# Joint Appendix Vol I — Stenberg v. Carhart > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0347%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix Vol I - **Published:** January 1, 2000 - **Citation:** 530 U.S. 914 ## 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 eee Pig.) re oe 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0347%3A07. Public record. Not legal advice.