Joint Appendix Vol I — Stenberg v. Carhart
Supreme Court brief2000
Ask Donna
What actually matters in this document.
Text
In The
Supreme Court of the ted] Sirus
¢
DON STENBERG, Attorney General of the
State of Nebraska, et al.,
~ Petitioners,
LEROY CARHART, M.D.,
Respondent.
+
On Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
+
JOINT APPENDIX
VOLUME I, PAGES 1 TO 240
oe -
Don STENBERG SIMON HELLER
Attorney General Counsel of Record
JANET BENSHOOF
Priscitta J. SMITH
SUZANNE Novak
THe CENTER FOR
Repropuctive Law
& Pouicy
L. Steven Grasz
Deputy Attorney General
Counsel of Record
2115 State Capitol
Lincoln, Nebraska
68509-8920
120 Wall Street
(402) 471-2682 New York, New York
Counsel for Petitioners — 10005
(212) 514-5534
Jerry M. Huc
ALAN G. STOLER
Historic Library Plaza
1823 Harney Street
Suite 1004
Omaha, Nebraska 68102
(402) 346-1733
Counsel for Respondent
Petition For Certiorari Filed November 15, 1999
Certiorari Granted January 14, 2000
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OR CALL COLLECT (402) 342-283
ZUS0Y
TABLE OF CONTENTS
VOLUME I
ee TE oad so , ceain the peak daekee. ie
Portions Of The Record
Excerpts From The Transcript Of The eprom
RRITNN TEPMIORR, on cocccescccvccncecsessesveses. @
VOLUME II
Excerpts From The Trial Transcript................. 241
Exhibits Including Trial Testimony By Deposition
Exhibit 3, Transcript Of Floor Debate .............. 338
Beets G, Vote Gin LEED... nc cccccscccccvccsscescess
VOLUME III
Exhibit 7, American Medical Association’s “Report Of
The Board Of Trustees On Late-Term Abortion” .... 482
Exhibit 9, Statistical Report Of Abortions .......... 502
_ Exhibit 11, Title 174, Forms.....................+++ 528
Exhibit 12, Forms Used For Years Prior To 1977... . 532
BS X- & Ff Seer iter.
Exhibit 20, Grasz Letter To Plaintiff................ 534
Bcieiets Zi, Wiewwhemn LOGRRe onc ccc ccccccccccccscccs OO
Exhibit 22, Nebraska Attorney General Opinion
PER: CURED. c cccccccvccsvndes cevecseese0ees oxvees Gee
Exhibit 23, CV Of Dr. Frank Boehm, M.D. ......... 561
Exhibit 24, ACOG Statement Of Policy 1/12/97....599
**
TABLE OF CONTENTS - Continued
Page
Exhibit 25, Boehm Letter Of 6/6/97 To Dr. Levin .. 602
Exhibit 26, Affidavit Of Dr. Boehm ..............+. 608
Exhibit 27, Transcript Of Boehm Deposition........ 616
Exhibit 32, Transcript Of Plaintiff's Discovery Depo-
sition Of Frank Boehm, Excerpts..............+++ 683
Exhibit 33, Legislative Files Of Senator Maurstad .. 712
The following items are not reprinted in this Joint Appendix
because they appear, in full or in part, on the pages indicated in
the Appendix to the Petition for Writ of Certiorari (__4) or in
the Supplemental Appendix to Petition for Writ of Certiorari
(___sa).
Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999)..... la
Hope Clinic v. Ryan, 195 F.3d &57 (7th Cir. 1999)... . 23a
Carhart v. Stenberg, 11 F.Supp.2d 1099 (D.Neb.
1998) (permanent injunction memorandum and
Cc dee eue ec bAGe O64 G00 6.06546500066560000006 lsa
Carhart v. Stenberg, 972 F.Supp. 507 (D.Neb. 1997)
(preliminary injunction memorandum and
ed Cea ds Oe a 6G ¥e-0ae np sss etee 91sa
RELEVANT DOCKET ENTRIES
United States District Court for the District of Nebraska
6/12/97 1 COMPLAINT with request for trial
at Lincoln with request for TRO and
preliminary injunction. .. .
6/17/97 7 MEMORANDUM AND ORDER: by
Judge Richard G. Kopf granting
motion for temporary restraining
order. ...
8/14/97 19 MEMORANDUM AND ORDER: by
Judge Richard G. Kopf re: request
for a preliminary injunction is
granted as provided herein; Defen-
dants are . . . enjoined from enforc-
ing LB23 against Plaintiff regarding
his performance of D&X abortions
on nonviable fetuses. .. .
2/17/98 36 PRE-TRIAL ORDER
7/2/98 46 MEMORANDUM AND ORDER: by
Judge Richard G. Kopf that judg-
ment will be entered by separate
document . . . for the Plaintiff and —
against the Defendants; LB23 is
declared unconstitutional as pro-
vided and that Defendants are per-
manently enjoined from enforcing
LB23 against the Plaintiff, his
patients and others similarly situ-
ated....
8/10/98 49
8/12/98 56
JUDGMENT: by Judge Richard G.
Kopf entered for the Plaintiff and
against the Defendants .. . as
applied to Dr. Carhart, his patients
and others similarly situated, LB23 is
declared unconstitutional. . . .
NOTICE OF APPEAL: by Defen-
dants Donald Stenberg, Gina Dun-
ning and Charles Andrews from
District Court decision re: Judgment
[49-1]... .
United States Court of Appeals for the Eighth Circuit
9/2/98
4/19/99
9/24/99
Civil Case Docketed. .. .
ARGUED AND SUBMITTED IN ST.
LOUIS. ...
JUDGMENT: . . . The judgment of |
the lower court is AFFIRMED in
accordance with the opinion. . . .
ee ee I at
3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEROY H. CARHART, ) 4:97CV3205
on behalf of himself and ) July 17, 1997
his patients obtaining ) 9:00 a.m.
abortions, i
Plaintiff,
)
,
vs.
DONALD STENBERG, in
his official capacity as
Attorney General for the
State of Nebraska; MIKE
MUNCH, in his official
capacity as County
Attorney for Sarpy
County, and as a
representative of all
County Attorneys in
Nebraska; DEB
THOMAS, in her official
capacity as Director of
Regulation and
Licensure of the
Nebraska Department of
Health and Human
Services,
ee ee ee ee ee ee ee ee ee
{Henshaw, Direct]
[By Mr. Gans]
[p. 49} Q I’m going show to show you what's been
marked as Exhibit 9, and I would like you to turn your
attention to the 1996 report. If you could look at the first
page of that report?
A Yes.
Q On page one, what does the report say about how
many abortions were performed during 1996 in
Nebraska?
A There were 5,214 abortions reported as being per-
formed in Nebraska in 1996.
Q And if you could now turn to table 5 which I
believe is the table concerning methods of abortion?
A Yes.
Q What does the State indicate about the methods
used by physicians terminating pregnancies in Nebraska?
A Well the large majority of abortions are done by
suction curettage. That’s the method primarily used for
first trimester abortions. Some were reported as sharp
curettage. These are most likely D & E’s. The Nebraska
reporting form does not have a category for dilatation
and evacuation, which is D & E, and in my opinion,
physicians doing those would very likely count them as
sharp curettage. Some might check off suction curettage.
There are none reported as being by induction; that is,
saline installation or Prostaglandin [p. 50] installation,
even though those categories are on the reporting form.
My assumption is that none were done. There were 49
CO ET GL ee ee
reported as other, and it’s my understanding that those
are probably primarily - either Mifepristone or Methotre-
xate abortions which is a method of medically inducing a
very early abortion before eight weeks.
Q So in your professional opinion, what is the pro-
cedures used after the first trimester?
A It would be D & E in Nebraska.
Q Okay. Are you familiar with the data collected by
the CDC?
A Yes, I am. I use the data all the time.
Q All right. I’m going to show you Exhibit 17 ask
you to identify that.
A This is a table from the 1992 Abortion Surveil-
lance Report that’s published by the Centers for Disease
Control.
Q And what does the data on that chart indicate
about the methods used to terminate pregnancies nation-
wide.
MR. SMITH: If I could, just for clarification, what
exhibit are we on?
MR. GANS: 17.
MR. SMITH: Thank you.
THE WITNESS: This table cross-tabulates the
method of abortion by weeks of gestation. It shows that
at all points in gestation, curettage, which would include
D & E, is [p. 51] the most common method used to
perform abortions.
BY MR. GANS:
Q “And is the data in that chart generally consistent
with the data in Nebraska?
A Yes, it is, in that, as I just testified, either all or
just about all of the second trimester abortions in
Nebraska are done by D & E. This table shows that
nationally, 86%, approximately, oi abortions past 15
weeks are done by D & E, and that induction is fewer
than 10%.
Q I would like to show you -
THE COURT: Counsel, let me just bring to your
attention, we had a discussion before this witness testi-
fied about the difference between D & E and D & X. It is
unclear to me, when your witness uses the term D & E,
whether he intends to distinguish that procedure as we
were talking about it, or whether he means to talk about
it more generally. D & E can be included, intact D & E, as
your colleague refers to. It’s unclear to me what your
expert means.
MR. GANS: Okay. I will try and clarify that.
BY MR. GANS:
Q In either the CDC data or the Nebraska data, do
they - Is there a differentiation between the sort of more
traditional D & E procedure or-the variant that we have
been discussing as intact D & E?
[p. 52] A The intact D & E or the D & X, I think,
normally would be included under the D & E category
here which would be curettage, so there is no way to
quantify how many of the D & X abortions are done
based on the statistics collected by the State or the CDC.
[p. 53] Q Okay. I’m going to ask you some questions
about the impact of the act on abortions performed in
Nebraska after the first trimester. I would like you to
assume that as a result of the act, abortions in Nebraska
stopped performing D & E’s, either the more traditional
D & E procedure involving dismemberment, or the vari-
ability where the fetus is removed intact, stopped doing
both, both variants of the D & E. What in your profes-
sional opinion would be the impact on women in
Nebraska seeking second trimester abortions?
MR. SMITH: I’m just going to object. There is
not [p. 54] adequate foundation.
THE COURT: What foundation is lacking?
MR. SMITH: Frankly, I think the assumption
makes his opinion irrelevant. I mean, I don’t think it’s
properly a subject of expert opinion at that time.
THE COURT: That's the foundation that’s lack-
ing.
MR. SMITH: Yes.
THE COURT: The objection is overruled, and |
will understand his testimony to be based on inferences
drawn from statistics. Go ahead. The witness may
answer.
THE WITNESS: That would pose a serious bar-
rier to women in Nebraska seeking second trimester ser-
vices. The options would be to try to find a hospital
where induction abortion could be performed or travel
out-of-state or continue the pregnancy, and in Nebraska,
hospital services are not readily available and as we saw.
MR. SMITH: Your Honor, I would object to his
opinion that hospital services are not readily available as
no foundation for that opinion.
THE COURT: Would you like to lay additional
foundation on that issue?
BY MR. GANS:
Q Have you ever done any research about the avail-
ability of abortions in hospitals in Nebraska?
A As I mentioned, our survey of all abortion pro-
viders in [p. 55] the country, of course, covers Nebraska,
and we get a — from that survey a count of all hospitals in
the country that we have actually been able to locate that
- where abortions are performed.
THE COURT: The objection is overruled. You
may continue.
BY MR. GANS:
Q And based on the data you collected, how many
hospitals in Nebraska reported performing abortions?
A Our last survey was conducted in 1992. At that
time, three hospitals in Nebraska reported any abortions
at all, and those hospitals reported very few. In fact,
together, they reported doing 25 abortions in the State
which is what, only four-tenths of a percent of the abor- .
tions performed in the state in that year.
a er ea
Bt el
Q And of those three hospitals that performed abor-
tions, do women go directly to the hospital to obtain an
abortion?
A On our questionnaire, we had the question, can a
woman arrange directly with the hospital, or must she go
through an attending physician. Two of the three hospi-
tals said that she must go through an attending physician.
The third did not answer the question, so based on that, I
conclude that a woman could not arrange directly with
the hospital to have an abortion under present circum-
stances.
Q And of the three hospitals that you found per-
formed [p. 56] abortions, did any of the hospitals limit the
circumstances in which a physician could perform abor-
tions?
A We didn’t ask that question, but one of the
respondents wrote onto the form that abortions are done
only for therapeutic reasons.
Q Based on this data you collected, do you have an
opinion about whether a woman would be able to obtain
a second trimester abortion in Nebraska if D & E’s,
including both the traditional and the intact variety, were
unavailable as a result of the act?
A Well, nationally, about 10% or more of abortions
are done during the second trimester. If that were appli-
cable to Nebraska, that would be over 500 abortions
during the second trimester. If you just look at abortions
past 14 weeks, it would be, maybe, on the order of 300
abortions. Given the fact that at least in 1992, only 25
abortions were performed in hospitals, I think it would
10
be difficult for most women who needed that service to
be able to obtain it from a hospital.
Q Have you ever conducted research on the differ-
ence in cost between a D & E performed in an outpatient
clinic and an induction performed in a hospital?
A Yes.
Q And how did you conduct that research?
A In our 1992 survey, nonhospital facilities were
asked [p. 57] the charges for abortions at 16 weeks and 20
weeks, and then as a supplement to the survey, we did a
telephone survey of some small sample of hospitals
nationally where we knew abortions were being done and
asked the same question, questions, so with that informa-
tion, we were able to calculate the average charge in
facilities, nonhospital and hospital facilities, of abortions
done at 16 weeks and 20 weeks.
Q And what conclusions did you reach?
A We concluded that a clinic abortion at 16 weeks
cost in the range of 500 to $600, whereas a hospital
abortion done by installation, that is usually saline or
Prostaglandin, averaged $2,246. At 20 weeks, the clinic
abortion cost 900 to a thousand dollars, and the hospital
abortion cost about $2,400.
Q And do you have an opinion as to whether the
cost differential would affect women’s access to second
trimester abortions if D & E’s were unavailable as a result
of the act?
A There is evidence that the cost of abortion ser-
vices proposes a barrier to women who need the service,
AS EN A ce oe me
ne OR Km
11
so I would conclude from that that if the cost were much
higher, that it would tend to prevent some women from
obtaining the service.
Q You've stated earlier that the - You stated earlier
that if D & E’s, were unavailable as a result of the act, if
they were going to get an abortion in Nebraska, would
have to [p. 58] seek an abortion in a hospital. What other
impact would that have on their access to the service?
A Well, the other option is to travel out-of-state for
a second trimester abortion.
Q Let me rephrase it. Would that have any option
on the time of the gestational age when they would
obtain an abortion?
A I’m assuming that if they could get an abortion in
the hospital, it would probably be more difficult than it is
now to simply go to a clinic, so that - and it would be
more expensive, so the time it would take to arrange to
have the abortion would be greater than it is at present.
First of all, we know from studies of the reasons people
delay having abortions, that the time taken to make the
arrangements is a major reason that people are delayed to
the second trimester; that is, the time to get together the
money and to find out where to go and actually make the
appointments and get there, so my conclusion would be
that even if they were able to find the service, that there’s
a good - that for a fair proportion of the women, their
abortion would be later than it would have been other-
wise.
Q Would that delay have an impact on the health
risks for women on second trimester abortions?
12
A There are many studies that show both complica-
tion rates and mortality rates from abortion increase with
each [p. 59] additional week of gestation past around
eight weeks, so additional delay would increase the risk
of both morbidity and mortality.
Q And starting with mortality first, what would be
the increased risk?
A Well, say, you were delayed from 13 to 15 weeks
to 16 to 20 weeks. One group to the other, the mortality is
about three times as great at 16 to 20 weeks as it is at 13
to 15. It’s still not high. It’s still, at 16 to 20 weeks, no
higher than childbirth, but it’s much greater than it is
earlier in gestation. Sadly, your complications, we've cal-
culated that the rate of complications increases by about
20% for each additional week of gestation from about
eight weeks on.
Q And you testified now about three obstacles; one,
availability of hospitals; two, the costs; and three, delay.
Would some women in Nebraska be unable to overcome
these obstacles and be forced to carry to term?
A Well, we know now that there are numbers of
women who are unable to get abortion services at all
because of lack of access, so it stands to reason that if you
increase the barrier, that will cut off an additional group
of women from having abortions.
Q You stated earlier that if D & E’s were unavail-
able as a result of the act, some women might have to go
out-of-state [p. 60] to obtain an abortion, is that correct?
A That's right.
we ee oe
nt Ee ee lee PS
13
Q And if a woman had to travel out-of-state to
obtain an abortion in Nebraska, where could she go in the
surrounding states?
A I checked our data on the surrounding states. The
places she could go are lowa City, lowa; Kansas City;
Wichita, Kansas; Minneapolis; or Denver.
Q And how far would she have to travel to each of
these places?
A Well, it’s in the hundreds of miles, depending on
where in Nebraska she’s coming from, of course.
Q And in your opinion, what would be the effect of
forcing women to travel to these other states?
A We know that travel distance has an impact even
on first trimester abortions. For these abortions, the
impact would be greater because the D & E procedure,
after maybe 14 weeks, usually requires either two days,
or at later points in gestation, three days, so the woman
would either have to make the trip twice or three times or
stay overnight at the - in the city where she had the - or
where the clinic existed, so yes, I think that would be a
significant additional barrier.
Q And would you need to travel to the other states
for some women to carry to term?
A Undoubtedly, there are some women who would
not be able [p. 61] to maneuver that and to get to the
other states.
14
[p. 63] BY MR. GANS:
Q So far we have been examining a type of situation
in which D & E’s were unavailable in Nebraska relative to
the act. Do you have an opinion as to the effect on women
seeking second trimester abortions in Nebraska, the phy-
sicians could perform both the intact and the dismember-
_ Ment variety beginning at 19 weeks LMP through the use
of fetal injection to cause fetal demise?
A Obviously, most women who have second trimes-
ter abortions have them before 19 weeks, so it would
mean that most of the women would be forced to wait
until 19 weeks before they could end their pregnancies,
and that, of course, has the same effects. That's a delay. It
would have the effects I’ve already discussed.
* . +
[p. 64] THE COURT: Counsel, you may inquire.
CROSS-EXAMINATION
BY MR. SMITH:
Q_ Dr. Henshaw, would your opinions be different if
LB 23 did not, in fact, prohibit D & E’s?
A Almost everything I said was based on the
assumption that D & E’s would be banned.
Q Okay. So the answer to my question is - yes, your
opinions would be different?
A Yes.
Q And have you read the Legislative Bill 23?
15
A Yes, I have.
Q You've read the definition of partial-birth abor-
tion in that?
A Yes, I have.
And does that definition use the term D & E?
No, it doesn’t.
Does it use the term dilation and extraction?
No. ’
On > DO > 0
Does it specifically use any medical terminology
for medical abortion procedure?
A Not as I recall.
Q Are you aware that the United States Supreme
Court recently affirmed a state statute which proscribed
anyone from doing an abortion who is not a physician?
[p. 65] A Yes, I am.
Q Have you done any studies on the effect of state
regulations that require only physicians to do abortions?
A No, I haven't.
Q Would you expect that there would be an effect
on the cost if only physicians can do abortions rather
than physicians and physician's assistants?
A I think there would be a minor effect. Physician
assistants can only function under the direct supervision
of a physician, so the physician must be present or at
least supervising the physician assistant.
16
Q Are you aware that under the laws of the State of
Nebraska, a physician only has to be present 20% of the
time for his physician assistant’s duties?
A No, I'm wut.
Q When you were using the terminology D & E, or
in answering questions referring to D & E, you meant
dilation and extraction procedures, is that what -
A Yes.
Q™ What's your understanding of what that pro-
cedure is?
A Excuse me. Dilation and evacuation.
Q I’m sorry. What was your understanding? That's
why I asked the question. What was your understanding
of the procedure?
A It’s generally any procedure using instruments to
end [p. 66] the pregnancy after either 12 or 14 weeks,
depending on your definition.
Q Does the definition, or at least the context, in
which you were using it, have as an element the intent to
remove a part of the fetus from the uterus while it’s
alive?
A Well, the intent is to end the pregnancy by
removing the fetal parts. Often, the operator knows the
fetus is alive when he or she begins removing the fetal-
parts. Beyond that, I can’t talk about whether that is
intent under the statute or not, but there is an intent to
remove fetal parts that are living parts.
17
Q Well, you would agree that your understanding
of D & E would simply involve using instruments to
remove fetal parts from the uterus?
A That's right.
Q Do you still have Exhibit 7 in front of you, sir?
That’s the AMA report. If you do, I would ask you to just
turn to that.
A Yes.
Q And just portions of the report I’m going to refer
to and ask you if you agree or disagree with what it
states. If you would, on the first page of Exhibit 7, line 35
through 36, it says, “AGI collects data directly from abor-
tion providers.”
A Yes, that’s correct.
[p.67]Q You understand the report to be AGI refe
to the Alan Guttmacher Institute? -
A_ Yes, it does.
Q So your institute does collect data directly from
the abortion providers, is that correct?
A Yes, it does.
Q And on line 38 on the same page, it says, “How-
ever, AGI does not collect data on gestational age,” is that
correct? .
A That's generally true. We actually, in our survey,
we ask how many abortions the provider did the past 12
weeks, and we ask the gestational limit of the abortions
done in the facility, so that statement isn’t completely
18
true. The meaning of it is that we would rely on the CDC
data on the number of abortions at each gestational age
rather than try to calculate our own from our own survey.
Q If you would turn to the last page of Exhibit 7, or
I’m sorry, the last page, it’s page number 11, the last
page. If you would turn to page number 11 of Exhibit 7?
A Yes.
Q And line 11, the last sentence of that full para-
graph, it states, “However, more research on major com-
plication rates associated with various procedures and by
gestational age is needed before any confirmed conclu-
sions about the relative safety and procedures can be
made.” Do you see that statement correct?
[p. 68] A Yes.
Q Do you agree or disagree, or do you have a basis
to agree or disagree? I phrased that wrong. Let me ask
you first, do you agree or disagree with that statement?
A Well, I think it’s a question of which procedures
are being referred to here. If it’s, for example, it’s well
demonstrated that laparotomy - excuse me - hysterotomy
is more dangerous than other abortion procedures. If you
are referring to installation versus D & E, or D & E versus
D & X, I would agree with that statement.
Q And when you use the term installation, would
that be synonymous with an induction procedure?
A For the purposes here, yes. Induction could -
That term could be used to refer to very early abortion
19
and medical abortion very early, but in the second trimes-
ter, most induction abortions would be installation, but
not all, not all.
Q And continuing on page 11 of line -- of Exhibit 7,
the very last sentence says, “More systematic research is
needed on complications and complication rates associ-
ated with various types of abortion procedures at 13
weeks of gestation and beyond.” Do you agree or dis-
agree with that statement?
A Yes, I think more research would be very useful.
Q_ And that’s the business you're in is the research
business, is that correct?
[p. 69] A Yes.
Q Now, also on Exhibit 7, on page 7, line 29?
A Yes.
Q Says, “Since the 1970’s, vacuum aspiration, also
referred to suction curettage, has been the most common
procedure used to induce abortion in the first trimester,”
and then it has, in parenthesis, from the 6th through the
12th week of gestation. Do you agree or disagree with
that statement?
A_ No, I agree with that.
Q And if you would, turning to the Exhibit 9, the
1996 Nebraska Statistical Report of Abortions
number four? ——
A Yes.
Q Table 5?
20
A Yes.
Q And that reflects at least the 5,161 abortions in
Nebraska in 1996 were by the suction and curettage
method?
A Yes.
Q And it shows a percent of 99%?
A There is - Yes.
Q And have you looked at the statistical reports for
the previous years that the Nebraska Department of
Health issues?
A_ I have looked at them briefly.
Q Would you agree, I mean, they'll state on their
face, [p. 70] but would you agree as general principle that
those reports would reflect that the suction curettage
method of abortion has been the method reported as
performed consistantly in the high 90%?
A I think that high 90% would include some second
trimester abortions where probably a combination of
sharp curettage and suction were used. As I mentioned,
there is no line on the form for D & E, so the person
doing a D & E ordinarily uses both sharp and suction
curettage. Some of those are probably reported as both
suction and sharp. You'll notice that the total is 5,764
which is much larger than the number of abortions per-
formed which is 5,214.
Q Now, Dr. Henshaw, do you - do you or the Alan
Guttmacher Institute have any affiliation or association
with the Center for Reproductive Law and Policy?
21
A No.
Q Do you have or have you ever had any affiliation
with Planned Parenthood?
A Yes.
Q What is that? Would you just explain what it
would be.
A_ We are a special affiliate of Planned Parenthood.
One of the meetings that is - that we participate in their
pension plan. We see some funding from Planned Parent-
hood, something like 10 to 15% of our funding primarily
for our Washington office.
[p. 71] Q Does that mean that your personal pen-
sion depends upon some funding from Planned Parent-
hood?
A No.
Q What does it mean?
A It means that we have shared a pension plan. The
funding for our pensions come from our own organiza-
tion which is independent of Planned Parenthood.
Q Have you personally been on the board of direc-
tors for Planned Parenthood?
A No.
Q Have you been on the board of directors for the
Abortion Federation?
A The National Abortion Federation, yes.
ing Q And when were you on the board of directors for
t?
22
A From around 1990 to 1996, something around
then. Not 96, 95, ‘90 to 95 with them. It’s on my CV.
Q And what does that organization, what is its pur-
pose and function?
A Its purpose is twofold: To help abortion facilities
provide services and to preserve access to abortion ser-
vices for women.
Q And you understand that the plaintiffs’ counsel
in this case, they are hired or employed by the Center for
Reproductive Law and Policy, correct?
A Yes.
[p.72]Q And is that, is the Center for Reproductive
Law and Policy, is that located at 120 Wall Street in New
York?
A Yes it.
Q Where is the Alan Guttmacher Institute located?
A We're at the same address.
Q Now, are you familiar with the federal legislation
on partial-birth abortion?
A Somewhat.
Q Do you know whether or not the Center for
Reproductive Law and Policy has been involved in any
activities lobbying or opposing that legislation?
A I don’t have firsthand knowledge of it.
MR. GANS: Objection; relevance.
THE COURT: Pardon me just a moment.
23
MR. GANS: Objection; relevance.
THE COURT: Overruled. You may answer.
THE WITNESS: I don’t have firsthand knowl-
edge of their lobbying activities. I believe they are
opposed to the legislation.
BY MR. SMITH:
Q Do you agree that you cannot make accurate
judgments on what might happen in the future based on
what happened in the past?
A That's a very general question. Sometimes you
can make an accurate judgment of the future from the
past. Sometimes [p. 73] you can’t.
Q Well, you would have testified -
THE COURT: We aren’t here to debate George
Santianna’s -
BY MR. SMITH:
: Q Well, you did testify in the Eastern District of
Michigan in the case filed there by Dr. Evans against the
attorney general, correct?
A Yes.
Q And would you agree that you were asked the
following question, and you gave the following answer:
The question: “Do you think that you can make accurate
judgments about what might happen in the future based
on what happened in the past?” And your answer was
No, I wouldn’t say accurate, no.” Would you agpee?
A In that context, I would stand by that answer.
24
Q And would you agree that you also testified in
that case that not too much of my work involves predic-
tions. It’s more descriptions of what has happened.
A Yes.
Q And that, in fact, is what your work primarily is,
is describing what has happened historically?
A That's right.
Q You don’t purport to be a fortune teller?
A That's right.
[p. 74] Q You would agree it’s not a static world,
and that the market changes in response to market condi-
tions, what the laws are in at any particular time?
A That, again, is a very general question. Some-
times yes and sometimes no.
Q I know what I wanted to ask. Does your statisti-
cal research, at least on induction procedure in the second
trimester abortion, have you done studies on whether
those are primarily performed in or out of hospitals?
A They almost always involve hospital care. There
are a few physicians who will begin the procedure out-
side of a hospital. As far as I know, they either always or
almost always seek hospital care for the woman during
the labor and delivery.
Q And just so we’re on the same wavelength, by an
induction, we are talking about a procedure in which the
physician would induce labor prematurely for purposes
of an abortion?
A That’s correct. |
Q Now, as far as what your studies have shown
statistically, and if you know, as far as the percentages of
inductions performed in hospitals versus outside of hos-
pitals, such as in clinics?
A_ As I say, I’m not aware of any substantial number
of induction procedures being done in clinics. I don’t
know [p. 75] that it’s ever done actually.
Q Have you done any research to determine why
that is the case?
A I've heard physicians talk about it. That’s the
extent of my knowledge.
Q But as far as actually doing any statistical studies
or gathering any, what you would consider legitimate
emperical data, have you done that?
A Actually, that question is on our survey that’s
going to be sent out shortly, but in the past we have never
asked that question, mainly because I wasn’t aware that it
was actually an issue. I had never heard of induction
abortions being done outside of hospitals.
Q At least from your research, would your research
indicate that hospitals have better facilities, in general,
than clinics?
A I think you have to specify better facilities, what
you mean by that.
Q More equipment, protocols, staffing to address
concerns of maternal health than a clinic would?
26
A I think that in many cases, clinics are better
equipped to provide high-quality abortion service
because they are focused on that particular service. The
staff is specifically trained for it, and the equipment
needed for it is there. There are many hospitals where
abortion patients [p. 76] are cared for by people who
deliver babies, do all kinds of other things, and may not
understand the special problems of abortion patients,
may be even unsympathetic to them.
Q Do you actually have any data to support what
you just said, or is that your speculation?
A I have data to show that most hospitals where
abortions are done do very few abortions, so it’s impossi-
ble that the staff would be specialized in abortion services
in that circumstance.
Q And have you any data or statistics to support
your statement as far as the caring attitude of hospital
staff?
A I would have to do some research. I can’t think of
studies right now, but they might exist.
Q Are you aware of any studies, data that would
explain why hospitals would do inductions versus dila-
tion and evacuations, or at least why they would primar-
ily do inductions rather than dilation and evacuations?
A I think they primarily do dilation and evacuation.
Most hospital abortions, to my knowledge, are done by D
& E.
Q It’s just when we are talking induction pro-
cedures, those are primarily done in a hospital but not in
a clinic?
27
A That's right.
MR. SMITH: Nothing further.
THE COURT: Counsel, you may inquire.
MS. WALZ: No questions. Thank you.
[p. 77] . . . BY THE COURT:
THE COURT: Doctor, before you step down, I
have a couple of questions. Would you look at Exhibit
number 7 and page 8 of that exhibit?
THE WITNESS: Yes.
THE COURT: I’m going to be referring to the
last paragraph. In that last paragraph, describes the D &
X [p. 78] procedure and it states, and I quote, “According
to the American College of Obstetricians and Gynecolo-
gists, intact D & X is comprised of the following elements:
Deliberate dilation of the cervix, usually over a sequence
of days, instrumental conversion of the fetus to a crip-
pling breech, breech extraction of the body, accepting the
head, and partial evacuation of the intracranial contents
of a living fetus to affect vaginal delivery of a dead but
otherwise intact fetus.” Now, when I speak of D & X
that’s what I mean? é
THE WITNESS: Yes.
THE COURT: Okay: Are there good numbers
about - that would tell us how many D & X as opposed to
D & E procedures are being conducted nationally?
THE WITNESS: There are no good numbers.
The only way to get numbers is to actually try to find the
doctors doing them and estimating how many they do. To
28
my knowledge, there are only a few doctors nationally
who do large numbers of D & X abortions.
THE COURT: I take it from that answer that the
-center that you represent then, has not endeavored to
distinguish between the two for purposes of data collec-
tion?
THE WITNESS: It’s only recently become an
issue at all. In our new survey, we are going to be asking
that question, but I hadn’t heard the term in 1992, and it
wasn’t [p. 79] a political issue. Even today, it isn't really a
medical issue, but it is a political issue.
THE COURT: What do you mean by that?
THE WITNESS: Well, in my opinion, the D & X
is one type of D & E. There are many types. The only
reason to single that out for special interest is because it
has special political significance.
* * *
[Carhart, Direct]
[p. 81] BY MR. HELLER:
Q Please state your name for the record.
A LeRoy Harrison Carhart.
Q What is your profession?
A I’m a physician.
Q Before I begin asking you questions, I just want
to provide you with copies of some of the exhibits that
I’m going to ask you questions about. I’m giving you
copies of Exhibits 7, 11, 12, and 16. If you could look at
Exhibit 16. Do you have that one there?
A Yes, sir, I do.
Q Can you identify that document?
A It’s my curriculum vitae.
Q Does that document accurately characterize your
experience and background?
A Yes, sir, it does.
Q Can you tell me your educational background?
A Undergrad, I have a Bachelor’s in accounting and
finance from Rutgers University in New Jersey. I have
further Bachelor, B.S. work from Saint Mary’s University
in Texas. That was in transferring. Completed my pre-
medical training in 1970 - I’m sorry - 1965. Medical
school was at Hahnemann Hospital and University in
Philadelphia in 1973. My internship was with United
States Air Force in Washington, D.C. I was in a medical,
rotating internship, and my [p. 82] residency was at
Hahnemann Hospital, and finished at one of the affilia-
tion of Hahnemann, my last two years at Atlantic City
Medical Center.
Q Have you been licensed to practice medicine?
A Since 1973 in Pennsylvania. I’m sorry. Since 1974
in Pennsylvania.
Q Do you currently have - Are you currently
licensed to practice medicine in any states?
A Yes, sir, I am.
Q Which states are you licensed?
30
A I will go through the list of these here. Currently
Nebraska, Pennsylvania, New Jersey, lowa, Ohio, Indi-
ana, Kansas, and Wisconsin.
Q Are you currently practicing medicine in
Nebraska?
A Yes, sir, | am.
Q Would you describe your practice here in
Nebraska?
A Iruna family practice type
eral medical practice with a special
practice.
Q How long have you had that practice?
of environment, gen-
ized abortion facility
A Since 1985.
Q Since 19 - I will withdraw that. How long have
you been practicing in Nebraska?
A I practiced since 1978. Excuse me. From 1978
until 1985 as a member of the United States Air Force.
[p. 83] Q In 1996, how many abortions did you
perform in Nebraska, if you know?
A Approximately 800.
MR. SMITH: I’m sorry. Was it ‘96? Just for clari-
fication, 1 wasn’t sure if he asked ‘86 or ‘96.
THE COURT: My understanding was 1996.
THE WITNESS: That was my understanding,
1996.
31
BY MR. HELLER:
Q At what gestational ages of pregnancy do you
perform abortions?
A We will — From the time of a woman’s confirma-
tion that she is pregnant, through fetal viability.
Q Can you give — Well, how do you measure gesta-
tional age?
A We use ultrasound for all of our patients and
compare that with their menstrual dating.
Q If you were to try to quantify a particular gesta-
tional age, do you do it in a number of weeks?
A Yes, sir.
Q And where are the number of weeks measured
A From the first day of the last menstrual period.
Q So again, going back to the question about what
gestational age is, what would be approximately the ear-
liest gestational age you would perform an abortion?
A The earliest we've done is two weeks and two or
three [p. 84] days. I’m sorry. Well, probably - three weeks
from the last menstrual period. As soon as the woxaan
has had a positive pregnancy test, we have done women
one day after that which would be, if they conceive on
the 14th day, which we assume, probably five to seven
days post that date.
Q Do you use the same method of abortion for all
the abortions you use, or do you use different method?
32
A Different methods.
Q Let's start with - Well, do you use different
methods, depending on the gestational age or on other
factors?
A Gestational age is one of the factors, but there are
medical factors that can influence a decision also.
Q Tell me which methods you use in the overall
methods.
A Overall, we use Methotrexate and Mifepristone -
Methotrexate and Misoprostol combination for very early
terminations. We use RU 486 and Mifepristone - RU 486
which is Mifepristone with Misoprostol for women that
are under eight weeks from the sixth — or actually, from
the fourth week to 14, 15 weeks. Occasionally, we will use
suction, vacuum aspiration. At about the 12th or 13th
week, we usually use curettage with vacuum aspiration
up through the 15th, 16th week, after that 16th week,
generally, it’s a dilatation and evacuation procedure, and
after the 18th week, we will use - Actually, that’s not
true. After the 16th week, we will use a partial form of
induction to speed the [p. 85] process.
Q Just so I’m clear about this, when you are talking
about a partial form of induction, does that mean you use -
A_ The old -
Q Well, could you tell me what that means?
A The old or classical definition of induction would
include the saline or Prostaglandin installation into the
uterine cavity, and then waiting for fetal demise, and then
using drugs to cause the uterus to dilate or the cervix to
33
dilate and the uterus to contract. We don’t do the installa-
tion portion of that. We do use Prostaglandin to aid in
cervical dilatation, and we do use drugs that cause the
uterus to contract.
Q Are those drugs used to augment surgical pro-
cedures, or are they used standing alone to terminate
pregnancy?
A They are used to augment the surgical pro-
cedures.
Q Are the only procedures you do that do not
involve surgery the ones you mentioned, Methotrexate
and RU 486?
A They normally don’t involve surgery, and the
study that we’re a part of, approximately three-tenths of
1% have used surgery as a backup.
Q Let’s focus now on the second trimester abor-
tions. By that, I mean abortions after 14 weeks from the
LMP I’m going to use LMP as abbreviation for the first
day of the woman’s last menstruation period, is that all
right?
[p. 86] A Yes, sir.
Q For second trimester abortions after 14 weeks, are
you aware of methods, other than the ones you use, that
can be used to perform those abortions?
A Yes, I am.
Q What methods are they?
34
A The saline or Prostaglandin induction and hyster-
otomy come to mind, being the most common, and hys-
terectomy is occasionally used.
Q What fees do you charge at different - Excuse me.
I will withdraw that question. What fees do you charge
for abortions?
A Okay. Can I use my notes, or how do you -
THE COURT: Certainly.
THE WITNESS: Our medical procedures are
$350, and we are assuming a cash payment, if that’s all
right with the Court. The medical procedures would be
$350. A surgical procedure from the fourth week, which
is two weeks after conception through the beginning of
the 12th week or 11 weeks, six days, our price is $275.
Twelfth and 13th week, it goes to 375. The 14th and 15th
week, it goes to 425, and the 16th through the 17th week,
it goes to $600. Each of those procedures, the patient has
an option to add IV sedation to her procedure if she elects
to do that. There is an additional charge of $60 through
the 17th week. After the [p. 87] 18th week, we have
factored that in because we use - I have sedation for
almost all of our patients unless there is a reason not to or
the patient has a desire not to.
BY MR. HELLER:
Q What are your fees for after 18 weeks?
A The 18th and 19th week, our fees go to $895. The
20th and 21st week, $1,250; the 22nd through the 23rd
week, six days, are $1,850; and 24th week and above
would be by a personal discussion or arrangement with
the patient.
35
Q You indicated earlier that you do abortions
through the point of fetal viability?
A Yes, sir.
Q If you see a woman who needs an abortion or
wants an abortion after viability, do you refer her else-
where?
A_ I will. If there is no medical indication, I will refer
her elsewhere. If she has a - If she herself has a medical
indication or the fetus has a medical indication of not
being viable, then we would not refer.
Q Where do you -
A Not necessarily refer her.
Q Where do you reter her?
A
I generally refer to George Tiller in Wichita, Kan-
sas.
Q Do you refer women to other abortion i
in Nebraska? ss eras
A _ No, sir, I do not.
[p. 88] Q Do you receive referrals from other physi-
cians in Nebraska?
A_ Yes, sir, I do.
Q Can you estimate approximately how many dif-
ferent physicians within Nebraska have referred women
to you for abortions?
A No. I have never kept that list, but it’s - I can
state probably well over 15 or 20 that I’m aware of,
maybe much greater than that. I don’t - I couldn't -
36
Q One of the documents I handed you, which is one
that is not marked as as an exhibit, is a copy of Legisla-
tive Bill 23. Do you see that there? I hope I did give it to
you.
A Everything I have is marked as an exhibit.
Q All right. Well, then, I'll have to give you one.
Have you read this document before?
A Yes, I have.
Q I would like to call your attention to this version
of it, page four of the document. There is a subsection 9
that contains a definition of partial-birth abortion. Do you
see that?
A Yes, sit.
Q First, is partial-birth abortion a medical term?
A I have not seen it discussed in medical discus-
sions other than in response to the bills that neve been
before the federal and local state courts, so I don t think
on pure [p. 89] physician-medical basis, there is not a
term partial-birth abortion.
Q For example, are you aware of any medical text-
books that use that term?
A I do not believe there are any textbooks that use
that term.
Q Looking at the second sentence of that eran
9, do you see the part that says for purposes of
subdivision, the term partially delivers vaginally a living
and unborn child before killing the unborn child —
deliberately and intentionally delivering it to into
37
vagina a living, unborn child, or substantial portion
thereof for the purpose of performing a procedure where
the person performing such procedure knows will kill the
unborn child and does kill the unborn child?
A_ Yes, sir.
Q I want to focus your attention on the term sub-
stantial portion. The portion that says a living, unborn
child, or a substantial portion thereof. What is your
understanding of what substantial portion means?
A Ido not understand what substantial portion is.
Q What are the range of possibilities it could mean
to you?
A I think it could mean any identifiable part of the
fetus. I think it could mean the umbilical cord. I think it
[p. 90] could mean an extremity, I think it could mean a
portion of an extremity, a foot, a toe, a hand, a finger. I
think it could mean a portion of the skull, if it’s a face-
first presentation, where the forehead protrudes from the
cervical os before anything else comes out.
Q Also in that same sentence, there is the term
living, unborn child. What is your understanding of what
that phrase means?
A I think medically, it has no meaning. I think polit-
ically, it has an inflammatory meaning.
Q Well, let me - Let’s focus on the term living. What
is your understanding of what — Let me ask you a differ-
ent question. Someone said to you a living fetus, what is
your understanding of that term?
38
A. It’s a fetus that is viable, that has a heartbeat, that
has - it is undergoing normal genetic or normal embry-
onic development.
Q By viable and what you just said, do you mean
after the point of viability?
A No. I mean, at that given moment, not that it - I
don’t necessarily mean that it’s going to go on and live.
We don’t know that, but a pregnancy, I think at 10 min-
utes after conception, you have two cells that are living or
one cell as they combine.
Q I want to return now to your summary of the
methods you [p. 91] use to perform abortions and ask you
to describe those in some detail one-by-one. Let’s start
with the early procedures you do. Let me start with the
one you described, Methotrexate and -
A Methotrexate and Cytotec or Mifepristone.
Q How does that procedure work?
A That is a procedure that’s done on very early
patients. It’s usually - and there is currently a study
that’s being proposed to do tablets, but it’s usually an
injectable form of the drug Methotrexate is given after
you have done an ultrasound to ascertain the exact dating
of the pregnancy. Usually, the injection is given in one of
the large muscles of the body, and after a period of five to
seven days, the patient returns for the second ultrasound
to confirm the fetus is no longer living, and at that point
she uses the Cytotec tablets. We are currently using four
200-milligram tablets vaginally to promote or to cause
induction, if you wish, to cause the fetus to expe! the
39
pregnancy ~ I’m sorry - to ca
poognency. use the uterus to expel the
Q And th ,
os aan en you also described the method using
A RU 486 is a drug Mifepristone which we're cur-
rently using in a clinical setting, a clinical experimental
setting, that’s being conducted through the University of
Rochester. Consists of one tablet of - one tablet of RU 486
rs Mifepristone taken by the patient in the clinic on the
irst [p. 92] day. On the third day, the patient, and that
again, is after an ultrasound to confirm gestational i.
ing. On the third day, the patient would insert the tablets
Cytotec tablets at home vaginally, returning on the fourth
day for an ultrasound to i
pl confirm that the abortion is
Q In both of those cases, i
’ if the j ;
complete, what do you do? mention to nat
A In the case of the Methotrexate, we would, on th
wpe = if the fetus is still viable, give a second ea
ethotrexate and have the patient again return i
: in a
ray There have been some reports of people doing up
our doses. We have not done that. We have elected
after the second dose, if the fetus is still livin t
ahead and do a surgical aspiration abortion sified
? Q Putting aside, then, these two methods of RU 486
an | Methotrexate, you indicated you also do a sucti
aspiration? i
A A vacuum aspiration.
Q A vacuum aspiration. C
, - Can you describe w
do in a vacuum aspiration procedure? ee
40
A Again, and I didn’t go into the preoperative por-
tion of both of these, the medical and the surgical, but we
have a rather extensive patient advocate session’ where
we describe the procedure completely and review the
patient’s options. We do laboratory testing to show her
that they are a candidate, if they don’t have other medical
reasons that [p. 93] would preclude doing an abortion at
that time. We do ultrasound to confirm gestational dat-
ing, and subsequent to that, we use a local anesthetic to
numb the cervix. We use a series of progressively increas-
ing dilating rods to enlarge the cervix, and then we use
the plastic, in my case, I use plastic, but there are metal
cannulas available to insert through the cervical os, and
when attached to a vacuum machine, cause the contents
of the uterus to pass through that tube. Following that we
use a sharp curettage to clean the uterine wall, and we
reaspirate following that, and then the patient goes to
recovery.
Q What would be the latest stage in pregnancy that
you would use the procedure you just described?
A In the 14th to 15th week. Most of the time by the
15th week, it doesn’t work. I always start that way in 14
or 15 weeks, but most of the time, you have to use a
mechanical forcep to actually grasp the fetus and remove
it.
Q Now, talking about the ones where you are doing
only that procedure, the vacuum aspiration procedure, do
you use ultrasound while you’re conducting the surgery?
A Yes, sir, I do.
41
_ Q Can you describe for the Court what ultrasound
is?
A It’s an adaption of the sonar developed by the
Navy in the 1930’s to find the different densities of sub-
stances, usually in comparison with a known substance.
In our case, [p. 94] we are looking for air, fluid, and the
main substance we are comparing to is water. The other
fluids are fetal tissue, fetal cartilage, and we are compar-
ing the densities of that to actually graphically present a
picture of the fetus on a television screen.
Q When you’re doing the vacuum aspiration pro-
cedure, can you see the television screen that displays
that graphical image?
A Yes, sir, at all times.
Q And does it show only the fetus or a larger pic-
ture?
A It shows approximately a five, five-by-six-inch
area of the pelvis. If the fetus is large enough, it’s only the
fetus. If it’s an early pregnancy, then you would see
surrounding. You can move it to see any portion of the
pelvis you want or any portion of the body, you can do
ultrasound. You can use the same machine to do ultra-
sound on testicles, ultrasounds on breasts, on the heart,
on the liver. It just shows you a given area.
Q In a vacuum aspiration procedure, when you
begin the procedure, are you able to determine whether
the fetus is alive?
A Yes, sir. We do that - Well, we do it because the
patient needs to know if she is coming to the clinic with a
fetus that is not alive, most - It’s a monetary interest to
42
the patient because most of the insurances will cover a D
& C [p. 95] that remove a dead, terminated pregnancy
that spontaneously terminated, so we feel it’s important
that the patient be aware of that, and we also will often
let the patients go, especially if they are on [sic] medicaid
where they can receive this charge for free at a local
hospital through their own provider, we'll allow them to
go back and see that provider. I think it’s really in their
best interest to know if the fetus is alive or dead. If the
fetus is alive and it’s within our gestation, again, we
would continue.
Q As you're doing the vacuum aspiration pro-
cedure, can you determine - Well, first, do you remove a
substantial portion of the fetus vaginally during vacuum
aspiration?
A We remove all the fetus either intact or just dis-
membered.
Q How do you decide, or how is it determined
whether it’s intact or dismembered?
A It’s whatever, when it comes through the tube. |
have no - I have no governing effect on that.
Q What I mean is, can the whole fetus come
through the tube, through the suction tube?
A If the fetus, if you are using - if we feel the fetus
may warrant using a 9 cannula, a fetus was a little bit
smaller than that, it could come through intact without
disruption.
Q Could you describe for the Court, please, | don’t
know [p. 96] what this terms means either. What is a
cannula?
43
A_ The cannula is the tube the plastic curette that we
actually insert into the uterus through th
ee psc gh the cervical os tube
Q Does that come in different sizes?
: A They come in one millimeter size differences
rom four millimeters, that we carry in our clinic from
five millimeters up through 16 millimeters.
, Q So if that tube is sufficiently — If it’s larger than
the fetus, the fetus may just be sucked out in one piece?
? A ; That's correct, and during the very early termina-
a if you use the manual aspirators which are avail-
able, then you’re using a size six or seven aspirator or a
P ,
Q At what point in that va i
cuum aspiration
cedure is the fetus killed or does the ieee die haart
happen before you begin the procedure?
A No.
Q Can you identify the point at which it dies?
A Well, we use a - in our bottles that collect the
specimens, we use a tissue that’s - I mean, we use a
substance that detoxifies blood which kills all living cells
SO once it arrives in that bottle, I would say that it dies
very rapidly, but I think in the journey through the tube
and through the tubing and the machine, not knowing if
or when it [p. 97] died, I do know of physicians that a
testified and physicians that have stated, and I have seen
films of - or where they have done the studies, and they
44
can actually show a viable fetus at six or seven weeks
when it’s outside of the body.
Q Again, by viable fetus, you mean -
A Actually, currently living fetus.
Q Rather than able to survive.
A It’s absolutely not able to survive, but for a few
seconds it could have a heartbeat or have other functions
outside of the body.
Q Do you have an opinion about whether the par-
tial-birth abortion law that we’re talking about covers the
type of procedure you're describing, the vacuum aspira-
tion procedure?
A I think it absolutely does because the entire fetus
has to be a substantial portion of the fetus, and it is
coming through the tubing alive in many circumstances.
Q Let's talk about the type of procedure you do
after you can no longer do the vacuum aspiration pro-
cedure. Tell me how that procedure works.
A The initial phases, initial portions are all the same
up through the lab work, the ultrasound, and the actual
injections to numb the cervix. At that point, we would
still dilate as we would for a mechanical procedure up to,
depending on the gestation, up to approximately 16 to 17
[p. 98] millimeters in diameter. At that point, we would
put an osmotic dilator, which is a small piece of, in
actuality, of seaweed that has been sterilized and pre-
pared medically so that it was sterile. We would coat that
with an antibiotic solution or antibiotic ointment, place
those in the cervix. At that point, the patient would wait
45
generally 12, sometimes up to, depending on the gesta-
tion, from 12 to 72 hours before we would complete the
abortion, and by completing the abortion, the patient
would go home, or if they lived more than — We would
like them to be within an hour, but we require them to
stay within at least two hours of the clinic so if there was
an emergency they could get back. When they return, we
remove the laminaria. If the dilation is adequate, we
would go ahead and rupture the membranes and then
remove the fetus mechanically. Following the fetal
removal ~ the fetus, removal of the fetus and the pla-
centa, we would vacuum aspirate to make sure no tissue
fragments are left on the uterine wall, and we would also
use a sharp curettage to clean the uterus, and then the
patient would go to recovery. If the patient were over 19
weeks, or if the patient did not dilate well, we might
remove the laminaria we had put in and place new lami-
pom or we might simply add a few additional laminaria
a = seas a to help the uterus start to dilate.
Q You mentioned at one poi inari
point laminaria. And I just
wanted [p. 99] to be clear for the record, can you tell oo
is laminaria the same as the seaweed?
A Laminaria japonica is the type we use.
; Q When you described the woman leaving your
office after she has a laminarius inserted and staying
within one or two hours, is she able to carry on her
normal activities during that time period, or are there
specific restrictions?
A There are restrictions. We would restrict them, we
would suggest restrictions. I’m not sure they are always
46
carried out. We would like them not to have any sexual
activity. We would like them not to engage in any physi-
cally demanding strenuous work. We ask them to try to
keep driving to a minimum. In fact, we ask them not to
drive at all because they are also receiving medications to
help with pain relief, so they are instructed not to drive at
all. We do have - We have had patients that would go
back to work and work the rest of that day and work part
of the next day before they came in if their work was
desk work.
Q When you do what you described as the mechan-
ical removal of the fetus for these later abortions, is that
also done with ultrasound?
A Yes, sir, it is.
Q So again, you can see graphically the picture of
the fetus and surrounding area?
A Yes, sir.
[p. 100] Q Tell me in more detail how you go about
mechanically removing the fetus.
A Once we're certain that we have adequate dila-
tion, we either use the vacuum aspirator to rupture the
membranes or use a forcep to rupture the membranes.
And occasionally, the membranes that surround the fetus
and hold the bag of water will spontaneously rupture
before the patient gets into the procedure room. Once the
membranes have been ruptured, anything over 15 weeks,
our intent is to try to remove the fetus as intact as
possible, and we do that mechanically with either a Beier
forcep which is a - looks like a specialized pair of pliers,
47
long-handled that can reach inside of the uterus to grasp
a portion of the fetus and to bring it out of the uterus.
Q At that time when you begin that procedure, let’s
say, for example, at 16 or 17 weeks of gestation, do you
A Up through - up through the 1 i
invariably alive. : Slee narieg
Q How can you determine that it’s alive?
A Well, on our - We use ultrasound. We always do a
fetal heart rate before we do a second trimester pro-
cedure. It’s documented on our laminaria forms of the
fetal heart rate, at the beginning and also at the end >f
each time the patient comes into the procedure room
through the serial dilations, [p. 101] and then we again
check fetal h i i i
esa eart rate prior to starting the final removal of
Q You indicated that your intent is to try to remove
the fetus as intact as possible?
A Yes.
Q Can you tell me why that is your intent?
A Well, I think Statistically from the literature I’ve
read, and from my comment talking with other people
that do the later abortions, the number one - not the
number one — probably the number three factor in lower-
ing maternal complications is to eliminate sharp frag-
pre either pieces of long bone or pieces of skull
agments, from passing through the cervical os without
some kind of covering or protection. When you remove
48
them intact, the bones are covered by the fetal tissue. It’s
less traumatic to the cervix. I think the other two impor-
tant things that we do to reduce complications is to try to
evacuate the contents of the brain directly outside of the
uterus because I believe that one of the second, probably
most common cause of maternal death or maternal com-
plications, is DIC or disseminated intravascular coagu-
lopathy. Fetal brain tissue is thought to be one of the most
seriously implicated factors that cause maternal DIC, that
fetal brain tissue being absorbed through the uterine wall
into the blood stream causing her own coagulation fac-
tors to stop working, and I [p. 102] think the most serious
or the most common cause of maternal death or compli-
cations, severe maternal complications today is amniotic
fluid embolus, and that’s our intent to drain the amniotic
fluid before we start the procedure in order to use the
evacuation procedure to hopefully remove all the amnio-
tic fluids before we remove the fetus.
Q You indicated that you try to remove the contents
of the - I think you said of the skull or of the brain?
A Remove the brain or the contents of the skull,
yes.
Q And I think you said outside the uterus. I wasn’t
sure. At what point were you trying to do that during the
procedure?
A _ I try to do it when the skull, when the skull is
reachable through the cervical os.
Q Where is the rest of the fetal body at that point?
A It may be entirely behind the fetus inside the
uterus, or it may be entirely out of the uterus in the
49
vaginal cavity, depending on the way the fetus was in
presentation.
Q So do I understand you that if the fetus happens
to be feet first, that’s how you would remove it?
A Yes.
Q And if it happens to be head first, you would
remove it that way?
A That’s correct.
Q What specific ways do you use to decompress the
skull? [p. 103] I will rephrase it. Can the skull fit through
the cervix?
A If you have adequate dilation, yes, the skull can
fit through the cervix. The skull is the largest dieter [sic,
diameter] object that has to come through the cervix. |
think that you reduce complications to the mother by
having - I think - well, first of all, you reduce them by
having enough dilation to do the procedure, but as little
dilation as possible also helps to reduce other maternal
complications such as incompetent cervix at a later date,
SO we would like to have the cervix large enough for the
tissues of the fetus to pass through, but the fetal skull is
often twice that big in diameter, so we would like to
reduce the diameter of the skull to the point that it can
come through that - the os, too, and our dilation, nor-
mally, that’s what our dilation - We are looking for a
dilation that’s large enough to allow the pelvis and allow
the parts to pass through compressed, granted, but not
fragmented.
Q How would you compress the skull?
50
A Compress the skull using forceps, but if you com-
press the skull using forceps totally, then the skull will
rupture at some point. Some of the tissue will come out of
the uterus, but most of it will go in behind, if the skull — if
the fetus is feet first, most of it is going to rupture
through the upper portion of the skull and go into the
uterine and be in the uterine cavity at which point it can
be [p. 104] absorbed.
Q So is there an alternative to crushing the skull
that you use?
A We use a sharp object to either tear or perforate
the skull in some position so that we can put a cannula in
and remove the cranial contents.
Q So you both you would use both alternatives,
crushing the skull sometimes, sometimes evacuating the
contents of the skull?
A Yes, sir.
THE COURT: Pardon me, counsel. It’s now
about 12:00 o'clock. Give me a sense of how much longer
you will be. I’m simply, I guess, asking directly whether
now would be a good time for our break.
MR. HELLER: I think it would be a fine time. I
think I probably have approximately an hour of addi-
tional questions.
THE COURT: All right. Let me hear from the
defendants. Would now be a good time for our break?
MR. SMITH: Yes.
THE COURT: All right. Let’s take about an
hour and 15 minutes and return at 1:15. Let me see
51
counsel at the bench, please. Pardon m
’ ; e,D .
step down, sir. siseesiaged
(Side bar)
THE COURT: Does anybody hav
e an i
concerns [p. 105] over lunch? 4 sd peared
MR. HELLER: My concern is only that there
were protesters out front as we approached this mornin
saey were rather vocal in their remarks to Dr. Sidon:
Murderer,” things like that. So I’m just a little bit con
cerned about his leaving the courthou i
se and wh i
to be out there when we leave. i
THE COURT: Okay. Anybody el
security concerns? ee
MR. GRASZ: I don’t.
THE COURT: Okay. You want
. to go to |
someplace outside the building, I take it? Sudveas
MR. HELLER: Well, yeah, probab
there a place nearby? ee Pee
mae THE COURT: I'll tell you what I do. I order
unc in from a deli place, and my office can order for all
-- you if you want to do something like that. Otherwise, I
on’t know where people normally eat. Let me ask ay
aw clerk. I don’t know if you go to lunch.
MS. REMPE: There are several
ct places close b
within the block here. There is a pizza place. ”
MR. HELLER: Any of those i
can probably walk. eae
THE COURT: Is your preference to go out?
52
MR. HELLER: I think probably it is for a little
[p. 106] while.
THE COURT: Okay. Would any of you have any
objection if I had somebody from the marshal service take
Dr. Carhart out through the east [sic] entrance? We have a
garage entrance. Would any of view [sic] any problem
with that?
MR. HELLER: No, we have no problem [sic]
that. I think he would probably feel a little safer if we did
that.
THE COURT: We can’t provide you security
outside the building, but we can give you an entrance.
MR. HELLER: The rest of us can meet him at
the outside, I suppose.
THE COURT: Well, you all can go with the mar-
shals, all of you can go, but coming back is going to be a
problem because I can’t have a marshal sitting there, and
so you're going to have to come back through the east
side.
MR. HELLER: There was - I’m not sure if it was
a marshal or security guard out front.
THE COURT: There is, and there should be
extra police protection out there, but folks are entitled to
do what they want on the sidewalk, so if you exercise
this, my point is you’re going to have to come back
through the east door.
MR. HELLER: That's fine.
THE COURT: I will ask you, Ms. Rempe, to take
counsel and anybody who wants to go and parties to the
53
[p. 107] marshal service and tell them I would like to
have one of the CSO’s or the marshals let them go out the
north door. In fact, you can take them out the north door.
Why don’t you just take them out?
MS. REMPE: Okay.
THE COURT: Do you know where the north
door is?
MS. REMPE: We'll be going down the elevators.
THE COURT: Take them down the back. Why
don’t you walk down? ,
MS. REMPE: The stairs?
THE COURT: Yeah. That will get you out to the
north door. You'll have to come back in the east door.
MR. HELLER: Thank you, Your Honor.
THE COURT: We'll see you at 1:15.
(Recess from 12:05 to 1:17 p.m.; all parties present)
THE COURT: Counsel, you may proceed.
BY MR. HELLER:
Q Thank you, Your Honor. Dr. Carhart, before we
took a recess for lunch, we were talking about the pro-
cedure you used in the second trimester or procedures
you used in the second trimester, and you were talking
about a procedure that involved an effort to remove the
fetus intact and then reducing the size of the skull so it
could come through the cervix. You had identified one
advantage of that procedure was something having to do
with bones or bone fragments?
[p. 108] A Yes, sir.
Q Are there any other advantages to that procedure
that you believe exist?
A Other than the bone fragments, the tissue frag-
ments itself, the skin also, when you macerate the skin, it
also has a propensity to release anticoagulants in the
maternal circulation. Just the less instrumentation, if you
can grab one part or two parts and remove the fetus, then
you're not making multiple attempts to go back in the
uterine cavity. Even with ultrasound, you’re still partially
blind. You’ve got two axis to see. You don’t have a third.
sO you can grasp a portion of the uterine wall, you can do
damage to maternal structures.
Q Do you have an opinion about whether perform-
ing an intact D & E is safer than performing a D & E that
is not intact?
A_ In my practice, the way I do it, I think it’s much
more safe.
Q Are there times when you don’t remove the fetus
intact?
A Yes, sir.
Q Can you tell me about that, when that occurs?
~
A That occurs when the tissue fragments, or fre-
quently when you rupture the membranes, an arm will
spontaneously prolapse through the os. I think most -
Statistically, the most common presentation, we talk
about the forehead or the [p. 109] skull being first. We
talked about the feet being first, but I think in probably
the great majority of terminations, it’s what they would
55
call a transverse lie, so really you're looking at a side
profile of a curved fetus. When the patient — the uterus is
already starting to contract and they are starting to mis-
carry, when you rupture the waters, usually something
prolapses through the uterine, through the cervical os,
not always, but very often an extremity will.
Q What do you do then?
A My normal course would be to dismember that
extremity and then go back and try to take the fetus out
either foot first or skull first, whatever end | can get to
first.
Q How do you go about dismembering that extrem-
ity?
A Just traction and rotation, grasping the portion
that you can get ahold of which would be usually some-
where up the shaft of the exposed portion of the fetus,
pulling down on it through the os, using the internal os
as your counter-traction and rotating to dismember the
shoulder or the hip or whatever it would be. Sometimes
you will get one leg and you can’t get the other leg out.
Q In that situation, are you, when you pull on the
arm and remove it, is the fetus still alive?
A Yes.
Q Do you consider an arm, for example, to be a
substantial portion of the fetus?
[p. 110] A In the way I read it, I think if I lost my
arm, that would be a substantial loss to me. I think I
would have to interpret it that way.
56
Q And then what happens next after you remove
the arm? You then try to remove the rest of the fetus?
A Then I would go back and attempt to either bring
the feet down or bring the skull down, or even sometimes
you bring the other arm down and remove that also and
then get the feet down.
Q At what point is the fetus —- does the fetus die
during that process?
A I don’t really know. I know that the fetus is alive
during the process most of the time because I can see fetal
heartbeat on the ultrasound.
THE COURT: Counsel, for what it’s worth, it
still is unclear to me with regard to the intact D & E when
fetal demise occurs.
BY MR. HELLER:
Q Okay. I will try to clarify that. In the procedure of
an intact D & E where you would start foot first, with the
situation where the fetus is presented feet first, tell me
how you are able to get the feet out first.
A Under ultrasound, you can see the extremities.
You know what is what. You know what the foot is, you
know, what the arm is, you know, what the skull is. By
grabbing the feet [p. 111] and pulling down on it or by
grabbing a knee and pulling down on it, usually you can
get one leg out, get the other leg out and bring the fetus
out. I don’t know where this all the controversy about
rotating the fetus comes from. I don’t attempt to do that. I
just attempt to bring out whatever is the most proximal
portion of the fetus.
57
Q At the time that you bring out the feet in this
example, is the fetus still alive?
A Yes.
Q Then what's the next step you do?
A I didn’t mention it. I should. I usually attempt to
grasp the cord first and divide the cord, if I can do that.
Q What is the cord?
A The cord is the structure that transports the
blood, both arterial and venous, from the fetus to the
placenta and from the placenta back to the fetus, and it
gives the fetus its only source of oxygen, so that if you
can divide the cord, the fetus will eventually die, but
whether this takes five minutes or 15 minutes and when
that occurs, I don’t think anyone really knows.
Q Are there situations where you don’t divide the
cord?
A There are situations when I can’t.
Q What are those?
A I just can’t get to the cord. It’s either high above
the fetus and structures where you can’t reach up that far.
[p. 112] The instruments are only 11 inches long.
| Q Let’s take the situation where you haven't
divided the cord because you couldn’t, and you have
begun to remove a living fetus feet first. What happens
next after you have gotten the feet removed?
A We remove the feet and continue with traction on
the feet until the abdomen and the thorax came through
58
the cavity. At that point, I would try - You have to bring
the shoulders down, but you can get enough of them
outside, you can do this with your finger outside of the
uterus, and then at that point the fetal — the base of the
fetal skull is usually in the cervical canal.
Q What do you do next?
A And you can reach that, and that’s where you
would rupture the fetal skull to some extent and aspirate
the contents out.
Q At what point in that process does fetal demise
occur between initial remove - removal of the feet or legs
and the crushing of the skull, or I’m sorry, the decom-
pressing of the skull?
A Well, you know, again, this is where I’m not sure
what fetal demise is. I mean, I honestly have to share
your concern, Your Honor. You can remove the cranial
contents and the fetus will still have a heartbeat for
several seconds or several minutes, so is the fetus alive? I
would have to say [p. 113] probably, although I don’t
think it has any brain function, so it’s brain dead at that
point.
Q So the brain death might occur when you begin
suctioning out of the cranium?
A_ I think brain death would occur because the suc-
tioning to remove contents is only two or three seconds,
so somewhere in that period of time, obviously not when
you penetrate the skull, because people get shot in the
head and they don’t die immediately from that, if they
are going to die at all, so that probably is not sufficient to
59
kill the fetus, but I think removing the brain contents
eventually will.
) THE COURT: Counsel, once again, and just so
we're all playing on the same score card, so-to-speak, |
suppose that we can debate what fetal demise means ond
I understand the doctor’s statement. It might be helpful
to talk about lack of heart function, lack of brain function
to the extent you all think that’s important. I think that
will clarify the record. Those are ical
indicia of life. ee
MR. HELLER: Certainly, Your Honor.
BY MR. HELLER:
| Q I think you've said that brain function may con-
tinue for a few seconds. I’m sorry. Not brain function
heart function may continue for a few seconds after the
skull is decompressed, is that correct?
A Right.
[p. 114) Q And then the heart ,
omen art would stop, is that
A Eventually, yes. The heart, you can take the heart
out of, you know, medical school, remove the heart from
dogs. They have done studies on this back into the 30’s
and 20’s, remove the heart and do studies on the heart for
several minutes on hours if you infuse it with oxygen and
saline and keep the heart alive. The rest of the fetus is not
innately necessary to keep the heart alive. It’s just as long
as the heart is going to beat until it runs out of o
and the cells die on its own. ea
60
Q How soon after you begin decompressing the
contents of the skull would you say that the brain func-
tion ceases?
A This would be purely conjecture. I don’t know of
any instruments that are even made to measure that. |
certainly wouldn’t have the availability of any of those.
Q Certainly, the brain function doesn’t continue
after you have done that?
A No, the brain function doesn’t, but University of
Florida just reported several brain transplants from fetal
tissue several days after the death — after the termination
of the pregnancy into humans, and they are showing
response to that living fetal tissue, so the cells may not
function as a brain, but that doesn’t mean the cells are not
living.
Q ‘Well, in terms of brain function, the brain has
ceased to function very quickly after you begin the -
removing it?
[p. 115] A I guess I don’t know that anybody can
tell you what the brain does in a fetus. I mean, we can
find some brain waves. There is no good evidence that
they represent anything. All the movements in the fetus
from - do not correlate to brain waves, but the move-
ments the fetus does are thought to be unintentional and
more reflex, reflexive and probably at the spinal cord
level rather than the brain cord, the brain tissue level, so I
don’t know how to answer that.
Q Now, are there situations where you set out not
to do - to remove the fetus intact but to remove it by
dismemberment, or is your intention always to -
61
A I think my intention after the 16th week is always
to remove it intact. I think that my actual success in doing
that is probably, up through the 19th week, less than five
or 10% that actually come out totally intact.
Q Why is that?
A I think because of the softness of the tissue where
the tissue is easily fragmented, and again, I don’t feel the
need to push the arm back up or try to turn the fetus to
get the feet out first. I think you have to take advantage
of whatever presentation you have and reduce the size of
the fetus as much as possible and remove it. I’m sure you
could do more dilation, and you could remove all of them
intact if that were your goal, but I don’t - I’m looking for
a solution that’s the best all around for the mother. |
mean I [p. 116] -
Q When you are doing a D & E that involves dis-
memberment, where does the dismemberment occur; in
other words, do you insert instruments into the uterus
and dismember the fetus inside the uterus, or do you
dismember it in some other way?
A Well, we insert one instrument inside the uterus,
grab a portion of the fetus and pull it through the cervical
os. The dismemberment occurs between the traction of —
I’m sorry - between the traction of my instrument and
the counter traction of the internal os of the cervix. I
Suppose you could put two instruments in the uterus and
try to dismember it. I think that would be very dan-
gerous.
Q So the dismemberment occurs after you pulled a
Part of the fetus through the cervix, is that correct?
62
A Exactly. Because you're using - The cervix has
two strictures or two rings, the internal os and the exter-
nal os, and you have - that’s what's actually doing the
dismembering. It’s like who is pulling the cat’s tail. If you
are holding it and the cat’s pulling it, something has to
pull the other way. Otherwise, if you drag a string across
the floor, you'll just keep dragging it. It’s not until some-
thing grabs the other end that you are going to develop
traction.
Q When we talked before or talked before about a D
& E, that is not - where there is not intention to do it
intact, [p. 117] do you, in that situation, dismember the
fetus in utero first, then remove portions?
A I don’t think so. I don’t know of anyone that - I
don’t know of any way that one could go in and inten-
tionally dismember the fetus in the uterus. If you grab an
extremity and twist it, you can watch the whole fetus just
twist. It takes something that restricts the motion of the
fetus against what you're doing before you're going to
get dismemberment.
Q When you pull out a piece of the fetus, let’s say,
an arm or a leg and remove that, at the time just prior to
removal of the portion of the fetus, is the fetus alive?
A Very often, yes, sir.
Q And after that, when does fetal demise occur in
that type of abortion?
A I think the fetus is going to lose blood the same
as an adult would or a child would if it loss an extremity,
but how fast that is going to happen, I don’t know that I
can comment on. I don’t know any way you could study
63
that, and I don’t know how many - how many minutes or
how many hours the fetus could continue to lose this
blood. The fetal blood supply is certainly much greater
than the adult or the children’s blood supply because
they have got a blood supply both in the fetus and in the
placenta, so it’s going to take a considerable amount of
blood loss before the fetus is going to, you know, [p. 118]
have an insufficient amount to profuse. I don’t think
there is any way to determine that. I mean, we could - I
could do it by watching the monitor. I’m not - There has
been one case in New York that a physician lost his
license over - when he removed the arm of the fetus, and
that fetus eventually went on and was born-as a living
child with one arm, so I don’t think you can say that
necessarily will cause death.
Q Well, when you do a procedure and you remove
an arm, what do you do next?
A Just continue removing whatever else
a hold of. ’ oe
Q At some point during the removal of portions of
the fetus, does the fetus die? In other words, you remove
let’s say, a leg or an arm, then you remove some other
portion of it. At some point, is the fetus - Does the fetus
undergo demise, do you think?
A Asa unit -
Q Well, let’s talk about it as a unit, a functioning
unit.
A Well, as a unit, I would think there is some point
that the loss of the extremity is going to be so great that
the fetus will die. That may well take longer, though, for
64
all heart functions to stop. We are only talking, for some
of these patients, a procedure that lasts four to five min-
utes. Heart function certainly can continue more than
four to five [p. 119] minutes.
Q Have you ever removed a portion of a fetus and
observed heart function on ultrasound?
A While we are removing it?
Q After removing it or during.
A I have never done an ultrasound on the fetus
afterwards, no, but while the fetus is in the canal and
you're removing the fetus through it, we can still see fetal
heart activity with extensive parts of the fetus removed.
Q Do you ever try to induce fetal demise before
beginning surgery?
A Yes.
Q Under what circumstances do you do that?
A I usually try to do this on all of my patients after
the 20th week of menstrual gestation.
Q What method do you use to induce fetal demise?
A lLuse an ultrasound guided much like amniocen-
tisis and intrafetal - or hopefully an intracardiac fetal
injection of Digoxin and Lidocaine.
Q What do those substances do?
A Both of those substances reduce and stop cardiac
activity.
Q How long after administering those substances
do you perform surgery?
65
A Normally not for 48 to 72 hours.
[p. 120] Q Is there an advantage to doing that? To -
A I feel multiple advantages. First of all, it’s com-
forting for the woman to know that the fetus is already
dead. I think that gives some mental - It’s an end point to
the procedure that she’s not living with for two or three
days. I think the second thing it causes is, there have been
some very good studies of people that have divided the
cord on fetuses and caused fetal demise and waited 24 to
48 hours for these patients to do the last part of the
procedure, and the tissues become very soft, and they
become very malleable, and the brain plates will overlap.
You can do much less dilation. We have been keeping
some numbers or we'll see an actual loss in measure-
ments of the fetal skull up to two weeks over that 72
hours. We are supposed to get four, five or maybe even a
six millimeter decrease in biparietal diameter because of
the loss of water from the fetus and then from the loss of
the mush, mush factor. I don’t know what else to call it by
the softness of the tissue that compresses just from the
maternal contractions.
Q Why would you not use Digoxin and Lidocaine
to induce fetal demise prior to 20 weeks?
A I have ~ I initially started doing it on everyone
over 16 weeks. My findings were that it really was not
that beneficial because in the 16- to 20-week time frame
we're only waiting 12 to 24 hours to go on with the
second part of [p. 121] the procedure so that, really, fetal
death had occurred but not much a change to the tissue
had occurred, and the risk, there was a trade-off with the
maternal comfort from the fact the fetus was dead. There
66
is a trade-off of the great apprehension and fear that most
women have of having an amniocentesis done, let alone
when they know their fetus is going to die from it. There
is a mental you know, most of my early patients. The later
patients seem to be very thankful, but the patients in the
15-, 16-, 17-, 18- and even 20-week range are more afraid
of - just were asking if they could avoid that. We finally,
we'll do it if they ask us to do it. We sort of tell them it’s
available, but we don’t normally do it.
Q Is there any medical reason not to do it earlier
than 19 or 20 weeks?
A Yes, there is. The reason why saline induction
was originally in the early 60’s and the 70's were limited
to after the 18th and 20th week. You have problems of
perforating bowel, you have problems from needle pene-
tration. As the uterus enlarges, it pushes all these struc-
tures out of the way, and there is less chance of causing
maternal complications, but under that, before the 20th
week, I don’t necessarily - I don’t think that is true. I
think there is more likelihood of putting the needle
through a loop of bowel or as the uterus is smaller, you
have a much smaller target [p. 122] and you have more of
a chance of getting the medication into the maternal
circulation than you do into the fetal circulation.
Q Why is that?
A Well, we are using two drugs that are - is the
maximum recommended dose for an adult woman of a
hundred pounds, and that’s why it’s not toxic to her. If
the entire amount of the drugs were injected into her
blood stream, it would not be toxic, probably, if they had
no other side effects, no other medical problems, so that’s
67
why I use the dose that I do use. That dose is toxic to the
fetus. But there is always a chance of getting into, say, the
cord, getting into the placenta, or maybe even getting
into the uterus itself, and as I said, we are dealing with a
two-dimensional picture trying to, in our mind, to deter-
mine where the third dimension is, and if you get
through the placenta, through the fetus into the posterior
uterine wall, then the mother can get all of the side of
effects from the Digoxin or all of the side effects from the
Lidocaine.
. Q Do you ever see patients who for whom those
Digoxin and Lidocaine are medically contraindicated?
A Yes, sir. Patients who have seizure disorders
patients who have heart disease, possibly already on
Lidocaine - already on Digoxin as a maximum level, the
already have received the maximum dosage of that a
cation they can. You [p. 123] can’t - I can’t take the risk to
use that medication for them.
Q And that would be even if
=.) if they are after 20
A Anytime, yes, sir.
Q So in those instances, you can’ i
Fah you can’t really induce fetal
A No.
Q We were talking about intact D & E before. Have
you ever had a patient request that the abortion be -—
result in intact fetus?
A I have, and I will tell them much the same as I
tell the people that request that we we don’t do that, is
68
that I will try to honor their wishes, but I can’t compro-
mise their safety and do something that is more dan-
gerous in order to have that as the end goal.
Q What - And what - Have patients indicated to
you their reasons for wanting it intact?
A We have patients that occasionally ask to have
their fetus buried through a funeral parlor, to have ser-
vices. Both people, I mean, even gestations where they
know the that [sic] fetus is probably not going to be intact
we have had them request that. Sometimes for genetic
studies, when the entire, the entire amount of the defor-
mities aren’t known, we’ll get requests from a physician,
possibly, to have the fetus as intact as possible.
[p. 124] Q I want to refer you now - Do you have
the exhibits there that I gave you?
A_ Yes, I do.
Q Exhibit 7, and if you would turn to page 8 of that
exhibit?
A Yes, sir.
Q If you would turn to the last paragraph of that
page, the paragraph states - Well, do you see the para-
graph that begins with, “To minimize uterine or cervical
perforation?”
A Yes, sir, I do.
Q If you could read that over and tell me whether
you agree with it.
A Should I read it out loud or just read it?
69
Q You can read it to yourself.
A Okay. Can you repeat your question?
Q Well, let me ask you more specific questions. Do
you agree that as this statement says, “That some physi-
clans use a form of D & E that has been referred to in the
popular presence intact dilation and extraction.” Do you
agree that some physicians do that?
A Yes, sir, I would.
Q Do you agree that they do it in part to minimize
uterine or cervical perforation?
A Yes, sir, I would.
| Q Do you agree that the D & X procedure may
minimize [p. 125] trauma to the woman’s cervix uterus
and other vital organs?
A Yes, sir.
Q Earlier we talked about other second trimester
procedures, and you mentioned inductions. You testified
that you don’t do inductions in second trimester. You do
procedures earlier that might be called inductions. Why
don’t you do inductions in second trimester?
A Well, to do a classical induction would require —
Well, first of all, it would require the patients to stay
longer. An induction, you don’t know where the end
point is going to be. You're at the — at the, I guess, totally
under the control of the cervix, when it’s going to release
I had - An associate had a patient in one of our Omahe
hospitals in ‘92 that was 19 weeks pregnant with - I’m
Sorry — a pregnancy with a 19-week gestation, was
70
severely, had severe fetal flaws, and their hospital would
only allow induction. He attempted to induce her for a
period of over a week. Subsequently, they ruptured mem-
branes, and still, the patient did not deliver, and subse-
quently she ended up having hysterotomy and a total
hospitalization of over two weeks. It’s, to me, induction
by itself is too uncontrolled. There is no finite end point,
and women have reactions to the drugs. The number of
people that you can’t use for induction because of hypot-
ension or heart disease or diabetes, it’s a large segment of
the population where it woulcn’t be [p. 126] available to
them.
Q Are you aware of physicians in Nebraska who
perform abortions by induction?
A Yes, sir.
Q Where do they do that? At what facilities?
A_ The facilities I’m aware of are Bergan Mercy, Uni-
versity of Nebraska, and Methodist.
Q Methodist Hospital?
A Yes, sir.
Q If a woman wanted an abortion by induction,
would you then refer her to one of those places?
A_ I couldn't refer her to the hospital in any of those
instances. I can’t refer her to the University of Nebraska
because they are restricted. They can only do - they can
only do terminations on women that have - that have
pregnancies that are so severely flawed they cannot sur-
vive through delivery. And I strongly - I think I believe
71
strongly enough that induction is not or is actually con-
traindicated in abortions that I would not make the refer-
ral. I would tell them of the places or the people that they
could see if they wished to pursue it on their own, but I
would not make the referral.
Q If an induction does not result in termination of
the pregnancy, what is done to complete the abortion?
A You have the option of either doing osmotic
dilators and [p. 127] doing the abortion that we would
classically do in the two or three-day setting, or the
hysterotomy which is a C-section, but because of the fact
that the uterus is not large enough, you can’t do the safe
C-section where it would be a low transverse C-section
and allow the woman to have future pregnancies that she
could deliver. You have to do a midline upper third
incision into the uterus, and that condemns her to C-sec-
tions for all her future deliveries.
| Q Are you aware of any induction being performed
in outpatient clinics in Nebraska or in doctor’s offices?
A I'm not.
Q Again, I’m talking about second trimester abor-
tions.
A I'm not aware of any. I’m sure it’s ha i
ppening
somewhere in the country. I think I know everybody in
Nebraska that’s doing abortions, and I’m not aware that
any of them do them in their office.
Q Do you perform hysterotomies as a method of
abortion?
A_ No, sir.
72
Q What about hysterectomy?
A No, sir.
Q Are you aware of any physicians in Nebraska
who perform abortions by hysterectomy or by hystero-
tomy?
A Yes, sir. I know they have been done in Nebraska.
Q Do you have a copy of Exhibit, I believe, 11 or 12?
Do you have either of those there?
[p. 128] A I have both 11 and 12.
Q if you could look at Exhibit 11, is there a cover
page on Exhibit 11, or is it just one page?
A There are -
Q Three pages?
A Yeah, three sheets of paper. One is double-sided.
Q If you look at the second piece of paper, can you
identify that?
A This is the current Nebraska State Department of
Health reporting form.
Q Is that the form you use to report abortions?
A Yes, sir, it is.
Q Currently?
A Yes, sir.
Q Does that form contain a space on which you can
indicate the method of abortion used?
A Yes, sir, it does.
Q Can you tell me what methods are listed there?
A Paragraph 14 says types of procedure performed
that terminated pregnancy. Choose one. Suction curet-
tage, medication-induced, specify. Dilatation and evacua-
tion, sharp curettage, dilatation and excision, and other.
Q The one prior to other dilatation and excision, are
you familiar with that as a procedure for doing abor-
tions?
A No, sir, I’m not.
[p. 129] Q So do you when you do an intact D& E
or what we have also called an D & X, how do you report
that on this form?
A On this form, we are doing it under block
number three.
Q What is block three?
Dilatation and evacuation, D & E.
Which exhibit are we on on that?
We were on page number 2 of Exhibit 11.
If you could now look at Exhibit 12?
Yes, sir.
Or OD > 0 >
Can you identify that document?
A This is the form that was used, at least back
through 1988, that I’m aware of in the State of Nebraska.
Q And did that form include a section where you
could indicate the type of procedure used?
74
A Yes, sir, it does, under section 8a.
Q And what types of procedures are listed there?
A Suction curettage, sharp curettage, intrauterine
saline installation, intrauterine Prostaglandin installation,
hysterotomy, hysterectomy, and others.
Q Where on that form would you have indicated
that you did either a dilatation and evacuation or a D & X
abortion?
A Under suction curettage.
Q That's because that’s the one that best fits?
A_I think that’s the one that fits the most.
Q On the newer form, is hysterectomy or hystero-
tomy listed [p. 130] as a method still?
A_ I don’t believe it was. Just other, I think you
would have to specify in there.
Q If you faced prosecution for performing any D &
E procedure, whether the fetus was alive, what would the
impact be on your patients?
A If, by facing prosecution, you mean if I could
change my practice and not become prosecuted?
Q Let me rephrase the question. If you faced pros-
ecution for performing D & E procedures, what would
your options be?
A Okay. If I knew that I would be prosecuted if I
did the D & E the way I’m doing it now, I would stop
75
doing them the way I’m doing them now. I think the
options would be to probably stop doing abortions
between the 7th week and the 18th week because I think
that I would be totally safe doing the medical procedure
where we're sure the fetus is dead before it is expelled
and I think I would be safe during fetal injection which L
in my own mind, I think I could safely bring down to the
19th week. In the hiatus between the 7th week and the
18th week, I think I would refer them to another state or
tell them that they would need to delay, which I don’t
think I would recommend to anyone.
| Q Now, if, instead, you knew that instead of remov-
ing the fetus intact or trying to remove the fetus intact
instead, you had to avoid doing that and just try to
remove it in [p. 131] pieces, what impact would that have
on your patients, the switch from intact proced
nonintact procedure? 4 =
A I think to intentionally bring sharp pieces of bone
and sharp pieces of fetal skull plate through the cervical
0s 1s to ask for an increase in incidents in maternal
complications, and I don’t thi i ise j
a on’t think that that is a wise judg-
Q If you were -
A Can I add one? Then also by doing tha
tw
back to the other factors of having macerated skin one
and macerated fetal brain tissue within the uterine cavity
76
Q Aside from the risks associated with sharp bones
and so forth and these other two, are there any other?
A_ Instrumentation.
Q What's nat?
A The multiple instrumentation, the chances of
tearing the uterus or perforating the uterus with the
instrument each time you go back in.
Q If you were in that situation you described where
you would stop doing abortions between 7 and approxi-
mately 19, 18 [p. 132] or 19 weeks, would your patients be
able to obtain abortions by induction elsewhere in
Nebraska that you know of?
A_ I don’t believe so.
Q Would they be able to obtain abortions by hyster-
otomy in Nebraska?
A I don’t know people that are doing these elec-
tively. I don’t know of anyone in Nebraska that’s doing
these for elective abortions. They are doing them for, you
know, for maternal or fetal indicated abortions.
Q Incidentally, in terms of your practice, do you
know if there are other physicians in Nebraska who pro-
vide abortion services as late in gestation as you do?
A I believe I’m the only person in Nebraska that
goes past 16 weeks, with the exception of Dr. Jerry Smith
at University Hospital, but he is restricted to only doing
abortions when the womans life is in danger. Well, that’s
not true because he refers those to me. I can only do them
when the fetus is so severely flawed that it cannot live to
deliver.
2 er ere ee
77
- Do you still have a copy of the statute LB 23 with
you
A Yes, sir.
Q If you could turn again to page four of that
document, section 3, around line 17, do you see that?
A Yes.
| Q That section states that, “No partial-birth abor-
tion shall be performed in this state unless such pro-
cedure is [p. 133] necessary to save the life of the mother
whose life is endangered by a physical disorder, physical
illness, or physical injury, including life-endangering
physical condition caused by or arising from the preg-
nancy itself. Do you see that?
A Yes, sir.
Q Do you see women who need abortions for men-
tal health reasons?
A I have referrals from other physicians for that,
yes, sir.
Q And what are some of the mental health reasons
for abortions?
A I have to go back and clarify that. I have not had
any referrals in the state of Nebraska for mental health
reasons. I’m sorry. I have had for other health, physical
health reasons, but not actually mental health. However, I
have had patients come to me and on their comment
sheets at the end write that if this option had not been
available, that they would have considered killing them-
gg or attempting self induced - a self-induced abor-
on.
78 !
Q Have you seen women who want an abortion for
health reasons, physical health reasons?
A Yes, sir.
Q Where the reason - where the abortion would not
necessarily save the woman’s life but only to preserve her
[p. 134] health?
A Yes, sir, I have.
Q Can you give me some examples of that?
A Renal failure, severe renal disease. I shouldn't say
renal failure. Severe brittle diabetes where they were
remaining hospitalized to keep their blood sugars in rea-
sonable control, that they were too brittle to even main-
tain any kind of control outside of the hospital and
hyperemesis gravidarum where they constantly vomit
with the pregnancy and can’t keep food down and lose a
good portion of their body weight are the three that come
mostly to mind.
Q Do you believe that those situations would fall
outside the life - the exception for partial-birth abortions
necessary to save the life of the mother?
A Yes, I do.
Q So those - such women would have to use, if they
wanted to end the pregnancy, some method of abortion
that was not a partial-birth abortion, is that right?
A Some method that wasn’t covered by this law,
and I don’t know what partial-birth abortion is. I can’t
answer that.
79
Q ‘“hat’s why I was using the term. Some method
that is not covered by this law. For such patients who
suffer- from some sort of health problem where the
would like to obtain a D & E abortion or any dition
that you believe is covered by the law, what would the
effect be on them of not being able [p. 135] to get the
abortion? T :
pa “at | ake the example of a hyperemesis you
A I think you could - We see people as early as 7
and 8 weeks for hyperemesis. We see them routinely in
the 12th to 15th week, but I think they would be told io
they would need to either stay hospitalized. The woman
that comes to mind most recently was 18 weeks that was
brought here by - She was hospitalized on IV fluids up
until the time they discharge her frora the hospital in
Benkelman, Nebraska, and drive 10 hours to Omaha
have her procedure, and then they took her back to the
hospital where she was kept on IV’s for 24 more hours
after the procedure. It would mean that they would con-
tinue whatever disease process they had for an extended
period of time until, I think, the abortion would be possi-
ble, or it would mean that they would have to travel
further to another clinic in another jurisdiction where
something could be done for them.
Q If a woman had to wait until i
the time at which
you felt comfortable inducing fetal demise, would that
also increase the cost of the procedure for her?
A Increase the cost. You can take tha
‘ Cost. t both ways.
Increases the financial cost to her. It also increases an
ner risk cost, the chances of her being - having some
d of an injury or complication goes up very — I think
80
Dr. Henshaw said something about 10% per week after
the 12th [p. 136] week, or I’m not sure what his testimony
was, but the numbers do drastically change. The studies
that I’m familiar with is an abortion in the earliest stages
is approximately 35 times safer than the childbirth as far
as all complications across the board. By the 20th week,
they are approximately equal to childbirth, and to make a
woman increase her risks from one out of 35 times as
dangerous as having a fetus in a normal pregnancy to a
number that is 20 or 30 times greater than that doesn't
seem to be in their best interest.
Q Are you concerned that if this law were, in fact,
_ you might be prosecuted under it?
A Yes, sir.
Q Why are you concerned about that?
A I guess given my relationship with the attorney
general, I’ve already been investigated for breaking a law
which had been ruled unconstitutional 15 years ago, yet
he still initiated proceedings against me under that law. It
was eventually, I assumed, discharged because I have
never heard any further reaction, any further comments
on that, but, you know, several — several sessions with
attorneys took place, and a lot of money was spent, and a
lot of aggravation was undergone, I’m sure, by both sides
to [sic] - I don’t know what to call this.
Q Do you know if there has been any or has there
been effort to, by the State, to investigate the methods of
[p. 137] abortion you use?
A Yes, sir.
Q And in what context did that occur?
81
A I believe we had a formal meeti i
A eeting with the Sta
Department of Medicine. I think the vou was heme :
ber of ‘96, possibly November of ’96.
Q And what occurred at that meeting?
A It was a session where myself, and I believe
= Mr. Hug were present, along with several a
rom the State Department of Medicine investigative
board, and they reviewed my practice in-depth. It also
consisted of an investigation by the Department of Medi-
cine investigator and a Federal Bureau of Narcotics board
of investigation where they did an inventory of every
patient’s drug use that I have had in my clini
cl
three, actually four years. eee
Q Do i
a. you know what the result of that investigation
A No, sir. I have never been told.
Q When did the federal agent come to your -
A_ I believe that was in the earl
y fall of ’96. I’m not
sure of the exact date. Possibly August or late ahd te
early fall of ‘96, and she was b
ma rought there by the state
MR. HELLER: I have no further questions, Your
Honor.
THE COURT: Counsel, you may inquire.
[p. 138] CROSS-EXAMINATION
BY MR. SMITH:
es Q Dr. Carhart, concerning your testimony that you
ought if you were going to be prosecuted, you wouldn’t
82
do abortions after seven to 18 weeks; do fetuses have
sharp bones at eight weeks?
A_ I wouldn’t believe so.
Q So as far as one of the complications concerned
about intentionally having sharp pieces through the cer-
vix if you had to cut the fetus up in the uterus because of
the risk of sharp bones, that really isn’t true at eight
weeks, is it?
A I’m not aware of any way to cut the fetus up in
the uterus during gestation.
Q Butat least the risk of sharp bones from the fetus
perforating the uterus at eight weeks, that is not a risk, is
it?
A I don’t believe I stated that it was.
Q If I misunderstood you, I apologize. Are you
familiar with what is known as the American Board of
Medical Specialties?
A Yes, sir.
Q And would you agree that that is an organization
which is authorized, it has 24 medical specialty boards
which certified physicians who are practicing specialties
in the United States?
[p..139] A I agree that that part is true.
Q Okay. And are you certified by any medical spe-
cialty board?
A No, I’m not.
pital?
83
A That's true.
A ;
ae nother would be the American Board of Sur-
>
Yes.
Q American Board of Family Practice?
A Yes.
Q American Board of Medical genetics?
>
I’m not totally familiar that’s the ex i
, act word
but there is a medical genetics section. ee
Q And you’re not certified b
are you? y any of those boards,
A That’s correct.
Q Have you ever attempted to b "
ied | pted t come .
fied . a ‘al > y [sic] certi
A_ I completed the residency j
cy in general ’
never attempted to take the boards. ' —*
Q How many years have you practiced medicine?
A Twenty-five, 24.
Q And do you have hospital privileges at any hos-
A Not at this moment.
[p. 140] Q Would you need hospital privileges to
admit a patient to a hospital?
84
A To admit them to your own service. You would
not admit them to another person’s.
Q Admit to your own service would be admitting
them so that you would be the treating physician, cor-
rect?
A Can I just correct - I’m not sure about my status
at Midlands right now. It’s in - I don’t know whether - I
have been able to admit patients there, but I have been
notified that my privileges were terminated. Well, it’s
under appeal, and it’s under - The hearing is next week.
Q So as we speak, there is no hospital at which you
can admit and treat patients, is that true?
A That’s correct.
Q And in light of - You jumped ahead. One of my
questions, have you had your hospital privileges revoked
at any hospitals in the past?
A Yes.
Q And how many hospitals?
A Just one.
Q Is that the Midlands Hospital?
A
Yes, it is.
Q Have you ever surrendered hospital privileges at
the request of the hospital?
A No.
[p. 141] Q Now, as part of your medical back-
ground, you completed a medical residency, is that cor-
rect? :
A That's correct.
Q Can you explain just what a medical residency is
ond ,
. ot the type of medical residency that you com-
A My medical residency was in general surgery. It’s
> intensive training program consisting of a number of
ears.
Q And I take it if you would complete a residency
in surgery, the purpose would be - would have been
do surgeries in hospitals? 5
A That's correct.
Q How long has it been si ,
ey ~ nce you've done a surgery
A April of this year.
Q Would that be at the same hospital?
A Midlands.
Q You interrupted my question, the one in which
your privileges are currently, I guess, suspended.
A That's correct.
Q As far as then your practice, your practice at the
present time is in a clinic setting, is that correct?
A That's correct.
Q And in which clinic or clinics do you practice?
A I practice in Bellevue, Nebraska, at Bellevue
Health Center and we practice under a clinic name also at
that same [p. 142] address of Abortion and Contraception
Clinic of Nebraska, and I practice at a clinic in Dayton,
Ohio, under the name of Women’s Med Plus, and I also
practice at a clinic in Cincinnati, Ohio, with the same
name. I also practice in a clinic in Akron, Ohio, with the
same name.
Q Is there any reason for the two different clinic
names in Bellevue?
A We started out with the intention of keeping the
clinic separate. When the State passed their law regarding
clinic licensure, we felt that there was little need to to
duplicate two clinics at the same address and two
licenses, and as one clinic was simply a trading name on
the other clinic anyway, the name was there, we haven't
changed our stationery, but effectively, we do everything
under Bellevue Health Center. .
Q And who owns the clinics in Bellevue?
A Bellevue Healti: and Emergency Clinic, Incorpo-
rated, is a corporation.
Q Who owns the stock?
A My children, my father’s estate, and my brother,
and I believe that’s it.
Q Who's - Are you the controlling shareholder?
87
THE COURT: Counsel, pardon me. What -
pose is this serving? _
MR. SMITH: Well, I suppose I can move on to
the purpose.
[p. 143] BY MR. SMITH:
Q Who actually controls what goes ;
clinic, Dr. Carhart? ee i a
A My wife is acuministrator.
Q Who actually determines the medical procedures
there? What I’m getting at, is it you?
A No, there is no other physician present.
Q Okay. And it would be an accurate statement
there is no type of peer review at your clinic like there
would be at a hospital, is that correct?
A We have, as part of the National Boards and
Federation, we submit all of our statistics to them. We
submit all the complications to them, we submit all the
reports of our patients’ evaluations to them. I think we
probably have a greater peer view than the average prac-
a ann state of Nebeashe including these in the heapi-
Q Do you think you have i
got better peer review at
your clinic than would be in the hospitals? Is that what
you're saying? ¢
a I would be happy to say that.
Q Would you agree that a hospital, the medical
7
procedures, at least, are subject to justification by the
other physicians who have privileges there?
A Yes.
Q And that’s not the situation at your clinic, is it,
[p. 144] since you're the only one who practices there?
A What's the situation?
Q There is no other physician that practices at your
clinic other than you who determines what you can and
cannot do at the clinic, is that true?
A At my particular clinic, there is no one else, but at
the national level, there are other people for us to main-
tain our certification with them, that we have to practice
within their guidelines. :
Q Okay. Now, as far as the fees that you've testified
to, and you broke down the fee schedule, do you know
what the fees would be that you’ve received from per-
forming abortions in 1996?
MR. HELLER: Objection, Your Honor. I thought
this was going somewhere. I wasn’t sure where, but |
have no idea what possible relevance could be of the
doctor’s -
THE COURT: Counsel, would you tell me about
relevance?
MR. SMITH: Relevance would be motivation
and bias, obviously, if you have a financial interest in
what you're doing.
THE COURT: How far are we going to go with
this?
MR. SMITH: At least - I think it’s sufficient to
at least to inquire the extent of the financial interest, Your
Honor. I think I should be entitled to at least make a
145] presentation of how much.
THE COURT: The objection is overruled. Doc-
tor, you can answer if you understand the question.
THE WITNESS: Nothing.
BY MR. SMITH:
[p.
Q Do you know how much you received in fees
from abortions in 1996?
| A How much I personally received from abortions
in 1996 as paid from the corporation?
Q Yes. Well, let me ask you, are you paid by salary?
A_ No, I’m not.
Q Do you know how much the i
Mond sock corporation has
A Actually, no, I do not.
Q And as far as, is there a figure that you know that
you've received in fees from performing abortions, either
directly or through the corporation?
A Yes.
Q What is that?
A Zero. |
Q And where do the fees go, then, if
ain g0, , if you did not
A Right now they have gone into the d i
the corporation. ¥ —"
90
Q And what do you mean by developing the corpo-
ration?
[p. 146] A Attempting to purchase the building,
doing the improvements to the building, paying staff,
buying equipment.
Q You are paid a salary?
A I’m not -I have not taken a salary yet from the
business. My salary is from the United States Air Force
retirement, so -
Q So women come in for the abortions, you do not
receive any of the fees other than -
A_ In 1996, I did not.
Q Other than just simply the corporation acquiring
assets, is that true?
MR. HELLER: Objection. Him getting fees and
the corporation obtaining assets are two different things
since he’s not an owner.
THE COURT: Sustained as to form.
BY MR. SMITH:
Q Does the salary that is paid go to your wife then?
A My wife receives a salary for working at the
clinic.
Q And I assume that goes to the family household.
You live together?
A I think that it does.
Q How much does she get paid?
91
MR. HELLER: Objection, Your Honor.
THE COURT: Sustained.
MR. SMITH: I would like to make at |
t
offer [p. 147] of proof. aie
THE COURT: Make your offer of proof.
MR. SMITH: The offer of proof requires him to
a wswer the question.
THE COURT: No. Make your offer of proof if
you know what the answer is.
MR. SMITH: I don’t know the answer, Your
Honor, so I can’t show what the answer would be.
THE COURT: The objection is sustained.
BY MR. SMITH:
Q Would it be an accurate statement that the fee
schedule you related earlier that the amount of fees are
based, in part, on the complication for the procedure?
A Can you =
Q How do you - What is the reason why, as there
are more weeks advanced in the pregnancy, the fee is
higher? :
A The amount of effort and time, the material costs
labor costs. We're, talking an investment of my time of
five minutes or 10 minutes in an eight-week pregnancy as
Opposed to maybe 45 minutes to an hour in a 20-week
pregnancy.
92
Q Am I correct in understanding, then, as far as
doing an abortion by an induction procedure, that you do
not do that at the clinic?
A That's correct.
Q And the reason being what?
[p. 148] A The reason, I believe, that the induction is
a less acceptable method of abortion. I think it has higher
risks, I think it has greater cost to the patient in factors
other than money, and I think that the greater amount of
facilities, as Dr. Henshaw testified in his testimony, the
hospital cost of three to four times what the outpatient
environment cost is, I’m sure the outpatient cost to pro-
vide that service would be equally the same as the inpa-
tient cost, so there is no justification, nor is there a need.
Q Are you aware that table 4 -
A_ I don’t have that document.
Q Do you have Exhibit 7 in front of you, the AMA
report? If you do, turn to page 10, please.
A Okay. I have that.
Q Do you see that the mortality rates for induced
abortion procedure is 13 weeks or later. There it shows
for more than 21 weeks. It’s got a higher rate for dilation
and evacuation than for labor induction?
A I think I would like to direct your attention to
line 2 which states that this was created in 1987, and I
don’t think that at all relates to the abortion industry as it
is today.
Q Do you know what the mortality rate is now?
93
A I don’t believe that has been studied. At the last
reported instance that'I was just published in - was - I
can’t exactly quote on it, but it was a review by the State
[p. 149] of Texas, I believe against Dr. Chris’s most recent
death, and I think they published an acceptable risk at
the present time of 1.5 deaths per million.
| Q You would agree that the AMA, when they issued
their report this year, elected to use this table of statistics
that appears on the sheet?
A It appears that’s what they used.
Q The ultrasound, have you used the ultrasound for
the early gestation stage termination procedures where
you are terminating by medication? Did I understand you
correctly that you used the ultrasound during the early
stage medication termination?
| A I used the ultrasound in making the determina-
tion that they are eligible for that, but we don’t use it
during - Well, we use it to check th
pe. ipo em as they progress
Q And the purpose for using the ultrasound for the
early stage gestation procedures is what?
A To determine if the patient fits the criteria for the
use of the drug.
Q Which would be what?
A Less than seven weeks, six d
Por ix days of menstrual
Q I have a note here. Is it accurate you use the
ultrasound in some method to confirm, after the adminis-
tration of the medication, that the fetus is not living?
94
[p. 150] A Yes, sir, that’s true.
Q How do you determine that the fetus is not living
with the ultrasound?
A It’s different. It has a different picture.
Q Imean, since that’s a very young, early-age fetus,
are you comfortable that you’re able to determine from
the ultrasound whether the fetus is alive or not?
A Yes, I am.
Q And would you agree that as the gestational age
advances, that it would become easier to determine
whether or not the fetus-is living with the ultrasound, or
does it make any difference?
A I don’t see - I think that determination can be
made at any gestation.
Q And when you're determining at the early stage
of gestation, when you're terminating it with the medica-
tion, that the fetus is not living, how do you determine
the fetus is not living; in other words, what do you mean
by not living?
A The gestational sac that was present on the pre-
ceding picture has been replaced by a homogenous clot
mass.
Q And is there some other method of determining
the fetus is not living that you go further on in gestational
stages through the use of ultrasound?
A Sure.
[p. 151] Q What is that?
95
A_ I would think fetal movement and fetal cardiac
movement.
Q You can determine those by the ultrasound?
A Yes, sir.
Q And the absence of those things tells you the
fetus is no longer living?
A You can — Yes.
Q Would it be an accurate statement, before you
commence an abortion procedure, you would always be
able to determine through the ultrasound whether or not
the fetus is living or not?
A_ I don’t think so.
Q Can you explain that?
A I think you can tell what’s happening in a normal
fetus because there has been a lot of data that when
nothing is intervened with it, and you see a heartbeat
and you see fetal movement, that you can make the
assumption that it’s a living fetus. I think when you can
see that the fetal tissue where there is actually no heart-
beat and no fetal movement, that there has been fetal
demise, bu’ | think there is a gray area where you can
waa see or not see things and not be 100% sure of what
s happening at that poi ;
a cans = ‘Point, and I don’t know how large
Q You understood me to ask you before you would
Start an abortion procedure?
[p. 152] A No. I guess
question. Ree ae Se eapeaen ‘tat
96
Q My question was, before you start the abortion
procedure by that process, but you would extract, remove
the fetus in some manner, are you always able to tell
before you start that process whether or not the fetus is
alive or not?
A No.
Q Could you if you wanted to?
A_ I could tell you when it is dead. I can tell you
when it’s definitely alive. I can’t tell you, I can’t tell you
during the interim point where it may — where the living,
some of the functions have stopped and some of the other
functions have not stopped.
Q Do you consider the absence of a fetal heartbeat
meaning the fetus is dead?
A No.
Q Do you know if general medical standards would
consider the absence of fetal heartbeat to be fetal death?
A_ I don’t know any medical standards that deter-
mine what fetal death is. I’m not aware of a publication
or anyone that has done a study to say — Again, I’m
confused by what you’re getting at. Are you asking me, is
the fetus going to be able to live afterwards? Or are you
saying, are all the tissue, all the structures, all the cells in
that fetus dead? I can tell you it does not have a heart-
beat. I could be very specific with that. I could tell you
that to the second it [p. 153] stopped as to what the rate
is, but I can’t tell you that the cells in the arms and the
cells in the fingers and the cells in the brain and even the
cells in the heart have died.
97
Q But you can tell from the ultrasound whether or
not there is or is not a fetal heartbeat?
A Yes, sir.
Q Can you also tell that through a fetal heart moni-
tor
} A I have not worked with a fetal heart monitor
since 1960, and at that time, they were inaccurate even
with the adult fetuses we were trying them on.
Q Would it be an accurate statement you're not
familiar with fetal heart monitors at the present time?
A_ I don’t know of any of them that would - that
you could use on this type of a fetus, yes.
Q Other than ultrasound, is there any other method
of determining whether or not there is a fetal heartbeat?
A If you are getting the Doppler, that is a form of
ultrasound, so I think that’s the same question.
Q And I’m sorry. I didn’t hear what you said after
the Doppler.
A The ultrasound Doppler is the audible - the ultra-
sound that they put on a woman’s stomach to listen to the
heartbeat is an adoption of the same thing we're looking
at on the picture. It’s just converted into an audible tone
aS Opposed to a visual tone.
[p. 154] Q Are you talking about j igi
just digital equi
ment that would attach to the ultrasound? tel
A It’s a separate piece of ultrasound equipment.
on And do you have that equipment?
98
A No.
Q Now, the ultrasound, would you agree that that is
a device that a person can videotape?
A_ It could be.
Q So you can have a record for posterity that shows
what the results were of an ultrasound when it was
performed? a
| A Yes, sir.
Q Now, the procedure that you described, the third
procedure you described for doing an abortion had vac-
uum aspiration. Do you know, is that accurate? You do a
vacuum aspiration?
A Suction D & C, vacuum, whatever.
Q That would be at the later stage after it’s too late
in the pregnancy to do the termination by the medication
method, correct?
A No. It could be as early as three weeks.
Q Oh, okay.
Q But the vacuum aspiration, would it be an accu-
rate statement that what you do as part of the process,
you insert a tube in the uterus?
A Yes.
{[p. 155] Q And the purpose of the tube is what?
A To remove the uterine contents.
Q And can you just tell us the dynamics, how that
actually happens? I’m just - It’s a vacuum? Is it pulling of
air, or how does that actually work?
99
A I think the correct statement, is nature abhors a
vacuum, so it’s the pressure of the uterus pushing the
contents through the tube to the lower pressure area.
Q Is it a power-driven device?
A Yes, it is.
Q What type of power? Electric?
A They come both battery-operated, they come
hand-operated, and they come electrically-operated.
Q And when you use that method, the fetus goes
from the uterus directly into the tube, correct?
A Sometimes.
Q Where else would it go?
A Very often, the tube becomes clogged, and you
have to take it out, and as you take it out, the uterus will
expel the contents into the vaginal cavity.
Q Is that something you intend, or is that a sponta-
neous event when that latter circumstance happens?
A My intent is to get it out.
Q Your intent, I would take it your intent is to,
through the vacuum, remove the fetus while the tube is in
the uterus? ;
[p. 156] A My intent in every abortion that I have
ever done is to kill the fetus and terminate the pregnancy.
I think that’s the specific intent that I enter the room
when I go to talk to the patient. That’s what she’s asking
to do, and that’s what I’m there to do, and I do what I
have to do to get that done.
100
Q But when you're doing the vacuum method, is it
your intent to remove the fetus from the uterus by deliv-
ering it partially into the vagina?
A No, I wouldn’t say that. Could I ask you for
clarification on that? Because it goes through the tube
through the vagina. So I have to say that, yes, it’s my
specific intent to remove it through the vagina within the
tube, but it does not always happen that way, and I enter
into the procedure knowing that it’s not always going to
happen that way.
Q I think that was clear, or hopefully, it should be
clear to the Court. At least I understand it. Now, do I
understand that when you do abortions that you never
attempt a procedure where you try to turn the fetus so it’s
in the breech position?
A I think my statement was that I don’t go to the
lengths that was the - There was a large amount of
discussion about going in and mechanically trying to turn
the fetus. I don’t - I don’t intentionally spend a lot of
time doing that. If [p. 157] it is a transverse lie, you can’t
bring the fetus out sideways, so you have to bring some
presenting part through, and you have to turn the fetus in
order to do that. It may not be a whole 180 rotation. It
may be a 90 degree rotation or a 45 or a 60, but you have
to mechanically orient some portion of the fetus to come
through the cervical canal.
Q But as far as deliberately trying to get the feet so
that they are coming out first, do you do that?
A If it’s easy to do, yes. If it’s not, then I don’t
spend a lot of time doing it.
101
Q Just depends on the position the fetus is in when
you start the procedure?
A Absolutely.
Q So if it’s in a position the head is coming out first,
you don’t rotate the fetus around to get the feet, correct?
A No, sir.
Q If it’s already the foot coming out first, then you
take what you can get?
A That's what it is.
Q Now, as I understand your testimony, that
beyond 15 weeks, you do intend to remove the fetus as
intact as possible?
A I think that would be a fair way of stating it.
Q And your reasons why you want to remove the
fetus intact, if possible, after the 15 weeks would be
what?
[p. 158] A To minimize the maternal complications.
Q And those would be what?
A Possibilities of laceration of the cervix, perfora-
tion of the uterus, absorption of fetal cellular debris into
the maternal circulation through placental, the uterine
placental interface.
Q Now, what are the mechanisms that would lacer-
ate or perforate the uterus?
A The mechanism would be a sharp-pointed object
in opposition to the wall of the uterus.
102
Q Okay. Would a forcep create such a risk?
A It certainly could.
Q And the complication, if I understand it, and you
correct me if I’m wrong, is absorption of fetal material
into maternal -
Maternal circulation.
By that, you mean the bloodstream?
Yes, sir, the maternal bloodstream.
Oo > O
How does that absorption occur?
A Through the - As the placenta separates from the
uterine wall, there are no blood vessels between the
uterus and the placenta. There are only blood sinuses,
actual cavities in the uterus. The bleeding stops because
the uterus contracts and these cavities are allowed to
close, and until you’ve emptied the uterus, the cavities
remain open, so [p. 159] there is essentially a sump pump
effect involved in maternal - into the maternal circulation
of whatever is in the uterine cavity. It just can flow in,
and the cellular structures from the brain and the cellular
structures from the skin and the fetal blood are the three
biggest concerning factors, and that’s why we do Rh
testing and why we gave Rogam to all of our patients that
are Rh negataive [sic] because we know there is a mixing
of fetal blood and fetal debris into the maternal circula-
tion in every procedure.
Q Do you know what the complication rate is then?
A The frequency?
Q Yes.
103
l
A I believe the present numbers we tell the patients
are less than one in a thousand.
Q And as far as your basis for that, is there some
statistical support for that?
A . Yes. That’s numbers that come out of the CDC on
approximately an every two- to three-year basis.
Q That would be the Center for Disease Control?
A Yes.
Q Now, if one was compressing the skull from the
outside,,do you understand what I mean from the out-
side, the fetus’s skull?
A Okay. I think so.
Q You could do that with a forceps, for example?
[p. 160] A Yes.
Q Is it your testimony that if one compressed the
skull sufficiently, one of the risks you run is having the
contents of the brain or the skull be released into the
mother’s bloodstream?
| A I'm stating that it’s released into the uterine cav-
ity. It’s either going to go into the uterine cavity, or if it
ruptures on the side nearest the cervix, it’s going to come
out of the cervix. It has been my particular experience
that this happens probably equally, that it can go either
way, and often goes both ways.
Q By both ways, you mean going down?
A Internal, up into the uterine cavity and out the
uterus, out the os. I think that would be testi - It would
104
be my testimony that once this material is floating in the
uterine contents, that it has the possibility of being
absorbed through the sinuses.
Q Now, as far as that risk, the skull contents being
released into the uterine and then getting into the
mother’s blood supply, is that risk at all stages of gesta-
tion or only at a certain point?
A I think probably only after the point - Well, after
you've started to crush the skull where that would
become a factor, or where you start to macerate the tissue
of the fetus which is the 14th, 15th, 16th week and on.
[p. 161] Q Does it make any difference whether the
fetus is alive or dead?
MR. HELLER: Objection. Make any difference
to what?
BY MR. SMITH:
Q Does it make any difference as far as the fetal
material being - the risk of that getting into the mother’s
blood supply? Does it make any difference whether the
fetus is dead or alive?
A As far as the skin tissue, Dr. Hansen as done
some studies where it is implied that this is true, the
longer the fetus has been dead within the uterine cavity,
the greater the chance of fetal cells sloughing, and not
even with mechanical movement. Her studies were, when
you had natural field demise from other than abortion
standpoint, and a period of time that lasts between the
field demise and the induction of labor, or the completion
of the abortion, the longer you waited, the higher number
105
of fetal —- the greater the amount of fetal elements that
could be detected within the maternal blood supply.
Q_ Now, you described earlier in your testimony, as I
understand it, a process where there would be occasions
when you're trying to remove the fetus intact that you
would remove to the point of the head, correct?
A Um-hm.
[p. 162] Q The answer is yes?
A Yes, sir.
Q And the reason you don’t get the head out would
be, there would be occasions when the cervix is not
dilated far enough to allow you to remove the head
correct?
A Correct.
-Q And those would be occasions in which you
would attempt to reduce the size of the head in some
manner, correct. Tell us the manner by which you would
reduce the size of the head.
A_ I think the only two mechanisms possible are to
use forceps to compress the skull, and rupture the skull,
and allow the contents to flow out of the brain or -
Q And let me stop you there. If you did that, that
runs the risk of perforation from using the forceps?
A Well, you have to use something.
Q But you would agree it does run a risk of per-
forating the uterus by using the forceps, true?
A There has to be a small risk of that, yes.
106
Q And then the other risk would be, as you said,
the contents of the brain being released into the uterus
and the mother’s blood system, correct?
A Yes.
Q Now, the other method that you could reduce the
size of the head other than forceps would be what?
A If, and you know, I mean, things don’t always
happen the [p. 163] way we would like to see them
happen. Very frequently, we'll get down to the skull, and
the skull will separate from the body cavity, I mean, from
the neck. It will break off, so you have the fetus out and
the head intact inside, and you’re again going back and
grasping the head and breaking it down, so that’s a
second method, I guess, and thirdly, if we can get enough
of a portion of the skull outside of the cervix, we can
make some kind of an opening into really any portion of
the skull that has the cranial contents in it, use either
vacuum aspiration, or many times we just allow the
contraction of the maternal, of the uterus, the compres-
sion of the cervix and the uterus on the skull itself to
empty the contents out into the vagina, and then we pull
the skull on through.
Q It just comes out, correct?
A It just comes on out.
Q The obstruction really presented by the size of
the head is the cervix. Once you get past the cervix -
A Once you're passed the internal os of the cervix,
then you’re out.
107
Q Now, once you've removed the fetus, you then do
something to clean out the insides of the uterus?
A Once we have removed the fetus, we then have to
remove the placenta normally. Sometimes, unfortunately,
the placenta will come out first. That’s usually, uterine i>.
164] massage, we try to do that on external massage on
the abdomen of the woman causing it to separate and
spontaneously pass. If that doesn’t happen, then we'll go
back with forceps and attempt to remove it, start it to
come out, and then usually, it will come out on its own
:
Q What is the curettage?
Q Curettage?
A Yeah. What is that part of the abortion? What is
the purpose for that?
A Two purposes. One is to remove any remaining
placental fragments off the wall of the uterus. The other
reason that I do curettage on every patient is, there is a
small frequency of partial moler pregnancies where you
have a normal living fetus as well as a moler pregnancy
tissue which is a cancerous growth. The treatment for
moler pregnancy is sharp curettage of the uterine cavity. I
do that. I think the incidents that’s reported statistically
for that happening is one in 30,000 pregnancies where
you have the combined, and we have we have seen three
that we have diagnosed that have had partials moles, and
all three of their follow up care have been that they wane
already taken care of, that the curettage done at the time
of the procedure was a treatment for the moler preg-
nancy, so I feel that that’s the other reason why I do
curettage on all of the women.
108
[p. 165] Q Is one of the purposes for the curettage to
remove any of the remaining fetal debris?
A Sure, as well as placental debris.
Q Is that because the fetal debris and the piacenta,
placental debris, if left in, creates the risk of getting into
the mother’s bloodstream or infection?
A That and infection and greater bleeding. It proba-
bly will all come out and wouldn’t be of any sequelae, but
I think you can reduce the complications for the woman
by a better clean-out procedure.
Q What is the approximate time frame that passes
from the time you remove the fetus until you do the
process in which you're cleaning out the inside of the
uterus? Does that just - it follows immediately after?
A Minutes.
Q Okay. How long does it take to do that process of
cleaning out the inside of the uterus?
A The entire -
Q By that, I mean, after the fetus is out.
A After the fetus is out, usually two to five minutes.
Depends on how much difficulty you have with the pla-
centa.
Q And if the physician does a good job, in other
words, removes the remaining debris from the uterus
within that five-minute period, is there, really, should
there be any risk to the mother of infection or debris
getting into the [p. 166] bloodstream; in other words, if
you do it right, the risk should be gone?
109
A I think there is always the potential for bacteria
to be left behind. We can’t get down on that level, so the
risk of infection, I can’t say, is gone. I think you try to
minimize it. I think that would be fair. I’m not sure you
can say that it’s ever gone.
Q Do you have any statistics or know any statistics
on what the risk is — That essentially is getting into the
skill of practitioner, so I will withdraw the question.
THE COURT: Counsel, give me a sense of how
much longer you'll be.
MR. SMITH: If I could do a qui k
notes, I could answer. woe Te
THE COURT: Sure. I just figu I’ i
take our break, counsel. iit tia
MR. SMITH: I would guess it’s going to be at
least 15 minutes, could be longer. You might want to take
the break.
THE COURT: Would this interfe i
cross if we break now? eee
MR. SMITH: No, not at all.
THE COURT: Why don’t we take our mid after-
noon break at this time. It’s now about 2:51. We'll be in
recess for 15 minutes. Doctor, you may step down.
[p. 167] (Recess from 2:51 to 3:11 p-m.; all parties present)
THE COURT: Counsel, you may proceed.
110
BY MR. SMITH:
Q Dr. Carhart, I wanted to ask you about your
testimony where you described inducing, I have it here,
fetal demise by the injection of Digoxin, is that correct?
A Digoxin or Digoxin, that’s correct.
Q And that’s the actual medication that would kill
the fetus?
A Lanoxin and Digoxin, yes. Medication from the
Digitalis group that’s used in adults to control rapid heart
rate.
Q And your testimony is, you do that on all patients
after 20 weeks? |
A All that would not have a contraindication to
using the medication or that would wish not to have it
done.
Q Is that after 20 weeks gestation or beginning of 20
weeks gestation?
A Yes.
Q Well, no. I mean, are you saying it’s actually — it’s
A During the 20th week, I don’t think, you know, I
don’t think I have any black and white in my practice.
There is a lot of gray areas.
Q And the method you use, you do the injection,
you wait 40 to 72 hours later and perform the abortion?
[p. 168] A I think I - I think I said from - I’m not
sure what I said, but in reality, it would be on day one,
111
we would do the injection, that could be as late as, say,
2:00 or 3:00 in the afternoon. Day two, we would change
lams, and day three, maybe as early as 8:00 or 9:00 in the
morning or 3:00 or 4:00 or 5:00 in the afternoon, depend-
ing on how the patient had progressed, we would do the
procedure.
: Q And the reason why you don’t do the injection
prior to 20 weeks is what?
A Ihaven’t found - First of all, I don’t think there is
any published data to research, so I’m stuck with my own
series, I guess one has to call it, of anecdotal-type infor-
mation and also in discussing with my friends, and I have
not seen where the benefits of using the medication are
greater than the risks in the earlier terminations.
| Q If I understood correctly, when you do the injec-
tion after 20 weeks versus not [sic] your prior experi-
ences, you didn’t wait as long during your prior
experiences with the injections before you would remove
the fetus, is that correct?
MR. HELLER: Objection, only because I’m not
sure I understand the question.
BY MR. SMITH:
Q Okay. Well, as I understood it, you testified that
you used to do the injection after 16 weeks.
[p. 169] A Correct.
Q You stopped doing that, and j
, you now do it gener-
ally after 20 weeks, correct? °
A I used it 16 through whatever dating I did I
stopped doing it with the 16th, 17th, 18th, 19th, and
112
usually the 19th, sometimes even with 19 weeks, if the
patient requests it, I will do it. At 20 weeks, I would leave
it pretty much up to them whether they want it or not. By
21 weeks, I really would like them to do it.
Q But during, when you used to do it between the
16 and the 20 weeks, would it be accurate that you didn’t
wait as long from the time you did the injection before
you started removing the fetus?
A After the 20th week, the procedure goes into a
third day. I wouldn’t want to make a patient wait an
additional day. I think, if I remember my testimony, what
I said was that with only the 16- or the 12- to 24-hour
time hiatus that we would have after doing the injection,
I didn’t see enough of a change in the size of the fetus
that it was really an advantage, and I didn’t see enough
softening in the - softening of the fetal structures to have
an advantage from it, so that I was left with possibly a
little less bleeding and possibly some other benefits but
also some significant, I thought, risks that would counter-
weigh that.
Q What's the reason for the additional third day
after 20 [p. 170] weeks?
A To get additional dilatation of the cervix. You
normally would remove the laminary that you have put
in the first day and add more because you need consid-
erably more dilation by the 20th week than you do by the
18th or 19th week, and also, if you have a fetus that’s
alive, you know, you may start at 20 weeks and two days,
but you have gone another two days, and you have got a
fetus that’s doubling in size every two — every eight or 10
113
days, so the growth of a 20-week, two-day fetus is signifi-
cantly smaller than a 20-week, four-day fetus, and if you
terminate the pregnancy at 20 weeks, two days, then it
actually starts to get smaller, so with that extra day, you
know, you may be doing a pregnancy that’s at least a
week less in gestation by the time you are ready to do the
procedure.
Q As far as when Digoxin is contraindicated, in
other words, you wouldn’t use it at all, is that what you
mean by contraindicated?
A Whether medical problems in the patients that
would preclude or make it ill advised to do that.
Q And your three reasons would be seizure disor-
der, heart disease and -
A Well, seizures, Lidocaine can induce seizures in
people. If they have already have |sic] a seizure disorder,
triggering further seizures, not that they wouldn’t be
treated, but it ([p. 171] would be an additional risk.
Q Second reason was heart disease?
A If heart disease was being treated by Digoxin
already where they might already have an maximum
dose on board where any additional absorption in the
maternal circulation would be a problem.
a Q Is there any other medication that could be
injected, then, to cause fetal demise?
A I'm sure there is, but I don’t know if anyone is
doing that. In very very early pregnancies, there has been
some work with potassium chloride, but that’s in very
minute amounts. The amount needed to terminate a fetus
114
that size would possibly be close enough to cause severe
maternal complications or even maternal death if any was
gotten into the maternal circulation. I don’t know of any
other studies of drugs.
Q Well, when you do the injection, I assume you're
using ultrasound?
A Yes, sir.
Q That's guiding you so you're injecting into the
right place?
A It’s giving me two dimensions of a three-dimen-
sional world.
Q That's, frankly, it’s being able to properly inject is
a matter of physician skill?
[p. 172] A_ I believe so, yes.
Q Skills are acquired. I mean, you learn how to -
A One would hope.
Q As far as just the mother’s right to choose an
abortion, I take it there is some method of informed
consent that you go through at the clinic?
A Yes, sir.
Q Is there a form involved, form or forms that they
sign?
A We havea form, actually have multiple forms and
forms that both the patient signs, forms that both myself
and other people who talk to them sign, to assure that on
more than just one occasion, they have asked that they
consider all their alternatives, and that takes place both at
115
the initial counseling which is required by the State of 24
hours in advance of termination as well as, again, on the
day of termination.
Q Does the form actually cover the proced
would be used? 4 seamboss
A If we're doing - We have a separate form if we're
doing fetal termination, we have a specific form which
states exactly what we are going to do, injecting the
medication into the fetus or into the amniotic fluid or the
placenta, and that’s one consent that’s signed. There is
another consent for patients that are above, in the second
trimester, and we have another consent for the use of the
laminaria [p. 173] where we do a separate counseling,
explain it to them, what the dilating, osmotic dilators are
intended to do, what the complications can be, what the
alternatives are, how they can avoid using them.
medal eat 38 Biving the mother the option on the
ical procedure to be used, is that i
~~ ; part of being
A I can’t state honestly whether it is or not. It’s
something that I discuss with every patient that’s there.
I m assuming that if you say that they don’t want to have
an intact D & E or they do, I’m not - Maybe I don’t
understand your question fully.
Q You've testified so far to various medical pro-
cedures you use to perform the abortions?
A_ Right.
Q I'm just curious uf [sic] the form itself gives the
option.
116
A We have different consents for each form, and I
don’t think we have any form that says we have 18 forms,
kinds of abortions, which ones do you want and have
them sign that, but depending on what they have indi-
cated that they want, we will discuss, for instance, the
medical - Everybody that signs the medical consent also
has to sign a surgical consent so that we are a hundred
percent certain that they understand what both pro-
cedures are and that they have chosen the medical know-
ing, that a given percentage, three-tenths of 1% of our
current study will have to have both.
[p. 174] Q And what you've described as far as the
forms, those are standard form documents that you keep
at the clinic?
A Yes, sir.
Q As far as determining viability, do you yourself
determine viability if the fetus is over 20 weeks? I wasn’t
clear when you talked about having a referral or having
another physician.
A If they are coming to me where viability is a
concern of mine, and I don’t think 20 weeks, 20 weeks
menstrual dating, that there is a remote concern, but if
they are coming to me at a time when there is any
concern of fetal viability, I will not use my judgment that
the fetus is viable or not viable to continue with the
procedure. I need the patient to come with a specific
referral from her physician stating that X, Y, and Z are
fetal flaws, and the fetus is not viable, and the patient
needs to have this procedure.
117
Q And the next question is, when is viability of
concern to you?
A Viability becomes a concern to me, I think, in
approximately about the 22nd week. I think that, again,
22 week fetuses are not all the same. There are things that
- maternal habits that can make the given possibilities of
survival of the fetus at 22-week patient much less than
the same identical gestational fetus in another patient.
Q I'm just trying to understand the protocol, the [p.
175] standards that you apply in making that determina-
tion. I have heard you say 22 weeks, but I’m not clear
what the other factors are that you use.
A I think maternal use of drugs, maternal use of
alcohol, where they are both known to cause smaller
fetuses, cause increased mortality in fetuses, lack of pre-
natal care, fetuses that appear different than they should.
Q How do you determine -
A_ I think it’s subjective.
Q And how do you determine the weeks of gesta-
tion?
A Generally by different measurements, calcula-
tions, by ultrasound, and comparing that with the dates
that she gives us.
Q Dr. Carhart, when you had the federal investiga-
tor and state investigator contact you concerning your
drug audit, was there an issue, as you understood it, as to
whether or not you had a proper permit or controlled
substance registration to have drugs at the location where
you have them?
118
A_ Idon’t think they ever discussed the nature of the
audit.
Q And do you have any understanding that there
was some issue as to whether or not you had an active
permit that allowed you to have drugs at a specific loca-
tion?
A Was there an issue in my mind? Never.
[p. 176] Q Was there an issue in their mind from
your perspective?
A I had my letter from the Department of Health
which stated what was going on, and there seemed to be
a good audit trail. I don’t know why people don’t talk to
each other maybe, but -
Q Well, in any event, they were allowed to check
your audit records for the drugs you had, and nothing
has come of it since then, is that correct?
A_ I think the law requires I have to make that
available to them.
Q But nothing has come of it since then, is that
correct?
A_ That I’m aware of.
MR. SMITH: Nothing further.
THE COURT: Counsel?
MS. WALZ: Thank you.
119
CROSS-EXAMINATION
BY MS. WALZ:
Q I have just a few questions, Dr. Carhart. I think
you stated previously that your clinic is located in
Bellevue, is that correct?
A That's correct.
Q That's in Sarpy County, Nebraska?
A That is correct.
Q Since LB 23 became law, have you been contacted
by the Sarpy County Sheriff’s Department at all regard-
ing [p. 177] investigation for partial-birth abortions?
MR. HELLER: Objection, Your Honor. I think
there has been a temporary restraining order in effect.
MS. WALZ: That's correct, but there wasn’t —
I’m sorry.
THE COURT: Overruled. You may answer, Doc-
tor.
THE WITNESS: I’m not aware of any contact.
BY MS. WALZ:
Q Any investigators ever call you? I mean, there
was no contact at all from an investigator or any other
deputy to your knowledge?
-A Not with me personally. I’m not aware of it with
any member of my staff.
Q Okay. What about anyone from the county attor-
ney’s office in Sarpy County, besides contact with me,
between me and your counsel regarding this case.
120
A Well, I didn’t know if that contact - We did have
~ The only thing that came to me was a direct communi-
cation from the district attornev’s office in Sarpy — or no —
the county attorney’s, the deputy county attorney in his
office, I had been subpoenaed as a witness for a trespass-
ing violation by our protesters.
Q But that is not related to this case, is it, or to LB
23?
A Well, yes, it is, because they stated they called
back [p. 178] and said due to the fact that we had filed
suit against the county attorney in Sarpy County, that he
had to -
Q A conflict of interest?
A Had to have a conflict of interest and had to
appoint a special investigator.
Q But in terms of criminal prosecution instituted by
our office, has that ever occurred since LB 23 was
enacted?
A The only time that the bill was in effect, I was out
of the state for the four days between the data the Gover-
nor signed it and the date the injunction was issued, so I
don’t know where -
Q I think it was eight days. I’m sorry.
A No.
Q I think it was eight days, but in any case, you
never did receive a clinical complaint?
A I didn’t do any patients in that interim that
would come under — It was never -—
121
MS. WALZ: Okay. That was my question
Thank you. Nothing further. os |
THE COURT: Counsel?
REDIRECT EXAMINATION
BY MR. HELLER:
Q Thank you, Your Honor. You were asked some
questions about the risk — of, I think the risk of perfora-
tion from using forceps when you - if you were to crush
the skull in an [p. 179] intact procedure, and then also
about the risk of using forceps if you had to remove fetal
parts that made it —- smaller fetal parts that may remain.
Do you recall that, those questions that were asked?
A Vaguely, yes.
) Q Is the risk, in your opinion, is the risk of perfora-
tion that may occur in an intact D & E or D & X procedure
greater or lesser than the risk in a D & E involving
dismemberment?
A If I can go back for a second, I made - I believe I
made a misstatement. I think I used the term Beier forcep
and I was intending to say Sopher forcep, so if we can
correct that. S-o-p-h-e-r, so if we can correct that part of
it, then go on. I’m not aware of any studies that anybody
that’s done that said if you enter the uterus eight times
with an instrument, that you have X amount of chances of
perforating the uterus more than if you enter it seven
times, but I think that every time - I accept the fact that
every time I put anything in through the cervical os into
the uterus, I’m running a chance of damaging the uterus,
so the more number - the greater number of times that I
122
have to do that in a given procedure, I think that there is
a multiplication factor of a complication rate.
Q And, then, am I right in understanding that the
intact D & E procedure or the D & X procedure involves
fewer insertions of forceps or other foreign objects into
the [p. 180] uterus than a D & E involving dismember-
ment?
A Yes.
Q I wanted to call your attention to the - I guess it’s
Exhibit 7. Do you still have that one there?
A Yes, sir.
Q You were asked a question about the table at the
top of page 10. Have you found that table?
A Yes, sir.
Q Now, that table indicates that from 1974 to 1987,
the mortality rate for dilation and evacuation after 21
weeks is 11.9 per 100,000, and the mortality rate for labor
induction after 21 weeks is 10.3 per 100,000, is that cor-
rect?
A. That’s what it states.
Q Now, if you look at the prior page, at the bottom
of page nine, the last sentence, says, “Maternal mortality
rates overall are higher for labor induction than D & E.”
Then there is a parenthetical, “But mortality rates result-
ing from labor induction D & E are comparable for
induced abortions performed at 21 weeks or more.” Then
in parenthesis 11.9. Doesn't that seem to indicate that the
AME believes that even after 21 weeks, that before - I’m
123
sorry. Before 21 weeks, mortality rates are higher for
labor induction, and after 21 weeks, the rates of mortality
are comparable for the two types of procedures as of -
based on this table?
[p. 181] A I would have to - I think that one could
draw that conclusion from this, but I have to preface that.
I’m not familiar with the methods here and I don’t know
how much they would - we removed other complication
factors. I know for induction, at least many people use
anesthesia as part of the induction process, that they'll
give either general or high doses of anesthetic agents
during the later stages of induction, and I do know factu-
ally that CDC has stated that from 1970 through the
present day, the maternal death rate from the complicat-
ing effect of anesthesia remains one-third of the total
deaths that happen with abortion. That number has not
changed, so if you add anesthetic component to an induc-
tion component, the compound number of deaths may
certainly be higher. I don’t know whether they extracted
that out or not. I’m not that familiar with the study, but I
think you have to take all the factors into consideration,
and most of us do not use general anesthetic for dilata-
tion and evacuation.
Q If you could just briefly turn your attention to
page 11 of the same exhibit, and there is the last para-
graph on that page begins, “In summary.” Do you see
that paragraph?
A Yes.
Q Does this appear to express the opinion of this -
someone at the AMA that maternal mortality during
124
second trimester abortions is lower per dilation and evac-
uation [p. 182] procedures than for labor induction
methods? Does that appear to be the opinion?
A That would appear to be what they are saying.
Q And that for procedures performed at 20 weeks
gestation and beyond, the rates are similar?
A_ I believe that’s what they are saying, yes.
Q You were asked some questions right at the
beginning of your cross-examination about whether you
had hospital privileges, and you mentioned a hospital
called Midlands?
A Midlands Community Hospital. It’s in Papillion,
Nebraska.
Q Have you had hos
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