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Partial Birth Abortion Ban Act Court Trials

Location: Washington DC

Mr. SANTORUM. Mr. President, I rise today to draw the attention of my colleagues to an issue that is currently being debated in Federal district courts in New York, Nebraska, and San Francisco. Today, the Partial Birth Abortion Ban Act, which we overwhelmingly passed and saw signed into law last year, is being challenged in three Federal courts across the country. This law bans the gruesome procedure known as partial birth abortion, which is performed over a three-day period in the second or third trimester of pregnancy. In this particular abortion technique, the physician delivers all but the baby's head through the birth canal, stabs the baby in the base of the skull with curved scissors, and then uses a suction catheter to remove the child's brain.

As we have seen these trials go forward, I have been disturbed at some of the testimony that has been given in opposition to this legislation, and I wanted to ensure that my colleagues were aware of it.

In particular, in the testimony of these doctors who are challenging this law, we see a complete disregard for any consideration of the pain a child experiences during a late-term abortion. On March 30, in the New York case, the judge asked the doctor testifying whether the fetus having pain ever crossed his mind. The witness, who does not perform partial birth abortions, but who has been present when they were done, replied, "No." The judge further questioned the witness as to whether the mother of the child was informed as to the specifics of the procedure in terms that the patient can understand.

The Witness: I guess I would say that whenever we describe medical procedures we try to do so in a way that's not offensive or gruesome or overly graphic for patients.

The Court: Can they fully comprehend unless you do? Not all of these mothers are Rhodes scholars or highly educated, are they?
The Witness: No, that's true. But I'm also not exactly sure what using terminology like sucking the brains out would . . .
The Court: That's what happens, doesn't it?

The Witness: Well, in some situations that might happen. There are different ways it could be dealt with, but that is one way of describing it.

This witness further testified that up until the last steps of a partial birth abortion, the feet of the child could be moving.

On April 5, another doctor testifying for the plaintiffs in New York showed similar callous disregard for the pain the fetus might feel.

The Court: Do you ever tell them (the women) that after that is done you are going to suction or suck the brain out of the skull?

The Witness: I don't use suction.

The Court: Then how do you remove the brain from the skull?

The Witness: I use my finger to disrupt the central nervous system, thereby the skull collapses and I can easily deliver the remainder of the fetus through the cervix.
The Court: Do you tell them you are going to collapse the skull?
The Witness: No.
The Court: The mother?
The Witness: No.
The Court: Do you tell them whether or not that hurts the fetus?
The Witness: I have never talked to a fetus about whether or not they experience pain.
The Court: I didn't say that, Doctor. Do you tell the mother whether or not it hurts the fetus?

The Witness: I don't believe the fetus does feel pain at the gestational ages that we do, but I have no evidence to say one way or the other so I can't answer that question.

Yet even this week, Dr. Kanwaljeet Anand, a pediatrician at the University of Arkansas for Medical Sciences and a witness in the Nebraska case, testified that the procedure would cause "severe and excruciating" pain to the fetus. He said, "What we have noted from studies of premature infants is that they have a much lower threshold for pain, meaning they are more sensitive to pain than the full term infant. In fact, some types of pain are three times greater sensitivity in the pre-term baby as compared to the full term neonate." He went on to say, "I would say between 20 and 30 weeks of gestation is the greatest sensitivity to pain." "The threshold for pain is very low. The fetus is very likely extremely sensitive to pain during the gestation of 20 to 30 weeks. And so the procedures associated with the partial-birth abortion that I just described would be likely to cause severe pain, right from the time the fetus is being manipulated and being handled to the time that the incision is made, and the brain or the contents, intracranial contents, are sucked out."

Another aspect of the current court challenges to this law centers around whether partial birth abortions are ever medically necessary. Those arguing against the law have expressed their opinion that the procedure is a medical necessity. The Department of Justice is defending the law by supporting the extensive congressional findings included in the Partial Birth Abortion Ban Act that indicate that partial birth abortions are never medically necessary. For this reason the Department of Justice has sought the release of abortion records in order to demonstrate that partial birth abortions are never medically necessary. In order to ensure patient privacy, any personal information on these records which could identify a patient would be deleted prior to being submitted for review. Since those arguing against this law have done so claiming the "medical necessity of this procedure," it seems reasonable that they be required to show evidence which backs up their claims.

Those testifying in opposition of banning the use of this inhumane procedure have continued to state its medical necessity. However, under questioning from Department of Justice attorneys and Judge Casey in New York, these abortionists have conceded that there are no studies which show this procedure to be less risky for the mother than other types of late-term abortions. They have also not been able to deliver any records showing its medical necessity, though this claim is at the core of their case. Some witnesses have indicated that this information would be found in the patient's medical chart-the ones which they have refused to release.

On April 6, Judge Casey in New York had this to say on April 6 regarding these medical records:

I have no comprehension why there is such resistance from doctors maintaining as they argue as to the appropriateness, the safety, etc., of these procedures, why the records, in this case that book, should not be opened for examination. To not have it turned over to the government continues not in a fashion of a level playing field and I don't think was what was envisioned as to how we should administer trials of this nature or any trials in this court.

I would hope that the hospital would rethink their position. I would also urge any of the plaintiffs, if they have any records that are personal to them, that they don't wait until, shall we say, by accident or whatever means they are uncovered or stumbled upon; that they produce them, as well they should know through their counsel that our system believes in full discovery and disclosure, and concealing facts or things in this context in our courts, in federal court, is not something that is encouraged, just as the Court has expressed a strong feeling that lawyers should be open and completely candid in their statements to the Court.

I came to the floor today about this because I want my colleagues to be aware of these cases as they go forward, and especially to point out examples of some of the blatant disrespect being shown for the lives of these partially-born children and their mothers.

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