National Abortion Federation doctors are proving themselves an innovative lot. During testimony on April 6 in a New York courtroom, one abortionist told the presiding judge about a new method she uses to kill late-term babies during partial-birth abortions. Instead of decapitating the child or sucking out its brain with medical instruments like other late-term specialists, she pokes her finger up into the woman's uterus and uses it to crush the baby's skull.
That brand of gruesome testimony is entering the official record daily as a trio of separate trials targeting the Partial Birth Abortion (PBA) Ban Act of 2003 unfolds in three cities. After President Bush signed the law in November, the National Abortion Federation, Planned Parenthood, the ACLU, and others filed suits challenging the measure. Now judges in New York, San Francisco, and Lincoln, Neb., are hearing evidence in juryless trials before deciding whether the ban violates the Constitution.
"Intact dilation and extraction," or "D&X" abortion, as PBA is known medically, involves partially delivering, then puncturing the skull of a baby who is too well developed to be efficiently killed by other abortion methods.
The most riveting testimony has come from New York, where Judge Richard C. Casey has repeatedly swept aside scientific-sounding jargon, revealing not only the graphic truth about PBA but also the abortion industry's conscious use of euphemism to describe it.
"The testimony of these abortion providers unlocks the door to a secret world of torturous death that includes dismemberment and decapitation of unborn children whose lives are taken by partial-birth abortion," said Jay Sekulow, Chief Counsel at the American Center for Law and Justice. "The testimony of the abortion providers is not only revealing gruesome details about a procedure that amounts to infanticide but is setting the stage for the Department of Justice to prove that this procedure is never medically necessary."
The testimony has been explosive from the start. On March 31, for instance, an anonymous abortionist testified about what he observed during a partial-birth abortion: "What they did, they delivered the fetus intact until the head was lodged in the cervix," the doctor said. "Then they reached up and crushed it. They used forceps to crush the skull."
"Like a cracker that they use to crack a lobster shell?" Judge Casey asked regarding the forceps.
The doctor answered, "Like an end of tongs you use to pick up a salad, except they are thick enough and heavy enough to crush the skull."
Judge Casey responded, "Except in this case you are not picking up a salad, you are crushing a baby's skull."
Then Judge Casey asked, "The fetus is still alive at this point?"
"The fingers of the baby opened and closed?"
"I did not observe the hands when I observed the procedure."
"Were the feet moving?"
"Yes, sir, until the skull was crushed."
Judge Casey also questioned Timothy Johnson, a University of Michigan research scientist, about whether doctors tell a woman that PBA includes "sucking the brain out of the skull."
"I don't think we would use those terms," Dr. Johnson said. "I think we would probably use a term like 'decompression of the skull' or 'reducing the contents of the skull.'"
"Make it nice and palatable so that they wouldn't understand what it's all about?" the judge responded. "... It is so much nicer to say it that way?"
"Yes," Dr. Johnson said.
On April 5, Judge Casey, who was appointed to the federal bench by Bill Clinton, continued with his line of questioning, trying to determine just what a mother is told about the partial-birth abortion procedure. "Do you use simple English words, so they know what they are doing and authorizing?" he asked a witness supplied by the National Abortion Federation (NAF). When she answered yes, he probed further: "Do you discuss the killing of the fetus?"
"I tell them that when I cut the umbilical cord of the fetus, the fetus exsanguinates."
"Exsanguinwhat?" the judge replied.
"In layman's terms, it would be drained of blood."
"Do you tell them that?"
Judge Casey's probing questions and his insistence on plain-even graphic-language has at times caused strain in the courtroom. "Do you tell the mother the fetus will feel pain?" he asked the NAF abortionist on April 5.
"I have never talked to a fetus," she snapped.
"I did not ask you that," the judge pressed on. "Do you ever tell the mother?"
At that point, according to Mr. Sekulow, the witness became "very angry" and raised her voice in response to the judge. "That is what I tell my patients, I'm sorry! ... I do not believe the fetus feels pain, so I do not tell them that." Did she ever bother to read the literature on fetal pain, the judge wanted to know? She admitted that she had not.
Throughout the trial, already in its second week, Judge Casey has seemed particularly interested in the reason partial-birth abortions are performed. Though he requested records that could establish the medical necessity of the procedure, hospitals and abortion clinics refused to comply, based on privacy concerns. That left the judge to question doctors appearing on the witness stand.
Testifying on April 1, Dr. Carolyn Westhoff, a New York abortionist, said the vast majority of procedures are performed in cases of "fetal anomalies." Though Down's syndrome and hydrocephalus were frequently discussed throughout the trial as reasons a mother might choose a partial-birth abortion, experts had already testified that "any kind of genetic defect" might lead to such a choice.
Judge Casey zeroed in on one such possible defect. He wanted to know whether prenatal tests now allow a mother to "detect in advance that a baby will be born blind."
"Not that I'm aware of," Dr. Westhoff replied to the judge, who is himself blind.
The graphic testimony in New York contrasts sharply with the more sterile, euphemized language in San Francisco. The judge in the latter case has allowed the use of medical jargon that masks the ugly reality of the procedure. One abortionist, for example, spoke of "separating the fetal calvarium from the fetal body"-in other words, decapitating the baby that has already been delivered outside the mother's uterus. And the judge himself speaks of "disarticulating" a baby, rather than "dismembering" or cutting her in pieces.
Although the media usually love sensational trials, the explosive testimony in New York has gone almost entirely unreported. For instance, a Lexis-Nexis search shows that an Associated Press report detailing Judge Casey's questions about fetal pain ran just in one daily newspaper in Lancaster, Pa. AP stories are typically picked up by hundreds of papers across the country. TV networks, meanwhile, have ignored the trials completely.
There will be no ignoring the legal fallout of the trials, and their all-but-certain appeals, however. If federal appellate courts split-if one circuit upholds the ban, for instance, while another overturns it-the issue will almost certainly wind up before the Supreme Court. The government's arguments defending the ban are based on three points: that no maternal or fetal conditions make PBA necessary for a mother's health; that the procedure offers no safety advantages; and that PBA "blurs the line between an abortion and a live birth."
Justice Department attorneys already have exposed the lack of maternal health justifications for PBA, Mr. Sekulow said. For instance, asked if he had ever found an instance where the mother's health necessitated a D&X abortion, an NAF doctor had to admit that he had not. Another NAF witness testified: "The whole [PBA] procedure is a risky procedure."
Testimony in all three cases is expected to continue throughout April, but the graphically honest testimony is likely to echo much longer.