Appendix — Colautti v. Franklin
Supreme Court brief1979
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Text
October Term, 1977
No. 77-891
FRANK S. BEAL, Secretary of Weifare of the
Commonwealth of Pennsylvania, ROBERT P.
KANE, Attorney General of the Commonwealth of
Pennsylvania, THE COMMONWEALTH OF
PENNSYLVANIA, and F. EMMETT FITZ-
PATRICK,
Appellants
vs.
JOHN FRANKLIN, M. D. and OBSTETRICAL
SOCIETY OF PHILADELPHIA,
Appellees
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
_
Docketed December 16, 1977
Probable Jurisdiction Noted March 6, 1978
ne >) z= oy eee SY
TABLE OF CONTENTS
PAGE
Relevant Docket Entries .............0eeee0e: la
Testimony, Louis Gerstley, III, M. D. .......... 5a
Testimony, John Franklin, M. D. .............. 19a
Testimony, Fred Mecklenburg, M. D. ........... 34a
Testimony, Hope Punnett, PhD ............... 46a
Testimony, Thomas William Hilgers, M. D. ...... 64a
Testimony, Deposition Extracts .............06. 83a
Testimony, William J. Keenan, M. D. .......... 87a
Testirnony, Arturo Hervada, M.D. ............. i3la
Deposition of Dr. Andros .............0..0005 140a
Deposition of Dr. Franklin .................04. - 144a
Defendants’ Exhibit W, Affidavit of J. Edward
NS WU, MD oad 6-6 a's a orgce ermaleneleae koa 145a
Defendants’ Exhibit X, Affidavit of Edward M.
I, toons ne ee kc bela 147a
Defendants’ Exhibit Y, Affidavit of Andrew A.
See a sk a ice awaets Ons 148a
Defendants’ Exhibit Z, Affidavit of Jerry F. Naples,
rR Abs go i a a oe te 149a
Plaintiffs’ Requests for Findings of Fact and Con-
clusions of Law, and Defendants’ Responses .. 15la
Opinion, District Court, September 4, 1975 ...... 154a
Dissenting Opinion, District Court ............. 2ila
Concurring and Dissenting Opinion District Court . 218a
Concurring Opinion, District Court ............ 232a
Order, September 4, 1975 ...........-..-.000, 236a
Memorandum, District Court ................. 239a
Order, September 16, 1977 ..............0055. 242a
la
Docket Entries
APPENDIX
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action
No. 74-2440
Planned Parenthood Association of Southeastern
Pennsylvania, Inc. et al.
Plaintiffs
vs.
J. Emmett Fitzpatrick, Jr., District Attorney of
Philadelphia County
and
Helene Wohlgemuth, Secretary of Welfare of the
Commonwealth of Pennsylvania
Defendants
RELEVANT DOCKET ENTRIES
1974 Proceedings No.
Sept. 20 Complaint filed 1
Sept. 26 Order designating the Hon. Arlin M. Adams,
U. S. Circuit Judge and the Hon. Clifford Scott
2a
Docket Entries
Green for hearing and determination of this mat-
ter, filed
9/27/74 entered and copies mailed
Oct. 3 AMENDED Complaint, filed
1975
Sept. 4 OPINION Green, J. Newcomer, J. with con-
curring & dissenting opinion Adams Circuit
Judge, filed
9/5/75 entered and Notice mailed
* * *
Sept. 15 Notice of Appeal of Frank S. Beal, Robert P.
Kane and the Commonwealth of Penna. to the
Supreme Court of the United States, filed
* * *
1976
Aug. 5 Certified copy of Judgment received from the
Supreme Court of the United States AFFIRM-
ING the Judgment of the District Court, filed
8-5-76 entered and copy to Judge Green
Aug. 6 Certified copy of Judgment received from
U. S. Supreme Court of the United States that
the Judgment of the U. S. District Court is VA-
CATED with costs and that this cause be, and
the same is hereby, remanded to the U. S. Dis-
trict for further consideration etc., filed
8-6-76 entered and copy to Judge Green
* * *
135
137
151
152
Docket Entries
1977
Sept. 16 Memorandum, Green and Order Sections of
the Penna Abortion Control Act No. 209 of
1974, 35 P.S. $6601 et seq are constitutional
and enforceable etc., also, Section 7 does not vio-
late Title XIX Social Security Act, etc., filed.
Arlin M. Adams
9/19/77 entered & copies mailed. CN., CG Dist.
Oct. 12 NOTICE OF APPEAL OF THE COMMON-
WEALTH DEFTS TO THE UNITED STATES
SUPREME COURT, FILED
Oct. 14 NOTICE OF APPEAL OF F. EMMETT
FITZPATRICK, JR. TO THE SUPREME
COURT OF THE UNITED STATES, FILED
3a
163
164
165
4a
Transcript Before the Lower Court
TESTIMONY FROM TRANSCRIPT OF RECORD OF
PROCEEDINGS BEFORE THE LOWER COURT
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action
No. 74-2440
Planned Parenthood Association of Southeastern
Pennsylvania, Inc., et al.
Plaintiffs
vs.
J. Emmett Fitzpatrick, Jr., District Attorney of
Philadelphia County
and
Helene Wohlgemuth, Secretary of Welfare of the
Commonwealth of Pennsylvania
Defendants
Before: HON. ARLIN M. ADAMS, U.S. Court of
Appeals for the Third Circuit
HON. CLIFFORD SCOTT GREEN, and HON. CLAR-
ENCE C. NEWCOMER, U. S. District Court for the
Eastern District of Pennsylvania
‘
Dr. Louis G 111—Direct
TESTIMONY OF LOUIS GERSTLEY, III, M.D..,
TAKEN JANUARY 13, 1975
*- * * *
(p. 26)
5a
BY MR. MORRIS:
Q. Now, Doctor, is there, or are there one or more
critical physical abilities which determine viability, with
respect to each individual fetus?
A. Yes. Primarily, the maturity of the lung is the
primary thing that determines the ability of a fetus to
stand on its own outside the mother’s womb.
Beyond that, the viability and adaptability of the
liver and hematopoetic system.
Q. Now, Dr. Gerstley, with respect to the maturity
of lungs, is this factor expressed in terms of the ability
of the lungs to inhale or exhale; or the ability of the tis-
sues to inhale or exhale, or both?
A. Both.
Q. Now, I ask you, Doctor, to assume the presence
in your office or your operating theatre, of a pregnant
woman, and ask you to explain for the Court what steps
you take to determine the stage of the fetus and the likeli-
hood of the viability.
(p. 27)
A. This is done, primarily by two methods: We at-
tempt to establish a historical perspective of the patient,
based on what we call her last menstrual period—when
she had her last menstrual period.
There are two things involved here: One is, was this
a normal menstrual period, or was there an episode of
bleeding that was not a true menstrual period.
6a
Dr. Louis Gerstley, 11I—Direct
The other thing is to determine by the size of the
uterus the estrapulated size of the fetus.
Q. What is the most-used method to determine the
size of the fetus?
A. By the manual method. That is, where we place
one or two fingers in the vagina, one hand on the ab-
domen, and takes the uterus between those two hands,
and from that we determine, roughly, the physical size of
the fetus.
Q. Are there other methods available in some hos-
pitals?
A. Yes. You could have X-ray or ultrasonography,
which is a new method that is coming in, where the size
of the uterus can be determined by ultrasound techniques.
Q. Doctor, having made such an examination of a
woman and ascertained the size of the fetus, is the size
of the fetus then related to any particular time period?
A. Generally, yes; but within limits of error of both
of these techniques.
Q. What is that time period?
A. Weeks’ gestation.
(p. 28)
Q. Now, is it possible, Doctor, to determine with
respect to the patient that I have asked you to assume,
having made all the diagnostic tests that I have asked you
to prescribe, whether or not the fetus in that mother is
viable?
A. Only roughly.
Q. When you say “roughly” how do you say
“roughly”?
A. Because there are too many variable factors that
occur. Every practicing obstetrician/gynecologist knows
the fallibitity“of the patient’s last menstrual period.
7a
Dr. Louis Gerstley, I11I—Direct
Patients will have what they consider to be a normal
period when, indeed, it was not a normal period. In terms
of the fact they may have already been pregnant. I think
anybody who’s been around long enough has seen a pa-
tient come into the hospital with abdominal pains, not
realizing that she is a term pregnancy, who has had “regu-
lar periods” every month up until that point, and there is
amazement at the fact that her abdominal pains are in-
deed a term pregnancy.
On the other side of the coin, one may skip periods,
and the last menstrual period may have occurred at some
relatively remote time in some physiologic terms from the
actual conception of the fetus.
Q. Doctor, is there any test or method, other than
the ones that you have described, which will tell you
whether a particular fetus in the uterus is viable or not
viable?
A. At the present time I know of only one other
test, amnio-synthesis, for what we call the lecitthin/
(p. 29)
sphynogomyelin ratio.
These are two chemical compounds that are in the
amneotic fluid, and their certain relationships to their con-
centration in terms of fetal viability.
However, in terms of this After, this would not be
applicable, because these relationships do not usually de-
termine viability until about the 34th or 36th week of
pregnancy. Prior to that they would indicate immaturity
of the fetus.
Q. Doctor, if you cannot then tell till after the 34th
or 36th week whether or not a particular fetus is then
8a
Dr. Louis Gerstley, 11I—Direct
viable, are you able to express it in terms of some proba-
bility?
A. Yes, I believe we could.
Q. Can you relate those to weeks of gestation?
A. Yes. This is again open to different opinions.
In my opinion, the average commencement of via-
bility occurs at about 24-to-26 weeks’ gestation, at the
very earliest; and very, very few of the fetuses born at this
stage of the pregnancy will survive. It is a matter of one
or two percent.
I do not personally believe that a fetus born prior to
24 weeks’ of gestation has any reasonable chance of sur-
vival.
Q. Doctor, what do you define as a “reasonable
chance of survival”?
A. Well, in terms of this: I would like to think
that a reasonable chance of survival is at least on terms
of five percent, and even by any extropolation you may
wish to use, certainly at least two to three percent.
(p. 30)
Q. Have there been reported cases of fetuses sur-
viving at less than 24 weeks?
A. There have been reported cases. The smallest
fetus I know of weighed 397 grams, which would have
theoretically placed this fetus to about seventeen-to-eigh-
teen weeks’ gestation, if one used fetal weight as the sole
arbitor of maturity.
* * & &
(p. 32)
Q. Doctor, I ask you to assume that you were in-
structed to determine, with respect to a given patient, at
what point in a pregnancy the fetus might be viable.
oa
9a
Dr. Louis Gerstley, I11I—Direct
I will instruct you, for the purpose of my question,
the lower limit beyond which you can say with certainty
a fetus was not viable where would you place that period
of gestational age?
A. I would have to place it at approximately 24
weeks.
JUDGE ADAMS: Would that be 24 weeks
from conception, or 24 weeks from the last menstrual
period?
THE WITNESS: The last menstrual period,
sir.
Q. Now, given the 24 weeks—
THE WITNESS: Based on an average 28-day
cycle.
Q. Given the 24 weeks which you have expressed
is your opinion at the lowest point at which the fetus might
be viable, and allowing the margin of error you had pre-
viously described, what might be the lowest practically de-
termined gestational period at which a fetus might be
viable?
A. Well, you’d have to allow two, perhaps under
difficult circumstances four weeks. So it could range any-
where say, from 20-to-28 weeks.
JUDGE ADAMS: You say it ranges anywhere
from 20-to-28 weeks. That range might be further
contingent on the facility present when the fetus is
in the uterus.
In other words, where you have more facili-
(p. 33)
ties to support the fetus, you could have a slightly
10a
Dr. Louis Gerstley, I11I—Direct
lower time period, and when you have fewer facili-
ties, you would have to have more?
THE WITNESS: Yes, sir.
Q. Now, Doctor, you have described for the Court
your opinion, based on your qualifications, expensive as
they are, with respect to viability.
Would you expect all physicians to agree with you
on these definitions?
A. No.
Q. Are there medical differences of opinion which
are respected differences of opinion?
A. Yes.
Q. Doctor, after approximately the middle of preg-
nancy, is it as easy and positive to tell the gestational pe-
riod by the tests you have indicated, as it was during the
early part of the pregnancy?
A. No. The further along the pregnancy goes, the
more difficult it is as 1 indicated based on the eventual
size of the fetus as determined by its genetic make-up.
In fact, and in part by the, shall we say, the uterine
involvement that the fetus finds itself in.
Q. Doctor, at what gestational age would you, in
your opinion, notwithstanding other respected medical
opinions, would you believe that a fetus has a reasonable
chance of survival?
(p. 34)
A. Twenty-four-to-twenty-six weeks at the earliest.
Q. Is that a fifty percent chance?
A. Oh, no, nothing like that. I can guarantee you
a cross-the-board that you will not find any doctor who
lla
Dr. Louis Gerstley, I1I1I—Direct
will tell you that a twenty-four-to-twenty-six week fetus
has a fifty percent survival chance.
That does not occur until about the 32nd week, give
or take two weeks.
* * * *
(p. 40)
Q. And can you indicate for us, Doctor, what the
preferential method is for the performing of second-tri-
mester abortions?
A. By whom?
Q. By you.
A. Saline amnio-infusion.
Q. I detect from your answer some question with
respect to the general consensus on this.
Can you describe to me whether there would or
would not be disagreement on this?
A. There are differing opinions on this. There are
new medications on this, called the prostaglandins, a
family of 22 different compounds, of which two have
been found useful in second trimester abortions.
These are administered by several routes: intra-
venously, intramuscularly, into the uterus, into the va-
gina, will produce abortions.
They do have certain safety factors over the saline.
The reason I do not personally happen to like them
is they have side effects on the patient that frequently are
uncomfortable.
Secondly, they—they are more likely to require re-
peated ** *
(p. 41)
Thirdly, in second trimester abortions, there is the
much greater incidence of the possibility of the fetus being
12a
Dr. Louis Gerstley, 11I—Direct
born alive after a prostaglandins infusion, than there is
with a saline.
Q. Doctor, if you were to conduct a procedure con-
templating the delivery of the fetus, and you wished it to
be delivered alive in 26 weeks, what procedure would
you use?
A. If- were forced to this stage, I would say that
I would probably have to try oxytosin induction, which
I really no not expect to work at this stage of the game.
It can be forced to work. There is evidence that a
very fine physician in Montevideo, in Uruguay, a Dr. Cal-
deyro Garcia, who has sh. va that almost anybody can
be put into labor with a » ‘icient amount of oxytosin,
over a sufficient period of time, sometimes utilizing very,
very high dosages of the medicine than we would nor-
mally think of.
However, this can be a prolonged and expensive pro-
cedure for the patient. Usually, I would say at this stage
of the game, we would usually go if the baby is viable we
call it a Caesarian section; if the baby is not viable, we
call it a hysterotomy.
Q. Doctor, is that procedure distinct and apart from
the oxytosin procedure?
A. Yes, totally.
Q. Is it distinct or not?
A. Totally distinct.
(p. 42)
Q. Now, Doctor, what is a hysterotomy?
A. A hysterotomy is exactly the same as a Cae-
sarian section; it is just being used when the fetus is non-
viable.
13a
Dr. Louis Gerstley, I1I—Direct
A Caesarian section includes an incision in the ab-
domen to the uterus; the taking, generally, of the bladder
of the interior wall of the uterus, entering the uterus, mak-
ing an incision in the uterus, removing the products of
conception in the uterus, sewing the uterus back up, re-
approximating the bladder, and then closing up the ab-
dominal wall.
Q. Remaining for the moment with hysterotomy,
Doctor, could you give us the medical indication or con-
tra-indication of it from the mother’s standpoint?
A. Well, the indication for it would be, as I said,
it is more immediate and less-expensive and time-consum-
ing to the mother.
The contra-indication to it is that all future children
born to this mother, in all probability have to undergo a
Caesarian section.
It is open to differing medical opinion, but the great
majority of the obstetricians in the country feel, basically,
that once the endometril cavity, which is the inside of the
uterus, has been entered surgically once, all deliveries
thereafter should be done by Caesarian section, because of
the possibility of rupture of this scar.
The earlier in pregnancy that you do this, the more
likelihood that you are going to have to put the scar up into
(p. 43)
what we call the upper segment of the uterus—the fundus
—where the scars are even more likely to rupture.
Q. Doctor, I am going to read to you a statement
from a medical text for obstetricians, which I believe you
are familiar with, and I am going to ask you whether they
describe the general range within which the substantial
14a
Dr. Lewis Gerstley, III—Cross
part of medical opinion falls with respect to the definition
of “viability.”
First, Doctor, would it be correct to state that inter-
pretations of the word “viability” have varied between
fetuses of 400 grams, about 20 weeks’ gestation, and 1,000
grams, about 28 weeks’ gestation?
A. Yes.
Q. Would it be correct to state that survival of a
fetus under a hundred grams is unusual?
A. Yes.
Q. You have indicated that your particular defini-
tion of “viability”, in terms of weeks of gestation, might
be different by other physicians.
Are the differences in the entire medical community,
physician-by-physician, in the application of the term “via-
bility”?
A. I don’t quite understand what you mean, sir.
Q. Apart from the fact that some physicians might
disagree with your definition of “viability”—
A. Yes.
Q. (Continuing) —assuming a physician took a dif-
ferent
(p. 44)
position, would there be other physicians that disagreed
with him?
A. Yes.
* *+ & &
Cross-Examination
BY MR. MANSMANN:
*- *+ *& &
Q. Doctor, at the close of your testimony on direct
examination, you had indicated that there is a disagree-
| 15a
Dr. Louis Gerstley, III—Cross
ment among the medical community as to viability; is that
correct?
A. Yes—well—yes.
Q. So that I understand it properly, you are saying
there is disagreement as to the point of viability, or when
a particular fetus may attain viability; is that correct?
A. Yes.
(p. 45)
Q. And not as to the standard definition of via-
bility?
A. No. There is a disagreement, I would believe,
as to the standard definition of viability.
Q. Where does that disagreement come in; can you
tell me that?
A. Well, it would depend on which definition of
viability you are using.
Q. How about your definition of viability?
A. Again, there would be differences of opinion;
because some people might feel my definition of viability
is not accurate.
Q. Now, your definition of viability fairly closely
matches the standard definition of viability, doesn’t it?
A. Yes. I do not believe I am an off-beat physi-
cian.
Q. And the definition that you have recited to this
Court is fairly close to the definition that the Legislature
has placed in the Pennsylvania Abortion Control Act; is
that correct?
A. No.
Q. The only difference is the words “reasonable
ancillary aids’’; is that it?
A. Those are my words.
16a
Dr. Louis Gerstley, III—Cross
Q. Right.
A. Well, in part, because the Act puts no weeks’
gestation on viability. It leaves the interpretation of ‘‘via-
bility” up to whoever is interpreting the term “‘viability’’.
(p. 46)
Q. In other words, it leaves it up to whoever is in-
terpreting “viability” is that correct?
A. That is correct; be that the physician or the
prosecuting district attorney.
Q. I believe the Act says that a physician, based on
his medical judgment and experience, determines viabili-
ty; isn’t that right? ~
A. Yes. But if a district attorney wanted to make
a case, he can say that that physician’s judgment is not
valid.
Q. Right. This is where you are talking about hav-
ing a potential conflict as to whether or not this particu-
lar child or fetus was viable?
A. That is correct.
Q. It is not that the Act, or the definition contained
in the Act, is clear; is that right?
A. It is unclear, so it makes it difficult for me to
make a medical decision on an unclear statement.
Q. And you had gone through with Mr. Morris
what the standard definitions are; is that correct?
A. Yes.
Q. And the—one thing that bothers me, Doctor, is
that you had previously stated that gestational age by it-
self could be misleading; is that correct?
A. Yes—well, gestational age based on what?
17a
Dr. Louis Gerstley, III—Cross
Q. Based on the clinical history you obtained from
the patient and, perhaps, your own examination—physi-
cal examina-
(p. 47)
tion.
A. Yes, it still could be.
Q. If we had an Act that said 24 weeks’ gestation,
and that’s the point of viability, wouldn’t that be arbi-
trary?
A. Yes. But that can be ascertained more clearly
by the presented data.
In other words, I would feel more comfortable with
some fact like this, where I could state that the patient
states here is her last period; the uterine size is such-and-
so. This tends to conform more to a fact than a figure.
Now, those things have a reasonable margin of error,
too. But they are less subject to error than another defi-
nition of viability, which was indicated anywheres from
400-to-1000 grams.
Q. Doctor, you can’t use grams alone, can you, Doc-
tor?
A. No. You can’t determine that until the fetus is
out of;the uterus.
Q). And there are nutritional aspects that you have
to be con’erned about, perhaps, if the mother is a smoker
—I am talking about a tobacco smoker—or if the mother
had some malnutrition; that is going to have an affect in
the baby she is carrying, isn’t it?
A. That is correct.
Q. That is going to decrease the weight?
A. Yes, sir. This would be a small-for-date baby;
one that is more mature than the size would indicate.
18a
Dr. Louis Gerstley, III—Redirect
(p. 48)
Q. So, that small-for-date baby may be viable, al-
though of a lower weight than a non-viable baby; is that
correct?
A. Right.
* * * *
(p. 54)
Q. So in your report—not your report—the report
of your committee, it stated that the majority of those who
responded indicated that they would limit abortion to at
least 20 weeks?
A. Yes.
Q. 160 members felt that abortion should be car-
ried out—
A. Just a moment. 160, an overwhelming majority
of what?
A. Of 197 who felt the abortion should be carried
out in hospitals to insure patients’ safety; is that correct?
A. Yes.
Q. They had—the Society would have entered ges-
tational age of 20 weeks as the outside limit for abortion;
is that correct?
A. I don’t know that that necessarily would have
been correct. This was just an opinion survey; this was
not done for future guidelines.
* * * &
(p. 58)
Redirect Examination
BY MR. MORRIS:
Q. Dr. Gerstley, do you have before you the ques-
tionnaire of the Obstetrical Society of Philadelphia, to
which Mr. Mansmann referred to in cross-examination?
19a
Dr. John Franklin—Direct
A. Yes.
Q. I direct your attention to Question 8. Would
you read that into the record, please.
A. (Reading) “Who should regulate abortion prac-
tice?” is the question.
The answers were divided into three: “(a) State
legislature,” responses 20; (b) “Federal government,” re-
sponses 24; (c) “Physicians or hospitals,” responses 137.
TESTIMONY OF JOHN FRANKLIN, M.D., TAKEN
ON JANUARY 14, 1975
* * * *
(p. 7)
BY MR. MORRIS:
Q. Now, Doctor, you have heard the word “‘via-
bility,” have you not?
A. I have.
Q. Would it be fair, in general terms, to describe
that as the ability of the fetus to survive outside the
mother’s womb?
A. Yes.
Q. Might some artificial aid be required in some
cases?
A. It might well be to preserve the life of the fetus.
Q. If you are presented with a patient, can you de-
termine whether or not the fetus in that patient is viable?
A. I cannot, in any absolute sense; only in a rela-
tive sense.
(p. 8)
I think the best thing I could do is offer some prob-
ability of the ability to survive outside the mother’s womb.
Dr. John Franklin—Direct
Q. If the fetus is 16 weeks, could you make an ab-
solute determination?
A. From my present knowledge of medical skills,
I would believe no fetus of 16 weeks could survive out-
side the mother.
Q. What about by extraordinary means?
A. The fetus of 16 weeks has heart-beat, has the
ability to attempt to survive. Extraordinary means might
prolong the heart-beat. That may, in some opinions, be
regarded as viability—but not in mine.
I would feel that the infant has the potential for
growth at 16 weeks.
Q. Doctor, if you moved onto 24 weeks, a diag-
nosed 24-week gestation period, could you determine
whether that fetus was or was not viable?
A. I could not.
Q. What is the probability?
A. The probability would be very high that the
fetus was not viable.
Q. What would be the order of viability in 24
weeks?
A. It would be 95 percent that it is not viable.
Q. What about 28 weeks, Doctor?
A. Twenty eight weeks is a real probability.
(p. 9)
Q. Is respiration a controlling factor, Doctor?
A. To my knowledge, respiration is «he key factor.
Q. Now, Doctor, you have indicated some proba-
bility. Would you expect a physician generally to agree
with you?
A. I have found in reading opinions about viability
that physicians do disagree.
21a
Dr. John Franklin—Direct
Some physicians feel there is the same degree of life
present from conception onward, which is the same as
survival outside. I suspect there is disagreement about
life in the fetus. There are specialists of neonatalogy that
push back the time of gestation, where the infant can sur-
vive outside the mother.
I assume that will change as technical skills improve.
Q. Doctor, have you done some embryological ex-
periments which are related to life and viability?
A. Yes. For two years I attempted to grow the rat
embryo outside the mother, and came to the conclusion
that I was prolonging the death of the rat embryo.
When these were looked over in the microscope, it
was a slow dying process. I extended the life by 24-to-28
hours by artificial means, such as oxygen; but I did not
feel that I was keeping the embryo alive.
Others were engaged in the same work to keep the
rat embryo alive outside the uterus of the mother.
(p. 10)
Q. In the case of the presentation of the human
fetus in the 20-to-30 week gestational area, would you
expect to find some attempts to perform life for some
period of time would be successful?
A. I would suspect that what I was involved in, the
rat embryo, would be continued on a more ‘sophisticated
level, and the probability would be that it will survive for
a long period of time, and this may be called by some
artificial viability.
Q. Now, the Act under consideration before this
Court provides, in part, in Section 5, that if a fetus may
be viable then the method of delivery of method of abor-
22a
Dr. John Franklin—Direct
tion used shou’ be that method that provides the fetus
with the best opportunity to survive.
Applying that requirement, what method of delivery
would be compelled to be used?
MS. LEADBETTER: Objection, Your Honor.
The Statute contains an additional caveat; that this
method must be used if this is not dangerous to the
mother.
MR. MORRIS: I'd like to reph
tion, if I may, Your Honor. ee
JUDGE ADAMS: You may.
(Section 5 of the Act read into the record.)
(p. 11)
I now ask you: what method is available i
f the
fetus may be viable, which would gi ie
chance for survival? re
pee - May ee chance would be to turn the fetus, once
utside the mother, over to those
maintain its existence. 2st ca wan
The procedure to remove the fetus
would be
the hysterotomy method—the removal from the Sa
passing it over without exposure to gases, and so on to
neonatalogy or research workers, someone seeki to
maintain the life of the fetus. mo
Q. Does a hysterotomy, in your opinion, suggest any
medical icati i
ae complications for the mother and, if so, what are
23a
Dr. John Franklin—Cross
A. The medical complications of hysterotomy are
largely limited to a surgical procedure, Caesarian section,
in which no labor has taken place.
Q. Are you familiar with the procedure involving
oxytosin?
A. It is possible to simulate labor by drugs and de-
liver such a fetus vaginally. But the labor, in my opinion,
would be a threat to the baby’s existence, and the hys-
terotomy would maintain the existence of the baby, which
is the primary role.
Q. If the determination that hysterotomy is detri-
mental to the life or health of the mother, in the sense it
could not be used, would there be any procedure availa-
ble which would give the fetus the best chance of sur-
vival?
(p. 12)
A. The hysterotomy, drug-induced labor, would be
the best possible way to getting the baby with the heart-
beat.
Q. In other words, your method of choice would
be hysterotomy, under those circumstances?
A. That’s right.
**2* ¢#
BY MR. MANSMANN:
(p. 17)
Q. Now, Doctor, you also said you expect other
physicians to disagree as to when a particular fetus has
attained viability; is that correct?
A. The definition appears logical, but the applica-
tion appears different.
CSL ee
24a
Dr. John Franklin—Cross
Q. Your complaint is that there is a potential dis-
agreement among physicians concerning the application of
this particular provision of the Act?
A. The lawsuit in Boston is a case in point; physi-
cians disagree about the viability of 21-to-24 week fetuses.
Q. Twenty four-week fetuses you gave a 5 percent
chance of survival; is that correct?
A. Yes. I think that is optimistic.
Q. You set viability at 28 weeks?
A. Yes.
Q. I assume, as the gestational age increases and the
weight increases, there is a better chance of survival?
A. Yes.
Q. And this is based on your experience?
A. This is based on tables compiled on the 28-week
fetus, judged by others at other institutions.
(p. 18)
Q. So perhaps one 26-week fetus will not be viable
and another 26-week fetus perhaps would be viable?
A. That’s right.
Q. So that is why you have to judge each case in-
dividually?
A. That’s right. We cannot judge prior to delivery
except to arrive at some probability that I believe the
mother is 26 or 28 or 24 weeks.
Q. 1 think this is some area of confusion. You have
talked about disagreement, philosophical disagreement, as
to when life begins.
A. Yes.
Q. So some physicians think life begins at concep-
tion and others think it begins at delivery?
A. (Indicating)
25a
Dr. John Franklin—Cross
Q. And some perhaps—
MR. MORRIS: You will have to answer orally,
Doctor.
A. Yes.
Q. And some think life begins after the neonatal
riod of 28 days; is that right?
ei A. Iam not aware of anyone maintaining that defi-
nition.
Q. So that life and viabiliy are two different things;
you do agree?
A. I agree.
Q. While there may be potential life from concep-
tion forward,
(p. 19) . “17 .
do you agree that there is a point in which viability is
reached prior to delivery?
A. I agree with that. a
Q. And that there is a definition between viability
and life?
A. I agree with that. :
Q. The philosophical inferences you were talking
about were relating to life rather than viability?
A. I agree with that.
* e+ * &
(p. 24)
BY MS. LEADBETTER:
Q. Dr. Franklin, let me see if I understand what
you have said so far in one area: You have said that at
the point of 28 weeks you would consider a fetus nor-
mally to be viable; is that correct?
A. That is right, that it has a reasonable chance of
survival.
26a
Dr. John Franklin—Cross
Q. Prior to 24 weeks you would not consider it to
be at all viable; is that correct?
A. It all implies probability; a very high probability
it will not survive.
Q. In the period between 24 and 28 weeks you have
a gray area where the fetus may be viable, depending on
different circum-
(p. 25)
stances?
A. That is correct.
MR. MORRIS: I object to that phrasing of
the question. I don’t think that is what the witness
said.
JUDGE ADAMS: Sustained. That was not
the testimony.
Rephrase the question.
MS. LEADBETTER: All right.
BY MRS. LEADBETTER:
Q. And there is some increasing degree of viability
or survival of the fetus in that area, between 24 and 28
weeks; is that what you said?
A. That is my impression.
Q. Concentrating on this period between 24 and
28 weeks that you have delineated for us, you have said
that the greatest likelihood to preserve fetal life would
be hysterotomy; is that correct?
A. That is correct.
Q. What method of anesthesia would you use on
the mother for the hysterotomy?
A. It probably makes little difference as to which
27a
Dr. John Franklin—Cross
type of anesthesia is going to be used, based on what |
know. np
I have not been in the situation, so it is purely hypo-
thetical.
Q. Ordinarily, with a hysterotomy procedure you
use a general
(p. 26)
anesthesia rather than local?
A. There are alternatives to those two choices: re-
gional anesthesia in the form of vrinal or epidural is an-
other alternative.
Q. If you did not use a géneral anesthesia, that
would reduce the risk of the procedure; wouldn’t it?
A. I have no data for concluding this. It might
seem so on a theoretical basis; but I know of no data.
Q. Now, is it possible for you to quantify generally
the difference in the risk to the fetus of hysterotomy pro-
cedure and the procedure using a combination of prostag-
landins and oxytocins?
A. No. I have almost no experience with trying to
induce labor at that stage with oxytocin.
The literature says it is difficult and may take sever-
al days. The claims with prostaglandins are that they are
more effective so that you can reduce days to hours, 48
to 72 hours. }
I have had no experience with these, with the use of
prostaglandins.
Q. So you have no experience with this procedure
at all?
A. With attempting to induce an abortion by oxy-
tocin or prostaglandins.
Dr. John Franklin—Cross
The usual procedure of induci
- ng abortion
weeks is to use saline, saline salt, which is “at gpg i “
(p. 27
to the fetus. sists
Q. B ins i
Pe ts the method of prostaglandins is beginning
A. Nowhere near the f ine i
OB e frequency that saline is used,
fin g That is not my question. It is beginning to be
A. That is correct.
Q. And although the replacement of i
. . amni
with the saline solution will almost certainly pws
the os su on will not have that effect?
, ve no information on what the—ho '
of those fetuses would be born without a i a éescys
ve That is not my question.
My question is, prostaglandins stimulate i
traction rather than kill the child; is that eg —
A. That is correct.
Q. You have testified that the method
of h
my has certain effects on the mother, including a pore
sity for future Caesarian births if the mother wishes to
have : senha some future date; is that correct?
; t is not an absolutely necessity, b i
be considered by many physici ‘to aks eae
prgor y physicians to be the safer route
Q. Now, including the ili
. é probability that future child-
Wee will be by Caesarian, can you tell us the additional
i petaniee —— by using the hysterotomy procedure
_ ine or prostaglandin induced vaginal abor-
Dr. John Franklin—Redirect
Dr. John Franklin—Recross
(p. 28)
A. Not in terms of mortality figures. The risk is
not great.
Q. My question, Dr. Franklin, is not as to risk of
death of the mother, but as to the preservation of health
of the mother.
A. The risk to the mother’s health is not great.
QO. You are saying that the risk of health to the
mother in the hysterotomy procedure is not great?
A. That’s right.
**¢t 8 :
(p. 29)
BY MR. MORRIS:
Q. Dr. Franklin, are there reputable and respected
physicians
fetus delivered by a hysterotomy might be viable?
A. I believe there are.
(p. 30)
BY MR. MORRIS:
Q. Doctor, is there a possibility of such testimony
or probability of physicians so testifying a probability
which might inhibit your conduct?
A. Yes, indeed.
MR. MORRIS: That’s all, sir. Thank you.
—_—_——_——_—_--—
Recross-Examination
BY MR. MANSMANN:
Q. Doctor, you have never done a prostaglandin
abortion; is that correct?
A. That is correct.
who would be of the opinion that a 21-week
30a
Q. You really don’t know that much about them;
is that correct?
A. That’s right.
Q. But you do know they are not as life threatening
to the
(p. 31)
woman as a saline abortion, for example?—life threaten-
ing.
To the mother?
Right.
Yes. I would answer that is true.
They are not life threatening?
They are less life threatening than a saline abor-
P>OPrO>
tion.
Q. You have been concerned about other physicians
apparently testifying against you or some other physician.
Who are the physicians that you are concerned about tes-
tifying against you?
A. Iam not sure I understand the question.
Q. You said that you know that there are reputable
physicians who would have a differing opinion from you,
and your concern is that they may testify against not you
necessarily but some other physician who performed an
abortion on a 23, 24-week, 21-week fetus.
A. That’s right.
Q. Can you tell me who they are?
A. Not by name. I cannot tell you physicians by
name or even category. I know that there are physicians
who are outspoken on this subject.
The most recent concrete example I can give you is
that recently there was a neonatologist in the City of Phila-
delphia who felt that the task was to try to maintain the
3la
Dr. John Franklin—Recross
nse
existence of a 20 or 22 or 24-week fetus, no expe
spared, with whatever techniques known to medicine.
(p. 32)
©. That is his responsibility, the care of the pre-
mature or immature infant; is that correct?
A. That’s right. But I believe that some neonatolo-
gists may pursue their duty of care to limit it to those in-
fants where there is a good probability of a normal exis-
tence later, that they might make some choices as to which
fetuses or infants they are going to pursue with the most
concern. .
Q. Can you tell me then their names again, please,
the neonatologists that you are concerned about?
A. Yes. The physician who I believe would have
sought to maintain the life of a very young fetus was Dr.
Mary Louise Soengten.
Q. Now, you are saying that you attempt to main-
tain life of a premature—
A. Immature is the word I would use.
Q. —immature fetus; is that correct?
A. That’s right.
Q. And her specialty is neonatology?
A. That’s right.
Q
. Sol understand you properly, if a 21-week baby
is delivered or a live birth resulting from an abortion, she
would have the responsibility of attempting to keep this
child alive; is that right?
MR. MORRIS: I am going to object. I think
in getting to what she would do we are getting a little
ale 4 1 SSRs =
32a
Dr. John Franklin—Recross
(p. 33)
speculative.
The thrust of my questioning i
g involved what hi
mental and psychological concerns were with ned
to what generally might ha
ppen. If we are acti
with respect to one doctor, I think we are a bit aan
lative as to this witness.
BY JUDGE ADAMS:
Q. Do you have any knowled
Q ge as to i
physician would do or might do? Do you bincie? nen
about her professional operations to express an opadia?™
A. I worked with this neonat i
on: hersclan tei natologist for three years.
JUDGE ADAMS: We wi
ide crm e will allow the question
BY MR. MANSMANN:
Q. You are saying that she woul
d
all efforts to keep this child alive? rere
. Yes.
Q. And that is her profession?
A. That is how she saw h ibili
derstand it from observing her. See
Q. So that your concern is tha
t she would come i
and testify against a physician; is that sight? d come in |
A. As I understand what we are talking about, the
Statute says that you have to do the proced i
the fetus the best chance of aid r sess oe
(p. 34)
Such a person as Dr. Soen i
Su ; gten, could in my opini
be willing to say that a saline procedure was bend the siete
33a
Dr. John Franklin—Recross
procedure for the termination of that pregnancy, and that
she would like to have a 20 or 21-week fetus try to main-
tain its life. And that might be how she saw her task as
a neonatologist.
Q. So that it is her discharging of her professional
responsibility as a neonatologist which color her opinion;
is that what you are saying?
A. That is how she saw her responsibility as a ne-
onatologist, to not have an arbitrary decision that we
would not try to save a baby younger than 24 weeks, but
to try to save anything that might be saved, that this is
the way the barriers will be raised or lowered—I guess
lowered for maintaining or saving the lives of very young
immature babies.
Q. It is not your opinion that you as a physician
or Dr. Soengten should attempt to save the life of the
child who can be saved?
A. I didn’t say that. My opinion is that if the wom-
an is seeking a termination of a pregnancy that I should
be permitted to terminate her pregnancy.
I should not be required by the State of Pennsylva-
nia to do an operation and to spend vast sums of money
in the pursuit of trying to maintain the existence of an
immature fetus.
(p. 35)
Q. So it is the vast sum of money, is that your con-
cern?
A. It certainly enters into it.
MR. MANSMANN: That’s all I have.
BY MS. LEADBETTER:
Q. Doctor, you wouldn’t go to that extent and spend
those vast suras of money you were talking about to save
34a
Dr. Fred Mecklenburg—Direct
the life of a 20-week fetus who was spontaneously hide
as the mother wanted, would you?
A. Would I?
Q. Yes.
A. This is a decision that comes up quite often in
my practice and experience. I find it very difficult
Q. Have you ever done that?
A. Yes, indeed.
Q. Spent vast sums of money to save—
A. No. I have sent immature fe
ave tuses to the -
tologist saying this is a desired pregnancy, the seaies
peful of carrying it,
has passed the fetus 22d she was ho
and the fetus has a heartbeat for several hours.
Q. Has one of those fetuses ever survived?
A. Not to my knowledge. :
* + * &
TESTIMONY OF FRED MECKLENBURG, MD.
TAKEN JANUARY 14, 1975
** * &
(p. 38)
BY MR. MANSMANN:
Q. Doctor, would i
, you explain to the C
another method of abortion is which is known pez acs
Fir of all, what do those initials stand for?
: € term D&C refers to dilation of t i
and curettage, which is a French word meaning oe
Both terms are French. ae
It applies in abortion to the situati
; ; ituation when th
is forcibly opened by stretching it and graduall vt
increasing size metal i - —
- instrument, called a curet intro-
35a
Dr. Fred Mecklenburg—Direct
Q. Could you describe what a curet is?
A. Accuret is a loop shaped instrument with a sharp
edge that is used like a hoe might be used to loosen the
soil of a garden. It is used to scrape the lining and con-
tents of the uterus out.
A more popular method of this at the same point in-
volves using suction rather than curets.
Q. Is the same procedure utilized at least initially
in a suction abortion as would be in a D&C as you have
previously
(p. 39)
described?
A. Yes. The dilators are used identically the same.
The mouth of the uterus is forcibly opened by passing
larger dilators. Instead of introducing the curet a larger
diameter tube is introduced, and a very powerful suction
amounting to several times the atmosphere of the earth
is used. This disrupts the pregnancy, usually reducing the
content at this early stage. It is reduced to the consisten-
cy of crankcase oil.
Q. This is done through the evacuation machinery;
is that correct?
A. Right. It is simply the exposure of the very in-
tense pressure that does this.
Most doctors who use suction as a means of abortion
also use a curet to be sure that the tissue has all been
removed.
(p. 40)
BY MR. MANSMANN:
Q. Doctor, what was the reason where there would
be concern that all the placenta tissue has been removed?
Dr. Fred Mecklenburg—Direct
A. In most cases all tissues not removed, there is
an increased risk of hemorrhage to the woman.
Q. Doctor, we have heard some testimony about an
abortion called a “‘saline-infusion” abortion. Would you
please explain that procedure?
A. A saline-infusion abortion is usually used later
in the pregnancy, whereby a needle is inserted through the
mother’s abdominal wall and into the uterus, and a quan-
tity of the amniotic fluid is generally removed for safety
reasons.
Q. What would be the danger of injecting more
fluid than that which is removed?
A. If the concentrated saline is removed without
amniotic fluid, it increases the chance for hemorrhaging.
This solution would escape through the abdominal wall
of the woman, and it is important to remove the fluid,
at least as much as you intend to inject of the saline.
Q. How is the abortion performed, or how would
the saline-infusion effectuate or cause abortion?
A. That is something that is not clearly understood.
We do know for sure that the saline almost invariably
kills the baby.
Most mothers report the traumatic thrashing about
and increased movement of the child, and then there is
(p. 41) |
movement. We think what happens is that there is a very
delicate shift of sodium ions from within the cells of the
uterus to extracellular space. In that case the uterus be-
gins to be irritable and starts to crack. .
Q. Is the fetus then expelled immediately?
A. Generally there is a latent period. It varies from
patient to patient.
Dr. Fred Mecklenburg—Direct sit
Usually the latent period would be twelve to
twenty-
four hours. When labor does start it is generally feisty
— et less painful than one would expect.
; t be a period hours
fetus is expelled? # sie ee
A. 48 hours, yes.
Q. That would be, obviously, vaginally?
A. Yes.
Q. Would that be the simulated i
had the woman carried to term? ee
A. There is some experience that would s
uggest,
although not exactly, the same as actual labor. There very
often numerous cases report it following the saline infu-
sion, that the cervix had failed to dilate, and the woman
seemed to be in natural labor, but in some ways different.
Q. There is, Doctor, another procedure called the
prostaglandin infusion. Is it similar to the saline infusion?
(p. 42)
* i po different ways, yes.
; ill you tell the Court in which ways, Doctor?
A. They can be given to the patient intravenously.
Very high incidents of severe headaches, diarrhea, nausea
occurs, and also the uterus dilates and also results in the
expulsion. Few people are using it that way.
It can also go directly into the uterus. It works in
a similar fashion, except that it does not kill the baby.
The side effects seem to be less severe, but similar. That
is, headaches, nausea and vomiting do occur, but with less
severity. That is called extra-embryotic. This is similar
to the saline infusion, but in many ways it is different.
Q. Doctor, you talked about side effects. Are there
side effects in the saline abortion?
38a
Dr. Fred Mecklenburg—Direct
A. Yes. There are very big ones. This has been a
great deal of concern to many of us. The clotting mechan-
ism of the person in a saline abortion is influenced 100
percent of the time.
In saline abortions, many of these women don’t hem-
orrhage. The clot mechanism is interfered with. Some of
these are very severe, and deaths have occurred. If the
saline ends up getting into the mother’s bloodstream or
outside the uterus into the mother’s abdominal wall, each
of these are hazardous and lives have been lost because
of this. :
(p. 43)
Q. Doctor, are there side effects similar to the pros-
taglandin effects you described in the saline abortion?
A. No. We don’t see the nausea, headaches, di-
arrhea and vomiting.
Q. So that the side effects you are talking about is
associated with prostaglandin, the headaches?
A. The heart rate and the blood pressure; they are
all side effects of prostaglandin.
At a conference of the American Association of
Planned Parenthood, in Kansas City, Dr. Bengston dis-
cussed the sum total of side effects as being physiological.
He was very apprehensive about the total body organiza-
tion.
Q. Doctor, you are a member of the Association of
the Planned Parerthood Physicians; is that correct?
A. Yes, I am.
(p. 44)
Q. And another procedure, would that be the hys-
terotomy procedure?
A. Yes.
Dr. Fred Mecklenburg—Direct ™
Q. Would you describe that for the
Court, please?
? Well, as Dr. Franklin described it a mae time
80, is a miniature Caesarean section. It involves a re-
= or general anesthetic; it involves an incision in the
a ominal wall, and the fetus is then removed from the
mother’s placenta, and it is then repaired in the same
ner as the Caesarean section. aa
Q. Could you tell the Court in whi
which i
age these particular abortions are normally a
A. Only very early in p
! in pregnancy, those le th
perc the procedure in the literature, aml ii
rs Srche wee after the patient is 8 weeks from the first
penn menstrual period, and 6 weeks from con-
It usuall i i
Pink: a would be confined to patients who are 7
C ree about a D & C or dilation and evacuation?
Be ither of these procedures can be used up to 12
Q. Are you talking about 8-to-12 weeks?
A. Yes. There are very few d
it between 8 and 12 weeks. - ne Renee
Q. Can you tell us the reason for that, Doctor?
A. Well, it i a
difficult it is hard to do it with safety, and it is
(p. 45)
todoaD&CoraD &E.
Q. Why?
A. Well, the baby is getti
: ng large enough f
skeletal system to form. The skeleton is i Nieies
enough for the bones to start forming, and it involves a
4
40a
Dr. Fred Mecklenburg—Direct
considerable hazard to try and extract bone from the
mother’s womb.
Q. Between the 12th and 16th week of gestation,
generally there would not be abortion performed?
A. Those doctors that utilize prostaglandins use
them during this period mostly. Doctors would prefer not
to do it during the period from 12-to-16 weeks.
Q. Now, after 16 weeks, what method is used, Doc-
tor?
A. It can be used after it is safe to get into the am-
niotic cast. Doctors that do late abortions do utilize saline.
Doctors after 20 weeks are reluctant to use saline.
Most of us that do any significant number of deliveries
are reluctant to do it. The hysterotomy then enters where
the doctor is concerned for the safety of a viable child.
There are patients where saline is very risky. The
patient might have had extensive abdominal surgery, and
it would cause excessive bleeding in these patients. In
these cases, the fetus might be extracted by hysterotomy
rather than saline.
Q. The hysterotomy might be used in generally what
gestational age?
(p. 46)
A. Probably in common practice, after 24 weeks.
Q. After 24 weeks on?
A. Ye.
Q. In some point that becomes a C-section, and is
no longer designated a hysterotomy?
A. Technically, it’s a C-section; but all along it is
the procedure when it is called a hysterotomy.
Q. Doctor Franklin called it a miniature C-section.
He was accurate, in other words?
~~
tion and
4 (p. 48)
- The safest period, as far as-
A. To break it down, during the fi
is the safest time. “tates the first 8 to 9 weeks
> Would you put 8 to 12 weeks?
M e
sao ost doctors like to work from the 8th to 1 2th
Q.
A. Yes.
Q. What ri ;
concerned? risks are inherent as far as the D & C is
third is the risk of infection.
Dr. Fred Mecklenburg—Direct
Q. What risks are inherent in the saline infusion,
the risks to the maternal health?
(p. 49)
A. The damage would be that the bowel would be
perforated; the risk of hemorrhage would be great, of
lacerating vital areas; there is the risk of infection, where
the needle might introduce bacteria.
The risk of the saline getting out of the uterus into
the peritoneal gland causing saline intoxication.
Q. What would the effect be?
A. Besides overwhelming thirst, the person would
become comatose. If the salt gets into the blood cell, it
can cause hemolysis of the blood.
I think the principal risk of the saline abortion is
the effect it has on the blood-clotting.
Q. Now, Doctor, you described that as one of the
side effects; is that correct?
A. Yes; and also the risk of injury to the cervix
causing the laceration.
Q. The saline-infusion abortion, is that a life-
threatening procedure to the mother?
A. Yes, it can be.
©. For the reasons that you have previously de-
scribed about the installation of the saline solution into
the maternal system rather than the fetal system?
A. I again refer to the material which was sumit-
ted, where there were six deaths, but one occurred in the
late trimester; three were associated with saline and three
with hysterotomy.
(p. 50)
Q. And the hysterotomy, are there risks attendant
in undergoing hysterotomy?
doctor about to treat a woman who is
Dr. Fred Mecklenburg—Cross =
A. There are risks attendant to
' any ti
bine a involves anesthesia and Shdiatomein 7
ae . ould these be the same risks involved in an
of procedure? ‘
A. Yes.
“4 . general anesthesia administered?
- It varies from hospital to hospital. It i
regional and i Sates mew
pep general anesthesia, depending upon the moth-
Q. Is saline infusi .
general anesthesia? — usually done with a local or
A. It is general in inj
sea g ly one wheel of skin injected with
Q. The q ic gi
Sais re would be no general anesthetic given?
> po about prostaglandin?
. it’s i
ident ae oy a the small area of skin is
Q. What about if it is injected vaginally?
A. In that case no anesthesia at all.
es *# &© @
(p. 74)
BY MR. MORRIS:
Q. Doctor, would it be fair to say that it is or a
. . t i
20th to 28th-week period is a very difficult if not hier
ble determination to make to deci
eri ide whethe
fetus within that woman is or may be viable? etpierae
A. It is very difficult.
Q. Almost impossible, is it not?
bi
Dr. Fred Mecklenburg—Cross
A. Again, it is—there are probabilities. You can
feel by examining the patient within a matter of three
to four weeks what the state of gestation is.
Q. From that a lack of probability or probability of
survival?
A. Yes.
Q. But impossible as to the specific fetus involved?
(p. 75)
A. That is correct.
In fact, I would agree with Dr. Franklin’s testimony
in that regard.
** *
(p. 82)
BY MR. MORRIS:
Q. Doc », as one who performs abortions I want
to read you a sentence and ask you what it means to you.
The sentence is, “Viability means capability of a fetus to
live outside the woman’s womb albeit with artificial aid.”
I want to ask you at what stage of gestation you as
one who has performed abortions would put that defini-
tion?
MR. MANSMANN: I have to object and ask
that be qualified as to whether or not he thinks that
the doctor testified he performed abortions.
MR. MORRIS: I am not assuming he does it
for whatever reasons he believes just. I want to ask
him what viability means to him in terms of aid.
A. I would agree with that definition of viability.
I think that it has been current. I think it is a definition
that takes into account medical progress, the fact that it
is constantly changing.
Dr. Fred Mecklenburg—Cross oa
My perusal of the medical lite
! rature
to believe that potential or continued life so —-
as 20 weeks—not in the current edition of Eastman’s Ob.
stetrics book, but in the previous edition, the earliest re
port a survivor was reported as a delivery at 20 weeks
gestation. =
In my own experience I hav
e—the earliest i
a I ts had Is a patient who was 21 nie Posada
€ Of conception or 23 weeks from the first day of her
last menstrual peri aes
ond tale period. The child is a year and a half old
TESTIMONY OF DR. HOPE PUNNETT, TAKEN
JANUARY 14,1975.
(p. 85)
MS. WALLIS: Dr. Punnett, please.
MR. MANSMANN: Your H
: onor, before
begin I request from plaintiffs’ counsel an offer ‘of
proof as to this particular witness. :
JUDGE ADAMS: Yes. Do i
: , you mind tellin
counsel what you hope to prove through this ethane?
MS. WALLIS: Your Honor, w
Ms. : » we hope to
by this witness that genetic counseling which ie line
cases, involves abortion that has to be done between
the wr and 24th weeks of gestation, and conse-
quently an interpretation of the state statute which
would prohibit abortion
prima nena after 20 weeks would fore-
46a
Dr. Hope Punnett—Direct
JUDGE ADAMS: Do you object?
MR. MANSMANN: Yes, Your Honor. | don’t
believe that there is any evidence admitted that would
place the child at 20-to-24 weeks.
There has been some testimony by the plaintiff
that viability may occur at 24 weeks, and that was
by Dr. Gerstley.
If that is so, the United States Supreme Court
** *
(p. 86)
this Court from considering that. From the point of
viability onward, the State has a compelling interest
to prohibit abortion.
It would be legally inappropriate for this Court
to make a consideration of that issue.
I do question the witness’s ability to testify as
to whether or not the abortion can be performed.
JUDGE ADAMS: We will deny the objection
at this time.
We will give you the option to move to strike
at the appropriate time.
MR. MANSMANN: Yés, sir.
DR. HOPE PUNNETT, called as a witness in behalf of
the plaintiffs herein, after first being duly sworn by
the Clerk of the Court, testified as follows:
Direct Examination
BY MISS WALLIS:
Q. Dr. Punnett, your qualifications have already
~ been offered.
Dr. Hope Punnett—Direct -
Is the resume you ,
been any changes? you gave me still current; have there
A. No.
Q. In addition to teaching at Temple University
you are also at Sai , . ;
ewe aint Christopher’s Hospital; is that cor-
A. Yes.
Q. What are your responbilities there?
(p. 87)
aus z ip head of the division of genetics within the
_ patel ee . the laboratory for testing of cer-
; for seeing and examinin i
— possible and known genetic diseases; for pt
oe as to any known genetic diseases they a
q os in themselves, relatives or other off-spring .
Q. Now, Dr. Punnett, would you please d ibe
genetic counseling? wes
A. It is a communicatio
ommut n process whereb
eo wd Aare a scientific facts as to any individual
about a disease, but offer th
ferent ways we can be of servi =i ig
service, whether it be th -
a = 2 — - mies the various options hs ved
ter . ; :
= ationship to their possible appropria-
asi nahpndacee whe I am showing you a publica-
aeteataan » ‘eprint series. Will you iden-
(Handing pamphlet to witness.)
A. This is a scientific stud i
his y published i
a facts in it are a discussion Asem how bares a
ses are carried; the early studies and discussion of md
48a
Dr. Hope Punnett—Direct
netic diseases that could be or have been diagnosed pre-
natally.
Q. Dr. Punnett, there is some handwritten notes in
this exhibit. Could you identify those notes, please?
A. Those were my notes which were in an attempt
to keep the article up to date and current with scientific
knowledge.
(p. 88)
Q. Is the information in that exhibit correct?
A. Yes. There may be some places where causes
of disease were not known but since have been known
diseases, which were theoretically diagnosable, and the
knowledge was not forthcoming at the time the article
was written.
MS. WALLIS: Your Honor, I move into
evidence this exhibit.
JUDGE ADAMS: Any objections?
MS. LEADBETTER: » I have not had a chance
to see the document, Your Honor.
JUDGE ADAMS: Then you will reserve any
objection you may have to the exhibit.
MS. LEADBETTER: Yes, Your Honor.
MR. MANSMANN: I have no objection to the
witness testifying, or this exhibit going into evidence
with this caveat: that this should be treated as every
other medical text we have submitted to the Court.
However, we are not agreeing to the truthfulness
of the items submitted in that document.
Dr. Hope Punnett—Direct 49a
JUDGE ADAMS: If i
: you wish an o i
to look at it, we will give you that man =
MS. LEADBETTER: Thank you, Your Honor.
JUDGE GREEN: | i .
what Exhibit 6 would be. Pe Som 52. Sane
MR. MORRIS: Your Honor, Exhibit 6, which I
(p. 89)
MS. WALLIS: For the
ae ; purpose, Y
of guiding Dr. Punnett’s testimony. i cut
The exhibit sets out the basic iti
ib conditions
type of conditions that can be identified elon
genetic counseling,
JUDGE ADAMS: When you use it, you under-
stand Sail 4
par there was one objection being held in abey-
MS. WALLIs: Yes, Your Honor.
(Pamphlet marked Plaintiffs’ Exhibit 7.)
BY MS. WALLIS:
Q. Doctor, would you give
of genetic disorders that wit! Sees iia
A. There are two good examp]
ably tay-sachs disease, This is an a . es, ant oe are prob-
50a
Dr. Hope Punnett—Direct
This means that two perfectly normal parents are
each carriers of a gene for normal development of a par-
ticular enzyme; and also a gene that does not act at all.
The children that would come from these parents are
born perfect children, and then six months after they are
born they begin deteriorating. By the age of three
(p. 90)
they have lost all function; they can’t feed themselves.
In effect, they become a vegetable.
Then they are put into custodial care between that
time and the time they die. It is now possible to recog-
nize that two individuals married to each other who can
have such a child.
When that is known, amniotic fluid in this case is
simply removed, and nothing is replaced. That fluid can
then be grown. There are cells which come from the
fetus.
When enough cells are grown these can be analyzed
to find out whether the child is lacking the enzyme. If
the child is lacking the enzyme it is doomed to death be-
fore he is 7 or 8 years old.
In cases like that that child can be aborted from the
mother at this point in the pregnancy, and the parents and
the child are saved the agony of a slow and painful death,
which is an unbelievable trauma for anybody connected
with such a child.
Another example is one due to a chromosomial de-
fect, Down’s syndrome. Mongolism is one example of this.
Women over the age of 38 have a high risk of having
Down’s syndrome. Usually these families are identified
after the birth of the first defective child.
Dr. Hope Punnett—Direct -
Prenatal diagnosis is carried out in the
Chromosomes rather than enzymes are eibceive in con
(p. 91)
cases,
Q. Dr. Punnett, with respect to ipti
Vv your description of
tay-sachs, can you explain in great detail how sath tho
would be carriers of this disease could be identified?
A. This disease—let me backtrack. The gene that
prec oae — happens to be present in a higher con-
= n Of persons of the Jewish faith from Eastern
There is voluntary screenin i
; g of this. Couples that
— be concerned, they can go to a clinic and have their
ood analyzed. Individuals who are carriers of the dis-
ease would have one normal gene and one abnormal gene.
Biochemically we can separate three classes of peo-
ple: people with two normal genes; people with one, and
people with no normal genes for that particular enzyme.
a ¥ al Sy apa to ep sig individuals who are car-
, y by screeni t populati
. anee ning population before they have
Q. What would the extent of the risks be j
* as f
ple having a defective child, as a result of the seal ahs!
A. If both are carriers, the pregnancy carries a 25
percent chance of this child having a disorder.
Q. What are the options?
A. The couple can elect to have no further chil-
— po semen? went on and rejected the advice of
ving no fu children, and decided to i
pattem rther have children
(p. 92)
the consequences to the child.
52a
Dr. Hope Punnett—Direct
Other families monitored the pregnancy, and had
the defective child aborted.
Some families will also accept artificial insemination.
In the case of artificial insemination, where the sperm
donor does not have defective genes, the mother will have
a chance of having normal children.
Q. Doctor Punnett, does part of your experience
include the counseling of such couples?
A. That’s correct.
Q. What do yor tell these couples in a counseling
session?
A. We explain to them scientifically on whatever
level they are familiar with, the diseases and how it af-
fects their child; how it could affect the child if they have
one.
We would explain to them how it is inherited; why
it is that two perfectly normal people can have an abnor-
mal child.
Then we explain each of the options open to them.
If the wife is not pregnant, we tell them whatever they
decide to do we are always there to give them help and
advice and keep them up with new developments.
If the woman is pregnant and wants to go through
the term, we will help them through the termination with
testing, or whatever it is they desire.
Q. Where the couple decides on an abortion, what
would the
(p. 93)
time table be?
A. As we pointed out this morning, the same con-
ditions hold for abortion.
5
Dr. Hope Punnett—Direct 7
It is not feasible to get embryonic enzymes under 16
weeks, because the uterus is not large enough at that time.
Q. Are you referring to the actual word, gestation?
A. Sixteen-week gestation, or 18 weeks after the
last menstrual period.
Also, the cells do not grow as easily as the cells ob-
tained from the menstrual period. The embryonic fluid
contains a variety of cells, only a small fraction of which
actually grow.
We take the cells from the embryo and we put them
in a flask, then put them in an incubator, and hope they
grow. If they grow, it will take two to six weeks for the
test to be concluded. The way the cells grow there are a
number of variables that enter.
The cells could be tested for the enzyme, for t
chromosomes, or whatever it is we are diagnosing. >
would then be communicated to the- family; the family
would discuss it and, if necessary, we make the arrange-
ments for the termination of the pregnancy.
Q. What period of gestation would be the earliest?
A. With luck, one would have the results on the
chromosome
(p. 94)
analysis by the time the tap is done. It might be four
weeks before one would have sufficient evidence.
JUDGE ADAMS: If you added the two weeks
and four weeks that you mentioned to the 16 weeks
you previously mentioned—-you indicated the time for
testing was not ripe until the 16-week period—you
are saying the cycle of gestation is 18 to 20 weeks?
THE WITNESS: Yes, sir.
a
Dr. Hope Punnett—Direct
JUDGE ADAMS: And the menstrual period
another two weeks?
THE WITNESS: Yes. I know that is nerve-
wracking for the person growing the cells and for
the family.
Occasionally, the cells do not grow and we don’t
know this for a week or ten days. The obstetrician
would go back and do a second embryotic tap, and
we hope the cells would then grow.
BY MS. WALLIS:
Q. Dr. Punnett, does Saint Christopher’s Hospital
abortions at all?
ae No. We have no maternity service in the hos-
pital whatever. We see patients referred to us by their
own obstetrician, and patients that come to us because
of their children diagnosed at the hospital. ;
Q. In these cases you would be seen by the family
who elected abortion and diagnostic procedure, where
would it be?
(p. 95)
A. It might be at any one of the number of differ-
ent hospitals, depending on the patient’s own obstetrician.
It might also be a patient who has come to us, whose
obstetrician is not skilled in doing taps. We might refer
that patient to Episcopal Hospital and Temple Hospital.
Q. Through your work you become acquainted with
the policies in various hospitals in the City of Philadel-
phia, with respect to abortion under these circumstances?
A. That’s correct.
Q. Now, we have heard testimony earlier making a
cut-off point of 20 weeks with respect to abortion.
55a
Dr. Hope Punnett—Direct
Is it your experience that that cut-off period applies
to genetic counseling services?
A. It is my understanding that once a study has
been initiated at 16 weeks—it is my experience that
the genetic counseling services will see the family through
to the logical conclusion, if that is concluded within a
reasonable time span.
I can’t say with any more certainty than that. I don’t
know about any other institutions; I only know about my
own patients. You can’t keep a family waiting 20 weeks,
and then tell them, “Sorry, we don’t know.”
Q. Have you had experience with Philadelphia hos-
pitals in performing abortions in situations where you have
been personally involved in the situation after 20-week
gestation?
A. I know of one where I have been involved.
(p. 96)
Q. How would an absolute cut-off point of 20
weeks affect genetic counseling?
A. It would be very, very difficult. One cannot
guarantee a family that we will have a result by a magic
date.
Sometimes this takes six weeks to get an answer.
One cannot do genetic counseling if you cannot follow it
to a logical conclusion.
A family will seek other means if at the end of the
20 weeks we still don’t have the answer. They may ter-
minate the pregnancy in what would have been a normal
baby; or they may carry it through with this awful agony
hanging over their heads.
It’s a smali number of families, but the personal
agony to them is awful. If you have seen a child die of
56a
Dr. Hope Punnett—Cross
tay-sachs disease, it is not something you wish on any
couple, particularly the other children in the family.
(p. 97)
Cross-Examination
BY MR. MANSMANN:
Q. Dr. Punnett, is that the correct pronunciation?
A. Yes.
Q. You have described what I understand is an ex-
tremely dramatic and horrendous burden on any family
to undergo. You described particularly the Tay-Sachs,
which is extremely difficult for the parents and for the
child infected with this particular disease. You have said
that science has been able to pre-determine who is going
to be a carrier, a potential carrier, of this particular dis-
ease; is that right?
A. Weare able to determine who is a carrier, that
is correct.
Q. Who is a carrier?
A. Yes.
Q. And you gave the percentage of 25 percent if
both members of the marriage are carriers?
A. That is correct.
Q. What if just one is a carrier?
A. Then there is no risk to the child.
Q. Do you have any idea of the number that is in-
volved, percentagewise, who would be carriers and of the
potential of producing such a child?
A. Approximately one in every 15 individuals who
is a Jew from Eastern Europe is a carrier of that disorder.
This means that the probability of two such
Dr. Hope Punnett—Cross oni
(p. 98)
people marrying is {15 times 115. At an
A y rate, one i
——. hundred matings would produce an affected child.
tis in that particular limited population, Eastern Euro-
pean Jews. The disease is seen in every population in the
world, but it is about 100 times rarer. We have seen it
in rere families, black families, Amish families
obody would suggest i popu
tion because it is too es gore rae onvae e
Q. Now we are trying to get an idea
of
you service, the number of couples you have boost =
A. We do a very small number of screenings be-
cause there is a major Tay-Sachs program in the City which
is run out of Jefferson Hospital. We don’t do general
screening. We only do family studies when a family com
to us with an affected child. 7
Q. Do you have any information
; as to the approxi
mate number that woul screenin?, i wt
ee t d go to the ing, is what I
A. Well, the aim is every Jewish family in this
oF aie
. To go the screening. E i
whose parents come from Eastern nes. gee Ped
Q. Do you know how many are found to be—
_ A. Of that 115 times 115, that is based on the sta-
Stee wed Cons in the number of cities in. the United
; t one out j
sig bee rg out of every 15 just from Eu-
(p. 99)
Q. Do you know approximately how many.
* * y i
the Philadelphia area, for example, that you wide te
58a
Dr. Hope Punnett—Cross
familiar with, the number who have this potential prob-
lem?
A. I don’t know what the Jewish population of the
Philadelphia area is; I am sorry.
Q. You do not know what the potential number
or probable number would be? If you don’t, say so.
A. No, I don’t know what the Jewish population
of Philadelphia is.
Q. You have recited to us a history of one family
who you counseled who decided to have the pregnancy
terminated; is that right?—after 20 weeks?
A. No. Actually it was a different genetic disease
which I mentioned that I know was terminated after 20
weeks.
There are in that booklet from the New England
journal a listing of several hundred diseases. I would say
about 60 of them are amenable to prenatal disease. Each
one is rarer, but once a family is identified because they
had a child they will come back for genetic counseling
and frequently for prenatal diagnosis, but not always.
Q. So that you know of one particular instance of
your own knowledge?
A. Yes, in which the testing for the particular ge-
netic disease took so long it was after 20 weeks when the
fetus was aborted.
(p. 100)
Q. Was this particular abortion carried out?
A. Yes.
Q. Ina hospital, I assume.
A. Yes.
Q. In the Philadelphia area?
A. Yes.
Q. Do you know of an i
= any other instances wh
was an abortion desired and not able to be saadad ——
A. I can’t speak .
confidentially. I don’t Smeg Sr Paowle’s expectonnes
Q. You don’t know?
A. No.
BY JUDGE ADAMs:
A. That is correct.
Q. But they may exist?
ed States they do beca . ;
able in every state. use genetic counsel service is avail.
BY MR. MANSMANN:
Q. But you do not know th
. at of yo
edge? It is based on your reading or w a be knowl-
(p. 101)
A. It is based on ;
neticists all over the mua. with other ge:
Q. This one instance that .
; you are talking abo
ag know the approximate gestation ons i “+ ; ut, do
€ time of the abortion? poe, a
A. I believe it to be about 22 weeks,
Q. About 22 weeks was the gestation?
A. Yes,
Dr. Hope Punnett—Cross
Q. This abortion was completed and performed
even though there had been a policy in the hospital against
that? . 7 , .
A. 1 don’t know what the particular hospital’s poli-
cy was. .
: Q. That was because of the hospital’s policy? We
have been talking about 20 weeks as being the hospital’s
te Oh, no. The statement was made that Jefferson’s
licy was 20 weeks. I know most hospitals and most
ssujiiiliin prefer that. Nobody likes to do a late abor-
tion.
In this case having started the study there was really
o alternative but to carry it through.
: Q. Of course, you are aware that the procedure that
you are describing, the amniocentesis is a fairly new pro-
cedure; is that right, as far as diagnostic purposes?
A. It has been used to diagnose Rh papers for quite
a while; but that does not involve abortion unless it aly
spontaneous abortion. But for genetic diagnosis I wou
say about five or six years.
(p. 102)
Q. You know from your studies that there are re-
ported cases where the diagnosis was improper; is that
wa I know of three cases in which the results did
not confirm the amniocentesis. These go back about four,
five years.
Q. Nothing more recent than that? ae
A. No, I do not know of any areas of diagnosis in
recent years. Every child that is aborted and every child
6la
Dr. Hope Punnett—Cross
that is carried to term after amniocentesis begins the tests
are carried out on the living child at the end of the gesta-
tion period.
Q. Is this out of the experimental Stage, the diag-
nosis?
A. Yes. There are sources of errors inherent in the
particular system.
If one had twins and didn’t know it and you did a
tap you would only get one twin.
Q. Or perhaps the fluid may have not been from
the—
A. One always worries when it is a female child
that one might have gotten somehow maternal cells.
Q. You are able to spot that error?
A. I would hope so. We have never had that ex-
perience, and I don’t know of anyone that really has.
The errors have not always been made in favor of
abortion. In one case it was a child that was allowed to
come to term who did have a very serious disease. So
errors
(p. 103)
go both ways.
Q. I would assume so, that they had made the diag-
nosis that were was no genetic effect.
A. That is correct.
Q. And the child was carried to term and did have
a genetic defect?
A. But the particular procedure that was used is
no longer used. A much more refined one for that one is
currently used.
Q. It is your testimony that this is accurate now?
A. For every genetic disease that I know for which
it is being used it is accurate.
62a
Dr. Hope Punnett—Cross
Q. There are other genetic diseases which you have
not mentioned ~vhich are in that exhibit, you don’t have
the problem—or do you have the problem with the late
diagnostic—
A. Any prenatal diagnosis is going to be in that
same time bind.
Q. So that you are talking about not only Tay-
Sachs?
A. I am talking about every disease. Anything
which requires a cell culture you have that time lag. Any
test that you can do on the embryonic fluid then there is
no time lag.
| Q. So that it has to be after the 16th week?
A. Or generally, yes.
Q. Generally?
A. Yes.
Q. This would be true of any genetic condition in
addition
(p. 104)
to Tay-Sachs?
A. Yes.
Q. But you would have a quicker decision in non-
cell growing type of diagnosis?
A. It happens to be the one you picked on, which
would be open spinabifida.
As common as prenatal diagnosis may be now I am
sure that in the next five years many may more of those
diseases will prove amenable to prenatal diagnosis, some
are common in the Caucasian population. Cystic fibrosis
is not now diagnosable.
Q. There is some progress made in these other ge-
netic defects of children born with genetic defects?
63
Dr. Hope Punnett—Cross :
A. Obviously if the child is salvageable and nobody
is going to be concerned about not allowing that child to
come to term.
Q. If a child is salvageable there is no problem, in
your opinion anyway, about allowing the child to come to
term?
s A. This again is a family decision. It is not my de-
cision to impose on the family.
MR. MANSMANN: I have no further ques-
tions.
BY MS. LEADBETTER:
Q. This is the booklet that you brought with you?
A. Yes.
Q. Mark it as Plaintiff’s Exhibit 7.
(p. 105)
(Exhibit P-7 marked for identification.)
Q. (Continuing) Drawing your attention to Page
3, this indicates, does it not, that Nadler and Gerbey had
no maternal or prenatal complications in the series of 150
pregnancies, amniocentesis having been done at 13 to 18
weeks gestation for diagnostic reasons; is that correct?
A. Yes. ;
Q. So some doctors who are working in this field
are doing amniocentesis as early as 13 weeks?
A. This paper is based on some early studics. The
general recommendation now is to do it at 16 weeks. Most
taps done at 13 weeks do not yield enough cells to grow,
and has to be repeated. This is a 1970 paper. That is
correct.
=a
Dr. Thomas W. Hilgers—Direct
Q. It could be tried as early as 13 weeks?
A. Yes, but to no avail and has to be repeated,
which is an added trauma for the pregnant mother.
MS. LEADBETTER: No other questions.
JUDGE ADAMS: Does anyone have any other
questions of this witness?
MR. MANSMANN: Your Honor, I would
change my motion to strike and perhaps we can do
this before the witness leaves in case there are any
other questions.
MS. WALLIS: May I speak to that motion?
JUDGE ADAMS: We are going to deny the
motion to strike at this time. It is always within the
ability of the
(p. 106)
Court to strike the testimony as it reviews the find-
ings of fact and conclusions of law. But as of this
moment it will not strike with prejudice.
* * * *
TESTIMONY OF THOMAS WILLIAM HILGERS,
M.D., TAKEN JANUARY 15, 1975
* s+ + *
(p. 237)
BY MR. MANSMANN:
Q. Now, could you tell me, Doctor, what the im-
mediate complications are generally of a suction and/or
D&C abortion? The immediate ones.
A. There are primarily three complications that are
significant: The first one being infection; the second one
65
Dr. Thomas W. Hilgers—Direct °
being hemorrhage; and the third one being perforation of
the uterus.
Q. O.K. Now, why is there danger from this
of abortion procedure? sie
A. Well, the abortion process is done or the tech-
nique of abortion is done in an area which, from a medi-
cal standpoint, is not a clean area.
Q. Now, when you are talking about it not in a
clean area, are you talking about the physical facility or
the part of the body?
A. No, that’s what I mean to clarify. The facilities
are clean and sterile in terms of bacteria and organisms
that can cause infection, but there is no technical way,
even with the use of various kinds of chemicals, to de-
stroy bacteria. There is no way that we can make the
vagina or the cervix in that area sterile. It is just a tech-
nical
(p. 238)
impossibility.
ioe So that any operative procedure done in this area
is liable to infection. The fact that it is a pregnant uterus
that we are dealing with does add to the fact that infec-
tion is a likelihood. The pregnant uterus is very rich in
its vascular supply. It is a sort of, what we would call,
a good culture medium. It has all the component’s neces-
sary for the growth of bacteria.
Q. And so this is the reason why infection could be
prevalent in this particular type of procedure?
A. That’s the underlying reasons, yes, and infection
occurs from between 5 and 10 percent of women who have
abortions.
pow
Dr. Thomas W. Hilgers—Direct
Q. Now, you are saying that 5 to 10 percent of
women who undergo a suction or D&C abortion would
stand the chance of having an infection; is that right?
A. That’s right.
(p. 239)
Q. And the next complication that you had men-
tioned is the hemorrhaging.
Could you explain to me and to the Court the reason
that a complication as a result of an abortion could re-
sult in a complication in the nature of hemorrhaging?
A. Well, again we are dealing with an organ which
has a very rich blood supply to it. Much more so than
the non-pregnant uterus. The pregnant uterus, because of
its contents, necessitates a very rich blood supply so that
in its termina-
(p. 240)
tion, its evacuation, there are blood vessels which are
literally torn through in the midst of the operation, and
there is a certain percentage of women where this bleed-
ing is not easily controlled and the bleeding will be of
significance, more so than there would be anticipated ex-
pected bleeding at the time of the operation, but in some
woman it is anticipated bleeding, and much more than
anticipated. It would then become significant.
Q. O.K. When it becomes significant, is that called
a major hemorrhage?
A. Yes, that’s one way of referring to it.
* * * *
(p: 243)
Q. And you have also talked about ;erforation and
you are talking about perforation of the uterus, I assume?
67
Dr. Thomas W. Hilgers—Direct :
A. That’s right.
Q. And I believe the Court has an understanding
as to the method that is utilized in this procedure, and
is it the introduction of the instrument that causes or pre-
sents the potential risk of perforation of the uterus?
A. That’s right. It is not in the process of dilating
the cervix or the mouth of the womb in which this oc-
curs, but it is in the curettage aspect or the scraping of
the womb by and large that this occurs either with the
suction apparatus or the scraping curettage, the two types,
and the perforating of the uterus occurs because this is
essentially a blind procedure, and the physician is not do-
ing the procedure under direct vision. He can’t see, for
instance, the top of the uterus or the womb when he is
doing the operation, and at times the instrument will per-
forate through and enter the abdominal cavity.
Q. And what is the consequence of thi .
foration? aa a
A. Well, it depends on where the perforation oc-
curred and to what kind of damage resulted. There are
certainly a large number of women who can have per-
forated uteruses and nothing happens to them. They are
only observed for 2% hours and the perforation heals
without any consequences, but more and more we are
seeing reports in the medical literature,
(p. 244)
particularly now in the United States, where the blood
supply, for instance, to the uterus, the major arterial blood
supply to the uterine artery is perforated and lacerated,
resulting, of course, in major internal hemorrhage or
where the bowel is perforated as well.
- +e
Dr. Thomas W. Hilgers—Direct
During the process of this perforation of the uterus,
it can result in infection and overwhelming abscesses,
peritonitis, and so forth.
* * * &
(p. 249)
Q. And, Doctor, are they the immediate and per-
haps because there is the three-week intermedial compli-
cation, that could reasonably be anticipated from an abor-
tion procedure?
A. Yes, I think so.
I might throw out one other that is perhaps more of
an—in terms of a minor problem, and that deals with
(p. 250)
retained placental products or product of conception, some
people like to refer to them. This is tissue that is left in
the uterus following the abortion. By and large this is not
much of a problem with the D&C type of abortion be-
cause the woman is scraped clean, but it is a little bit more
of a problem with the suction type of abortions.
Q. What is the effect on the woman if there is part
of the placenta remaining?
A. Well, it does a couple of things. First of all, that
tissue left behind is a good culture medium, as I referred
to before, in the sense that it can introduce bacteria and
be a stimulus for infection or site for infection, and the
other problem is that it doesn’t allow the muscle of the
uterus to work effectively and so hemorrhage is more com-
mon when this happens, but as a result of this, people
doing these procedures, by and large, follow up this suc-
tion procedure with a sharp curettage of the womb to pre-
vent these problems.
69
Dr. Thomas W. Hilgers—Direct ’
: Q. ; And that would generally prevent the problem
if there is a curettage after the suction is applied?
A. That's right, it prevents the problem of having
placental or tissue left behind. It doesn’t prevent the other
problems that I have referred to.
* * &¢ &
(p. 263)
Q. Doctor, we also had described to
the saline satiated
(p. 264)
and prostaglandin methods of abortion.
Can you tell the Court, briefly, what the medical com-
plications are from a saline-infused abortion?
A. The same kind of complications medically are
found in saline abortions as any other abortion, mainly
infection and hemorrhaging, primarily.
With a saline abortion, because it is more “normal,”
it requires going through a labor process of several hours,
there is a fairly high incidence in which there is retained
placenta material and retained tissue.
Q. How is that removed, the placenta, after abor-
tion?
A. It requires a curettage, or scraping of the womb
to remove the tissue.
Q. That requires the undergoing of a D & C?
A. Yes—not the “D,” which is the dilation, that
process occurred; but only the scraping of the womb.
Q. These complications, would they appear with
the same frequency, other than the retained placenta?
Would they occur with the frequency which you previous-
m4 — with the induced abortion by C section and
70a
Dr. Thomas W. Hilgers—Direct
A. They would be a little more common than they
would be for the first-trimester abortion.
Q. Would it be statistically higher?
A. From a clinical standpoint a little bit higher.
Q. The retained placenta, do you know how often
that would
(p. 265)
occur in a saline infusion?
A. 20 or 30 percent would be a ballpark figure.
with the use of saline or salt.
Q. Are they complications that the physician would
expect in a saline-infusion abortion?
A. These would be anticipated. There is one I
didn’t refer to that I should mention.
When a woman has a salt solution that goes into her
uterus, there is reaction that goes often into her system.
This occurs in a woman that has a saline-immuno infu-
sion. This one is a reaction that affects the blood’s ability
to clot.
In many women that would be a minor situation,
either to her or her physician. By chemical tests, we can
tell this is what happens.
In rare occasions the disruption in her blood-clotting
mechanism is so severe that she will have a maior bleed-
ing, much in the same way as a hemophiliac would have.
Q. Would this be in a small percentage of women,
Doctor?
A. The problems of the blood occur in almost all
women; but in any major degree, it’s a small percentage
of women. It’s small enough that we couldn’t put a per-
centage figure on it.
71a
Dr. Thomas W. Hilgers—Direct
However, this is a significant figure because of the
material deaths that have occurred.
Q. This would be reflected in mortality rates for
saline
(p. 266)
abortion?
A. This is significantly higher for first-trimester
abortion.
Q. Do the same complications that you previously
described as long-term, or latent complications—would the
physician expect to find them in a saline-infused abor-
tion?
A. Such problems as miscarriage and other kinds
of pathological problems, are not generally associated with
the salt-immuno procedure.
Q. As far as the long-term complications that you
just listed, you would not find that complication as a re-
sult of a saline abortion? .
A. Yes. With the exclusion of trans-placenta, those
are the same as the other abortions which problems are
unique with the first-trimester abortion, the D & C and
D & E. Many of them are associated with the problems
of widening, opening the mouth of the womb.
Q. Is that the reason they would not be anticipated,
because of a saline abortion?
A. That’s right.
Q. In the saline abortion, there is a more natural
process involved in that abortion?
A. Natural from this standpoint: it involves the
woman going through labor. It is unnatural from a lot
of other standpoints. The contractions that occur in labor
pains are much stronger, if you measure them with cer-
tain instruments
72a
Dr. Thomas W. Hilgers—Direct
(p. 267)
we use for that. |
You get a tear in the mouth of the womb following
a salting-out procedure, a complication I will not refer
to, but there have been a number of cases on that.
Q. Would that result in scarring, Doctor?
A. It may, but not necessarily in the same problems.
Q. Doctor, in the prostaglandin abortion, would the
morbidity rates be about the same as the abortion infused
by saline?
A. I think from my own investigation, the morbidi-
ty rates are about the same. We still don’t have enough
information with regard to prostaglandin abortion to know
it is higher, lower or about the same. The indications are
that they are comparable.
Research in prostaglandin as to their use has only
been going on for about four years. It will take more
time to throw out a line on it.
Q. Would the prostaglandin procedure—would that
be safer from a mortality point of view than the saline?
A. I can’t imagine it would be safer. But, frankly,
we don’t have good, solid information yet because it is
quite new.
I can’t imagine it would be safer than the salting-
out procedure.
Q. Now, Doctor, there is one method left, the hys-
terotomy method.
(p. 268)
It has previously been described as a miniature C-
section. Is that accurate?
A. From a surgical standpoint, that is reasonably
accurate.
73a
Dr. Thomas W. Hilgers—Direct
Q. What complications arise from a hysterotomy?
A. The hysterotomy abortion carries with it the
highest mortality rate for all procedures of abortion.
In New York there was 350 per 100,000, and that
has been reduced to 200 per 100,000.
In the hysterotomy you run into the same problems
as any major abdominal operation. The overall incidence
of complication runs 35-45 percent, which includes in-
fection and hemorrhage, primarily. There are other nu-
ances, but they are the primary ones involved.
Q. Do you know what the percentage the physician
could expect as far as hemorrhage and infection in hys-
terotomy?
A. 35 to 40 percent.
Q. Would the performance of a hysterotomy nor-
mally require having subsequent children by C-section?
A. As a general rule a subsequent child would have
to be delivered by C-section. As a general rule that would
be accepted medical practice.
Q. What is your medical opinion where all of these
procedures should be performed?
A. I think they should be performed in the hospital
setting with the proper kind of back-up, blood teams and
other kinds
(p. 269)
of specialities; a cardio-pulmonary resuscitation team
would be available, and the whole gamut of expert care.
* * * & :
(p. 285)
Q. Doctor, you testified that one of the leading
causes of motor and mental retardation was premature
birth to the extent it occurred.
A. That’s right.
74a
Dr. Thomas W. Hilgers—Direct
Q. Can you tell me whether or not the possibility
of such mental and motor retardation would be apt to
apply to a fetus born and maintained in life, delivered,
say, between 20 and 30 weeks. Would there be a risk
of this problem?
A. There is a risk of this problem with any infant
born prematurely.
Q. Can you relate the risk which would occur or
which would be endured by a fetus of less than 1000
grams, say, to a fetus of around 2500 grams or slightly
less?
A. Oh, the smaller the infant, of course, or the more
premature the infant, the greater the chance that this is
going to occur. In fact, that’s where the modern thrust
or the thrust of modern obstetrics really is, in the preven-
tion of premature birth, as much as we possibly can.
Q. Let me ask you this. If we had an infant de-
livered at, say, 600 grams, and we were able to maintain
life, can you give the Court an estimate of the possibility
of mental
(p. 286)
or motor retardation of significant symptoms?
A. Well, it depends on what you mean by “sig-
nificant.”
Q. I will withdraw that. You define it however
you like, Doctor.
A. Well, that is still a good question because I am
not sure that I can give you a good standard medical defi-
nition of what the significance is from a motor retarda-
tion or a mental retardation standpoint.
I can tell you that for an infant delivered below 1000
grams, and I must qualify this to a certain extent because
75a
Dr. Thomas W. Hilgers—Direct
I am recalling on my memory, but, as I recall, the inci-
dence of mental and motor retardation runs in the range
of about 15 to 17 percent.
Now, I must say that there are—
Q. lam sorry, I didn’t hear the percentage.
A. 15 to 17 percent.
Q. Thank you.
A. But I must quickly add to that that there are re-
cent publications now coming where these high risk in-
fants are receiving a particular kind of intensive care and
they have been followed up now to the degree where these
kinds of problems are being either prevented completely
or being markedly decreased in terms of their intensity.
Q. You would hope to reduce the risk as time goes
on, I assume?
(p. 287)
A. Well, there are two ways of approaching the
problem: One, to treat infants, and this is where we have
a great deal to go in terms of our medical knowledge.
The other is to keep the infant in its best location,
which is in the mother’s womb, and I think that is where
the general trend of American obstetrics is headed in terms
of the world situation, is to try to avoid premature birth
if at all possible.
It is very difficult to take a simulator or artifically
produce the conditions which are beneficial to the child
while in the womb.
Q. In order to understand the context in which you
were working with that statistic, the 15 to 17 percent, I
just want to ask you a couple of clarifying questions; one
of which are we talking about a premature infant of 1000
76a
Dr. Thomas W. Fiiigers—Direct
grams or slightly less handled in a specialized or inten-
sive care situation?
A. Not necessarily, no. We are talking about the
general handling of these infants.
Q. Inan ordinary as opposed to a non-teaching hos-
pital?
A. That’s right.
Q. Then you feel that with neonatology and with
specialized equipment, we might be able to improve birth
rate?
A. I think that we will be able to improve that, but
we will never be able to overcome it, I am sure.
(p. 288)
Q. Secondly, as a matter of context, does the 15
to 17 percent relate to all births at this age or to those sur-
viving for some period of time, and, if so, what period of
time?
A. It refers to those who survive and obviously the
ones who die, it is not a question of mental or motor re-
tardation.
Q. Yes, you are excluding them from the popula-
tion?
A. Sure.
Q. And what, if you will, lengths of survival is nec-
essary to determine the probability or the incidence of
this mental or motor retardation?
A. Well, that is a difficult question for me to an-
swer since I am not directly involved with either the study
or the care of these infants. That is not my field of ex-
pertise.
Q. O.K.
77a
Dr. Thomas W. Hilgers—Direct
Doctor, I want to ask you to give us, if you will,
your opinion in gestational age of viability, and I will de-
fine the term for you, if I may.
I would like to define for you or for you to use this
definition: Viability means capability of a fetus to live
outside the mother’s womb albeit with artificial aid, and
you may assume that the artificial aid is not the intensive
aid available only in a teaching hospital for the purpose
of the definition I am giving you.
Could you tell us at what gestational age in your
opinion, that status; that is, viability, is attained?
(p. 289)
A. Well, first of all, in my opinion, one cannot give
a specific gestational age. The concept of viability as you
have defined it depends on a number of factors.
Q. You may wish to indicate to the Court, inci-
dentally, your reservation about the usefulness of the defi-
nition at all in terms of your own philosophy.
A. Well, I can only say that from a practical medi-
cal standpoint the term viability as referred in general
to the kind of definition that you have given, the ability
for the child to live independent of the mother, but the
determination of when a child is or is not viable is one
that can never be accurately determined before the child’s
birth. Some reasonable judgment can be made regarding
it.
One has to put together though a number of factors.
One has to put together the history, the medical history
of the woman; when her last menstrual period is. One
has to consider the size of the infant. Most medically ac-
cepted concepts talk about 500 grams.
ae
78a
Dr. Thomas W. Hilgers—Direct
As a matter of fact, there have been recorded inci-
dents of children living on to adulthood at smaller than
500 grams; as low as 370 or 380 grams so that the size,
weightwise, of the baby would be quite an important con-
sideration.
Gestational age does fit into sort of the multi-factor
approach one has to come to deciding whether
(p. 290)
a child is viable or not, and I think the consideration of
what facilities are available in a community also enters
in. Certainly the medical center, where there is well quali-
fied or very specialized, if you will, medical care, the
concept of viable will have a little bit different meaning
than it will have if you are out in a rural area where we
have no such facilities, and certainly one thing we do know
is that viability is being pushed back and back.
Q. Let me ask you another question along that line.
I realize that it makes it difficult to answer, and I will
allow you to define the terms any way you like, if you
wish, but I again want to use the definition of my ability
I gave you; that is, the ability of the fetus to live outside
the womb albeit with artificial aid.
I want to ask you, Doctor, if you w8uld give us the
factors or the gestational age which would allow you to
determine, or at which point you could make a determina-
tion that 2 fetus is viable or that there is sufficient reason
to believe that the fetus may be viable exercising your
professional skill and care. Can you give us a gestational
age or some other factor which would relate to that to
permit you to make the determination?
A. Well, I think what I just completed saying was
that for me to make any reasonable judgment regarding
79a
Dr. Thomas W. Hilgers—Direct
viability, and it would not in any way be infallible judg-
ment, for me to make
(p. 291)
any sort of reasonable judgment regarding it, I would have
to consider a number of variables.
One is the gestational age. One would be the size
of the infant as I would estimate, or guesstimate as we
would say in obstetrics, because it is very difficult by ab-
dominal aid, feeling the mother’s womb, abdomen, that
would require investigating her past medical history; when
her last menstrual period was; whether or not that fits in
with the size of her uterus, and certainly in terms of what-
ever medical facility might be around in the area at the
time, and whatever kind of medical advances we might
be working on at the present time also.
Q. Can you give us, if you will, assuming the medi-
cal facility available in a normal hospital, but not a teach-
ing hospital, those indications in terms of weight which
you are able to palpate or X-ray and gestational age as
you term it from the history given you by the woman, at
what point you yourself would reach the professional
judgment that the fetus may be viable?
A. I think that if one has a reasonable judgment
medically that the woman is four and a half to five months
pregnant, both from terms of the size of her uterus, and
in terms of her past menstrual history, and if the child’s
estimated size were over 400 grams, by estimation one
could make a reasonable judgment that this baby has now
reached that point
(p. 292)
of what we call viability, but I must say that—
Q. That is a might be viable proposition, right?
ha
Dr. Thomas W. Hilgers—Cross
A. That’s right.
Q. Go ahead. You were going to say, “I must
say.”
A. Well, I must say that the determination of a 400-
gram size unborn infant is very difficult.
Q. All right.
Now, Doctor, if you were to attempt, given the de-
termination, the factors as you have outlined; e.g., an
infant of something on the order of 400 grams, and |
think you said five and a half months pregnancy; that you
desired to give that infant the best chance of survival al-
though you were going to remove it from the womb,
what procedure would you use?
A. If I were to give that infant the best chance of
survival given—
Q. The factors you enumerated. How many months
was it?
A. Given removal from the womb?
Q. Yes.
How many months did you indicate?
A. Four and a half to five months.
Q. Four and a half to five months, at 400 grams,
approximately slightly more.
*-* *® |
(p. 294)
BY MR. MORRIS:
Q. Doctor, you have now read Section 5-A of what
is referred to as the Abortion Control Act in Pennsylva-
nia, and what I want to ask you is under that section if
you were to exercise that professional skill, care, and dili-
gence which would preserve the life and the health of
the fetus, as well as the life and the health of the mother,
8la
Dr. Thomas W. Hilgers—Cross
as indicated in that section, with all the other qualifica-
tions of that section, what procedure would be used to
deliver a four and a half to five month fetus which
weighed 400 grams or so?
A. I would think that the use of prostaglandins
would probably be the best procedure to use.
Q. And what would be the*thances of survival of
that fetus if you used that treatment?
A. Well, it depends on another variable. Viability
depends not only on some of the factors that I have ex-
plained but it also depends on racial differences.
As a matter of fact, black infants have a viability
that is much earlier than white infants, for example.
Q. I am asking you to assume then, if you will, a
black infant. What would the chances of survival approxi-
mately be for that infant?
A. O.K. If the infant is at approximately 20 weeks
gestation,
(p. 295)
survival through the neonatal period would be in the
range of 20 to 21 percent to make it through the first
month of life, and this is based on a study done in New
York City of 650,000 live births broken down by gesta-
tion age and by weight.
Q. And I take it some 15 to 17 percent of those
might have motor retardation or some form of mental
problem?
A. I am not advocating that this be done, sir, so
I—you know, I hope that that can be understood. I could
not be doing this for a number of reasons, one of which—
Q. Why would you not be doing it?
8B
Dr. Thomas W. Hilgers—Cross
A. Well, one of them, the exact thing that you are
talking about, the problems that one has in terms of pre-
maturity, and my role as an obstetrician is to take care as
best I possibly can of two individual patients.
If I am going to risk the premature birth of a child,
I am doing a great disservice to that child, and I would
not perform this procedure as a result of that. I can pre-
vent that problem, that 15 to 17 percent, easily.
Q. The best way, I take it, in terms of your advice,
is unless it is an otherwise normal pregnancy, to preserve
the life of the child would be to carry it to term?
A. Oh, yes.
Q. Doctor, I notice you selected prostaglandins for
this procedure under 5-A rather than hysterotomy, or per-
haps it
(p. 296)
would be called a Caesarean section if it would be a live
birth. Why?
A. Well, the prostaglandins, I think, are probably
safer than a hysterotomy, and as I indicated before, we
don’t have all clear information yet on prostaglandins, but
from what we do have, I would think that they would
be quite a bit safer than a hysterotomy.
* * * *
(p. 299)
Q. Doctor, our last question related to the 15-to-17
percent which you related when you were discussing mo-
tor retardation.
I ask you if you can, using Exhibit 6, clarify that
statistic which you gave us?
(Handing P-6 to the witness.)
Deposition of Dr. Gerstley _
A. The incidence of mental retardation i
=e tion is 3.5 -
cent for infants weighing 1500 to 2500 grams; the athe
ture group is 7.4 percent; infants weighing |
tact , ess th
grams, the incidence is 17.7 percent. moe ete
That indicates what I was saying. th
Mi.
Q. Lastly, as you have used the materi
* 4 . " al f
viding the statistic, what in terms of severity do senntaih
fy as mental or motor retardation?
A. The data as I just presented it j
down in terms of degrees of severity. slip
We are talking about children who will become cere-
bral palsies, some children will have gross motor retarda-
tion and mental retardation.
As to severity I don’t have that broken down and |
don’t recall from my source of information what that
breakdown would be.
** * &
TRIAL TESTIMONY TAKEN JANUARY 16, 1975
(p. 332)
MRS. MANSMANN: From the deposition of
Dr. Gerstley. Since I am not certain we have pre-
viously identified it, it was taken November 21, 1974.
Present for Dr. Gerstley is Miss Sharon Wallis: for
the Commonwealth Mr. Mansmann.
At Page 13:
“Q. Is prostaglandin a fairly new method?
“A. Yes.
“a. Have you any experiences with that?
‘A. Have I used it myself?
84a
Deposition of Dr. Franklin
“Q. Yes.
“A. No.
“Q. Your hospital?
“A. Yes.
“Q. Do you have any reports back on the success
or lack of success?
“A. It is by and large a quite successful method.
It is not quite as successful as the saline method in terms
of the fact that with a saline usually a single injection will
produce the abortion in time, whereas
(p. 333)
prostaglandin you may have to go to repeated injections
for it to be successful. Granted those two things, I think
one method is just about as successful as the other.”
MRS. MANSMANN: Back to the deposition of
Dr. Franklin at Page 33:
“Q. What about prostaglandins, have you had any
experience with it?
“A. No experience with it.
“O. Do you have any knowledge of it?
“A. Ihave done some reading.
“Q. Do they carry the same life threatening—
“A. No. A small volume of prostaglandin can be
induced into the uterus. It goes into the cervix. You can
put a tube into the cervix and put the prostaglandins in,
constrictions ensue and the patient aborts.
“Q. What effect does that have on the fetis?
“A. I don’t know. I have no idea as to whether it
has any effect on the fetus or not.
a 85a
Deposition of Dr. Franklin
“Q. Do you know whether or not the saline does?
“A. Yes, I do. Saline does the fetus in. It kills the
fetus.”
* es: ¢* ¢
(p. 341)
“Q. Do you agree there is one aspect present in the
abortion procedure that is not present in the other repro-
ductive surgical procedures and that is the potential life
that would be there.
“A. Yes, I agree with that.”
MR. MORRIS:
“Q. And do you agree that at some point—and this
is probably your own philosophical reasoning—at some
point there is an interest in the preservation of that fetus?
“A. Not necessarily. I have thought a lot about this
question and I believe that life is extended to a fetus or a
baby capable of living, if the baby is neglected
(p. 342)
in some way, that does not live, so that one of the pre-
requisites for life is that someone wants you to live. It
may be that they want you to live enough to start an i.v.
or to put you on a breathing machine or ventilator but
it simply may be that you can be brought into a household
where you are fed and sheltered and clothed but the mes-
sage is you are not wanted, and I believe there is good
documentation of absence of growth in children for emo-
tional reasons, namely, societal rejection, and there is a
famous paper from the 30’s of a nursery where babies
were attempted to be raised in total asepsis, no bacteria
at all, and these babies died because they were not han-
dled, not talked to, in fact, neglected. So my own philo-
OS ee
86a
Deposition of Dr. Franklin
sophical definition of life necessitates other human beings
who want you to live. That is why I regard this thing,
again, as a piety. It is not practical. If the State legisla-
ture wanted to do something, they should provide stipends
to single mothers, they would provide day care centers,
they would provide rewards for having babies. What they
are providing is punishment for having them or punish-
ment for having the abortion, excuse me. Welfare moth-
ers would not qualify in this case. She would have to find
the money in this case.”
MRS. MANSMANN: Again reading from Dr.
Franklin’s deposition at page 18. The discussion was
with a saline infusion. The question is:
(p. 343)
“Q. Is this done as an inpatient procedure all the
time?
“A. Not constantly. There are some areas where
physicians have reported doing it as an outpatient pro-
cedure.
“Q. What would your medical opinion be on the
advisability of that?
“A. Not taking a great deal of risk to do it as an
outpatient procedure. From the psychological, I would
view the procedure as far more difficult than the suction
abortion and, therefore, require more support of the pa-
tient.
“Q. Using one of those procedures, it would be of
more psychological harm?
“A. The woman is having 8, 10 hours of contrac-
tions similar to labor, and to send her home to an environ-
ment you know nothing about seems to me inhumane.
ee 87a
Dr. Wiiliam ]. Keenan—Direct
“Q. And is the fetus expelled?
“A. The fetus is expelled and the placenta is usually
expelled. Sometimes you have to help that out. Some-
times it is incompletely expelled.
“Q. That is incomplete?
“A. Yes.
“Q. Does that require some surgical—
“A. Yes, to get the remaining placenta out.
(p. 344)
“Q. Is the fetus expelled in what form, that the
woman could see the fetus?
“A. Oh, yes. Fetus is expelled either covered by
the sac or simply as fetus with the cord attached.”
TESTIMONY OF WILLIAM J. KEENAN, M_.D.,
TAKEN JANUARY 17, 1975
(p. 530)
BY MR. MANSMANN:
Q. Will you tell the Court, please, Doctor, what the
relationship is between the mother and baby while the
baby is in-utero?
A. Well, the baby is obviously depending on the
mother and father for conception and well-being.
While the baby is in-utero it depends on the mother
for oxygenation and nutrition across the placenta; and is
dependent upon the mother for temperature control and
being warm.
= ssa
Dr. William ]. Keenan—Direct
Q. So that the baby would depend on the mother
for warmth, nutrition and the supply of oxygen; is that
correct?
A. That’s right.
Q. Are there any functions for which the baby de-
pends solely on the mother?
A. Well, in the last 20 years there has been consid-
erable research in this area. More people are beginning
to touch on the area of the metabolism of the fetuses and
nutrition of the babies.
In terms of independent function, most of the things—
as an example, thyroid hormones, which is
(p. 531)
necessary for growth—we are all familiar with people that
have a malfunctioning thyroid gland—the baby depends
on itseif for that.
In terms of the baby’s insulin, insulin is secreted by
the pancreas, which is obviously an independent function
of the baby.
The baby’s independent functioning is measured by
12 weeks’ gestation, so that the baby has evidence that
his own functioning is doing the job. Most of that is done
in Pittsburgh, by the way.
Q. Thank you. Doctor, can you give us any other
examples for which the baby is responsible for himself
or herself, and not dependent on the mother?
A. There’s a lot of them. For instance, the baby is
on circulation, and all the physiologic functions we have
obviously are developments and the baby—by eight weeks
the heartbeat forms, and we have been able to use ad-
vanced technology to detect the baby’s heartbeat and cir-
culation in 12 weeks.
89a
Dr. William ]. Keenan—Direct
Q. Now, during the course of this trial we have
heard the process called amniocentesis. Can you tell us
what that is, Doctor?
A. Well, that is using a needle to puncture the
woman’s abdominal wall, which goes through the wall
of the uterus and into the amniotic sac, and a sample of
that fluid is
(p. 532)
drawn for analysis.
Q. So that the fluid withdrawn is the fluid of the
baby?
A. The bulk of the fetal urine is the baby’s as well
as the amniotic fluid, and the baby excretes it through his
kidney.
Q. At what period of gestation is this procedure
normally done?
A. We do quite a few amniocentesis. I work in a
city.
It depends or. the indication. We normally start that
at about 20 weeks’ gestation. We check throughout the
pregnancy.
Q. When would the earliest period of gestation be
in which amniocentesis would be generally carried out
on the mother?
A. In our hospital, Cincinnati General Hospital, the
routine is to do it at 14 weeks.
Q. Would this be the time at which this procedure
would be completed for the purpose of detecting a possi-
ble Tay-Sachs problem in the child?
A. This is a routine where if the family is suspected
of Tay-Sachs disease, the system as it works in our hos-
pital is to schedule amniocentesis for 14 weeks.
Dr. William ]. Keenan—Direct
Q. Doctor, is there, while the baby is in-utero, a
period in which there is a gas exchanged within the fetus?
A. The baby is constantly—there are two organs in
the fetus designed for gas exchange; one is the placenta
and the
(p. 533)
other is the lungs.
The baby does not use the lungs for respiration in-
utero. Beginning at 12 weeks there are various vigorous
respiratory movements of the fetus.
The baby circulates blood through the placenta,
which is his organ, and it also picks up nutrients.
Q. The exchange is done through the placenta origi-
nally; is that correct?
A. Yes.
Q. Is it done through the placenta the whole time
that the baby is in utero?
A. Yes.
Q. At that time there is also the development of
the lungs?
A. Yes.
Q. Can you tell the Court when the first marked
development occurs in the fetus?
A. There are several times that we use to teach
medical students. To illustrate, the development is a con-
tinuing process.
One of those landmarks is 8 weeks’ gestation when
the organ development is complete. At that time the baby
has all the organs that he ever will have. He has a liver,
spine, et cetera. ,
The organ genesis is complete at 8 weeks.
Q. When is the heartbeat first able to be detected,
Doctor?
9la
Dr. William ]. Keenan—Direct
(p. 534)
A. The heartbeat is formed by 8 weeks, and is
probably beating at that time.
In terms of documentation, it is 12 weeks by using
ultrasonic techniques which are readily detectable.
Q. In other words, the heartbeat is able to be de-
tected between 10 and 12 weeks of gestation?
A. Ye.
Q. What about the development of the fetus when
it reaches 20 weeks’ gestation?
A. That would be a premature infant. The skin is
thin at that point. A black baby is a black baby; a white
baby is a white baby.
The babies in my experience, in terms of the lung
development at that time, for a period of the time the
baby is able to exchange gas at that time, and there is
vigorous respiratory movements in terms of picking up
oxygen and getting rid of carbon monoxide.
Some of those babies develop infection and other
things and others go home.
One had to change our opinion a little bit as to pre-
conceived notions. We talk about a baby that we see at
20 weeks’ gestation, and there is respiration and ventila-
tion at that point.
Q. You are talking about exchanges of gas in the
lungs as opposed to through the placenta?
(p. 535)
A. Yes.
Q. Do these 20-week babies survive?
A. Not in our experience, no.
Q. What is the development of the fetus at 26
ks?
92a
Dr. William ]. Keenan—Direct
A. At 26 weeks, if you continue along the same line
looking at ventilation, the baby does have vigorous respira-
tory movement, does exchange gas and many of these ba-
bies survive to go home.
There may be some sort of change in the baby’s pul-
monary functions at that time.
Q. As the fetus matured from 20 to 26 weeks, that
gives the baby a better chance of survival; is that correct?
A. Yes.
Q. There is an increased ability to exchange gases
without dependence on the placenta?
A. Yes. The study of pediatrics is growth and de-
velopment.
Q. Is there a high mortality rate in the 26-week fe-
tuses?
A. There are. As the gestation plods along the line,
there is an increasing mortality as the baby increases in
development.
(p. 536)
Q. Could you tell us about a baby who is between
26 and 28 weeks of gestation, what would his chance of
survival be?
A. In the nursery that I am, you know, primarily
responsible for, which is the Cincinnati General Hospital,
which is a hospital by charter in Cincinnati that takes care
of the indigent patient, our experience over 1973-1974
with 65 babies in that range that you are talking about.
Q. Between 26 and 28?
A. Yes, is 50%.
Q. What about the rate of survival in a 28 to 30-
week baby?
93a
Dr. William ]. Keenan—Direct
A. Well, it goes up dramatically. In our experience,
60% survival.
In a recent article in a journal called “Pediatrics”
in December of 1974, they had a 75% survival in that
weight group category.
Q. And in your experience about 60% and you
know of studies that indicate a 75% chance of survival in
a 28 to 30-week baby?
A. Yes.
Q. Doctor, I am going to read to you from the Penn-
sylvania Abortion Control Act a definition, and I am quot-
ing, “Viable means the capability of a fetus to live outside
the mother’s womb albeit with artificial aid.”
Could you tell us if you would be familiar with that
definition?
A. Yes, I am.
(p. 537)
Q. And is it a standard recognized medical defini-
tion of that term, viability?
A. Yes, it is.
Q. In the course of your practice have you had oc-
casion to determine whether or not a fetus is viable?
A. Yes, I have, frequently.
Q. How frequently is “frequently’’?
A. Well, probably not daily, but certainly weekly.
Q. And would you describe to the Court the method
that you would utilize in determining whether or not a
particular fetus is viable?
A. Well, on the basis of practice and what every-
body does in their approach is first you obtain a history
from the mother, just like we would ali have histories ob-
tained if we went into the hospital, and with particular
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Dr. William ]. Keenan—Direct
attention directed towards her menstrual history, menstru-
al dates, trying to determine what time conception took
place by using her menstrual history.
Then in addition to that, every woman would be ex-
amined externally, by hand, to try to determine not only
to look at the height, how much the uterus has grown in
total, but also to try to feel for the baby’s—the size of the
baby’s head and the size of the fetal small parts, or hands
or feet.
Q. And this is done by an external examination?
A. Yes.
Q. What is the importance of the menstrual his-
tory?
(p. 538)
A. Well, the menstrual cycle either—well, men-
struation either ceases or markedly changes after concep-
tion and so we can take the change or the cessation of
menses to indicate what time conception took place.
Q. And the reason for the examination as to the
size of the uterus or the abdomen, what is the purpose—
what are you trying to learn from that examination?
A. Well, in general the assumption is that this baby
is—the more mature the baby grows, and you are attempt-
ing to find out the size of the baby by looking at the size
of the uterus and the cavity the baby’s in, and to look at
the size of the baby, too.
Then you try to put them both together and come up
with a reasonable estimate of what gestation is at that
point.
Q. When you are doing that, would you rely on
your medical judgment?
A. Yes, sir.
95a
Dr. William ]. Keenan—Direct
Q. Is this routinely done in hospitals?
A. Yes, it is a standard the people use every place.
If I went to Green County Hospital, which is a hospital
that delivers about 400 babies in Ohio, they do exactly the
same thing.
Q. So it would be an ordinary procedure?
A. Ye.
Q. And a readily recognizable procedure in deter-
mining whether or not a particular fetus is viable?
(p. 539)
A. Yes.
Q. After you had finished your examination, how
do you make your judgment on whether or not the fetus
is viable?
A. Well, you put the information together, and us-
ing a double standard—not a double standard, that’s not
a good word.
You are using two standards of measurement of ges-
tation and checking one against the other side. Add the
information together and with your previous experience,
you’ve come up with an estimate of gestational age.
Now, there are limitations within that in that if ]
know that I am not a good examiner, for instance, that I
really from my previous experience can’t tell whether a
baby is one pound or eight pounds, I would put less reli-
ance upon that and often—I know a man that I practice
with—an obstetrician relies on a certain nurse to tell him,
you know, what size she thinks the baby is because he
knows that she is more reliable. She has better hands
than he does.
Q. So this is part of the process of your making
your reasonable medical judgment; is that right?
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Dr. William ]. Keenan—Direct
A. That’s right.
Q. Do you use any external data, too, in forming
your opinion as to whether or not this baby is viable?
A. Well, by “external data,” the way I would in-
terpret that is to mean in previous experience what babies
do and what they don’t do at a given gestation so—
(p. 540)
Q. It would be that type of information that you
would use?
A. Okay, yes. You know, the obstetricians are up-
to-date about what our current experience is with a baby
of any given gestation.
Q. Doctor, would you be able to base your decision
on gestational age alone?
A. Well, not reasonably. I think that’s an unrea-
sonable thing to do, take a single parameter and make a
judgment on that. In just about every test we have there
are certain fallible points and sources of error so I’d say
no.
Q. And the reason for that is what?
A. Well, the mother may not remember her dates
or if she remembers them, there may be things that influ-
ence those dates. For instance, if she has had cessation
of menses but she has also had some emotional problem
around that period of time, and they may not be pregnant
until later, or sometimes in certain women she may have
close to a normal menstrual period once or twice after
conception, and so you take in, you know, not only was
there menstruation, but you know the character of the
menstruation and the character of the mother, the moth-
er’s previous menstrual history; if she has had regular
97a
Dr. William ]. Keenan—Direct
cycles, and you would put more reliability on that than if
she has had irregular cycles.
Q. Doctor, would you be able to base your deci-
sions as to whether or not this particular fetus is viable
on the baby’s
(p. 541)
size or weight as you determined it and approximated from
the external examination?
A. No. There are failings of that approach by it-
self, too, in that one is the failing of the examiner; the
fallibility. There is a certain error that you would expect
that you are within a half a pound, for instance, in your
estimate, or you are within a pound, but, you know, it en-
compasses One or two weeks or three weeks, maybe.
So there is some error in there and then in terms of
the baby’s growth, you are estimating size and trying to
assess maturity and gestation, and some babies grow faster
than normal. Like infants of diabetic :nothers, for in-
stance, become abnormally large at a given gestation. So
that would temper you; the mother’s history of diabetes,
and some babies grow slower. A mother with chronic hy-
pertensive disease, which is a common illness in our hos-
pital, the babies may not grow as quickly for a given ges-
tation.
Q. So that you would balance these particular fac-
tors?
A. Yes, balance one against the other and then come
up with an estimate based on a combination of informa-
tion and how each piece of information fits in with this
individual case.
98a
Dr. William ]. Keenan—Direct
Q. Okay. Are there some new techniques being ex-
perimented with or developed which would aid the physi-
cian in determining viability?
A. Yes, there are, and most of these techniques are
currently
(p. 542)
pretty much within teaching hospitals and experimentally
the error and fallibility and reliability of those techniques
are being worked out.
The things that we use are amniocentesis and things
to measure, for instance, the number of baby cells within
the amniotic fluid, so we take over, say, an ounce, and
then count the number of fetus—mature fetal cells with-
in that, and then that increases with gestation.
There are certain things that the baby usually puts
out in his urine, which we all have in our urine, which
increases in concentration with the size of the baby.
Q. This would be another key for you to use to
determine what the maturation and gestation of this par-
ticular baby is?
A. Yes, and, you know, another promising tech-
nique we are using is sonar or ultrasound where you
bounce a sound wave off of the baby and pick it up and
then by changing the position of your sonar recorder, you
can measure the size, for instance, of the baby’s head, and
the diameter, and so you’re looking at a measure of fetal
growth, and that has a least‘some of the sources of error
that we talked about in terms of the baby’s growth versus
his maturity, but it is a very promising technique, I think.
Q. Would that be able to be utilized alone as the
determining factor of viability?
a 99a
Dr. William ]. Keenan—Direct
A. No, no, that would be—we would not do—we
do ultrasound
(p. 543)
diagnosis, but we wouldn’t put reliability on that. That
would not be good judgment to put our reliance on that
measure, no.
Q. That would be a more accurate way than by
hand, I assume?
A. It seems to be. It may prove out that way. We
have to get more information really.
Q. And is this the same procedure with the sonog-
raphy, is that used to measure any other portion of the
baby?
A. Yes. Well, I mentioned previously that you can
use it to record the movement of the heart, the contrac-
tion of the heart, and, you know, it is a very nice tracing.
You can use it to measure the baby’s—you know, the cir-
cumference, diameter of his head, and you can measure
his length. You move the probe down the abdomen along
the axis of the baby, and you can pick up the length of
the baby.
Q. Is that what is known as crown-rump length?
A. Yes, crown and rump, yes.
Q. And that again gives you an aid in determining
the maturity or size of the baby; is that right?
A. Yes, right.
Q. Could you use that as the sole factor in deter-
mining whether or not a baby is viable?
A. No. Again there are some sources of error in
the measurement itself people recognize—people who do
ultrasound recognize, and then there are sources of error
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100a
Dr. William ]. Keenan—Direct
just from the growth of the baby. You have an average,
but the average has a deviation so
(p. 544)
you wouldn’t put all your eggs in one basket again.
Q. So you would use a combinftion? For example,
if you were in a teaching hospital, you would use a com-
bination of all or some of these tests or procedures?
A. That’s right.
Q. And if you were in a non-teaching hospital, you
would use the physical examination that you have de-
scribed to us?
A. Ina teaching institution we use the history and
the size of the baby determined from external examina-
tion.
Now, in the problem patient, you know, we suspect
the growth, that it may not be normal, and things like that,
we would go ahead and use other procedures. We don’t
use those routinely either and they won’t—I doubt if they
will come into routine use.
Q. Okay. So that is for the problem child that you
are concerned about some growth problem?
A. That’s right.
Q. So that even in a teaching hospital you would
utilize the procedures that you have indicated to us?
A. That’s right.
Q. Doctor, would you be able to or are you able to
state with reasonable medical certainty the viability or the
same situation will exist in every particular case?
A. No. If the mother has an infection, for instance,
that would enter into your judgment whether this baby is
viable in a
10la
Dr. William ]. Keenan—Direct
(p. 545)
mother with an infection, and in a 25-week fetus, I think
the chances for that baby are very grim. Whereas, the
same baby, say, with a mother who has had good nutrition,
she has had good pregnancy history, you have good reli-
ance on your information. All those kinds of things, that
a baby would have an even better chance so there are a
lot of variables, not with the individual, but in judging
the individual case. There are things that you take into
your formula for judging that case.
Q. All right, and also, Doctor, are there factors that
are inherent in, for example, the sex of the baby?
A. Yes, and I guess not really remarkable, but for
a given baby after a given gestation, the sex is really very
important to determine in that females survive with a
given illness and males have a lesser chance of surviving
with a given illness.
So often, say, if I bring a sick baby from the delivery
room to the nursery, the nurses look at the baby and see
if it’s a boy or girl and say, “Oh, well, gee, you know,
it’s too bad he is not a girl,” or something like that, just
in terms of survival so, yes, that is important.
For instance, there is another one. Race seems to
be important. Fer a given size the baby who is black has
a better chance of survival than a baby who is white. A
black female in terms of survival is better off than a white
male. Those are the extremes.
Q. Doctor, you have explained to us how you would
attempt to
(p. 546)
determine gestational age and could you tell us at what
point you would place viability? First of all, let’s take 28
weeks.
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Dr. William ]. Keenan—Direct
A. Well, 28 weeks for sure, and we have mentioned
those babies with a 50—60%, you know, survival, in a
nursery. Now, these are babies who are sick. These are
babies who had complications; whose mothers were in-
fected, whose mothers had hypertension, all kinds of other
things going on, so this is experienced in the real world.
It is not an optimal experience.
We hope by better, for instance, better prenatal care,
we will be able to optimize that experience with small
babies.
Q. What about 26 weeks?
A. Well, again I indicated that many of those babies
survive. By “many,” I would judge between 10 and 30%.
The mortality is increased, you know, with a 26-week
gestation versus 28-week gestation, but there is a maybe
chance.
Q. And what about before 26 weeks?
A. Well, I think that’s more of a problem and in
our experience we have about—you know, it is only pos-
sible in any case, you know. Well, not from 26 weeks
down, but, say, from 26, 24, or so.
Q. So in that period you would say the baby would
not be viable, but maybe viable?
A. Yes, yes.
Q. But from 26 to 28 weeks would it be your opin-
ion, and based on your experience, that the baby would
be viable?
(p. 547)
A. Ye.
Q. Doctor, is this—
JUDGE NEWCOMER: That is not what I un-
derstood him to say.
103a
Dr. William ]. Keenan—Direct
JUDGE GREEN: I didn’t either.
JUDGE ADAMS: The testimony hasn’t been
thus far. You gave us percentage figures before.
THE WITNESS: Yes.
JUDGE ADAMS: I have jotted them down.
You said from 26 to 28 weeks. Of 65 babies that
that you had observed in your hospital, there was a
50% chance of survival.
THE WITNESS: That’s right.
JUDGE ADAMS: That seems somewhat incon-
sistent with the last answer. Maybe I am not—
BY MR. MANSMANN:
Q. Doctor, would you explain to the Court, first
of all taking 28 weeks.
JUDGE GREEN: Maybe I misheard the ques-
tion and answer. Maybe the stenographer could read
it back.
THE WITNESS: Maybe I misunderstood the
question.
BY MR. MANSMANN:
Q. Maybe if we started over again at 28 weeks.
Gestational age 28 weeks.
A. Okay.
Q. Would it be your opinion that the baby would
be viable?
(p. 548)
A. Yes.
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104a
Dr. William ]. Keenan—Direct
Q. At 26 weeks would it be your opinion that the
baby would be viable?
A. Well, mortality has increased.
JUDGE NEWCOMER: In order that I can un-
derstand this, when you say that the baby will be via-
ble, are you suggesting that if it is more than 50%,
the baby will be viable? You gave us percentage
figures.
BY MR. MANSMANN:
Q. Okay. Doctor, when do you determine, at what
percentage point do you determine that, as far as chance
of survival is concerned, a baby would be viable?
A. Given the disease rate in this country and in
our prenatal society, a 10% survival rate for the very small
sick baby is—we would say has the highest survival.
(p. 549)
Q. That is viable?
A. That is viable:
Q. So that from 26 weeks you indicated that there
was a 10-to-30 percent chance of survival; is that correct?
A. Yes. So below 28 down to 26, that would be
about 10-30 percent.
Q. Based on those percentages, would you say that
a 26-week baby would be viable?
A. Yes.
Q. And anything below 26 weeks, would you say
that baby would be viable?
A. Not anything below 26—26 to zero.
Q. What about 26 to 20?
A. It may be.
i> 105a
Dr. William ]. Keenan—Direct
Q. That may be viable?
A. Yes.
Q. You wouldn’t say definitely the baby was vi-
able?
A. No.
JUDGE GREEN: Doctor, didn’t you use the
26-to-24 weeks before?
THE WITNESS: Yes, sir.
JUDGE GREEN: Are you saying it is the same
whether you use 26 or 24 weeks?
THE WITNESS: In our current experience,
sir, 26-to-24 week babies come to the nursery and go
home from
(p. 550)
the nursery.
JUDGE GREEN: That is the 10-to-30 percent?
THE WITNESS: Yes. Now, if you go down
to 26 weeks, we do have babies that come to the nur-
sery and survive for a couple of days. They succumb
to infection and pulmonary insufficiency and fail.
We don’t have survivors in terms of babies go-
ing home. We are very close to that point in terms
of our current technology.
JUDGE GREEN: That is, the lowest period in
which you have babies going home are 24-to-26 week
babies?
THE WITNESS: Yes, sir.
BY MR. MANSMANN:
Q. Now, Doctor, in answer to one of Judge Green’s
questions, you indicated that technology is expanding or
advancing; is that right?
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106a
Dr. William ]. Keenan—Examined by Court
A. Yes.
Q. Could you elaborate what the prospects are?
A. This is very important in discussion with my
colleagues in the Cincinnati Perinatal Association and the
Society for Pediatric Research. We feel it is urgent that
you don’t define it so closed.
To define it at 28 weeks, that may have been appro-
priate five years ago but it’s not appropriate today; if you
define it at 24 weeks, that may be appropriate today
(p. 551)
but it may not be adequate six months or three years from
now.
In all of medicine when you talk about any of the
advances of the definition of viability, which may be docu-
mented by current experience, it may not be supported
by any experience in three months or eight months or 24
months.
It’s an expanding concept. There’s always flexibility
downward in lesser-gestation babies.
JUDGE GREEN: Are you saying that in this
area it is only the judgment of the treating physician
the only thing that can be relied on?
THE WITNESS: Judgment and experience,
yes.
JUDGE GREEN: That is the judgment of the
treating physician at that time?
THE WITNESS: Babies, usually, of a thousand
grams regularly survive. In a couple of community
hospitals in Central Ohio they sent us their small
babies, because all of their small babies died before.
sad 107
Dr. William ]. Keenan—Examined by Court :
; Now, they are starting to send their small ba-
bies to us and we take care of some of those babies
in our own nursery at Cincinnati General Hospital.
I know people in Cleveland, at Western Re-
serve, where they influence the community hospital’s
practice. It is not necessarily the individual experi-
ence, but sort of a cumulative medical-practice ex-
perience.
(p. 552)
JUDGE GREEN: All this knowledge and ex-
perience and studies, a doctor who has to make a de-
termination whether or not there may be viability,
are you saying that has to be his personal judgment?
THE WITNESS: Yes, sir. In making up the
judgment he is familiar with the literature; he knows
what goes on in the nursery.
JUDGE NEWCOMER: Are you saying that
another physician in reviewing that data would not
be able to change that decision or judgment?
THE WITNESS: I think medical judgment as-
sessment is what’s available to that physician. I don’t
think anybody would disagree.
JUDGE NEWCOMER: You do not feel an-
other physician would change that judgment or de-
cision?
THE WITNESS: I don’t think so.
JUDGE ADAMS: Let me ask it this way: Sup-
posing the woman is on the table in a teaching hos-
anh seplnaceadis Dat. ni iat
Rotor et Ae,
I
i08a
Dr. William ]. Keenan—Examined by Court
pital and there is a question as to whether the fetus
she is carrying is viable, and there are 10 doctors
present who have a skill in this field, would there
be room for differences among those doctors as to
whether the fetus being carried by this woman is or
is not viable, and the gestational age of the fetus is
somewhere between 20 and 25 weeks?
THE WITNESS: There wouldn’t be any sub-
stantial
(p. 553)
disagreement.
JUDGE ADAMS: But you could not tell us
what the answer would be?
THE WITNESS: I can tell you what the an-
swer would be in our delivery room. The baby would
not survive.
JUDGE NEWCOMER: Does survival and via-
bility mean the same thing in that context?
THE WITNESS: In the figures that I have
given you this talks about babies coming to the nur-
sery, that were delivered in the room, survival in
neonatology period, is the first 28 days after birth,
and then they go home. That is accepted in the
organization.
JUDGE ADAMS: If we have the same setting
that I was hypothesizing a moment ago, and the ges-
tational age is 24 to 26 weeks, and you have this
same woman on the operating table, and the physi-
cians and the same data, would there be room for
difference of opinion among those physicians?
a 109a
Dr. William ]. Keenan—Direct
THE WITNESS: This is getting closer to the
number. There would be more discussion and they
would come to a reasonable agreement.
Depending upon the current state of practice in
our hospital and intensive-care nursery, the judgment
would be to deliver the baby. The object would be
to safeguard the fetus.
At Green Conty Hospital they probably would
(p. 554)
not do anything special. They would say, ‘“‘Yes, but
we would not be able to insure the survival of that
baby.”
JUDGE ADAMS: Thank you.
BY MR. MANSMANN:
Q. Doctor, then it’s the reasonable medical judg-
ment of that particular physician whether or not the baby
would be viable?
A. Yes.
Q. He would take into consideration whether he
was in a teaching hospital as opposed to a rural hospital?
A. Right. We have a rural hospital closely linked
with us. Their situation would be different than Greene
County Hospital.
We have a hospital between hospitals; we have an
incubator there, resuscitator and delivery, and they can
bring the baby back to our hospital, depending on prior
arrangements.
MR. MANSMANN: No further questions.
JUDGE ADAMS: Ms. Leadbetter?
110a
Dr. William ]. Keenan—Cross
MS. LEADBETTER: No questions, Your Hon-
or.
JUDGE ADAMS: Mr. Morris.
Crozs-Examination
BY MR. MORRIS:
Q. Doctor, I wanted to make sure I understood one
or two definitions.
(p. 555)
When you say “gestational age,” are you talking
about gestational age measured from the last menstrual
period or conception?
A. Upon a reasonable estimate, it is not one or the
other.
Q. There would be a two-week period between the
two; is that right, Doctor?
A. Yes. The normal gestation would be 40 weeks.
Q. When you speak of 26 weeks, that would be 24
weeks from conception?
A. The standard approach is L & P.
Q. The other term I wanted to make sure I under-
stood is the term perinatal mortality.
What is perinatal mortality, Doctor?
A. It is the first 28 days after delivery. If the moth-
er comes to the delivery room and the baby is alive at that
time, and is delivered still-born, that would be included
in perinatal mortality.
Q. In some texts the name neonatal mortality is
stated. What is neonatal?
A. Neonatal would be 28 days after delivery.
lila
Dr. William ]. Keenan—Cross
Q. And perinatal would be when the fetus is in the
mother’s womb?
A. Yes.
Q. In those terms, what does survival mean?
A. Survival means past the first 28 days.
(p. 556)
Q. You would equate “survival” with the phrase
that you have been using, “take the baby home’”’?
A. Yes.
Q. That would be a fair definition of that?
A. Yes.
Q. Now, Doctor, Judge Adams asked you some
questions concerning gestational age, and where you would
place viability in terms of gestational age; is that correct?
A. Yes.
Q. Let’s assume the same 10 doctors standing
around the table and examining the woman; would they
reach the same conclusion in regarding gestational age,
from their examination?
A. They would be very close in terms of the days.
Q. There is a margin of error in that estimate; is
that right?
A. That’s right. In making the judgment you take
account.
Q. The testimony before was the range is plus or
minus two weeks either way; would that be correct?
A. That’s right. Given the same information, the
doctors would come up with the same estimate.
Q. There would be a range of error, wouldn’t
there?
A... A range of error in the examination and history,
and things like that.
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112a
Dr. William ]. Keenan—Cross
Q. And additionally, in measuring or attempting to
ascertain the approximate weight of the fetus, there are
variables; is
(p. 557)
that correct?
A. Yes.
Q. Would nutrition be one?
A. Oh, yes; the health of the mother.
Q. What other kinds of variables go into it?
A. The presence or absence of diabetes in the moth-
er. Diabetes is a common disease in the community.
The size of the previous baby in relationship to ges-
tation, we use that as sort of an informal formula.
Q. When people discuss—when doctors discuss in
papers the survival of infants or fetuses who have varia-
ble gestational ages, they discuss that in terms of periods
of survival; is that correct?
A. That’s correct.
Q. I might ask you this: are you familiar with Al-
den’s, from the Department of Peditatrics, University of
Washington—I am not asking you in detail—I am going
to suggest a paper—
A. When was the publication?
Q. July, ’72.
Based on a five- year experience, 160 infants with
birth weights of less than one thousand grams, they found
a mortality rate of 87 percent.
(p. 558)
Q. 161 infants under 1,000 grams they found an
87% survival rate?
A. 87% survival.
113
Dr. William ]. Keenan—Cross .
Q. Oh, I’m sorry, 1,000.
A. Yes, I think they took from 500 to 1,000, right.
Q. That’s correct, yes.
A. And that’s—you know, so that generally would
include the two groups of babies we are talking about,
26 to 28.
Q. Now, when they went down to a sample—I’m
sorry, I’m going to suggest another paper to you of a
slightly earlier date, which Potter and Davis did analyze
in Chicago’s on prenatal mortality. That study ended in
1966 and they found what they determined survival of
about 5% on a sample of weights from 400 to 1,000
Would that be in accordance with the experience?
A. Yes, yes, the experience at that time, and that
sort of illustrates the point that we were talking about, the
change in experience.
Q. It changes?
A. As the technology improves.
Q. As technology improves. Now, incidentally,
those two; the Potter and Davis study and the Alden study
were done at what could be described as optimum condi-
tions, were they not?
A. Well, not Potter and Davis, no.
Q. Was that not a teaching hospital?
(p. 559)
A. Yes, well, it is, but they never had innotologists.
Q. In other words, 1966 was too early for that?
A. Yes. Well, they just got one in 1973 so they
were a little bit further behind.
Q. So you might improve the first percent statis-
tic today by some amount?
come AY pete
114a
Dr. William ]. Keenan—Cross
A. That’s right.
Q. All right. Incidentally, among the variables
which would go into the survival possibility, is the age of
the mother one?
A. Itis not really well established, but we have now
a feeling that, you know, in terms of health, yes, age is
important.
Q. Can you give me an idea, and I don’t want to
push you if you don’t feel that you can draw conclusions,
but is the date attempting to show anything about the rele-
vance in the age, to the age of the mother, to the survival
rate of the fetus at a given weight, and if so, what?
A. Yes. I don’t think—no, I’m sorry. I can’t really
expand on that, but there are some—you know, our ex-
perience, you know, there are some young teenage moth-
ers who come in and they have—you know, they had no
prenatal care, and those kinds of things, and, yes, that
is a problem, so in Cincinnati we pay particular attention
to the teenage pregnancy in terms of nutrition, and we
have a nutritional supplement program going on in the
city which, you know, in Harlem it’s been demonstrated
to improve all those members we were talking about.
(p. 560)
Q. Okay. Excluding that variable and comparing a
well-fed or nutritioned teenager with an equally nutrition-
ally advantaged older woman? 7
A. Well, that’s never really been done, not to my
knowledge.
Q. Do you have any feelings as to which way the
data will go on that?
Dr. William ]. Keenan—Cross _
A. I really don’t. It would be interesting to see
you know, how well nourished the American teenager is
as tested by pregnancy.
Q. Yes. Now, Doctor, given a surviving fetus, my
question to you is can you give us some idea of what
chance that surviving fetus will have of difficulties such
as motor or mental retardation at various weight ranges?
A. Yes. The older studies, particularly studies done
in Scotland, which were very careful, showed a disap-
pointing, rather dismal neurologic outlook for very low
birth weight infants and that’s what Dr. Dillian wrote
about when she examined that problem.
Q. Have you been able to improve that at all?
A. Yes, quite a bit. There have been three articles
just in the last—oh, within a year now speaking of the
improving prognosis of very low birth weight. By “very
low birth weight,” to mean either 1,000 grams or below,
or 1500 grams or below. The most recent one was last
month in 1974 and they talked about the baby below
1,000 grams—you know, the improving prognosis. I think
they had 14—no, they had 197 total babies below 1,000
grams, and I think a 5.3% neurologic abnormality which,
you know,
(p. 561)
has just dramatically improved over Dillian’s data within
Great Britain.
Q. What kind of a facility was that?
A. That’s a teaching hospital. That’s the College
of London. They include babies not only born at their
teaching hospital, but babies born outside of their teach-
ing hospital; clinics, small delivery service, et cetera, so—
but I think I remember—I don’t remember exact figures,
A ee ee ee eo ee a
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116a
Dr. William J]. Keenan—Cross
but about half were inborn and half were born outside of
the hospital.
Q. Were the ones that were born outside brought
over to their facility?
A. Yes.
Q. So that at least shortly after delivery, the ones
in that sample had the advantage of teaching hospital
equipment? 3
A. Yes. They didn’t say—I don’t think they said
at what time the transfer was done, but, yes, you would
assume it was done fairly quickly.
Q. Now, coming back a moment, Doctor, to the
survival rate, I am trying to understand what your defini-
tion of viability in terms of period of gestation relates to
in terms of the language generally used, which we have
agreed in percentage tables.
At what percent do you conclude or what survival
percent do you conclude represents viability?
A. Well, I think, you know, opinions are formed,
you know, including discussions with my peers and in-
notologists, and
(p. 562)
discussions with obstetricians, and I spend a lot of time
in community hospitals, for instance, and so I am an op-
timist, and I would say that 10% chance of survival is
not too bad, but I think in general, myself with the rest
of the medical community, would accept 50%, you know,
as a very—as a hard-nosed survival that is very good.
Q. Might there be some who accept a 45% time-
table?
a2 117a
Dr. William ]. Keenan—Cross
A. Yes. Then you would look at the data, from
where it was, and which babies, for instance, had prob-
lems at delivery or had—you know, difficulty.
So there are other parts of that formula that deter-
mine a baby’s survival, not just the gestation.
* * *¢ &
(p. 564)
BY MR. MORRIS:
Q. Doctor, can you conceive of other doctors re-
spected, whose opinion might be that viability in the sense
used in the statute here could take place as early as 22
weeks?
A. Well, you know, we have discussed it and, you
know, seeing the newspaper articles from Florida, or what-
ever, but, you know, a 20-week gestation baby surviving,
and I think within the field
(p. 565)
that data is mistrusted, and it is not a reasonable thing.
You know, with our current technology, it doesn’t jive.
Q. I meant 22 weeks.
A. No, 22 weeks, no. That doesn’t jive either.
That’s not acceptable data and it has never really been
put up for peer review or peer criticism. It’s newspaper
crap. That’s not acceptable.
Q. I am not speaking now of what you define as
newspaper material. I am speaking of percentage tables
indicating that increasing percentages of babies survive
as the gestation period, to the extent you can determine
accurate, that increases in age.
A. I think that’s true, but my answer was in light
of the current information, that the date you gave, the
A, wn eT et Ae 8 Dh cg: tt aD ee it
118a
Dr. William ]. Keenan—Cross
22-week gestation baby, it’s not reasonable that that baby
survives. You know, everybody mistrusts that informa-
tion.
Q. That is your opinion?
A. No, it is not.
Q. But what I am asking you is are there any doc-
tors who would disagree with you on that or is it your
testimony that all doctors would agree 100%?
A. Anybody knowledgeable in the field would dis-
agree, and I think—well, I don’t know Dr. Mecklenberg,
and I don’t know who he is, but my guess is that he is
not a perienotologist.
Q. No, that is correct. He is an obstetrician and
gynecologist, but obstetricians and gynecologists have ex-
perience in this field,
(p. 566)
do they not?
A. Experience. I don’t think they set any of the
standards. I think obstetricians and gynecologists who are
leaders and more knowledgeable—you know, this is their
field of interest, tend to set a standard, and I think among
those people that data would be asked to be reviewed.
Q. All right. Let me ask you this, Doctor.
JUDGE ADAMS: I do have the testimony in
question. I don’t know whether it is helpful or not.
If there is no objection, I will read it just so that
there would be no disagreement.
MR. MORRIS: Thank you, sir. It would be
helpful.
JUDGE ADAMS: It is at page 82, Dr. Meck-
lenberg, redirect.
119a
Dr. William ]. Keenan—Cross
“MR. MORRIS:
“Q. Doctor, as one who perform abortions, |
want to read you a sentence and ask you what it
means to you. The sentence is: ‘Viability means ca-
pability of a fetus to live outside the woman’s womb
albeit with artificial aid.’ I want to ask you at what
stage of gestation you, as one who has performed
abortions, would put that definition.”
There was an objection, but then he answered:
“I would agree with that definition of viability.
I think that it has been current. I think it is a defini-
tion that takes into account medical progress, the fact
(p. 567)
that it is constantly changing. My perusal of the
medical literature would lead me to believe that po-
tential or continued life exists as early as 20 weeks.
Not in the current edition of Eastman’s Obstetrics
Book, but in the previous edition, the earliest report
of survival was reported as a delivery at 20 weeks
gestation. In my own experience, the earliest sur-
vival that I have had is a patient who was 21 weeks
from the time of conception or 23 weeks from the first
day of her last menstrual period. The child is a year
and a half old and normal.”
Now, do you want to ask a question?
BY MR. MORRIS:
Q. Would you be in agreement with that answer,
Doctor? ©
ate” ee Te hl se ee tee
i Be ee ee ee
120a
Dr. William ]. Keenan—Cross
A. Yes, I think I know one of the reasons why it
was withdrawn from Eastman’s textbook—you know, the
claim for a 20-week survival. There has been more atten-
tion paid to, you know, more accurate gestational assess-
ment and, you know, current information, and I think that
was withdrawn because it doesn’t, you know, really make
very much sense currently and would be suspect.
Q. So I take it what he cites was suspect, the data
on which he relied?
A. Yes.
Q. Doctor, taking the example posed by Judge
Adams again where we have a patient that we are exam-
ining, but the fetus has
(p. 568)
not yet been delivered on the table, is there any way that
you can tell with certainty whether that particular fetus
in that particular mother is or is not, will or will not sur-
vive, or is or is not viable?
A. Well, you know, assessing the gestation by the
methods that we talked about, coming up with a reason-
able estimate of gestation, and then again, you know, part
of that formula for assessing viability, current experience
both, you know, within and without the community, but
mostly within, is the important determinant.
You know, yes, I think people in the field will come
up with a reasonable medical judgment that the baby will
survive and go home. Be it viable or not, I don’t know.
Q. Will they do that based on percentage chances?
A. Oh, yes. That would be part of the formula,
yes.
Dr. William ]. Keenan—Cross =
Q. Isn’t that what you have done in reaching your
conclusion; related gestational age to percentage chance of
survival?
A. No, but you are asking me in individual cases
and that would have to take in some of the other things
that we talked about; infection, you know, how well the
mother has done; all those other things. So admittedly it
is a soft—it begins to be soft, but that is the way medicine
is. That is the practice of medicine. There are a lot
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