# Appendix — Colautti v. Franklin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0853%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 439 U.S. 379 ## 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 ho [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0853%3A02. Public record. Not legal advice.