Testimony in Partial-Birth Abortion Ban Act Cases Reveals the Real Meaning of "Choice"

By Cathy Cleaver Ruse, Esq.

The so-called "March for Women's Lives" in Washington, D.C., took place the last weekend of April. It was described by the National Organization for Women, a sponsor of the event, as "the most significant and massive abortion rights march in over a decade." The reason for the march, according to organizers, is the new threats to "choice" - - first and foremost, the ban on partial-birth abortion.

Hollywood celebrities like Whoopi Goldberg were on the roster, and "Honorary Congressional Co-Sponsors" included Congressman Barney Frank and Senator Barbara Boxer. Presumptive Democratic presidential nominee Senator John Kerry aired a television ad the week of the march promising to defend "the right to choose" and even hosted a "pro-choice" rally before the march.

Even as preparations to defend "choice" reached a crescendo in Washington, court reporters coast-to-coast were quietly recording testimony about what that word really means.

The testimony was given in lawsuits against the new federal partial-birth abortion ban. President Bush signed the law last November and immediately the giants of the abortion lobby - - Planned Parenthood, the National Abortion Federation, and the American Civil Liberties Union - - filed lawsuits against the U.S. Attorney General claiming the ban takes away a fundamental constitutional right. They asked federal courts in New York, Nebraska, and California for injunctions against the law, and temporary injunctions were granted. In March 2004 the trials commenced.  (Full transcripts are available at www. usccb.org/prolife.)

The lead witnesses for the plaintiffs, a procession of seasoned abortion doctors, took the stand throughout April to describe under oath what they do to infants in the fifth and sixth months of pregnancy during a partial-birth abortion. The testimony was astonishingly frank.

Dr. Carolyn Westhoff, testifying in the New York trial, spoke of how it is "necessary to insert our forceps, open them as wide as possible to try to capture the head within the opening of the forceps and then crush the head using external force applied against the head." She admitted there is "usually a heartbeat" when she performs a partial-birth abortion, and that even when she collapses the skull, the baby is still "living."

Another New York witness, Dr. Timothy Johnson, was asked to describe what doctors use to crush the head. He described the instruments as "tongs" but "thick enough and heavy enough that you can actually grasp and crush with those instruments as if you were picking up salad or picking up anything with...." Here he was interrupted by Judge Richard Casey, who interjected, "Except here you are crushing the head of a baby." "Correct," said Dr. Johnson.

Dr. William Fitzhugh told the Nebraska court that his only worry was delivering a live baby: "The one thing that ... I don't want the staff to have to deal with is to have a fetus that you remove and have some viability to it, some movement of limbs, because it's always a difficult situation."

It is difficult to imagine anything that would shock or shame these doctors, given what they freely described during direct examination by attorneys on their side of the case - - and indeed, nothing does.

Cornell University professor Stephen Chasen, a plaintiff and medical expert in the New York lawsuit, readily admitted on cross-examination that in his partial-birth abortions he wraps the babies in towels after delivering them to their necks before puncturing their skulls with scissors.

As they matter-of-factly recount what they have done and continue to do to fellow human beings, the witnesses appear to have become detached from their own humanity.

No sentiment is detected in Dr. Westoff's description of the baby's "tiny face and a relatively large head" and how stabbing the head with scissors or her own finger causes it to look "a little wrinkly and collapsed, but the facial structures are not disturbed at all by that procedure." (This is relevant for cases where a funeral is desired.) Even the "small coffins" and "little hats" available to "cover the back of the head where the incision had been made" are discussed with a detached and clinical air.

Emotions appear only when the question of fetal pain comes up, and the emotion is anger for having been asked the question in the first place.

Judge Richard Casey in New York asked Dr. Marilynn Fredriksen what she tells her patients: "Do you tell them whether or not it hurts?" he asked. She stuttered, "Who am I - what am I -." "The patient," Casey continued. "The woman, the mother." "It doesn't hurt her, no," said Fredricksen.

Casey pressed on, "Do you tell whether or not it will hurt the fetus?" Her response, "The intent [is] that the fetus will die during the process of uterine evacuation."

"Ma'am, I didn't ask you that," Casey persisted, "you will deliver the baby partially and then insert a pair of scissors in the base of the fetus' skull... Do you tell them whether or not that hurts the fetus?" In response, Fredricksen snapped, "I have never talked to a fetus about whether or not they experience pain."

A fetal pain specialist in the California trial, Dr. Kanwaljeet Anand, said, "There will be pain caused to the fetus. And I believe it will be severe and excruciating pain."

When Judge Casey asked Dr. Chasen if partial-birth abortion hurts the baby, he answered, "I don't know." "But you go ahead and do it anyway, is that right?" Casey asked. "I am taking care of my patients, and in that process, yes, I go ahead and do it," he said.

"Does that mean you take care of your patient and the baby be damned, is that the approach you have?" asked Casey. Chasen responded, "These women who are having [abortions] at gestational ages they are legally entitled to it -"

"I didn't ask you that, Doctor," Casey interjected, "I asked you if you had any care or concern for the fetus whose head you were crushing." "No," answered Dr. Chasen.

As partial-birth abortion was debated on the national stage over the last several years, many people refused to believe it existed. Indeed, the pro-life movement was accused of fabricating this gruesome procedure as a part of a campaign of public deception to smear the "pro-choice" cause.   But here, as abortion doctors make admission after admission under oath, partial-birth abortion can be judged not by what pro-life organizations say about it, but by its chief proponents - - in their own words.

Dr. Westoff told the court why she doesn't like the new law:  "I mean, I know what my purpose is...to empty the uterus in the safest way possible. Yet, this language implies that I have this other purpose, which is to kill the fetus. So, to me, it's like - - kind of like there is an elephant in the room besides me and my patient... there is somebody judging what my purpose is in bringing the fetus out a certain way."

But it's "not an elephant" in the room, observed the government in closing argument, "it's a baby."

The trials in Nebraska and California are now over. New York remains tangled in a fight for medical records, but it, too, will soon end. The rulings will come, and appeals will follow. But whatever the final outcome, the testimony from these trials will have a profound impact in the court of public opinion for years to come.

Cathy Cleaver Ruse, Esq., is the director of planning and information for the United States Conference of Catholic Bishops, Secretariat for Pro-Life Activities.