life's greatest miracle (pbs television broadcast, nov. 20, 2001

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  • Lifes Greatest Miracle (PBS television broadcast, Nov. 20, 2001), available1

    at http://www.pbs.org/wgbh/nova/transcript/2816miracle.html.

    IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEBRASKA

    LEROY CARHART, M.D., ) 4:03CV3385WILLIAM G. FITZHUGH, M.D., )WILLIAM H. KNORR, M.D., and )JILL L. VIBHAKAR, M.D., )

    )Plaintiffs, )

    )vs. ) MEMORANDUM

    ) AND ORDERJOHN ASHCROFT, in his official )capacity as Attorney General of the )United States, )

    )Defendant. )

    ______________________________

    Again and again the uterus contracts as the cervix opensup. The tiny passageway that once allowed the entrance ofa single file of sperm now must widen to about four inchesto accommodate a babys head.

    Human births are far more dangerous than those of othermammals or even other primates. The human brain is threeto four times bigger than an apes brain. And the pelvis isnarrower to allow us to walk upright. A human baby has togo through considerable contortions to make it through thenarrow opening. Sometimes, there simply is not enoughroom.1

  • -2-

    Like giving birth to a child, when a woman ends her pregnancy during or after

    the second trimester, she confronts a serious problem. Her cervix will frequently be

    too small to allow the skull of the human fetus to pass through it. Although

    terminating a pregnancy in America is safer than childbirth, this skull-is-too-large

    difficulty makes the abortion of a human fetus, like the birth of a human baby,

    potentially very dangerous to both the life and health of the woman. Our elected

    representatives have decided that it is never necessary to use a specific surgical

    technique partial-birth abortionto deal with this concern during an abortion.

    On the contrary, they have banned the procedure.

    After giving Congress the respectful consideration it is always due, I find and

    conclude that the ban is unreasonable and not supported by substantial evidence. In

    truth, partial-birth abortions, which are medically known as intact D&E or

    D&X procedures, are sometimes necessary to preserve the health of a woman

    seeking an abortion. While the procedure is infrequently used as a relative matter,

    when it is needed, the health of women frequently hangs in the balance.

    Four examples, out of many, illustrate this point:

    * During the 17 week of gestation, before many physicians areth

    comfortable inducing fetal death by injection prior to beginning a

    surgical abortion, one of Mr. Ashcrofts expert witnesses conceded that

    it would be consistent with the standard of care at the University of

    Michigan Medical School, where she practices, to crush the skull of the

    living fetus when the body was delivered intact outside the cervix and

    into the vaginal cavity if the skull was trapped by the cervix and the

    woman was hemorrhaging. (Tr. 1598-1602, Test. Dr. Shadigian.)

    * Another of Mr. Ashcrofts expert witnesses, the head of obstetrics and

    gynecology at Yale, testified on direct examination, and confirmed again

  • -3-

    on cross-examination, that there are compelling enough arguments as

    to [the banned techniques] safety, that I certainly would not want to

    prohibit its use in my institution. (Tr. 1706 & 1763, Test. Dr.

    Lockwood.)

    * Another physician, Dr. Phillip D. Darney, the Chief of Obstetrics and

    Gynecology at San Francisco General Hospital, a major metropolitan

    hospital that performs 2,000 abortions a year, provided Congress with

    two very specific examples of abortions at 20 weeks and after (one case

    presenting with a bleeding placenta previa and clotting disorder and the

    other with a risk of massive hemorrhage) in which the intact D&E

    technique was critical to providing optimal care[,] and was the safest

    technique of pregnancy termination in those situations. (Ct.s Ex. 9,

    Letter to Sen. Feinstein from Dr. Darney, at 100-01.)

    * Still another doctor, who had served on the committee of physicians

    designated by the American College of Obstetricians and Gynecologists

    (ACOG) to look into this issue and who holds certifications in

    biomedical ethics, obstetrics and gynecology, and gynecologic

    oncology, Dr. Joanna M. Cain, testified that in the case of cancer of the

    placenta often diagnosed in the second trimester, where the least

    amount of instrumentation possible of the uterine wall is desirable[,]

    . . . it is much safer for the woman to have an intact D&X to remove the

    molar pregnancy. (Pls. Ex. 115, Dep. Dr. Cain, at 177.)

    Therefore, I declare the Partial-Birth Abortion Ban Act of 2003

    unconstitutional because it does not allow, and instead prohibits, the use of the

    procedure when necessary to preserve the health of a woman. In addition, I decide

    that the ban fails as a result of other constitutional imperfections. As a result, I will

  • Should there be any doubt that these plaintiffs are in imminent danger of2

    prosecution, on the day the President signed the ban, Mr. Ashcroft wrote the Directorof the FBI, all United States Attorneys, and all FBI Special-Agents-in-Chargeannouncing that the Department of Justice will enforce vigorously the criminalprovisions of the Act. (Pls. Ex. 40, at ENF00009.) He added: All United StatesAttorneys are advised to contact the task force ([telephone number redacted]) at theearliest opportunity after learning of a possible violation of the Act. (Id.)

    -4-

    also permanently enjoin enforcement of the ban. Importantly, however, because the2

    evidence was sparse regarding postviability, I do not decide whether the law is

    unconstitutional when the fetus is indisputably viable.

    AN APOLOGY

    In advance, I apologize for the length of this opinion. I am well aware that

    appellate judges have plenty to do and that long-winded opinions from district judges

    are seldom helpful. That admitted, this case is unique.

    As might be expected, the two-week trial presented numerous live witnesses

    and hundreds of exhibits. That evidence includes a record developed by Congress

    over many years. Because the parties have also submitted the testimony and evidence

    presented in two other similar cases, this record is bloated by that additional

    information. Lastly, and most importantly, since I decide the constitutionality of an

    Act of Congress that explicitly found a prior decision of this court to be factually

    unsound, and that law addresses one of the most contentious issues confronting this

    nation, respect for our national legislature requires more than the usual attention to

    detail. Nonetheless, I pity the poor appellate judge who has to slog through this

    thing. I am truly sorry.

  • -5-

    TABLE OF CONTENTS

    An Apology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

    I. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

    A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

    1. Statement of the Case and the Parties . . . . . . . . . . . . . . . . . . . . . . . 13

    2. The Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

    3. The Congressional Findings Set Forth in the Law . . . . . . . . . . . . . 18

    B. The Congressional Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

    1995 House Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

    Martin Haskell, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

    Pamela Smith, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

    J. Courtland Robinson, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

    Robert J. White, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

    Watson A. Bowes, Jr., M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

    James McMahon, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

    1995 Senate Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

    Martin Haskell, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

    Mary Campbell, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

    Norig Ellison, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

    Dru Elaine Carlson, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

    Nancy G. Romer, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

    Pamela E. Smith, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

    Warren Martin Hern, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

    Fall of 1995 Senate Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

    James R. Schreiber, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

    David W. Cromer, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

    Laurence I. Burd, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

    Antonio Scommegna, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

    Donald M. Sherline, M.D. . . . . . . . . . . . . . . . . . . . . . . . .