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Painfully unaware

National | ABORTION TRIAL: Fetal-pain expert testifies on the "excruciating" partial-birth procedure as the government defends its ban against the industry's lawsuit. But as the trial produces sensational testimony, the courtroom remains virtually journalist-free

Issue: "George W. Bush: Gut check," April 24, 2004

NEW YORK -- The National Abortion Federation never wanted Dr. Kanwaljeet Anand to testify in the ongoing Partial Birth Abortion Ban Act trials. And no wonder: The Oxford- and Harvard-trained neonatal pediatrician and pain expert told a New York courtroom on April 13 that unborn children would feel "excruciating pain" during either a dilation and evacuation or dilation and extraction procedure.

That argument-a key justification for the partial-birth abortion ban passed in 2003-will find its way into several other trials going on simultaneously across the country. But federal judges in San Francisco and Omaha have limited the scope of evidence government lawyers can present, making it more difficult to defend the ban. But in New York, Judge Richard Conway Casey has allowed the defense to establish a broad record of harm and frivolity in partial-birth abortions. "That's huge when it goes to the Supreme Court," said Jay Sekulow, chief counsel for the American Center for Law and Justice.

The NAF attorneys attempted time and again to block Dr. Anand's testimony. Then, once he was on the stand, the plaintiff's attorneys cross-examined him redundantly in a style that drew Judge Casey's ire.

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"Is this a new school of cross-examination where you make a statement and finish every statement with 'is that correct?'" he asked an NAF attorney.

Later, Judge Casey drilled a plaintiff's lawyer for attempting to make an NAF witness testify about events that happened before she was hired. "Your Honor, in conjunction with Rule 30(b) ..." the lawyer started for a second time before the judge interrupted. "I heard you, ma'am. I am blind, yes. But not deaf," said the 71-year-old judge who is led through the cavernous federal courthouse by his guide dog, Barney.

Dr. Anand, a native of India, belied the stereotype of a Bible-toting government witness in this case, and not just for his religious head wrap, neat beard, and large Rollie Fingers-style mustache. Rather, Dr. Anand said he personally believed women had an "unalienable right" to abortions-except in the case of fetal pain. Such views are an asset, Mr. Sekulow said: "If everybody that testified on behalf of the United States took a completely pro-life position, it would affect the credibility and weight of that testimony."

Dr. Anand took the stand in the morning and testified for hours that unborn children can feel pain even more vividly than adults or even infants. He said that by 20 weeks fetuses have developed all the nerve and brain functions to feel pain, but none of the coping mechanisms that help infants and adults to deal with the sensation. According to Dr. Anand's research, handling the fetus in the womb, delivering the child up to its head, slicing open its skull and sucking out the brains would all produce "prolonged and excruciating pain to the fetus."

The evidence for fetal pain is not new-Dr. Anand studied expressions of pain in unborn and neonatal children as early as the 1980s-but the legal argument is novel. Unlike previous legislative attempts to ban partial-birth abortion, Congress used a fetal-pain argument to rally support. If a fetus does feel pain as early as 20 weeks into the pregnancy, it bolsters Congress' ethical argument for banning the procedure. And in the courtroom it humanizes the unborn child in a way that the pro-life legal community has never been able to do.

Even as sensational news floats out of Judge Casey's courtroom, the media-and most inexplicably the New York media-have yawned. The New York Times newsroom stands less than four miles from the courtroom, but the "newspaper of record" has not sent a reporter to the courthouse since the trials started.

"The lack of media is because the gruesome nature of what goes on inside those clinics is finally being discussed," Mr. Sekulow said. "We waited for 25 years for this moment."

And now almost no one is watching.

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