|
National Abortion Federation v. Ashcroft, Case No. 03Civ8695 (S.D.N.Y.) Opening Statements and Argument Outlines from Statements OPENING STATEMENT BY SEAN LANE, ASSISTANT UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK March 29, 2004 [Note: Transcript may include transcription errors] “We are here today for a trial on the constitutional challenge brought by the National Abortion Federation and its members to the Partial Birth Abortion Ban Act of 2003. This was a law enacted by a wide majority of both houses of Congress, a law enacted after eight years of study of the partial birth abortion issue, including hearing evidence from dozens of doctors on the relevant medical issues. In this trial, the Court's role is to see through the eyes of Congress to determine if its factual findings in the Act are reasonable and based on substantial evidence. Thus, the evidence at trial will serve a narrow purpose: To assist the Court in assessing the reasonableness of Congress's factual findings and whether such findings are based on substantial evidence. The evidence at trial will show exactly that. Most significantly, the evidence will confirm the reasonableness of three central findings made by Congress about partial birth abortion: First, there are no maternal or fetal medical conditions for which partial birth abortion is necessary for the health of the woman. Second, there are no proven safety advantages to partial birth abortion. Third, partial birth abortion blurs the line between live birth and abortion, and is an inhumane and gruesome procedure that causes pain to the fetus. I will briefly discuss how the evidence to be presented at trial will confirm the reasonableness of these three central congressional findings and why the Court should reject plaintiffs' claim that the Act is unconstitutionally vague. As to
the first issue, the evidence at trial will confirm the reasonableness of
Congress's critical conclusion that there is no maternal or fetal health conditions
for which partial birth abortion is medically necessary for the health of
a woman. You will hear testimony at trial from maternal fetal specialists
who specialize in treating maternal health conditions in pregnant women. These
doctors will include Dr. Charles Lockwood, the chairman of Obstetrics and
Gynecology at Yale Medical School, and Dr. Steven Clark, co-author of a text
entitled "Critical Care Obstetrics," which addressed treatment of
pregnant women with serious and potentially fatal medical conditions. This is true even in the most serious maternal health conditions such as cardiac disease, renal disease, and severe pulmonary disease. In fact, you will hear that a surgical procedure like partial birth abortion would be a dangerous procedure for women with some conditions. These include leukemia and low blood platelets. Not only is partial birth abortion not medically necessary, but these doctors will tell you that they can think of no reason to use an untested procedure like partial birth abortion on a sick woman given the impressive and proven safety of other alternative abortion procedures like dilation and evacuation (also known as D&E), and labor induction. Thus the evidence will show that Congress considered and reasonably rejected the policy statement of the American College of Obstetrics and Gynecology, also known as ACOG, regarding this procedure. The unsigned ACOG policy statement does not identify any specific circumstance when partial birth abortion is necessary for maternal health. Indeed, the evidence will show that the ACOG statement is not based on any careful scientific study of the relevant medical issues but instead is nothing more than a statement of policy preference. You will also hear evidence at trial about the treatment of pregnant women where the fetus suffers from an anomaly. But just as in the case of maternal health conditions, the evidence will show that it is never necessary to use partial birth abortion to terminate a pregnancy involving fetal anomalies. The use of partial birth abortion in these circumstances would not provide any benefit to the health of the mother relating to the pregnancy as compared with other safe, proven abortion procedures. You will hear that if an intact fetus might be desirable to obtain additional genetic information that could be helpful to confirm or expand upon a diagnosis of fetal anomaly, that the fetus can and routinely is safely aborted using the induction method. In fact, induction is a method of abortion used by plaintiffs' doctors under these circumstances. Induction is a safe and effective method of abortion used in the late second trimester when partial birth abortion is used. By contrast, you will hear that partial birth abortion does not result in an intact fetus as opposed to induction because partial birth abortion causes damage to the fetal head and often results in the suctioning of brain tissue. In those rare circumstances where induction cannot be used for some medical reason but an intact fetus is desirable for diagnostic purposes, you will hear testimony that doctors can cause fetal demise in advance of the abortion procedure through injection of a chemical agent through the amniotic sac or directly into the fetus. Indeed, such an injection is done by some of the plaintiff doctors in this case. And the risks of such injection are minimal and akin to amniocentesis, used daily by the medical profession. As to Congress's second critical finding, the evidence will show that Congress reasonably concluded that partial birth abortion does not have any proven safety advantages. The evidence will show that partial birth abortion has not been proven to have any safety advantages over other well-studied and medically acceptable methods of abortion like D&E and labor induction. There are no published studies comparing partial birth abortion with these other well-studied methods of abortion. Plaintiffs claim only that partial birth abortion's benefits are intuitive. But you will hear testimony that practicing medicine based on intuition is folly. It is inconsistent with the idea of basing medical decisions on scientific evidence. While the use of an unstudied procedure may be justified in exigent circumstances, where no other options are available, you will hear that this is not the case here. Here there are other well-studied abortion procedures that are proven safe, such as D&E. As Dr. Lockwood and others will tell you, D&E is an incredibly safe procedure with a risk of death at or below .05 percent. Where such safe and proven alternatives are available, there is simply no justifiable reason to use an unstudied procedure like partial birth abortion. Moreover, as you will hear from Dr. Clark, medical decisions based on such intuition can often be wrong. In addition, the use of partial birth abortion presents unanswered questions about its possible long-term health risks stemming from unique elements in the procedure. These elements include the increased amount of dilation needed for partial birth delivery over and above the amount of dilation necessary for traditional D&E, the increased time needed to accomplish such dilation, the conversion of a fetus to a breech position, and the use of an instrument to puncture the fetal skull. In the 12 years since Dr. Haskell presented his paper on this procedure at an NAF meeting in 1992, the only information on partial birth abortion that plaintiffs can point to is a yet-to-be-published study done by plaintiff Dr. Stephen Chasen comparing D&E and the partial birth abortion procedure. But this unpublished study does not conclude that partial birth abortion possesses any safety advantages over D&E. In sum, on this point, your Honor, based on eight years of study, Congress made a factual finding that there were no proven safety advantages to partial birth abortion. The evidence will show that that conclusion is correct. It cannot be this act of Congress should be struck down based upon the institution and anecdotal conclusions of several doctors about this procedure. As the Congress's third central finding, the evidence will show that Congress reasonably concluded that partial birth abortion blurs the line between live birth and abortion and is an inhumane procedure that causes pain to the fetus. The evidence will show that when a physician begins this procedure, he or she appears to be acting in the role of an obstetrician assisting a live delivery. The doctor appropriates the terminology and techniques used by obstetricians in the delivery of live children, and instead uses those techniques to end the life of a partially born fetus just inches from birth. While plaintiffs' counsel this morning noted that the terms used at the trial will be graphic, in fact it is the nature of this procedure itself that gives discomfort. Congress also had a reasonable basis and substantial evidence to find that the procedure imposes severe pain on a living fetus. Dr. Kanweljeet Anand has special expertise on fetal pain based on his work treating premature infants in intensive care and his research on the treatment of pain. He will tell you that a fetus of 20 weeks of gestation can and will feel pain as a result of this procedure. Moreover, as an expert in the pharmacology of anesthetic drugs, he will also testify that anesthesia administered to the mother will not prevent a partially delivered fetus from feeling the pain of this procedure. Given the reasonableness of Congress's central findings, the Act does not run afoul of the Supreme Court's decision in Stenberg versus Carhart. Stenberg v. Carhart said that the state cannot prohibit the use of a procedure which is necessary in appropriate medical judgment. Under Stenberg, consideration must be given to: 1) whether
the procedure is necessary for maternal health, The evidence at trial will confirm the reasonableness of Congress's factual finding that partial birth abortion is in fact never necessary for maternal health and does not offer proven safety advantages, let alone the greater advantages of well-studied tested, safe, and routinely used methods. Thus, the Act is consistent with the Supreme Court's decision in Stenberg. Not only are Congress's findings reasonably based upon substantial evidence, but the act itself clearly prohibits a particular kind of procedure and thus does not suffer from vagueness. The question of vagueness ultimately must be evaluated as a legal matter based on the words of the statute and the scienter in the Act. The Act narrowly and specifically defines partial birth abortion as a procedure where in the situation of a breech presentation a doctor deliberately and intentionally vaginally delivers a living fetus until any part of the fetal trunk past the naval is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered fetus and then performs the overt act. Thus, the Act sets forth the intentional and sequential nature of the banned procedure. First, the physician must deliberately and intentionally partially deliver a living fetus. Second, in the case of a breech delivery, the partial delivery must be at least to the naval. Third, before delivery is completed, the living fetus, which is now largely outside the mother, is then killed by a separate overt act before it is removed from the mother. Thus, plaintiffs are incorrect in claiming that the Act prohibits a wide variety of abortion procedures. The Act does not cover traditional D&E because that is a dismemberment procedure, and this is consistent with the legislative history where Congress made explicit its intent that the Act not cover the D&E method of abortion. Nor does the Act cover an instance where an abortion procedure like D&E accidentally results in a partially delivered fetus, because there is no intent to take the steps prohibited by the Act. While plaintiffs complain that Congress used the legal term "partial birth abortion" in the Act, that term was used because of widespread confusion in the medical community over what to call this distinctive procedure. As for plaintiffs' claim that the views of the Department of Justice are somehow relevant to this Court's decision, and as your Honor is aware the government strongly disagrees that such evidence is relevant, the fact of the matter is that this Act was enjoined from its very inception and therefore it is not at all unusual, as Mr. Kim testified, that guidelines would not be developed for its enforcement. In conclusion, your Honor, Congress's inquiry into partial birth abortion started in 1995, 5 years before the Supreme Court's decision in Stenberg. During its inquiry Congress heard testimony and received letters on the medical issues associated with this procedure from dozens of doctors in addition to reviewing numerous articles and statements from medical organizations. The evidence at trial will illuminate the reasonableness of Congress's factual finding that partial birth abortion is never medically necessary and is an inhumane procedure that should be banned. Thank you, your Honor." PORTION
OF OPENING STATEMENT OF NATIONAL ABORTION FEDERATION ATTORNEY "Moreover, and no less importantly, as with description of any invasive surgery, and this is what this case is about, the testimony presented will involve often graphic description of trauma to body, bleeding and other similarly off-putting details. In a word, much of the evidence that you will hear is very raw stuff. It is, at a minimum discomforting, at least to most of us who have not dealt with it extensively as doctors or students of medicine. Descriptions of surgery and surgical procedures are not for the faint of heart and these descriptions become, frankly, more problematic and I say this to the Court by way of [??] more than anything else for men given our lack of instinctive familiarity with the originalians [?] of the female anatomy that are affected by the procedures at issue. And finally, and I say this candidly, the fact that these graphic and raw surgical procedures are performed on second trimester human fetuses adds an element of emotion that may make the testimony even more difficult." The Partial Birth Abortion Ban Act was a law enacted by a wide majority of both houses of Congress, a law enacted after eight years of study of the partial birth abortion issue, including hearing evidence from dozens of doctors on the relevant medical issues. In this trial, the Court's role is to see through the eyes of Congress to determine if its factual findings in the Act are reasonable and based on substantial evidence. The evidence at trial will show exactly that. Most significantly, the evidence will confirm the reasonableness of three central findings made by Congress about partial birth abortion: 1. There are no maternal or fetal medical conditions for which partial birth abortion is necessary for the health of the woman. These doctors and others will testify that it is never necessary to use the partial birth abortion procedure to treat ill pregnant women. They will say they never encountered an instance where partial birth abortion was necessary. Indeed, they cannot imagine any actual disease or hypothetical combination of medical conditions for which partial birth abortion would be beneficial to the health of the mother. This is true even in the most serious maternal health conditions. In fact, you will hear that a surgical procedure like partial birth abortion would be a dangerous procedure for women with some conditions. 2. There are no proven safety advantages to partial birth abortion. Here there are other well-studied abortion procedures that are proven safe, such as D&E. Where such safe and proven alternatives are available, there is simply no justifiable reason to use an unstudied procedure like partial birth abortion. In addition, the use of partial birth abortion presents unanswered questions about its possible long-term health risks stemming from unique elements in the procedure. 3. Partial birth abortion blurs the line between live birth and abortion, and is an inhumane and gruesome procedure that causes pain to the fetus. When a physician begins this procedure, he or she appears to be acting in the role of an obstetrician assisting a live delivery. The doctor appropriates the terminology and techniques used by obstetricians in the delivery of live children, and instead uses those techniques to end the life of a partially born fetus just inches from birth. Regarding
vagueness -- The Act narrowly and specifically defines partial birth abortion
as a procedure where in the situation of a breech presentation a doctor deliberately
and intentionally vaginally delivers a living fetus until any part of the
fetal trunk past the naval is outside the body of the mother for the purpose
of performing an overt act that the person knows will kill the partially delivered
fetus and then performs the overt act. Thus, the Act sets forth the intentional
and sequential nature of the banned procedure.
NAF believes the Act suffers from four defects, each of which they argue would render it unconstitutional. In their words: 1. The act lacks a health exception despite the clear mandate of the Supreme Court of the United States in Stenberg. 2. The
Act uses terms like partial birth abortion which, as the Court observed in
its March 17th memorandum opinion and order is not a precise term. It uses
other terms that have no medical meaning and it is otherwise hopelessly unclear
in defining the conduct that is prohibited. The act is therefore unconstitutionally
vague for it fails to give practitioners sufficient notice of prohibited 3. To
the extent the Act can be understood it puts doctors at risk for performing
D and E. |
| |