the
13 fetus' brains and then completing the rest of the delivery.
14 The evidence is clear that this is different from D&E,
15 where the provider uses forceps to dismember or tear apart the
16 fetus and uses the counterpressure or resistance of the woman's
17 internal cervical os to help break apart the fetus.
18 The Act cannot fairly be interpreted to cover
19 spontaneous abortion. Plaintiffs describe essentially two
20 circumstances involving spontaneous abortion, one in which the
21 woman presents to the hospital with her cervix already dilated
22 to a point where the abortion can be performed, if needed, for
23 example, because of infection. There's no evidence that D&E or
24 induction could not safely be used to complete the miscarriage.
25 Indeed, Dr. Hammond testified that he would use a D&E in this
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2924
46menaf6 Summation - Ms. Gowan
1 circumstance but that he preferred intact delivery because he
2 thought that it had the safety advantages that he testified
3 about here today or at trial.
4 Dr. Grunebaum testified that the other circumstance --
5 I should said described the other circumstance as one in which
6 a woman might present with the fetus already spontaneously
7 partially delivered to a point where the head is stuck in the
8 cervix. He said that he could wait until the head delivered
9 spontaneously, or that he might have to go ahead and decompress
10 the fetus' head because the woman might hemorrhage.
11 The Act cannot fairly be interpreted to cover this
12 situation. In no way, shape or form did Dr. Grunebaum
13 partially deliver the fetus to that point for the purpose of
14 killing it. The woman's body expelled the fetus on its own.
15 And as for medical induction abortion, in that method
16 of abortion, as your Honor learned, the woman receives drugs
17 that cause the uterus to contract and expel the fetus. In no
18 sense of the word can it be said that in administering drugs to
19 the woman, the provider intentionally and deliberately
20 vaginally delivers a fetus to a specific anatomic point for the
21 purpose of killing the partially delivered fetus.
22 Again, the fact that that doctor might have to take
23 steps to complete an induction abortion by removing a fetus
24 with its head stuck in the cervix or knows that he or she may
25 have to take such a step does not put the doctor in violation
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2925
46menaf6 Summation - Ms. Gowan
1 of the Act. The specific intent called for is simply not
2 there. The language of the Act gives an abortion provider of
3 ordinary intelligence reasonable opportunity to know what is
4 prohibited, and the scienter requirements ensure that that
5 conduct and only that conduct is prohibited.
6 Your Honor, plaintiffs suggest that the sole issue
7 before this Court is a medical one. At heart, their argument
8 is that alleged intuitive safety advantages of partial birth
9 abortion should be dispositive of this case on the merits and
10 that any issue concerning fetal pain, fetal life or the ethics
11 of abortion practice must be disregarded. They are wrong. The
12 safety of abortion is a key issue. But it's not the only
13 relevant issue.
14 The ban on partial birth abortion will not be properly
15 evaluated by this Court unless all of the concerns that
16 motivated Congress are considered. Abortion is not, as
17 plaintiffs assert, a mere surgical procedure in which,
18 according to Dr. Weiss, a provider sets out to make a woman,
19 quote, unpregnant, closed quote.
20 Partial birth abortion involves the killing of a
21 developing human life late in the second trimester, quite near
22 the point at which or after which it could survive outside the
23 womb to a process of taking it from the woman's body to a point
24 mere inches from where its independent autonomy would be
25 recognized whatever its stage of development.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2926
46menaf6 Summation - Ms. Gowan
1 Congress took considerable evidence as to the serious
2 ethical issues raised by partial birth abortion and that
3 evidence was confirmed at this trial. Trial firmly supports
4 Congress' determination that the fetus can feel pain during the
5 gestational age at which partial birth abortion is performed,
6 and as your Honor recognized this morning, that evidence is
7 unrefuted.
8 It is simply no response for plaintiffs to say that
9 D&E also inflicts pain on the fetus. The focus of the Act is a
10 particular method of abortion that not only inflicts severe
11 pain, as Dr. Anand has testified, but does so through a
12 procedure that presents a host of other medical and ethical
13 concerns. It inflicts severe pain in a procedure that is never
14 medically necessary, has no demonstrated safety advantages,
15 poses potential serious risks and kills the unborn mere -- at a
16 viable stage when it is mere inches from autonomy.
17 (Continued on next page)
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2927
46M5NAF7 Summation - Ms. Gowan
1 MS. GOWAN: Congress is simply not required to address
2 every circumstance in which a particular concern may arise but
3 may legitimately focus its legislative effort to address
4 specific harm.
5 The evidence also supports Congress' judgment that
6 partial birth abortion is ethically different from other
7 destructive abortion techniques because of its disturbing
8 similarity to the killing of a newborn infant in which the
9 fetus, normally 20 weeks or longer in gestation, is killed
10 outside of the womb where it would have an autonomy of its own.
11 The evidence is that partial birth abortion
12 appropriates the terminology and techniques used by
13 obstetricians in the delivery of living children and uses those
14 techniques to end the life of a partially born child. It
15 involves fetal breech extraction.
16 When Dr. Grunebaum was asked about the first time that
17 he witnessed the partial birth abortion he had this to say:
18 "Q And you had never seen that before, had you? You
19 had never seen an intact fetus removed from the body of a woman
20 before, right?
21 "A It happens all the time when I do a normal
22 delivery."
23 The evidence at trial supports Congress' findings that
24 partial birth abortions performed near and after 20 weeks when
25 the fetus is most likely to be removed intact and at a time
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2928
46M5NAF7 Summation - Ms. Gowan
1 near to viability. This Court heard graphic testimony about
2 how the fetus is pulled out by the legs and then its arms and
3 shoulders are swept down and out of the cervix one at a time.
4 Your Honor heard about the use of gauze and towels to wrap and
5 hold the fetus during the abortion.
6 I am going to take a brief moment, your Honor, to read
7 an excerpt of Williams' Obstetrics that's in the Congressional
8 record at November 17th, 1995 at 86. The excerpt is about
9 delivering a live baby.
10 "During total extraction of a complete or
11 uncomplicated breech, the obstetrician's hand is introduced
12 through the vagina and both feet of the fetus are grasped. The
13 ankles are held with the second finger lying between them. The
14 feet are brought with gentle traction through the vulva. If
15 difficulty is experienced in grasping both feet, first one foot
16 should be drawn to the vagina but not through the introitus and
17 then the other foot should be advanced in a similar fashion.
18 Now both feet are grasped and pulled through the vulva
19 simultaneously.
20 "As the legs begin to emerge through the vulva they
21 should be wrapped in a sterile towel to obtain a firm grasp for
22 the vernix caseosa renders them slippery and difficult to hold.
23 Many obstetricians prefer the towel to be moistened. Gentle
24 traction is then continued.
25 "As the legs emerge, successively higher portions are
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2929
46M5NAF7 Summation - Ms. Gowan
1 grasped, first the calves and then the thighs. When the breech
2 appears at the vulva, gentle traction is applied until the hips
3 are delivered. As the buttock emerges, the back of the infant
4 usually rotates to the interior. The thumbs are then placed in
5 the sacrum and fingers over the hips and gentle downward
6 traction is continued until the costal margins and the scapula
7 becomes visible."
8 The excerpt goes on to describe two methods for
9 delivering the shoulders including rotation of the fetus to
10 free an arm that may be extended over the fetus' head in the
11 uterus much like what was described to your Honor at trial
12 takes place in partial birth abortion.
13 The excerpt concludes that after the shoulders are
14 born, the head usually occupies an oblique diameter of the
15 pelvis with the chin directed posteriorly. The fetal head then
16 may be delivered with forceps or by a maneuver that involves
17 flexing of the head. This is precisely why Congress found
18 partial birth abortion disturbingly similar to infanticide.
19 The testimony of Drs. Westhoff, Chasen and Grunebaum
20 demonstrates that Congress had a substantial basis in evidence
21 to find that partial birth kills near viable life inches from
22 autonomy using the process of birth.
23 Any suggestion that Congress' interest in protecting
24 fetal life is not existent because the Act regulates a mere
25 method of killing is baseless. An effort to draw ethical lines
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2930
46M5NAF7 Summation - Ms. Gowan
1 in the methods of an abortion is a perfectly reasonable
2 exercise of Congressional authority.
3 The line drawn here banning the killing of a human
4 life after delivery to a specific point outside the body of the
5 mother is a clear and understandable effort to prevent the
6 extension of the right to destroy the fetus in utero to its
7 destruction outside the body, particularly when it is so close
8 to autonomy. By banning this particular method of abortion,
9 Congress delivers the message that this procedure is wrong and
10 that allowing it to proceed, in the words of Congress, "will
11 further coarsen society to the humanity of life."
12 The value of life is [inherently] advanced when
13 everyone, including those directly involved in the abortion
14 process, must consider and acknowledge the limits to and the
15 implications of their conduct.
16 Your Honor, thank you.
17 THE COURT: Ms. Gowan, before you sit down, may I ask
18 you one more time, I find your presentation interesting but how
19 do you overcome -- once again, how do you overcome the standard
20 set down in Stenberg that if there is a conflicting body of
21 medical opinion that you must allow the procedure? How do you
22 overcome that test?
23 MS. GOWAN: Your Honor, I submit that is not the test.
24 THE COURT: Well tell me what it is, then.
25 MS. GOWAN: The test is --
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2931
46M5NAF7 Summation - Ms. Gowan
1 THE COURT: Isn't that the crux of the whole thing?
2 MS. GOWAN: No, your Honor.
3 The Stenberg Court interpreted the governing standard
4 to require a health exception where it is necessary, in
5 appropriate medical judgment, for the preservation of the life
6 or health of the mother. In other words, when substantial
7 medical authority supports the proposition banning a particular
8 procedure could endanger women's health.
9 Your Honor, appropriate medical judgment is the
10 evidence. It is the evidence that was before Congress as
11 supplemented by the evidence in this case.
12 So, the question then becomes where it is necessary,
13 shown in the evidence, substitute appropriate medical judgment
14 for the evidence. That's all the appropriate medical judgment
15 is, is what is the evidence? Is it necessary for the
16 preservation of the life or health of the mother?
17 THE COURT: You are saying the evidence presented
18 before Congress supplemented by the evidence here at this trial
19 reflects that no medical exception is necessary?
20 MS. GOWAN: That is right and that is because that
21 evidence shows that banning this procedure will not endanger
22 women's health.
23 In other words, there is substantial evidence,
24 evidence before Congress, evidence before this Court, and we
25 cite a case in our proposed findings, substantial evidence
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2932
46M5NAF7 Summation - Ms. Gowan
1 means evidence that a reasonable mind would find adequate to
2 support the proposition. We submit that Congress had before it
3 and we have supplemented for your Honor the record to show that
4 a reasonable mind would find Congress' conclusion, would find
5 adequate the Congress' conclusion that a health exception is
6 not necessary as supported by adequate evidence in the record.
7 That is --
8 THE COURT: Stenberg had that Congressional record
9 with the exception of the years subsequent to their decision,
10 so are you saying the proof that is in this trial must be
11 elicited before Congress after the Stenberg opinion?
12 MS. GOWAN: Well, the evidentiary record in Stenberg
13 was the District Court record. Now, certainly the Supreme
14 Court considered other materials that were not in the District
15 Court record. For example, they considered NAF and ACOG's
16 amicus brief but that record was limited and, yes, I understand
17 that they looked at information that was in the Congressional
18 record as well but the role of this Court is to look at what
19 was in Congress's record from the 104th, 105th, 106th 108th's
20 hearing, take a look at that evidence which we have tried to
21 martial for you and then see, number one -- I mean that
22 evidence I submit does it.
23 But to the extent that this Court has, wants to
24 evaluate additionally looking for additional support, the Court
25 takes a look at the evidence as presented at this trial to see
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2933
46M5NAF7 Summation - Ms. Gowan
1 if it supports the decision that Congress made based on the
2 evidence before it.
3 THE COURT: This Court that is nisi prius?
4 MS. GOWAN: I don't know what that means, your Honor.
5 THE COURT: Good.
6 MS. GOWAN: Where I went to school they wouldn't let
7 the girls take Latin.
8 THE COURT: That is a shame.
9 MS. GOWAN: Yes, it is. I agree.
10 THE COURT: But that this Court can look at the record
11 of this trial and see whether or not there is, as you suggest,
12 no evidence of a necessity, even though the testimony of
13 certain doctors claim that there is reason?
14 MS. GOWAN: Your Honor must evaluate that. It is not
15 a division of opinion test, your Honor must look at all of the
16 evidence and see whether Congress was right that banning this
17 procedure does not endanger women's health.
18 THE COURT: So, we must decide whether it is right,
19 not just that there is a body of evidence on both sides.
20 MS. GOWAN: You must review.
21 THE COURT: Or at least leave on both sides --
22 MS. GOWAN: The Court must review Congress'
23 determinations based on its evidence and the Court may take a
24 look at the evidence presented here and make a determination
25 whether the ban, whether the Act is constitutional, that is,
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2934
46M5NAF7 Summation - Ms. Gowan
1 that it does not endanger women's health, it does not present a
2 significant risk of harm to women, that they not be permitted
3 to have this procedure.
4 In other words, there is no significant safety
5 advantage.
6 THE COURT: Thank you very much.
7 MS. GOWAN: Thank you.
8 THE COURT: The Court will stand in recess.
9 MR. HUT: Oh, your Honor, may I not be heard on
10 rebuttal? I have short rebuttal, approximately 15 minutes, a
11 little longer.
12 THE COURT: I didn't make any provision for that, nor
13 did you ask for it, Mr. Hut and I don't see where you did do
14 that at trial but this was final argument. I reserved no time
15 for that.
16 MR. HUT: I thought that I had asked. There may have
17 been a misunderstanding. I did not reserve it at the outset.
18 I believe I did, in conversations, request it. I would hope
19 that you would permit me to be heard in the interest of the
20 clarity of the record.
21 THE COURT: Is there any request for reservation of
22 time?
23 There was a request, then I will allow you to do it if
24 you made the request.
25 MR. HUT: I will try very hard to be brief, your
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2935
46M5NAF7 Rebuttal Summation - Mr. Hut
1 Honor.
2 With respect to the question of medical, what is
3 necessary in appropriate medical judgment, that does not mean
4 that the banned procedure, in order to require a health
5 exception must be the only option to deliver a safe procedure.
6 The Stenberg Court could not have been more clear on the point.
7 It said, the word "necessary" in the phrase "necessary and
8 appropriate medical judgment" cannot refer to an absolute
9 necessity or absolute proof. I am reading at 530 U.S. 937.
10 Medical treatments and procedures are often considered
11 appropriate or inappropriate in light of the estimated
12 comparative health risks and health benefits in particular
13 cases, neither can that phrase require unanimity of medical
14 opinion.
15 The Court inquired of me in the morning whether on
16 whom was the burden and I said I was not aware at that point
17 what the cases said, that I was prepared for argument's sake to
18 assume it. I do think, however, that the Stenberg case also
19 speaks with some clarity to that and in fact places the burden
20 on the state in at least two places. At page 530 U.S. at 932
21 the Court says, "the state fails to demonstrate that babies
22 without health exception may not create significance health
23 risk."
24 THE COURT: I don't know that the burden is there.
25 They make the comment that they fail to do so in their opinion
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2936
46M5NAF7 Rebuttal Summation - Mr. Hut
1 but I don't know that they say the burden is.
2 MR. HUT: I draw the inference when they say the state
3 failed to do so that the burden is on the state when they tax
4 the state.
5 THE COURT: I am saying that isn't so.
6 MR. HUT: I am trying to be responsive.
7 THE COURT: Are you flipping back that it is their
8 burden not yours now, is that it?
9 MR. HUT: I did not say that it was ours, I said I was
10 prepared to assume it. Over the lunch break I had an
11 opportunity to look at Stenberg and at page 937, 530 U.S. 937
12 again Justice Breyer said Nebraska has not convinced us that a
13 health exemption is never necessary. To be sure that is not an
14 absolute allocation of a burden I think the Court has, as with
15 us, can fairly infer that the Supreme Court at least thought
16 that the burden was on the state.
17 Stenberg, by the way, assumes health risks. It
18 assumes that the evidence before it showed some question about
19 health risks that may have been posed by the procedure sought
20 to be banned by the state of Nebraska. It, for example, took
21 cognizance of a representation in amicus brief of the
22 Association of American physicians as to the existence of
23 concerns with cervical incompetence.
24 And so even if, your Honor, you were to find a basis
25 for some concern about the pre-term delivery data in the Chasen
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2937
46M5NAF7 Rebuttal Summation - Mr. Hut
1 study as reflected in the Clark testimony, even so, that is
2 simply one piece of data. It is one piece of data arrayed
3 against a broad spectrum in which there is very, very
4 substantial debate and divided and a very substantial opinion
5 on the other side.
6 And so, even if you credit that for all it is worth
7 and even if you said Congress could do so, it simply does not
8 meet what the government needs to meet in achieving the
9 Stenberg standard.
10 Ms. Gowan recited at some length the portions and
11 extracts from the legislative history. To me that set of
12 extracts showed two things.
13 One, that over time, since 1995, as one would expect,
14 there has been an evolution as to the views of the procedure
15 and the various understandings as to how it proceeded. And,
16 second, what the legislative history reflects is the very kind
17 of debate that Congress said must, if proved evidentially
18 warrants a health exception.
19 That's the significance of the views of Dr. Hern whose
20 hearsay views were apparently reported to Congress in the other
21 people who spoke to the Congress.
22 With respect to fetal pain, I suggest to you that
23 nowhere in the Court's jurisprudence is there any suggestion
24 that fetal pain can be viewed as a legitimate state interest.
25 What is viewed as legitimate state interest is a
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2938
46M5NAF7 Rebuttal Summation - Mr. Hut
1 protection for potential fetal life. That is not remotely
2 implicated with this act because this act assumes that there is
3 going to be the destruction, the abortion of a fetus and
4 Congress cannot well serve that interest in any rational way if
5 it is going to divert providers to a method that, assuming
6 there were fetal pain, a matter that is unproved, would inflict
7 more.
8 There was some commentary by counsel about the role of
9 anesthesia. I think the focus was on whether anesthesia kills
10 the fetus and some conflicting testimony before Congress
11 apparently on that score.
12 You heard testimony from Dr. Westhoff that anesthesia,
13 general anesthesia does cross the placenta. That is something
14 that Dr. Anand acknowledged and it does certainly function in
15 some analgesic way to minimize or reduce pain.
16 There was some mention made of viability study
17 referred to in the Congressional record by Dr. Boews with
18 respect to the possibility of viability at 23 weeks. That was
19 23 weeks' gestational age, your Honor, that would translate to
20 25 weeks LMP. You heard no testimony and no testimony was
21 provided with respect to that gestational age.
22 There was reference to the brief submitted as amicus
23 curiae for the American College of Obstetricians and
24 Gynecologists. It is worth pointing out that Justice Breyer's
25 opinion for the Stenberg Court not only relied on that brief
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2939
46M5NAF7 Rebuttal Summation - Mr. Hut
1 and its enumeration of the safety benefits that the procedure
2 at issue there could, in the judgment of the college offer, he
3 quoted from it at considerable length.
4 Despite the fact that the Court pressed it twice,
5 counsel did not answer, or at least I did not hear an answer to
6 the question whether there is a substantial or whether there is
7 substantial medical opinion on both sides. I think she said
8 that that was not the relevant question.
9 We think that it is very much the relevant question
10 and that she cannot answer it because the answer is
11 overwhelmingly there absolutely is. That's what three weeks of
12 trial testimony in this Court demonstrated.
13 We showed it not only through the nine witnesses that
14 we presented on safety issues, some of those by deposition, but
15 we presented it or we demonstrated it through two witnesses
16 that were government witnesses, Drs. Lockwood and Dr. Bowes
17 who, essentially, agreed with the existence of safety
18 advantages, at least on a theoretical basis.
19 With respect to counsel's argument that the standard
20 as set out in Stenberg is whether the banned procedure would
21 provide a significantly safer procedure or eliminate
22 significant risks, I think it is beyond question that the
23 answer to that must be yes. The risks, like perforation of the
24 uterus, like retained fetal parts that cause sepsis are very,
25 very serious. Counsel supplied data during argument that
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2940
46M5NAF7 Rebuttal Summation - Mr. Hut
1 placed those risks in quantitative terms, at around the 1 to 1
2 and a half percent level, if I heard right.
3 Your Honor, there are approximately 140,000 D&Es done
4 every year and if, as I assume for the present purposes the
5 variety majority of those is by dismemberment, then the
6 availability of intact extraction would eliminate a 1 to 1 and
7 a half percent rate, something in the order of 1,400 to 2,000
8 cases of such very serious complications as uterine
9 perforation, as sepsis. That is a record of safety that
10 confers health benefits on women, significant health benefits
11 on women by any measure, and for that reason there must be the
12 health exception.
13 THE COURT: And if there is substance to the Chasen
14 report on prematurity we may be adding to their problems.
15 MR. HUT: The Chasen report on prematurity makes no
16 such suggestion.
17 THE COURT: Well, you disagree with Dr. Clark but if
18 he is right then it adds to it, does it not?
19 MR. HUT: If he were right -- he doesn't say.
20 Ms. Gowan --
21 THE COURT: If it is correct it proves that he --
22 MR. HUT: It acknowledges that he proves nothing but
23 he is still alarmed by it, yes. I guess that is the state of
24 the record.
25 So, if you assume away his concession that it proves
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2941
46M5NAF7 Rebuttal Summation - Mr. Hut
1 nothing and take only his alarm, that adds a piece of datum to
2 the general posture of how safety risks and benefits are
3 measured. And if there is substantial medical authority that
4 believes they are safer, that requires a health exception under
5 the test of Stenberg.
6 There was suggestion by counsel or comment by counsel
7 on the ACOG statement and the testimony by Dr. Cain concerning
8 the addition of the sentence about safety advantages and the
9 ascription of those safety advantages to conditions like sepsis
10 and certain forms of cancer. The testimony by Dr. Cain on that
11 subject is clear. The executive board edited the sentence but
12 that sentence had been tangible and quite explicit through all
13 of the discussions of the task force.
14 And so, when the executive board added the sentence
15 the task force believed that that was a fair reflection --
16 THE COURT: How do you know that, Mr. Hut, what the
17 task force believed? There is no testimony to that.
18 MR. HUT: Yes, there is. Dr. Cain testified precisely
19 to that, your Honor.
20 THE COURT: That the task force had believed
21 something? How can she testify as to what was in the mind of a
22 body of people?
23 MR. HUT: She was a member. She talked to them every
24 day.
25 THE COURT: But this is a body of people.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2942
46M5NAF7 Rebuttal Summation - Mr. Hut
1 MR. HUT: You can certainly understand and give
2 testimony about the mind, what was in the minds and bodies of
3 the people based on what such bodies tell you during the course
4 of the deliberations. That's what she was doing.
5 THE COURT: Or an assumption on her part.
6 MR. HUT: Based upon daily interaction or frequent
7 interaction that she had with the five or four other members.
8 With respect to the change in the Chasen study from
9 language that was unsafe as to no difference in complication
10 level, I think the only fair inference to draw from that is
11 that the reviewer was concerned about the determination of what
12 is safe.
13 The question was, was a 5 percent complication rate
14 safe or was it not safe?
15 So, rather than make some generalization about safety,
16 the authors changed the language to reflect the suggestion that
17 they only talk about equivalent complication rates. A 5
18 percent rate of complication, Dr. Chasen believes, demonstrates
19 safety and he testified to that.
20 With respect to the concerns that counsel identified
21 that Dr. Lockwood supposedly has as to cervical incompetence,
22 he testified that those concerns go to all abortions, not
23 merely to or only to intact D&Es, that they extend of course to
24 dismemberment D&Es and to induction. There is, after all, more
25 dilation achieved during induction and for that matter
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2943
46M5NAF7 Rebuttal Summation - Mr. Hut
1 childbirth by considerable amount than there is in a surgical
2 abortion during the second trimester.
3 Dr. Lockwood also agreed that not a single published
4 study reliably suggested anything about the consequence of
5 intact D&E or second trimester surgical abortion for any
6 question of cervical incompetence. And he also acknowledged
7 the Kalish study which shows a negative correlation between the
8 degree of dilation and subsequent preterm issues.
9 With respect to --
10 THE COURT: Did you show him the Chasen study when you
11 took his deposition?
12 MR. HUT: Oh, he had it, your Honor. He was aware of
13 it.
14 With respect to effectuation of fetal demise through
15 KCL introduction, just a word on that.
16 The testimony is clear, there are no medical
17 advantages, there are some medical risks, there are some
18 unpleasant side effects to digoxin. Some women cannot tolerate
19 the injections that would affect fetal demise. For some it is
20 medically impracticable, for example, in some cases of obesity
21 and some doctors just cannot do it so that, we suggest, is no
22 answer.
23 There was a good deal of argument at the end of the
24 presentation by counsel for the government about the ethical
25 implications of the procedure and the notion that this is a
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2944
46M5NAF7 Rebuttal Summation - Mr. Hut
1 fetus inches away from autonomy and that the procedure
2 appropriates the techniques of obstetricians to inflict fetal
3 death on an almost born fetus.
4 If that is a concern then it is hard, frankly, to
5 understand why the government, why the Congress has such a
6 preference for induction for induction is not merely partial
7 birth, your Honor, induction is birth. It is the expulsion of
8 a fetus during the labor process.
9 Finally --
10 THE COURT: The baby is already dead though, right?
11 MR. HUT: May or may not, your Honor.
12 Finally, while we heard a lot of argument, we never
13 did hear the answer to the relevant question, the determinative
14 question, whether there is a significant body of medical
15 opinion that believes that intact D&Es may be safer for some
16 women. There was just simply no answer to the question because
17 that is what Stenberg requires the Court to determine and on
18 the record I suggest it is easy for the Court to do that.
19 There is substantial, overwhelming opinion about the safety of
20 the procedure that Congress purports to ban and for that reason
21 health exception is required and for that reason the law cannot
22 stand.
23 That concludes my remarks. If the Court has no
24 questions for me?
25 THE COURT: Thank you, Mr. Hut.
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2945
46M5NAF7 Rebuttal Summation - Mr. Hut
1 Since I allowed it, Ms. Gowan, do you have any closing
2 remarks? No one can feel they were cut off, up to a point.
3 MS. GOWAN: There was an answer to the question, your
4 Honor, about significant body of medical opinion, and the
5 answer is the evidence before Congress establishes that that
6 significant body of medical opinion is the evidence, what is
7 the evidence, and the evidence before Congress showed that it
8 is not necessary and that evidence has been supplemented by
9 this Court by the government here.
10 The test is not division of medical opinion. That was
11 a phrase that the Stenberg Court used in reference to the state
12 of the record in the District Court in Stenberg and the Supreme
13 Court said that Nebraska had not, in the face of the division
14 of medical opinion. In the evidence in the District Court in
15 that case Nebraska had failed to show that it was, there were
16 not the advantages that Dr. Carhart had shown in the 10 or 12
17 cases.
18 THE COURT: Did Nebraska call any doctors? Did the
19 state in that case? It only lasted one day but I did not know
20 that.
21 MS. GOWAN: What Nebraska did, and it is on page 6,
22 footnote 2 of our proposed conclusions of law, Nebraska
23 submitted a video deposition of Dr. Boehm and the preliminary
24 injunction hearing of a Dr. Riegel. I don't have with me, the
25 letter that we submitted to your Honor in April and I could get
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2946
46M5NAF7 Rebuttal Summation - Ms. Gowan
1 you another copy, but I set out in that letter the information
2 I had which was that Nebraska had taken deposition of
3 Dr. Carhart's witnesses or even Dr. Carhart.
4 They went into the preliminary injunction hearing,
5 boom. Then the district court imported that testimony into the
6 trial. No witness' testified live at trial for Nebraska.
7 Nebraska had the video deposition of Dr. Boehm and the
8 preliminary injunction hearing of Dr. Riegel. There was no
9 live testimony presented by Nebraska.
10 THE COURT: All right, so you are suggesting that the,
11 it is not just opinion but rather the actual evidence produced
12 before Congress and in this courtroom --
13 MS. GOWAN: Yes.
14 THE COURT: -- proves that no medical exception is
15 necessary, is that your position?
16 MS. GOWAN: Yes, that's right.
17 You look at the evidence in the record, the Supreme
18 Court didn't announce a new standard, is there a division of
19 medical opinion out there. And the Supreme Court cases that we
20 cite in our proposed conclusions of law, the prior Supreme
21 Court cases actually say when there is a division, quote
22 unquote, of medical opinion, you look to Congress, that is an
23 appropriate place for Congress to step in and legislate.
24 Thank you.
25 THE COURT: Thank you all very much. The court will
SOUTHERN DISTRICT REPORTERS (212) 805-0300

2947
46M5NAF7
1 stand in recess.
2 o0o
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300