# Appendix — Gonzales v. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0253%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 939

## Text

Co !

suprgme Court U.S
"@51382mAy 2 2006

No. OFFICE OF THE CLERK

Jn the Supreme Court of the Anited States

ALBERTO R. GONZALES, PETITIONER
Vv.

PLANNED PARENTHOOD FEDERATION OF AMERICA,
ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

~

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT
Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Aitorney General
GREGORY G. KATSAS
Deputy Assistant Attorney
General

KANNON K. SHANMUGAM
Assistant to the Solicitor
General

MARLEIGH D. DOVER

CATHERINE Y. HANCOCK

TEAL LUTHY MILLER
Attorneys

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

TABLE OF CONTENTS

Page
Appendix A (court of appeals opinion, dated Jan.
BR BIRD cesesecensenssansansanscesnecssensncunsisusnsoumnenbecsnatnstanmeanes la
Appendix B (district court order, dated June 1,
TD The article refers to intact D & E as “intact D & X,” and D &
E by disarticulation as “D & E.” Intact D & E in the article is de-
fined as any extraction where forceps were not needed to dis-
articulate the fetus.

ll6a

group ranged from 40 mL to 1500 mL, and the proce-
dure time ranged from 6-60 minutes. The blood loss for
the intact D & E group ranged from 20 mL to 1200 mL,
and the procedure time ranged from 6-45 minutes.
Exh. 29.

Of the 383 women, 19 suffered complications, with
equal frequency in both groups. However, the six
complications observed in the intact D & E group were
considered relatively minor (4 superficial lacerations
and 2 follow-up curettages), and none were major (de-
fined as requiring admission to an intensive care unit).
In the group undergoing D & E by disarticulation, most
injuries were minor, but three major complications
occurred: one amniotic fluid embolus, where amniotic
fluid is introduced into the woman’s bloodstream; one
case of sepsis, or generalized infection throughout the
woman’s system; and one perforated uterus. Exh. 29.
Both parties concede that these complications are
generally very rare, and that these results thus cannot
be given much weight. Tr. Vol. 11 at 1746:9-1747:10
(Chasen); Tr. Vol. 7 at 1104:7-1105:18 (Sprang).

The study also followed 62 of these women into sub-
sequent pregnancies, when they obtained their prenatal
care at the Cornell Medical Center. Of these 62 women,
only 4 experienced preterm birth, 2 who had undergone
a D & E by disarticulation and 2 who had undergone an
intact D & E. The two women who had undergone
intact D & E and subsequently experienced early labor
were both previously considered at high risk for pre-
mature labor, and were able to continue their subse-
quent pregnancies significantly longer than their pre-
vious ones. Tr. Vol. 5 at 810:21-24 (Westhoff); Tr. Vol.
11 at 1749:16-1751:17 (Chasen).

117a

The article concludes that intact D & E and D & E by
disarticulation are equally safe procedures, and that the
decision of which technique to use should be left to the
performing physician’s medical judgment. The article
also concludes that intact D & E does not appear to
have adverse effects on maternal health. Exh. 29.

ii. The Parties’ Interpretations of the Chasen Study

Plaintiffs interpret this study as indicating not only
that intact D & E is safe, but that it is in fact safer than
D & E by disarticulation. For instance, the women
undergoing intact D & E had more advanced pregnan-
cies, which normally would indicate a higher likelihood
of complications, since abortions become more difficult
to perform as gestational age increases. However, the
complication rates were identical for intact D & Es at
253 weeks gestational age and D & Es by disarticulation
at 21 weeks gestational age, which plaintiffs argue per-
mits the inference that the intact D & E is in fact safer
than D & E by disarticulation. Tr. Vol. 5 at 808:11-810:9
(Westhoff); Tr. Vol. 11 at 1747:11-1748:18 (Chasen); see
also Tr. Vol. 6 at 945:22-946:4 (government witness
Bowes, agreeing).

The government, in contrast, notes that any argu-
ments concerning the increased safety of the intact D &
E due to the shorter time of the procedure and smaller
amounts of blood loss are contradicted by the findings
which show that on average, an intact D & E takes
exactly as much time as a D & E by disarticulation. Tr.
Vol. 11 at 1807:2-1811:18 (Chasen, agreeing with these
findings).

Plaintiffs emphasized that while the median blood
loss and procedure times were identical for intact D &
E and D & E by disarticulation, the maximum values

118a

for these factors were significantly lower for the intact
D & E group. This indicated to certain of plaintiffs’
experts that the most difficult intact D & Es take less
time and result in less blood loss than the most difficult
D & E by disarticulation, and therefore they believed
this indicated the greater safety of the intact D & E
procedure. Tr. Vol. 5 at 860:20-862:13 (Westhoff).

The government presented evidence in response that
the Chasen study, while useful as an initial study of
intact D & E, was too small in scale to support any
conclusions.” Tr. Vol. 6 at 915:20-920:25 (Bowes), Tr.
Vol. 7 at 1101:8-1108:13 (Sprang). The government
noted, for example, that after peer review of the article,
Dr. Chasen agreed to add language noting that the
study’s retrospective nature and the relatively small
sample size made it difficult to draw more generalized
conclusions about the safety of the procedure. Tr. Vol.
11 at 1810:12-1814:18 (Chasen). This difficulty applies
both to the findings as to safety, as well as to the find-
ings on subsequent preterm labor, which the
government notes is further flawed in that follow-up
care could be reviewed only for patients who returned
to the Cornell Medical Center. Tr. Vol. 11 at 1793:23-

—_”*

“ The government also argued that Dr. Chasen, as a plaintiff in
the New York litigation, was biased in favor of intact D & E, as
seen by his failure to disclose to the journal publishers his plaintiff
status or his previous participation in Planned Parenthood litiga-
tion. See, e.g., Tr. Vol. 6 at 921:1-922:4 (Bowes). Dr. Chasen con-
vincingly testified that he had fully complied with the publisher's
ethical policy, and noted that the research for the article was
completed before these lawsuits were filed. Tr. Vol. 11 at 1802:13-
1806:11, 1825:3-1826:19 (Chasen). While Dr. Chasen’s support of
Planned Parenthood in previous litigation is noted, the court is not
persuaded that Dr. Chasen acted unethically or that his research
results are biased as a result of his outside activities.

119a

1794:22 (Chasen, on cross;; Tr. Vol. 6 at 919:12-25
(Bowes).

e. Risks of Intact D & E

The government argues that intact D & E is a dan-
gerous procedure that is less safe than any other second
trimester abortion method and that it poses grave risks
to women’s health. See, e.g., Tr. Vol. 7 at 1079:1-1081:5
(Sprang). But see Tr. Vol. 6 at 974:21-976:7 (Bowes,
stating that intact D & E does not appear to pose any
long-term risks to women’s health). Plaintiffs take a
contrary position and refute the risks asserted by the
government. These risks primarily include the follow-
ing.

i. Cervical Incomvetence

The government presented evidence that the use of
25-30 osmotic dilators could potentially overstretch the
cervix and lead to a condition called “cervical incompe-
tence,” a condition where the cervix painlessly dilates
during a subsequent pregnancy and causes either mis-
carriage or preterm delivery. Tr. Vol. 7 at 1081:14-
1082:8 (Sprang); Tr. Vol. 9 at 1413:4-1415:5 (Cook). In
support of this position, the government relies on an
October 2001 study by Dr. Laurence Henriet published
in the British Journal of Obstetrics and Gynaecology,
which studied 12,000 women in France and concluded
that abortion increased the risk of preterm delivery.

Plaintiffs dispute the methodology of the Henriet
study as “awful,” Tr. Vol. 5 at 755:25 (Creinin), noting
that the study was purely retrospective and based on
subjective self-reporting, which could have notably
skewed the results, since women who experienced pre-
term delivery would be predisposed to recall previous
abortions at a higher rate than those who did not (a

120a

phenomenon known as “recall bias”).”” The study also
was designed to compare women who had had abortions
to women who had not had abortions. Plaintiffs pre-
sented evidence that these two groups are irrelevant to
a study whose aim is to compare women who have
undergone one method of abortion (intact D & E) with
women who have undergone another method of abor-
tion. Tr. Vol. 5 at 780:15-784:2 (Creinin); Tr. Vol. 9 at
1493:22-1496:25 (Cook).

Plaintiffs also question the relevance of the results to
the issues at hand. For instance, 96% of the abortions
reported in the study were performed in the first
trimester. Data regarding those abortions does not
relate to the question whether intact D & E abortions
in the second trimester cause cervical incompetence,
especially since most first trimester abortions do not
involve the use of osmotic dilators or prostaglandin
drugs but rather mechanical dilators, which are known
to cause more trauma to the cervix. Plaintiffs also note
that “preterm delivery” is different from “cervical
incompetence,” in that cervical incompetence can cause
preterm delivery, but not all preterm deliveries are
caused by cervical incompetence. Tr. Vol. 5 at 780:15-
784:2 (Creinin); Tr. Vol. 7 at 1144:22-1147:7 (Sprang, on
cross).

Plaintiffs cite instead a 2002 article by Dr. Robin
Kalish from the American Journal of Obstetrics and
Gynecology, which concluded that second trimester D &
Es did not cause an increased risk of miscarriage or

Plaintiffs also note that the government's position makes no
physiological sense, since the cervix is dilated much wider and in a
much shorter period of time in both induction abortions and in
childbirth at term. Tr. Vol. 4 at 691:15-692:2 (Creinin).

l2la

preterm birth. Exh. 17 (study co-authored by Chasen).
This paper was a retrospective case series, which
followed 96 women who subsequently became pregnant
after a second trimester D & E. The paper also noted
that increased cervical dilation in the D & E actually
.decreased the likelihood of miscarriage or preterm
birth in the second trimester, theorizing that increased
dilation reduced the risk of cervical trauma when
removing the fetus. Tr. Vol. 11 at 1726:13-1735:2
(Chasen); see also Tr. Vol. 4 at 692:3-691:17 (Creinin
testimony on study); Exh. 29 (Chasen study discussed
above, similarly concluding no increased risk of preterm
birth after intact D & E). See also Tr. Vol. 8 at 1282:5-
1283:17 (Shadigian, admitting use of serial laminara was
“not unsafe”).

The government notes in response that the fact that
these studies involved a relatively small number of
participants, and followed only a limited number of
women who returned to the same hospital where the
abortion was performed for care in their subsequent
pregnancies, might have skewed the results. See, e.g.,
Tr. Vol. 6 at 919:8-25 (Bowes); Tr. Vol. 7 at 1105:20-
1106:23 (Sprang).

Plaintiffs also cite the AMA task force’s report on
second trimester abortion, which concluded that there
was insufficient medical research or evidence to con-
clude that dilation increases the risk of cervical incom-
petence, and noted that the government’s witness Dr.
Sprang was a member of that task force. Tr. Vol. 7 at
1147:8-1148:6 (Sprang). Also, practitioners report that
they have not seen in their practices any increased inci-
dence of cervical incompetence for subsequent pregnan-
cies after intact D & E. Tr. Vol. 11 at 1734:2-25
(Chasen).

122a

ii. Infection

The government also claimed, and plaintiffs acknowl-
edged, that the insertion of the laminaria could poten-
tially rupture the amniotic sac, introduce bacteria from
the vagina into the uterus, and increase the risk of a
woman’s chance of infection. Tr. Vol. 7 at 1082:19-
1085:17 (Sprang); see also Tr. Vol. 4 at 626:3-7 (Broek-
huizen). Plaintiffs’ experts testified, however, they
have never encountered this actual situation except in
cases where the amniotic sac had already ruptured,
which predisposes the uterus to infection. See, e.g., Tr.
Vol..11 at 1719:23-1720:10 (Chasen).

iii. Injuries from Podalic Version

Not all doctors perform a podalic version before
commencing D & Es of any kind, but the doctors who do
stated that rotation of the fetus is naturally effected as
part of the procedure when the doctor takes hold of a
fetal extremity and begins the extraction process, for
any D & E. Furthermore, any placental separation that
might occur does not pose a problem because the
placenta will be removed in the extraction process in
any event, and the risk of amniotic fluid embolus is
nonexistent, because all amniotic fluid is removed from
the uterus before a D & E begins. No doctors who
perform podalic version preliminary to an intact D & E
reported any of the complications discussed by the
government’s witness, Dr. Sprang. See, e.g., Tr. Vol. 4
at 516:8-518:6 (Broekhuizen); Tr. Vol. 4 at 668:18-678:4
(Creinin, discussing and discounting all purported
risks); Tr. Vol. 5 at 827:19-829:1 (Westhoff). Moreover,
plaintiffs note that Dr. Sprang’s citation for these
complications comes directly from a textbook on full-
term delivery, where the fetus is significantly larger
than it is in the second trimester, and furthermore, that

123a

the references to the complications were removed in
subsequent editions of the textbook. Tr. Vol. 7 at
1087:24-1089:1 (Sprang, speculating that section of the
text was removed for space considerations).

iv. Injury from Instrumentation

The government also claims that the use of the trocar
or scissors to reduce the size of the fetal head could
cause injury to the woman if the instrument slips, espe-
cially when the instruments are used blindly, without
the doctor’s being able to see where the instruments
are being inserted. This appears to be based on Dr.
Haskell’s 1992 description of the intact D & E proce-
dure. The government also argues that if the fetal head
is crushed with forceps before removal, the sharp ends
of the skull fragments may pose a risk of laceration to
the woman. Tr. Vol. 7 at 1089:25-1091:14 (Sprang). But
see Tr. Vol. 7 at 1127:8-1128:12 (Sprang, arguing no risk
of laceration or injury if ultrasound is used).

While the plaintiffs concede that laceration by instru-
ments used to crush the skull or by fragments of fetal
bones can pose a risk to women’s health, plaintiffs
argue that intact D & E reduces the amount of risk
from such laceration. Tr. Vol. 1 at 110:25-111:17 (Paul);
Tr. Vol. 2 at 271:3-16, 273:3-14 (Sheehan), Tr. Vol. 3 at
445:4-446:23 (Doe); Tr. Vol. 4 at 631:18-634:2 (Broek-
huizen).

Of the testifying doctors who perform intact D & E
by puncturing the calvarium, none insert the trocar or
scissors blindly; rather, they all visualize the insertion
point either directly or through ultrasound. Tr. Vol. 4
at 632:2-8, 638:18-640:7 (Broekhuizen); Tr. Vol. 4 at
682:14-19 (Creinin); Tr. Vol. 5 at 801:25-802:5, 818:8-11
(Westhoff). Cf. Tr. Vol. 7 at 1136:7-14 (Sprang, agree-

124a

ing that visualization would reduce risk). Similarly,
when fetal bones are crushed, the doctor takes special
care to ensure that the bone fragments are covered
with the forceps when removing them through the
cervix.”

Of plaintiffs’ experts, only a few testified that they
had ever perforated a uterus while performing a D & FE,
and the ones who had, had done so only when perform-
ing a D & E by disarticulation. No expert had perfo-
rated a uterus while performing an intact D & E. See
Tr. Vol. 1 at 73:13-18, 123:12-125:25 (Paul); Tr. Vol. 2 at
195:3-12 (Sheehan); Tr. Vol. 5 at 800:5-12 (Westhoff); Tr.
Vol. 11 at 1755:24-1756:6 (Chasen).

f. Maternal and Fetal Health Concerns

Finally, plaintiffs presented evidence that for certain
women or-certain fetuses, an intact D & E may be the
best option for their particular health situation. See,
e.g., Tr. Vol. 11 at 1762:8-25 (Chasen, noting that intact
D & E is the quickest and therefore the safest pro-
cedure for these women); see also Tr. Vol. 6 at 943:4-
944:19 (government witness Bowes, testifying that
doctors should be allowed to use their judgment in
determining whether any particular procedure is in a
ratient’s best interest, including intact D & E).

The government presented evidence that even in
those circumstances, an intact D & E is never a phy-
sician’s only option for terminating the pregnancy, and
thus the procedure is never medically necessary. The
government’s position appears to be that induction is
almost always a viable option for terminating a second

A VA

*! Furthermore, to the extent that blindly used instruments or
skull fragments pose a risk of laceration, the risk would be
identical in an intact D & E anda D & E by disarticulation.

125a

trimester pregnancy, and in those rare circumstances
when it is not, hysterotomy or hysterectomy would be.
Furthermore, D & E by disarticulation also remains an
option for women who would otherwise seek an intact D
& E. See, e.g., Tr. Vol. 7 at 1109:19-1114:9 (Sprang); Tr.
Vol. 8 at 1220:16-21 (Shadigian); Tr. Vol. 9 at 1390:3-22,
1411:22-1416:2 (Cook).

i. Maternal Health
Uterine Scarring

Women with uterine scars, from previous caesarean
operations or other uterine surgery, cannot be treated
with prostaglandins such as misoprostyl, because the
contractions caused by these medications can cause
uterine rupture along the scar. Uterine rupture has
serious implications for a woman’s future reproductive
health, and can endanger a woman’s life. Accordingly,
ACOG strongly discourages the use of prostaglandins
for women with uterine scars, and thus doctors ordi-
narily recommend that women with uterine scars
undergoing a second trimester abortion proceed with a
D&E. See, e.g., Tr. Vol. 2 at 190:14-20 (Sheehan); Tr.
Vol. 3 at 410:20-413:2 (Doe); Tr. Vol. 4 at 506:2-10,
506:25-507:20 (Broekhuizen); Tr. Vol. 5 at 712:9-714:4
(Creinin); Tr. Vol. 6 at 947:4-13 (Bowes).

The government presented evidence that an induc-
tion is still possible for such women, as long as milder
prostaglandins or different labor inducing drugs are
administered and she is well-monitored, but concedes
that a risk of uterine rupture still exists. Tr. Vol. 9 at
1413:9-1436:5 (Cook). But see Tr. Vol. 3 at 434:13-
435:10 (Doe, noting that other drugs are less likely to
induce labor successfully); Tr. Vol. 8 at 1285:17-1286:13

126a

(Shadigian, admitting that other drugs may cause
uterine rupture).

Blood Loss

Some pregnant women suffer from bleeding-related
disorders that render the blood loss inherent in a two-
day induction procedure risky to their health. For
instance, women with bleeding disorders, on blood-
thinning medications, or suffering from renal disease
have a propensity to bleed excessively, which makes
any extended procedure causing blood |oss dangerous.
Analogously, pregnant women diagnused with pre-
eclampsia, a rare and potentially fatal conaition caused
by the pregnancy itself, often lose blood volume as their
blood thickens and begins to clot, so even a slight loss of
blood can have drastic effects on their health. Women
with cardiac or pulmonary disease, including asthma,
also cannot tolerate excessive blood loss, because it
causes excessive strain on their systems. See, e.g., Tr.
Vol. 1 15:14-17:18 (Paul); Tr. Vol. 3 at 383:17-22, 388:3-
390:6 (Doe); Tr. Vol. 8 at 1286:14-1287:11 (Shadigian).
Thus, plaintiffs presented evidence that women with
these health considerations who are undergoing second
trimester abortions are better served by the quicker D
& E procedure, and particularly by intact D & E. See,
e.g., Tr. Vol. 11 at 1763:1-20 (Chasen).

In response, the government presented evidence that
with any surgery, there is the risk of traumatic injury,
which could cause extreme blood loss as well, and that
on balance, it is safer to treat such a woman in the hos-
pital, where her blood loss can be monitored and trans-
fusions can be given if necessary, than in an outpatient
setting where there is not likely to be emergency
eare immediately available. Tr. Vol. 9 at 1591:10-20,
1420:22-1428:2 (Cook); see also Tr. Vol. 8 at 1223:8-

127a

1224:2 (Shadigian, recommending induction or hystero-
tomy for preeclampsia). But see Tr. Vol. 9 at 1477:12-
1478:16 (Cook, conceding that intact D & E could be
performed in a hospital setting).

Placenta Previa

Certain women develop the condition of placenta
previa in pregnancy, where the placenta grows over the
cervix and thus blocks the cervical opening. The par-
ties agree that an induction cannot be performed in this
circumstance because the fetus cannot pass through the
blocked opening. Tr. Vol. 3 at 410:12-19 (Doe); Tr. Vol.
4 at 506:14-24 (Broekhuizen). Plaintiffs presented evi-
dence that in this circumstance, the placenta should be
removed or pierced ina D & E. Tr. Vol. 11 at 1768:5-21
(Chasen).

The government, however, takes the position that a
D & E is not indicated in this circumstance. The gov-
ernment witnesses would instead recommend that a
hysterotomy be performed, even though the hystero-
tomy is significantly riskier than a D & E and has
serious implications for the woman’s future reproduc-
tive health. Tr. Vol. 9 at 1428:3-1429:10 (Cook, stating
that in later gestational ages, hysterotomy or caesarean
delivery is the way to deliver a baby with placenta
previa).

Uterine Infections

Women sometimes develop uterine or amniotic infec-
tions during pregnancy, and if these infections are not
treated, they can lead to sepsis, or a generalized blood
infection, which can spread throughout the body. If
that happens, the uterus must be emptied immediately.
Plaintiffs presented evidence that an induction would
not be appropriate in that circumstance because the

128a

procedure takes too long and the woman’s health could
be compromised while waiting for the fetus to deliver.
Tr. Vol. 11 at 1766:19-1767:5 (Chasen).

In response, the government presented evidence that
if an infection is present, the D & E surgery could po-
tentially spread the infection if the uterus were perfo-
rated, and that induction would be acceptable as long as
the woman was closely monitored over the two-day
period. Tr. Vol. 9 at 1400:12-1401:1, 1429:14-1430:16
(Cook); see also Tr. Vol. 8 at 1224:3-22, 1266:23-1268:10
(Shadigian).

Emergency Situations

The government witnesses testified that if time was
of the essence and a pregnancy needed to be terminated
immediately, an intact D & E would take too long as
well, since the cervix must be prepared over a two day
period, and that a hysterotomy or hysterectomy would
be the quickest way to proceed. Tr. Vol. 8 at 1227:6-12
(Shadigian); Tr. Vol. 9 at 1436:12-1437:12 (Cook). Plain-
tiffs agreed that D & Es in general require several
hours of cervical preparation, thoagh in certain situa-
tions, when misoprosty! and osmotic dilators are used,
the cervix can be dilated in as little as 90 minutes. See,
e.g., Tr. Vol. 1 at 59:9-11 (Paul).

129a

Psychological Reasons

Finally, many women do not wish to undergo induc-
tions, primarily for psychological and emotional reasons
Some women do not wish to go through the physical
and psychological pain of labor if the pregnancy is to be
terminated, especially if the termination is for medical
reasons, and some women also prefer having a quicker
outpatient procedure, rather than checking into a
hospital as is required for an induction. See, e.g., Tr.
Vol. 1 at 91:17-92:1 (Paul), Tr. Vol. 3 at 457:1-458:10
(Doe); Tr. Vol. 4 at 503:22-504:3 (Broekhuizen); Tr. Vol.
5 at 802:11-803:19 (Westhoff), Tr. Vol. 11 at 1773:23-
1776:10 (Chasen). But see Tr. Vol. 8 at 1277:22-1278:3
(Shadigian, stating that labor pains from induction
should not be characterized as “traumatic”).

ii. Fetal Anomalies

Fetuses sometimes have anomalies that can create
contraindications for induction. Examples of this in-
clude hydrocephaly, ascites, or non-immune hydrops,
where fluid collects in the fetal head, abdomen, or
extremities and grossly distends those portions of the
fetal body. In those circumstances, the fetal body may
be so distended that it cannot be removed from the
uterus unless reduced in size. Tr. Vol. 4 at 499:9-22
(Broekhuzien); Tr. Vol. 9 at 1446:16-1447:7 (Cook).
These conditions can be, but are not always, fatal to the
fetus. Tr. Vol. 7 at 1114:5-9 (Sprang); Tr. Vol. 9 at
1447:8-1448:5 (Cook).

Ifa D & E is performed, many doctors will remove all
portions of the fetus from the uterus except for the
oversized portion, and then take a deliberate action to
reduce the size of the distended body part so that it too
can be removed. All parties agree that this action could

130a

violate the Act if it caused fetal demise. Plaintiffs
argue that this type of intact D & E is the best way to
terminate a pregnancy where these conditions are
present. Tr. Vol. 11 at 1759:8-1760:22 (Chasen).

The government argues that doctors could instead
use a hypodermic needle to aspirate the fluid from the
distended body part before the abortion is performed
and proceed with either an induction or D & E by
disarticulation. Tr. Vol. 7 at 1113:21-1114:9 (Sprang);
Tr. Vol. 9 at 1446:16-1447:7 (Cook). Plaintiffs rebut this
argument by stating that in some circumstances, fluid
would refill the body part before the abortion could be
completed, which would render aspiration futile, and
furthermore, that there is no reason to subject the
woman to an additional injection and the concomitant
risks associated with it when an intact D & E procedure
achieves the same end more efficiently. Tr. Vol. 11 at
1759:23-1762:7 (Chasen).

The government responds by arguing that if an
injection is contraindicated, a hysterotomy or hysterec-
tomy could be performed instead to terminate the preg-
nancy. The government also argues that the induction
could be completed to the point at which the fetal body
part lodges in the cervical os, and then “Duhrssen’s
incisions” of approximately 1-2 cm in length could be
made in the cervix to widen the os sufficiently for the
fetus to pass. Plaintiffs contend that Duhrssen’s inci-
sions are extremely risky to the woman’s future fertil-
ity, while ‘be government argues that when properly
perforn.s’ they do not represent any serious risk.
Compare 11. Vol. 4 at 533:18-534:24 (Broekhuizen, stati-
ng that Duhrssen’s incisions not appropriate to use in
an induction); Tr. Vol. 11 at 1787:3-4 (Chasen) with Tr.
Vol. 9 at 1509:20-1513:25 (Cook).

l3la

6. Fetal Demise

The Act does not proscribe intact D & Es performed
after the death of the fetus. Thus, the gevernment
contends that if an intact D & E were ever necessary,
the doctor could simply effect fetal demise before
performing the procedure to escape liability under the
Act. See, e.g., Tr. Vol. 7 at 1114:10-13 (Sprang).

Plaintiffs argue that effecting fetal demise before a D
& E is unnecessary, and doctors should not be required
to subject their patients to an additional medical
procedure that poses some risk and no benefit to the
patient solely to protect themselves from liability. Tr.
Vol. 2 at 291:5-20 (Drey); Tr. Vol. 5 at 727:22-728:4
(Creinin); Tr. Vol. 5 at 819:20-820:5 (Westhoff}. See also
Tr. Vol. 2 at 334:19-335:14 (Drey) (stating that it would
be “a very painful decision” for her to begin using
digoxin to avoid liability under the Act because “I
wouldn’t even have any idea how to consent a patient if
I am giving digoxin for my benefit as a provider. . . . I
wouldn’t be saying that this is for her clinical benefit.
. . . It is for me. I would feel very much forced to do
something to a patient that wasn’t for her. That would
just really be awful for me.”).

a. Injection Techniques

Fetal demise can be effected in a number of ways, but
the methods primarily discussed at trial were the injec-
tion of either digoxin or potassium chloride (“KCI”)
through the woman’s abdomen and either into the
amniotic fluid (“intra-amniotically”) or directly into the
fetus’ heart (“intra-cardiae” or “intra-fetal injection”),
both of which are toxic to the fetus.

Digoxin can be administered either intra-amniotically
or through an intra-cardiac injection, while KCI can

132a

only be administered intra-fetally. Tr. Vol. 2 at 295:9-25
(Drey). It is relatively simple to inject digoxin intra-
amniotically, but intra-amniotic injection is not always
effective in causing fetal demise. An intra-cardiac
injection of either KCI or digoxin is virtually 100%
effective, but requires more skill to perform, and thus is
typically performed only by maternal-fetal medicine
obgyn specialists. Tr. Vol. 2 at 197:15-198:7, 243:25-
245:1 (Sheehan); Tr. Vol. 2 at 312:7-24 (Drey); Tr. Vol. 6
at 964:18-558:17 (Bowes); Tr. Vol. 11 at 1780:20-1782:24
(Chasen).

After fetal demise, the fetal tissue rapidly undergoes
a number of physiological changes, so by the time the D
& E begins, the tissue is much softer and will disarticu-
late more easily (known as tissue “friability”). Tr. Vol.
2 at 243:16-24 (Sheehan); Tr. Vol. 2 at 341:12-25 (Drey);
Tr. Vol. 8 at 1284:19-1285:3 (Shadigian). This process,
known as “maceration,” also renders the fetal tissue
unusable for autopsy or diagnostic testing. Tr. Vol. 11
at 1758:7-19, 1781:25-1782:5 (Chasen).

Some doctors effect fetal demise routinely as part of
their D & E practice, while others have only done so
upon direct request by the patient. Some doctors
report that some of their patients are strongly opposed
to causing fetal demise before the procedure begins,
while other doctors indicate that their patients strongly
prefer that an injection be given. Compare Tr. Vol. 2 at
196:5-20, 242:12-243:2 (Sheehan, stating that all patients
accept digoxin injection) with Tr. Vol. 2 at 342:9-15
(Drey, stating that some patients find digoxin upset-
ting); Tr. Vol. 3 at 418:2-15 (Doe, stating that patients
generally do not want fetal demise effected upon dis-

cussion); Tr. Vol. 4 at 561:15-562:22 (Broekhuizen, say-

133a

ing that opinions on this issue differ sharply among his
patients).

b. Risks of Procedure

As with any medical procedure, there are risks
associated with these injections, which include bleeding
and infection. While these risks are minimal, they can
have significant ramifications for women with certain
medical conditions, such as HIV or hepatitis. The
injection itself is also uncomfortable, and some women
experience nausea or vomiting afterwards. Tr. Vol. 2 at
197:2-14 (Sheehan); Tr. Vol. 2 at 314:14-329:20 (Drey);
Tr. Vol. 3 at 417:6-419:19 (Doe); Tr. Vol. 5 at 728:5-19
(Creinin); Tr. Vol. 6 at 968:25-969:6 (Bowes).

After fetal demise is effected, some women will also
spontaneously miscarry the fetus before surgical ex-
traction begins, which can be distressing, particularly if
the woman is not in the hospital at the time. Tr. Vol. 2
at 198:12-13 (Sheehan); Tr. Vol. 2 at 296:7-22 (Drey).

Finally, during the procedure, if the fetus has already
died, the increased friability of the tissue can increase
the risk of leaving fetal parts in the uterus and sub-
sequent infection. Tr. Vol. 2 at 341:23-25 (Drey); Tr.
Vol. 5 at 820:6-822:4 (Westhoff, noting that she encoun-
tered this situation shortly after the Act was passed
and she was using KCI for the first time, and believes
she may have caused a uterine perforation as a result of
the softened tissue).

ec. Scientific Studies

Dr. Drey has conducted two prospective randomized
studies on the safety and efficacy of intra-amniotic
injections of digoxin, and has concluded that while
digoxin is generally safe to use, it did not improve the

134a

performance of D & E abortions in any significant way.
See generally Tr. Vol. 2 at 291:5-20 (Drey).

For the safety aspect of the study, Drey followed
eight women who received intra-amniotic digoxin injec-
tions before their second trimester abortions and moni-
tored their reactions to the drug. The study concluded
that digoxin was generally safe for use in women for
whom digoxin was not contraindicated. Exh. 34
(article); Tr. Vol. 2 at 305:4-314:14 (Drey).

Drey and her colleagues then studied the efficacy of
the drug in facilitating D & E abortions. In that study,
the doctors followed 126 women, 62 of whom received
digoxin injections before their abortions and 64 of
whom did not. The doctors performing the abortions
could not tell the differences between the groups, and
the study found no benefit to either the doctors or the
women from having the injection. Women who re-
ceived digoxin injections reported significantly higher
incidents of vomiting. The report also demonstrated
that intra-amniotic injections failed to cause fetal
demise in 8% of the women. Exh. 30 (article); Tr. Vol. 2
at 314:14-329:20 (Drey).

The article on the efficacy of digoxin concluded that
“{digoxin] did not decrease procedure time, difficulty,
or pain compared to placebo,” and thus recommended
its use only when a patient specifically requests fetal
death before the procedure begins. Exh. 30. Accord-
ingly, UCSF discontinued the routine use of digoxin in
second trimester abortions. Tr. Vol. 2 at 328:24-329:11
(Drey).

135a

d. Contraindications

Some women have contraindications for these injec-
tions. For example, women with heart conditions
should not receive digoxin injections because if the
digoxin inadvertently enters the woman’s bloodstream,
it could cause major heart damage. Women who have
low amniotic fluid levels or who have had a rupture of
the amniotic sac cannot be monitored with ultrasound
or receive intra-amniotic injections. Injections are also
contraindicated for morbidly obese women, if the hospi-
tal is unable to provide needles long enough to inject
into the woman’s uterus. Tr. Vol. 2 at 308:10-3:10:18
(Drey); Tr. Vol. 6 at 964:10-17, 968:21-24 (Bowes); Tr.
Vol. 11 at 1781:10-24 (Chasen).

e. Cutting of Umbilical Cord

The other method of causing fetal demise discussed
at trial was the cutting of the fetal umbilical cord at the
beginning of the D & E extraction procedure, which
cuts off the fetal blood and oxygen supply. The cord is
not always accessible to the doctor, though, and once
the cord is cut, it can take up to five to ten minutes for
fetal demise to occur. Tr. Vol. 7 at 1119:12-20 (Sprang);
Tr. Vol. 11 at 1782:6-21 (Chasen).

7. Fetal Pain

Finally, the government presented testimony on the
issue of fetal pain, in support of the congressional
finding that fetuses do feel pain. There is no consensus
of medical opinion on the issue.

a. Physiology

The fetus develops the basic elements and connec-
tions of a nervous system by approximately 20 weeks

136a

after conception.“ Fetuses at this age have been
observed to respond to outside sensory stimuli such as
sound, light, and smell, and when fetuses undergo
stressful stimuli, such as fetal surgery or fetal blood
transfusions, the fetus releases stress hormones and
blood flow to the brain increases, just as it does for
newborn infants and adults. See generally Tr. Vol. 10
at 1570:1-1614:11 (Anand).

However, the fact that the fetus responds to stimuli
does not necessarily mean that it feels pain. For the
fetus to interpret stimuli as pain requires not only that
the fetus respond to stimuli, but also that when the
stimulus reaches the brain, the brain interprets it as
unpleasant or painful.” In other words, the fetus must
have developed some form of consciousness to be said
to “feel pain.” Tr. Vol. 10 at 1626:10-1627:16 (Anand).

The only way that an outside observer can determine
whether any entity feels pain is if the entity communi-
cates distress to the observer. The parties agree that
fetuses are unable ‘o conimunicate, so it is impossible to
determine conclusively if the stress responses seen in
fetuses in fact translate into an actual pain response,
and thus no studies on fetal pain s»‘fered during
abortions have been conducted. Both parties agreed
that as a result, much of the debate on this issue is
based on speculation and inference. Tr. Vol. 10 at
1629:24-1630:24 (Anand).

“ This is at 22 weeks Imp.

* For instance, the body produces a pain response during
surgery, but anesthetics block the brain from interpreting those
responses as pain. Tr. Vol. 5 at 725:22-726:2 (Creinin).

137a

b. Scientific Debate
i. Early Development of Pain

One group of physicians believe that fetuses feel
intense pain starting as early as 22 weeks Imp. These
physicians argue that at this point, since the entire
nervous system has developed and has connected to the
brain, the fetus can be considered to have developed
consciousness, and is thus fully able to feel pain. These
physicians argue further that since the last part of the
nervous system to develop is the nervous system’s
inhibitory mechanisms, which permit the modulation or
blocking of pain impulses, fetuses at this age feel
intense pain, even more so than infants or adults. Tr.
Vol. 10 at 1570:1-1614:11 (Anand); Tr. Vol. 7 at 1120:4-10
(Sprang).

These physicians admit that they have no way of
conclusively determining whether this hypothesis is
true, but note that fetuses in this age range often
demonstrate shifting patterns of brain wave activity in
response to stimuli, much like sentient infants and
adults do. They also argue that empirically, fetuses at
this age are observed to recoil from outside stimuli,
such as needles, that are introduced into the womb. Tr.
Vol. 7 at 1046:23-25 (Sprang); Tr. Vol. 10 at 1583:14-
1586:5, 1618:1627:7 (Anand); Tr. Vol. 11 at 1823:16-
1824:20 (Chasen).

Physicians who ascribe to this school of thought
argue that the process of intact D & E, where the skull
is collapsed, causes the fetus extreme pain. These
doctors also believe that a D & E by dismemberment
would be excruciatingly painful for the fetus, and that
even a needle injection of digoxin or KCI would cause

138a

the fetus pain as well. Tr. Vol. 10 at 1605:16-1608:15,
1666:16-1668:7 (Anand).

ii. Later Development of Pain

Other physicians believe that the fetus does not
develop full consciousness until approximately 26 weeks
Imp at the earliest, citing a study conducted by the
British Royal College of Obstetricians and Gynecolo-
gists, which indicated that the nervous system was not
fully integrated until that time. These physicians argue
that consciousness cannot be said to be based on an
on/off model and instead, should be seen as existing in
gradations, so that fetuses before 26 weeks have rudi-
mentary consciousness but not the full consciousness
which would enable them to process stimuli as pain. Tr.
Vol. 5 at 722:8- 727:21 (Creinin).

These physicians also believe that fetuses cannot be
compared to infants or even premature infants, since
the birth process and the lack of dependency on the
mother makes infants physiologically different from
fetuses in utero. While certain physiological markers
may look similar, it is possible that the fetal brain
interprets these markers differently than it would if the
fetus was entirely delivered. Furthermore, these
physicians note that physiological markers such as a
rise in stress hormones may not necessarily be corre-
lated with the sensation of pain even in adults, so it is
impossible to determine what, if anything, the fetus
feels in response to these physiological events. Tr. Vol.
10 at 1614:13-1668:8 (Anand, explaining opposing posi-
tion).

139a

C. Findings of Fact

Having reviewed the trial evidence, the court finds as
follows.

1. Credibility of Witnesses

The court found all of the plaintiffs’ experts not only
qualified to testify as experts, but credible witnesses
based largely on their vast experience in abortion
practice.

However, of the four government witnesses who
were qualified as experts in obgyn, all revealed a strong
objection either to abortion in general or, at a minimum,
to the D & E method of abortion. The court finds that
their objections to entirely legal and acceptable abor-
tion procedures color, to some extent, their opinions on
the contested intact D & E procedure.

Dr. Sprang testified that he “wouldn’t be comfortable
actually taking the life of the fetus.” In his “practice, if
patients want to have an abortion, they are referred to
abortion providers.” Tr. Vol. 7 at 1060:6-7 (Sprang).
Dr. Sprang also testified that he felt so strongly
regarding the benefits of induction because it is a more
“physiologic” process with less “instrumentation” to D
& E post-20 weeks that he would not even discuss D &
E as an option with his patients. /d. at 1122:20-1123:1.
This is in spite of the fact that he admits that post-20
weeks, D & E and induction are comparably safe. /d. at
1124:9-10.

Dr. Shadigian is a member of AAPLOG, the Ameri-
can Association of Pro-Life Obstetricians and Gynecolo-
gists, and likewise, will not personally perform an
abortion on a previable fetus that has not already died
unless “the woman is so sick that the only way she is
going to survive is to have the pregnancy ended.” Tr.

140a

Vol. 8 at 1210:6-21 (Shadigian). Dr. Bowes similarly
testified that he would not personally perform an abor-
tion even to save the life of one of his patients unless he
believed that there was at least a 50% likelihood that
she would die absent the abortion—even if the preg-

nancy was the result of rape or incest. Tr. Vol. 6 at
977:1-12 (Bowes).

Additionally, Dr. Cook testified that because of his
beliefs, he will not perform abortions for “elective” rea-
sons. Tr. Vol. 9 at 1353:25-1354:2 (Cook). Like the
other government witnesses, Dr. Cook testified that he
strongly prefers inductions because he believes that
they are “more physiologic.” /d. at 1513:5-1514:25.
However, the strength of Dr. Cook’s preference for
induction is not supported by the medical evidence, and
there appear to be several circumstances under which
Dr. Cook would utilize induction, or an even less safe
alternative, hysterotomy, when the medical evidence
and literature suggest that the safest procedure is D &
E.” The court also has some misgivings regarding Dr.

“4 Dr. Cook asserted that he so strongly preferred induction,
that he would prefer to allow a woman who was suffering from an
infection of the amniotic membranes called chorioamniocentitis to
continue to labor for several hours as opposed to performing a D &
FE. Id. at 1475. Moreover, Dr. Cook also testified that in the case of
an induction complication, in which the fetal head became trapped
in the woman’s cervical opening, he would prefer to utilize
Duhrssens’ incisions, a series of up to three cervical incisions up to
two centimeters long and the full-depth of the cervix, as opposed to
performing a D & E. /d. at 1512:5-1513:9. He compared the inci-
sions to “cervical lacerations that occur during the normal labor
process,” and referred to them as “a variation on a normal pro-
cess,” and still “more physiologic” than dilation with laminaria,
associated with a D & E. /d. at 1512:20. Fina'ly, Dr. Cook stated
that he does not consider D & E an option post-20 weeks, and
would utilize hysterotomy as opposed to D & E. /d. at 1517:2-7.

14la

Cook’s credibility based on his extremely equivocal and
elusive testimony regarding the medical necessity of D
& E under certain circumstances.”

Finally, the court notes that Dr. Anand, the govern-
ment’s expert witness on the issue of fetal pain, is not
an anesthesiologist, neurologist, obstetrician, or mater-
nal-fetal medicine specialist. Anand is a pediatrician
who has conducted research on pain in general, focusing
primarily on infants. Tr. Vol. 10 at 1540:6-1568:14
(Anand). Thus, Anand’s opinions on fetal pain as they
relate to fetal development have been given no more
weight than the testimony of other obstetricians and
maternal-fetal medicine experts, who reviewed the
same material and concluded that fetal consciousness
and pain do not exist until at least 26 weeks. See, e.g.,
Tr. Vol. 3 at 419:20-420:4 (Doe); Tr. Vol. 5 at 722:8-
727:21 (Creinin).

2. Findings of Fact Regarding Relevant Abortion
Procedures Both D & E and Induction are Safe
Procedures

Both D & E and induction are safe procedures, with
extremely low rates of morbidity (medical complica-
tions) and mortality. Between the two, however, the
studies consistently show that D & E is as safe or even
significantly safer than induction, and both procedures
are greatly safer than either hysterotomy or hysterec-
tomy.

* Dr. Cook contradicted himself several times regarding
whether he had ever found D & E to be “medically necessary” in
his practice, before ‘agreeing that he found it to be not only medi-
cally necessary on occasion, but under certain circumstances,
superior to induction. /d. at 1459:3-1461:25; 1472:21-24.

142a

Intact D & E is a Variant of the D & E Procedure

Intact D & E is not a separate procedure, but rather,
simply a variant of the established D & E technique.
While doctors cannot always predict beforehand
whether a D & E abortion will proceed by disarticula-
tion or through an intact extraction, the record is clear
that some doctors may prefer to perform an intact
extraction if at all possible.

Intact D & E v. Induction and Other Abortion Procedures

D & E, including intact D & F presents significant
medical benefits over an induction, hysterotomy, or
hysterectomy. A D & E, including an intact D & E,
takes significantly less time than an induction, and to
the extent that up to 10% of inductions require a
subsequent D & E to remove unexpelled fetal parts,
surgical procedures are not necessarily avoided in an
induction. Moreover, other benefits to D & E, including
intact D & E, include a reduced exposure to risks and
maternal complications associated with induction
abortions, including uterine rupture and infection, and a
decreased risk of blood loss and infection and compli-
cations arising from unexpelled fetal parts.

AD & E, including an intact D & E, also does not
require a woman to undergo labor. For this reason,
most women strongly prefer a D & E abortion. More-
over, the record is clear that some individual women,
for health reasons, cannot undergo an induction abor-
tion. The court finds that it would be unreasonable to
expect women for whom inductions are contraindicated
to put their health at risk by undergoing induction,
hysterotomy, or hysterectomy. While an induction has
the benefit that an intact fetus can be obtained for
autopsy or psychological grieving purposes, an intact D

143a

& E can have the same result without requiring women
to undergo induced labor.

Intact D & Ev. D & E by Disarticulation

The existing studies show that intact D & Es are at
least as safe as D & Es by disarticulation. Exh. 27
(Chasen report). While the Chasen study indicates
neither that intact D & E is in every circumstance safer
than D & E by disarticulation, nor that intact D & E is
in every circumstance less safe than D & E by dis-
articulation, and cannot be considered conclusive on the
issue, even the government’s expert Dr. Bowes agrees
that such small-scale studies are an important first step
in designing further studies on the issue. Tr. Vol. 6 at
960:23-961:8 (Bowes, discussing Chasen report). Thus,
these preliminary results indicate the relative safety of
intact D & E, and provide valuable information for
doctors in exercising their clinical judgment.

Furthermore, the court finds that it is wholly appro-
priate for doctors, in their best medical judgment, to
rely on their clinical judgment and these relatively
small-scale retrospective studies in determining, with
their patients, whether they wish to perform intact D &
E abortions—just as the government’s experts rely on
their clinica! judgment (or “intuition”) in recommending
induction abortions over D & E abortions, despite the
lack of studies indicating that modern induction abor-
tions are superior to D & Es and despite the fact that D
& E remains overwhelmingly the procedure of choice
for women undergoing second trimester abortions. Cf.
Vol. 8 at 1302:15-1303:24 (Shadigian, defending her
position that induction is safest method of late second
trimester abortion).

144a

Moreover, all of the doctors who actually perform
intact D & Es concluded that in their opinion and clini-
cal judgment, intact D & Es remain the safest option
for certain individual women under certain individual
health circumstances, and are significantly safer for
these women than other abortion techniques, and are
thus medically necessary. See also, e.g., Cain Depo. at
205:14-210:16 (ACOG policy reflecting same finding).
These doctors are all well-respected in their practices,
and their expertise in recommending and performing D
& E and intact D & Es is unassailable. As noted, the
court accepts their testimony over that of the govern-
ment witnesses, who, while also well-respected and
qualified to provide testimony in general on obgyn
practice and safety, do not perform intact D & Es and
who were not qualified to testify as experts on the
practice.

The evidence also demonstrates that intact D & E
presents significant safety benefits over D & E by dis-
articulation under certain circumstances for the follow-
ing reasons, including: (1) fewer passes are made with
the forceps and/or other instruments, resulting in a
reduced risk of lacerations to the cervix and/or uterus;
(2) since the fetus is removed either intact or largely
intact, there is a reduced risk of inadvertently leaving
fetal parts in the uterus and thus a reduced risk of
infection; (83) because the fetus is removed intact or
partially intact, there is a reduced risk of injury to the
woman caused by the removal of bony fetal fragments;

and (4) there may be a reduced operating time, which
likewise decreases the risks associated with blood loss
and infection.

145a

Alleged Risks of Intact D & E

There also appears to be little risk from the various
elements of an intact D & E procedure. As an initial
matter, not all doctors perform all four ACOG elements
of an intact D & E, so to the extent that certain doctors
do not perform certain elements, the attendant risks
are nonexistent for their patients. In addition, no
doctors who actually perform intact D & Es have
reported any of the claimed risks from podalic version
or infection caused by laminaria. Dr. Sprang, who has
never performed an intact D & E, provided testimony
that may be more appropriate in the context of a full-
term birth, but it is of limited relevance to an inquiry
into the safety of intact D & E.

The government also has not shown that intact D &
E increases a woman’s likelihood of cervical incom-
petence. While the Kalish and Chasen studies are not
conclusive, they provide strong preliminary evidence
that no correlation between the two exists. The metho-
dological problems with the Henriet study, as well as
the fact that it primarily addresses first trimester
abortions, renders it of limited relevance to this inquiry.

On the question of uterine laceration, plaintiffs admit
there is a risk of injury caused by misplaced instru-
ments or fetal bone fragments from the collapsed fetal
skull. However, it appears that this risk is minimal, and
it does not appear to be any greater than the risk of
laceration from D & Es by disarticulation in general.
Furthermore, the physicians who perform this proce-
dure state that this risk is greatly minimized by the use
of ultrasound guidance and direct visualization.

146a

Fetal Demise

The evidence shows that there is no medical benefit
to causing fetal demise before beginning a D & E
procedure, including intact D & Es, except potentially
as psychological comfort to some, but not all, women. It
does not make the abortion procedure safer, easier, or
quicker, and the injection procedure itself is not
without risk.

Furthermore, each method of causing fetal demise
has serious drawbacks. While most doctors can inject
digoxin intra-amniotically, this method is not always
effective in causing fetal demise, which would defeat
the purpose for its use and place doctors using this
method at risk of prosecution. While intra-cardiac
injection is almost always effective, not all hospitals and
virtually no clinics have access to maternal-fetal medi-
cine specialists to perform the injection. In addition, a
number of women will be unable to tolerate the
injection process.

While cutting the umbilical cord will guarantee fetal
demise, it is not always possible to reach the cord in

utero. Also, the doctor performing the abortion would. _

have to wait five to ten minutes before death occurred
with the woman under sedation and prepared for
surgery, which would almost double the time of the
extraction procedure.

Fetal Pain

The issue of whether fetuses feel pain is unsettled in
the scientific community. However, it appears to be
irrelevant to the question of whether intact D & E
should be banned, because it is undisputed that if a
fetus feels pain, the amount is no less and in fact might
be greater in D & E by disarticulation than with the

147a

intact D & E method. Tr. Vol. 10 at 1605:16-1608:15,
1666:16-1668:7 (Anand). ,

Intact D & E May Be Significantly Safer For Some
Women Under Certain Circumstances

In conclusion, the court finds that intact D & E is in
fact the safest medical option for some women in some
circumstances and is significantly safer than induction,
hysterotomy, or hysterectomy for terminating a second
trimester pregnancy, and under certain circumstances,
also significantly safer than D & E by disarticulation.

However, plaintiffs have not demonstrated the
existence of any particular situation for these women
for whom induction is contraindicated in which an intact -
D & E would be a doctor’s only option to preserve the
life or health of a woman. The government is correct
that for most women, a D & E by disarticulation could
be utilized instead of induction when contraindications _
for induction exist. Furthermore, plaintiffs concede
that an intact D & E abortion cannot be guaranteed
before the extraction procedure begins. A womian can
request that an intact D & E be attempted, but the
doctor cannot guarantee that it will occur. See, e.g., Tr.
Vol. 2 at 190:5-7 (Sheehan), Tr. Vol. 11 at 1758:2-6
(Chasen).

D. Congressional Findings

In support of the Act, the 108th Congress made
numerous findings, which are discussed in detail below.
The first fourteen findings, (1) through (14), include
Congress’ interpretation of the United States Supreme
Court’s decision in Stenberg, and Congress’ analysis
regarding (1) why it believes that it is entitled to make
factual findings contrary to those in Stenberg; (2) the

148a

degree of deference that Congress asserts the courts
should accord its factual findings subsequently set forth
in section (14) at (A) through (QO); and (3) its ultimate
findings regarding the necessity of a health exception.
Sections 14(A) through (O) subsequently detail Con-
gress’ more specific or particular factual findings per-
tinent to the issue of a health exception. See Act,
§ 2(1)-(14); (14)(A)-(O).

1. Congressional Legal “Findings” and Interpre-
tations

As noted, some of the “findings” made by Congress
include legal interpretations of Stenberg and other .
Supreme Court jurisprudence. There is no dispute that
this court reviews issues of constitutional law de novo.
Accordingly, Congress’ legal conclusions and its charac-
terization of the Supreme Court’s holding in Stenberg,
and any additional legal analysis, is not entitled to—
deference by this court. Nor are any of Congress’ legal
conclusions, which may be disguised as factual findings,
entitled to deference by this court. However, to the
extent that such interpretations provided Congress
with a framework for its factual findings, the Court
discusses those findings below and notes that many of
Congress’ legal interpretations are inaccurate and mis-
characterize Supreme Court precedent.

a. The Congressional Findings Mischaracterize the
Stenberg Case in Many Respects

Specifically, regarding the Stenberg case, Congress,
in its findings, mischaracterizes: (1) the Supreme
Court’s holding regarding “undue burden”; (2) the
quantity and quality of the evidence supporting the
district court’s factual findings; (3) and the Supreme

149a

Court’s treatment of the district court’s factual find-
ings. See id. at § 2(3), (5)-(8).

i. Supreme Court’s Holding Regarding Undue Bur-
den

First, Congress incorrectly combined the two bases
for the Supreme Court’s holding in Stenberg, asserting
that the Court concluded that the Nebraska law in
Stenberg posed an undue burden “because it failed to
include an exception for partial-birth abortions deemed
necessary to preserve the ‘health’ of the mother.” How-
ever, as discussed above, this was not the basis for the
Supreme Court’s holding regarding the law’s undue
burden on a woman’s right to seek an abortion.

Contrary to Congress’ assertions, Stenberg’s con-
clusion regarding the necessity of a health exception
was distinct from its undue burden analysis, and con-
cerned the ban’s impact not on abortion procedures as a
whole, but on a smaller group of women: those patients
for whom the banned procedure “may bring with it
greater safety.” Stenberg, 530 U.S. at 937, 934, 120
S. Ct. 2597 (“the State cannot prohibit a person from
obtaining [‘a rarely used’] treatment simply by pointing
out that most people do not need it”); see also Planned
Parenthood v. Brady, 2003 WL 21383721, at *2 (D.Del.
dune 9, 2003) (“whether [partial-birth abortion] ban
poses an obstacle to one . . . woman or thousands does
not change the constitutional analysis” of the ban’s
failure to contain a health exception).

ii. District Court Record and Findings and Supreme
Court Review of Record

Preliminary to Congress’ ultimate finding that a
health exception is never medically necessary, Con-
gress also criticized the district court’s findings in

150a

Stenberg and the Supreme Court’s alleged reliance on
those findings. See Act, § 2(5)-(8). First, Congress
second guessed the Stenberg district court’s findings,
based not on the evidence compiled independently by
Congress, but instead based on the evidence heard by
the district court. Congress asserted that there was a
“dearth of evidence in the Stenberg trial court record
supporting the district court’s findings”; and that none
of the witnesses in the Stenberg case “identified a single
circumstance during which a partial-birth abortion was

necessary to preserve the health of a woman.” Act,
§ 2(6); (14)(D).

While this court will not attempt to second guess the
findings made by the district court in Stenberg, which
was in a much better position to evaluate the evidence
and the credibility of the evidence before it at the time
of the trial, this court nevertheless notes that the
pertinent congressional findings grossly mischaracter-
ize the state of the trial evidence in Stenberg, as re-
flected in the trial court’s reported decisions.

Following an evidentiary hearing, the district court
in Stenberg held, based on the evidence before it, that
Nebraska’s partial-birth abortion law was likely to be
found unconstitutional after a trial on the merits, and
should be preliminarily enjoined. See Carhart v.
Stenberg (“Carhart I”), 972 F. Supp. 507 (D. Neb.
1997).” Subsequently, after a trial on the merits, the

“At that stage, as opposed to a trial on the merits, the district
court was required to evaluate:
(1) the threat of irreparable harm to the movant; (2) the state
of the balance of the harm and injury that granting the injunc-
tion will inflict on other parties; (3) the probability that the
movant will succeed on the merits; and (4) the public interest.

ld5la

district court held that the law, as applied to plaintiff
Dr. Carhart and his patients, was unconstitutional be-
cause it posed an undue burden and was unconstitu-
tionally vague. See Carhart v. Stenberg (“Carhart IT”),
11 F. Supp. 2d 1099 (D. Neb. 1998).)” In support, it
- found that “[intact D & E] significantly obviates health
risks in certain circumstances,” a finding that the Sup-
reme Court, in contrast to Congress, subsequently
characterized as supported by “a highly plausible
record-based explanation of why that might be
so... .” Stenberg, 530 U.S. at 936-37, 120 S. Ct. 2597.

The record that the Stenberg district court had be-
fore it included the Congressional Record that existed
to date, an AMA report regarding late-term abortions,
CDC data and reports, a January 1997 ACOG policy
statement regarding intact D & Es, and the testimony
of six expert witnesses, including plaintiffs’ witnesses
Dr. Carhart, Dr. Jane Hodgson, the founding fellow of
ACOG and an obgyn who had supervised and/or per-
formed at least 30,000 abortions at that time, Dr. Phillip
Stubblefield, chief obgyn at the Boston Medical Center
who regularly performed abortions, Dr. Stanley Hen-
shaw, a director of research at the Alan Guttmacher
Institute, who held a Ph.D. in sociology and specialized
in non-profit research and writing regarding abortion
data; and defense witnesses Dr. Riegel, an obgyn and
infertility expert, and Dr. Frank Boehm, the director of
obstetrics at Vanderbilt Medical Center. Carhart IT, 11

Id, at 523 (citing Dataphase Systems, Inc. v. CL Systems, Inc., 640
F.2d 109, 113 (8th Cir. 1981)). ,

37 The Stenberg district court limited its review to the consti-
tutionality of the Nebraska law as it applied to Dr. Carhart and his
patients only, declining to decide generally the facial validity of the
state law. See id. at 1119-1120.

152a

F. Supp. 2d at 1116.* Accordingly, the evidence before
the district court in Stenberg cannot credibly be charac-
terized as a “dearth of evidence.”

Additionally, Congress asserted that the Stenberg
district court failed to “identifLy] a single circumstance
during which a partial-birth abortion was necessary to
preserve the health of a woman.” Act, § 2(14)(D). This
assertion is somewhat misleading because at the time of
the trial before the district court in 1998, the Supreme
Court had not enunciated the requirement of a health
exception with respect to partial-birth abortion bans.
Therefore, to the extent that Congress intended to
imply that the evidence before the district court was
deficient on this basis, it ignored both the chronology of
the Stenberg case and prior Supreme Court precedent
on the issue.

Nevertheless, an examination of the district court
record and findings reflects that Congress’ assertion is
also factually erroneous. First, there was record evi-
dence in support of the district court’s findings
regarding the safety-ofintaet D & E generally. The
district court cited to substantial record evidence in
support of its conclusion that intact D & E, as applied to
Dr. Carhart and his patients, was “the safest procedure
in certain circumstances.” Carhart I, 11 F. Supp. 2d at
1122. Specifically, the district court relied on Dr.
Hodgson’s “credible” testimony that the “[intact D &
E] procedure |was] ‘an advance in technology’ because

** The district court, however, found that Dr. Riegel’s
testimony regarding abortion procedures lacked credibility due to
the fact that he lacked experience and was poorly informed re-
garding the intact D & E procedure, having not performed any
abortions due to mora! objections, and having never even ob-
served, let alone performed, a D & E or intact D & E. /d. at 1116.

153a

by removing the fetus intact there is ‘less instrument
manipulation’ and greater safety”; the corroborating
testimony of Drs. Carhart and Stubblefield, whose
testimony the district court found “particularly per-
suasive” given that “(Stubblefield}] possessed the most
extensive training, experience, and knowledge about
the use and teaching of abortion procedures”; the testi-
mony received by district courts in two other cases
involving state partial-birth abortion bans, which in-
cluded the testimony of at least two experts in the
case at hand, Drs. Westhoff and Cook; and Dr. Haskell’s
testimony before Congress. See id. at 1107-08, 1116,
1123 (incorporating prior decision).

Moreover, and most importantly, the district court
specifically found based on the trial evidence, and con-
trary to Congress’ assertion otherwise, that as a result
of Nebraska’s partial-birth abortion ban, approximately
“10 to 20 women a year. . . could not receive the best
care from Dr. Carhart . . . [and] would be forced
against their will to endure appreciably greater risks to
their health and lives than are necessary.” /d. at 1127.
In support, the district court found that:

“(ajmong other things, [these women] would suffer a
larger than necessary risk of: (1) longer operating
time; (2) greater blood loss and infection; (3) compli-
cations from bony fragments; (4) instrument-in-
flicted damage to the uterus and cervix; (5) ex-
posure to the most common causes of maternal
mortality (DIC and amniotic fluid embolus); [and] (6)
‘horrible complications’ arising from retained fetal
parts.”

Id.

154a

Congress also implies that the Supreme Court blindly
deferred to the allegedly erroneous factual findings by
the district court, and that the law regarding judicial
standards of review required such blind deference. See
Act, § 2(6)-(8). Specifically, Congress found that:

Despite the dearth of evidence in the Stenberg trial
court record supporting the district court’s findings,
the United States Court of Appeals for the Eighth
Circuit and the Supreme Court refused to set aside
the district court’s factual findings because, under
the applicable standard of appellate review, they
were not ‘clearly erroneous.’

Thus, in Stenberg, the United States Supreme Court
was required to accept the very questionable fin-
dings issued by the district court judge.

Id. at § 2(6),(7).

Neither is the case. Putting aside Congress’ dis-
paraging characterization of the district court’s factual
and evidentiary findings, this court notes that, as a
matter of law, the Supreme Court will not blindly defer
to factual findings that are as questionable as Congress
portrays the Stenberg district court’s factual findings to
have been. See, e.g., Easley v. Cromartie, 532 U.S. 234,
121 S. Ct. 1452, 149 L. Ed. 2d 430 (2001) (reversing dis-
trict court’s determination that North Carolina’s Legis-
lature used race as the “predominant factor” in drawing
Congressional district boundaries). In reviewing a trial
court’s findings for “clear error,” the Supreme Court
“will not reverse a lower court’s finding[s] of fact sim-
ply because [it] ‘would have decided the case dif-
ferently.’” Jd. at 242, 121 8. Ct. 1452 (quoting Anderson

155a

v. Bessemer City, 470 U.S. 564, 573, 105
S. Ct. 1504, 84 L. Ed. 2d 518 (1985)). However, where a
“review of the trial court’s findings “leaves [the Court]
‘with the definite and firm conviction’ that the District
Court’s key findings are mistaken,” it will reverse those
findings. /d. at 242-48, 121 S. Ct. 1452 (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395,
68 S. Ct. 525, 92 L. Ed. 746 (1948)) (noting that although
the Court had “given weight to the fact that the Dis-
trict Court was familiar with [the] litigation, heard the
testimony of each witness, and considered all the
evidence with care,” the Court “[njonetheless . . . can-
not accept the District Court’s findings as adequate”).

Nowhere in the Supreme Court’s decision in Stenberg
does the Court imply that there was an inadequacy or
insufficiency of relevant evidence before the district
court; nor does the Court imply that it considered the
district court’s findings to be “very questionable.” As
noted, to the contrary, the Supreme Court approved of
the district court’s ultimate finding that intact D & E
“significantly obviates health risks in certain cireum-
stances” as a “highly plausible record-based explana-
tion. . . .” Stenberg, 530 U.S. at 936-37, 120 S. Ct. 2597.
Moreover, the Supreme Court clearly conducted its
own review of the record evidence before the district
court, and summarized the evidence in its decision. See
id. at 923-30, 120 S. Ct. 2597 (noting that “[t]he evidence
before the trial court, as supported or supplemented in
the literature, indicates the following”).”

* Congress also mischaracterized the effect of Stenberg on
legislative determinations, asserting that Stenberg “render[ed) null
and void the reasoned factual findings and policy determinations of
the United States Congress. . . .” Act, § 2(7). However, that con-
clusion again ignores the chronology of events. At the time that

156a

2. Congressional Findings Regarding Necessity of a ~
Health Exception

Congress also proffers its interpretation of the law
regarding judicial review in an attempt to justify its
ultimate “finding,” contrary to the Supreme Court’s
decision in Stenberg, that the Act is “not required to
contain a ‘health’ exception . . . because a partial-birth
abortion is never necessary to preserve the health of a
woman.” Act, § 2(13) (emphasis added).

Congress interprets the Stenberg Court’s require-
ment that partial-birth abortion bans contain a health
exception “where it is necessary, in appropriate medical
judgment for the preservation of the life of the mother,”
as a finding of fact unique to the facts in Stenberg, and,
therefore, susceptible to contrary congressional fact-
finding. See id. at § 2(4)-(13). Accordingly, Congress
“finds” that it is “entitled to reach its own factual find-
ings [on the issue]—findings that the Supreme Court [is
required to] accord[ | great deference—and to enact
legislation based upon these findings so long as [Con-
gress| seeks to pursue a legitimate interest that is with-
in the scope of the Constitution, and draws reasonable
inferences based on substantial evidence.” Jd. at § 2(8).
In support, Congress cites to and discusses several
Supreme Court cases for its assertion that the courts
“owe Congress’ findings an additional measure of de-
ference out of respect for its authority to exercise the
legislative power.” Jd. at § 2(12). Congress’ “findings”
then conclude for the courts that its ultimate finding
reflects the “very informed judgment of . . . Con-

Stenberg was decided, prior Congresses may have voted to ban
“partial-birth abortions,” but none of those bans had been signed
into law. ~

157a

- gress” and is supported by “substantial record evi-
dence.” /d. at § 2(13).

However, Congress’ assertion that the courts are
required to defer to its “factual” findings raises ques-
tions regarding: (1) the nature of the Supreme Court’s
holding that a health exception was required in the
Stenberg case; and (2) Congress’ ability to make factual
findings contrary to the Court’s holding.

a. Stenberg Court’s Ruling Regarding Necessity of
Health Exception

Accordingly, this court examines the Stenberg
Court’s determination that the Nebraska statute was
unconstitutional because it “lack[ed| any exception ‘for
the preservation of the . . . health of the mother.’”
“530 U.S. at 930, 120 S. Ct. 2597 (citing Casey, 505 U.S.
at 879, 112 S. Ct. 2791).

The Stenberg Court reiterated its prior holdings in
Roe and Casey that “subsequent to viability, the State
in promoting its interest in the potentiality of human
life may, if it chooses, regulate, and even proscribe
abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life
or health of the mother.” Id. at 921, 120 S. Ct. 2597
(quoting Casey, 505 U.S. at 879, 112 S. Ct. 2791). Not-
ing that the Nebraska statute, like the Act at issue in
this case, applied both pre- and postviability, and that
“the State’s interest in regulating abortion previability
is considerably weaker than postviability,” the Stenberg
Court concluded, that since “a health exception |is
required] to validate even a postviability abortion
regulation, it at a minimum requires the same in
respect to previability regulation.” /d. at 930, 120 S. Ct.
2597.

158a

The Court was clear that a health exception is re-
quired regardless of whether it is the pregnancy itself,
an unrelated health condition, or a “state regulation
forc[ing| women to use riskier methods of abortion.”
530 U.S. at 931, 120 S. Ct. 2597. The court noted:

Our cases have repeatedly invalidated statutes that
in the process of regulating the methods of abortion,
imposed significant health risks. They make clear
that a risk to . . . women’s health is the same
whether it happens to arise from regulating a parti-
cular method of abortion, or from barring abortion
entirely.

Id.

The state of Nebraska, however, asserted that the
law did not require a health exception “unless there is a
need for such exception,” and that there was no need
for it in the Stenberg case because safe alternatives
were available to women and the ban created no risk to
the health of women, arguments strikingly similar to
the congressional findings in this case.

The Court rejected Nebraska’s argument, concluding
that, given the “medically related evidentiary circum-
stances,” the Nebraska statute required a health excep-
tion. /d. at 937, 120 S. Ct. 2597. The “medically related
evidentiary circumstances” supporting the Court’s
determination included: (1) the district court’s findings
that were supported by the record; (2) “a division of
opinion among some medical experts over whether
[intact D & E] is generally safer”; and (3) “an absence of
controlled medical studies that would help answer
these medical questions.” /d. at 936-37, 120 S. Ct. 2597.
Accordingly, the district court findings and record was
just one of the three bases upon which the Supreme

159a

Court based its conclusion that a health exception was
required.
i. District Court Findings and Record

The Supreme Court found that the district court
record “show[ed] that significant medical authority sup-
ports the proposition that in some circumstances,
{intact D & E] would be the safest procedure.” /d. at
932, 120 S. Ct. 2597. Moreover, the state of Nebraska
failed to rebut the substantial record evidence to this
effect. See id. (noting that “[t]he State fails to demon-
strate that banning [intact D & E] without a health ex-
ception may not create significant health risks for
women”).

The Court then noted the record findings and evi-
dence supporting a health exception, and rejected argu-
ments made by Nebraska in support of its position that
no exception was necessary. See id. at 934, 120 S. Ct.
2597 (“We find these eight arguments insufficient to
demonstrate that Nebraska’s law needs no health
exception.”). The specific eight arguments made by the
State that the Stenberg Court rejected almost entirely
were:

(1) that the intact D & E procedure is “little-used;”

(2) that the intact D & E procedure is used by only
a “handful of doctors”;

(3) that D & E [by disarticulation] and labor induc-
tion are at all times ‘safe and alternative pro-
cedures’; -

(4) that the ban does not increase a woman’s risk
of several rare abortion complications;

160a

(5) Amici Association of American Physicians and
Surgeon’s (“AAPS”) argument that the intact D &
E procedure creates its own special risks;

(6) that there are no medical studies establishing
the safety of the intact D & E procedure or com-
paring it to other abortion procedures;

(7) an AMA policy statement that intact D & E is ©
not “the only appropriate procedure to induce abor-
tion”; and

(8) ACOG’s qualification of its statement that
intact D & E “may be the best or most appropriate

_ procedure” with the fact that ACOG “could identify
no circumstances under which [the intact D & E]
procedure . . . would be the only option to save the
life or preserve the health of the woman.”

Id. at 933-937, 120 S. Ct. 2597.

The Court found that several of the above arguments
advanced by the State were “beside the point.” Jd. at
934, 120 S. Ct. 2597. First, it held that “[tJhe [intact D
& E] procedure’s relative rarity is not highly relevant.”
Id. The court noted that the health exception was
concerned instead

with whether protecting women’s health requires an
exception for those infrequent occasions. A rarely
used treatment might be necessary to treat a rarely
occurring disease that could strike anyone—the
State cannot prohibit a person from obtaining
treatment simply by pointing out that most people
do not need it.

l6la

Id. The Court further found that the number of
physicians who performed the procedure was not

relevant as there was no way of discerning the reason
behind those numbers. /d.

As for alternative methods, the Supreme Court noted
the trial court’s agreement that there were “safe alter-
natives,” but rejected Nebraska’s argument based on
the related district court finding that under certain
circumstances, “the [intact D & E] method was signifi-
cantly safer.” Jd. Moreover, regarding complications
associated with intact D & E, the Supreme Court
implied that there was a split of opinion, and that the
trial court had relied on testimony contrary to that
relied on by the State, which suggested that intact D &
E may eliminate the risk of certain complications. /d. at
935, 120 S. Ct. 2597. |

The Court also rejected Amici AAPS’s arguments
regarding special risks associated with intact D & E.
The Court noted that another Amici, ACOG, pointed
out that the risks highlighted by AAPS are risks gen-
erally associated with all abortion procedures, including
the alternatives advanced by the State, and were not
specifically associated with intact D & E. Jd. at 935, 120
S. Ct. 2597. Additionally, the court rejected the State’s
characterization of ACOG’s position, especially in light
of ACOG’s contrary position in its amicus brief. /d. at
935-36, 120 S. Ct. 2597 (noting that ACOG asserted that
“lintact D & E] presents a variety of potential safety
advantages over other abortion procedures used during
the same gestational period”).

Of the eight arguments, the only ones that the Sup-
reme Court did not reject were Nebraska’s assertions
regarding the absence of medical studies and the AMA
policy statement. However, it did note that Nebraska

~

162a

had cited only to the most favorable language in the
AMA statement, and had omitted a portion of the state-
ment. Jd. As for the absence of studies, the Court
noted that Nebraska was correct that “|t|/here are no
general medical studies documenting [the] comparative
safety of the intact D & E procedure with other abor-
tion procedures.” Jd. at 935, 120 S. Ct. 2597.

ii. Significance of Division of Medical Opinion and
Absence of Medical Studies

Expounding on its holding in Casey, that “the gov-
erning standard requires an exception ‘where it is
necessary, in appropriate medical judgment for the
preservation of the life or health of the mother,’” the
Stenberg Court explained that “necessity” contained in
the above phrase “cannot refer to an absolute necessity
or to absolute proof”; nor to “unanimity of medical
opinion.” Jd. at 937, 120 S. Ct. 2597. It found that the
necessity or propriety of a certain procedure depended
on the particular circumstances of a particular case, and
its relative health risks and/or benefits. /d.

The court further noted that “(dJoctors often differ in
their estimation of comparative health risks and
appropriate treatment.” /d. It, therefore, held that
Casey requires “the judicial need to tolerate differences
of medical opinion.” Jd. The Court noted that the
division of medical opinion regarding the safety and
propriety of the intact D & E procedure “involve(d|
highly qualified knowledgeable experts on both sides of
the issue”—division “of a sort that [the AMA] and
[ACOG]’s statements together indicate are present
here.” Jd.

163a

Accordingly, the Court held that the existence of a
divisior of medical opinion supported the need for an
exception, as opposed to the contrary. /d.

Where a significant body of medical opinion believes
a procedure may bring with it greater safety for
some patients and explains the medical reasons sup-
porting that view, we cannot say that the presence
of a different view by itself proves the contrary.

Id. The Supreme Court reasoned that such a division of
medical opinion meant that there was a “significant
likelihood that those [physicians] who believe that
[intact D & E] is a safer abortion method in certain cir-
cumstances may turn out to be right.” Jd. Accordingly,
this likelihood justifies a health exception, because to
hold otherwise would “place women at an unnecessary
risk of tragic health consequences.” /d.

In conclusion, the Stenberg Court held that:

|w]here substantial medical authority supports the
proposition that banning a particular abortion pro-
cedure could endanger women’s health, Casey re-
quires the statute to include a health exception
when the procedure is ‘necessary, in appropriate
medical judgment, for the preservation of the life or
health of the mother.’

Id. at 938, 120 S. Ct. 2597.

b. Relationship of Stenberg Health Exception and
Related Congressional Findings

The dispute as to congressional factfinding regarding
the necessity of a health exception is two-fold: (1)
whether the issue is one of fact susceptible to contrary
fact-finding by Congress; and (2) assuming that the

164a

issue is one of fact, the degree of deference that this

court is required to afford congressional findings on the
issue.

At this court’s request, the parties briefed those
issues pertinent to the deference that this court was
required to afford the congressional findings. The par-
ties disagreed as to the characterization of Stenberg’s
health exception and the appropriate standard of de-
ference, as did law professors in an amicus brief
submitted to this court.

i. Plaintiffs Position Regarding Deference to Con-
gressional Findings |

Plaintiffs contend that the congressional findings are
not really “findings,” but an attempt to evade the con-
stitutional standards set forth by the Supreme Court in
Stenberg. Accordingly, plaintiffs contend that the
“findings” should be reviewed de novo. See, e.g.,
Dickerson v. United States, 530 U.S. 428, 432, 437, 120
S. Ct. 2326, 147 L. Ed. 2d 405 (2000) (Miranda warnings
were a “constitutional decision of [the Supreme] Court”
and may not be “legislatively supersede[d]” by an Act
of Congress); see also United States v. Morrison, 529
U.S. 598, 615-617, 120 S. Ct. 1740, 146 L. Ed. 2d 658
(2000) (striking down Violence Against Women Act
(““VAWA”), concluding that Congress lacked consti-
tutional power under Commerce Clause and that “the
existence of congressional findings is not sufficient, by
itself, to sustain the constitutionality of Commerce
Clause legislation”); City of Boerne v. Flores, 521
U.S. 507, 532, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997)
(striking down Religious Freedom Restoration Act
(“RFRA”), enacted by Congress under Section 5 of the
14th Amendment, “regardless of the state of the
legislative record,” where Act was in direct response to

165a

a prior Supreme Court decision and sought to legis-
latively supersede the legal standards set by the Court
in that prior case).

ii. Government’s Position Regarding Deference to
Congressional Findings

The government, on the other hand, argues that this
ease is distinguishable from the cases cited by the
plaintiffs because Stenberg’s determination regarding
the necessity of a health exception does not rise to the
level of a “constitutional rule,” like the Miranda re-
quirements that Congress sought to overrule in Dicker-
son, or the Supreme Court’s constitutional interpreta-
tion of the RFRA, which Congress sought to overrule
in City of Boerne. Instead, the government contends
that whether a health exception is required is a “fac-
tual” issue, “decided on review of the particular record

. . inthe [Stenberg } district court.”

The government contends that the Stenberg Court’s
conclusion regarding the necessity of a health exception
was “inextricably tied to the record evidence compiled
in that specific case” and “did [nlot suggest that Con-
gress could not make an independent assessment of
the medical evidence.” Accordingly, the government
asserts that Congress did not attempt to overrule a
constitutional standard, but instead that its findings fell
within the constitutional parameters articulated by the
Supreme Court in Stenberg and Casey.

Because it asserts that Congress -was entitled to
make the contrary factual findings, the government
urges this court to apply the standard of review set
forth by the Supreme Court in Turner Broadcasting
Sys., Inc. v. FCC (“Turner IT”). 520 U.S. 180, 117 S. Ct.
1174, 137 L. Ed. 2d 369 (1997). In Turner II, the

166a

Supreme Court decided the second of a pair of cases
involving the appropriate standard of judicial deference
due congressional findings of fact in First Amendment
free expression cases.

The Supreme Court held in Turner IT that the “must-
carry” provisions of the Cable Television Consumer
Protection and Competition Act of 1992, requiring cable
television providers to dedicate a portion of their chan-
nels to local broadcast television stations, as challenged
by cable operators and programmers, did not run afoul
of the First Amendment. /d. at 224-25, 117 S. Ct. 1174.
In so holding, the Court gave substantial deference to
congressional findings in support of the regulation.
Those findings included Congress’ ultimate conclusion
that the confluence of undue market influence pos-
sessed by cable operators, cable operators’ economic
interests not to carry broadcast signals, and local
broadeasters’ reliance on cable operators for access to
viewers, together, significantly threatened the future
viability of local broadcast television.

In according substantial deference to the legislative
findings, the Turner II Court noted that its:

sole obligation is to assure that in formulating its
judgment, Congress has drawn reasonable in-
ferences based on substantial evidence. As noted in
[Turner I], substantiality is to be measured in this
context by a standard more deferential than we
accord to the judgments of an administrative
agency.

Id. at 195, 117 S. Ct. 1174.

Accordingly, the government argues that this court
should consider the trial evidence “only to supplement
the Congressional record [such] that the Court may

167a

determine whether Congress’ judgment was reasonable
and based on substantial evidence.” See id. at 196, 117
S. Ct. 1174 (examining “first the evidence before Con-
gress and then the further evidence presented to the
district court on remand to supplement the congres-
sional determination”).

iii. Amici’s Position Regarding Deference to Con-
gressional Findings

A third and distinct approach regarding the de-
ference to be accorded the congressional findings was
advanced by Amici, a group of law professors who teach
and write in the area of constitutional law. Amici argue
that the necessity of a health exception under Stenberg
is not a pure fact as the government would characterize
it, but instead a constitutional or “legislative” fact. See,
e.g., A Woman’s Choice—East Side Women’s Clinic v.
Newman, 305 F.3d 684, 688 (7th Cir. 2002) (discussing
difference between legislative and adjudicative facts,
and noting that Supreme Court had suggested “consti-
tutionality must be assessed at the level of legislative
fact, rather than adjudicative fact. . . . [because] only
treating the matter as one of legislative fact produces
the nationally uniform approach that Stenberg de-
mands”); see also Casey, 505 U.S. at 888-893, 112 S. Ct.
2791 (ruling that spousal notification requirement
placed a substantial obstacle in the path of women

seeking to terminate their pregnancies as a matter of
law).

While the government would like to characterize
Stenberg’s health exception as an “adjudicative fact,”
tried by courts and concerning only the immediate.
parties to the dispute,” Amici note, in contrast, that
legislative facts “transcend particular cases and must
be decided by courts as a matter of law.” March 1, 2004

168a

Amicus brief at 4. According to Amici, the issue here
must be treated as one of legislative fact, because
otherwise,

the [government’s] proposed standard would create
the prospect that different legislatures could find
different facts predicated on essentially the same
record. . . . Such a result would leave different jur-
isdictions with disparate constitutional practices
notwithstanding the fact that the empirical issue is
identical in each of them.

Id. Accordingly, “the necessity of a medical exception
must be found at the level of constitutional fact—not
amenable to alteration by the fact-finding of individual
legislatures.” Jd. at 5.

Amici do not agree with plaintiffs that this court
should review the findings de novo simply because they
constitute legislative or constitutional facts. Nor do
Amici agree with the standard advocated by the gov-
ernment. —

Amici contend that although the Turner standard of
deference may apply to legislative facts under some cir-
cumstances, that is not true of a case in which a funda-
mental right, as opposed to economic regulation, is
implicated.” In cases such as this, involving funda-
mental rights or liberties, Amici argue that the
standard of deference to be applied is a “hard-look”

4 Amici also appropriately note that the government’s sug-
gestion that the Act at issue here is “economic” simply because it
was passed pursuant to Congress’ Commerce Clause power mis-
characterizes the Act. According to such analysis, all legislation
enacted pursuant to Congress’ power under the Commerce Clause
could be deemed “economic” regardless of its impact on funda-
mental rights. -

169a

standard."’ Amici acknowledge that the Supreme Court
“has not specifically articulated the standard it em-
ploys,” but contend that “case law makes it clear that
the Court stringently reviews proffered findings of fact
when basic liberties are infringed, and the Court does
not hesitate to go well beyond the legislative record in
finding facts regarding the relevant inquiry.” March 1,
2004 amicus brief, at 2. According to Amici, this ap-
proach requires “that courts conduct a stringent and
broadly-based review of the methods and principles
underlying factual claims that affect the existence of
protection of basic liberties.” /d.

iv. Analysis Re: Level of Deference

This court is inclined to agree with Amici regarding
both the characterization of the Supreme Court’s re-
quirement of a health exception in Stenberg as one of
“constitutional fact,” and the applicable standard of
deference. :

This court’s discussion of Stenberg above dispels
Congress’ and the government’s characterization of the
issue as one of pure fact, limited to the record in that
particular case. Instead, as noted, the record was only
one of several “medically related evidentiary circum-
stances” that the Supreme Court considered in con-
cluding that a health exception was required. The
other two significant considerations included the state
of medical studies and the division of expert medical

‘! This “hard-look” standard of review is applied only to
congressional findings regarding the issue of the necessity of a
health exception under Stenberg. As for the inquiry regarding
undue burden, Amici note that this court is required to make an
independent legal judgment regarding whether the Act unduly
burdens a woman’s right to terminate a pregnancy.

170a

opinion on the issue—general evidentiary considera-
tions that were not limited exclusively to the record in
the Stenberg case. See 530 U.S. at 879, 120 S. Ct. 2530.

Accordingly, this case appears to be factually closer
to those cases relied on by plaintiffs, including City of
Boerne, Dickerson, and Morrison, in which the
Supreme Court held that, as a matter of law, congres-
sional factfinding was not entitled to deference where
Congress intended to legislatively supersede consti-
tutional standards. However, this case is, at the same
time, not identical to those cases. As the government
has pointed out, those cases involved constitutional
“rules.” Here, Stenberg’s health exception requirement
does not appear to arise to the level of a constitutional
“rule” like Miranda requirements. Instead, because it
is based on “medically related evidentiary circum-
stances,” the necessity of the exception is, for the rea-
sons explained by Amici, more appropriately con-
sidered an issue of “legislative” or “constitutional” fact.

Assuming that the Supreme Court’s holding in
Stenberg regarding the necessity of a health exception
is amenable to subsequent legislative factfinding, this
court would be inclined to agree with the “hard look”
standard of deference advanced by Amici. That is, that
while this court does not review congressional findings
regarding these types of facts de novo, as plaintiffs have
advocated, the court also does not believe the standard
is one of substantial deference, advocated by the
government. See also Newman, 305 F.3d at 688 (noting
that with respect to abortion regulations, “con-
stitutionality must be assessed at the level of legislative
fact, rather than adjudicative fact determined by more
than 650 district judges”).” Only treating the matter as

17la

one of legislative fact produces the nationally uniform
approach that Stenberg demands.” /d.

This court agrees that the issue of deference in this ©
case is not clearly established by Supreme Court pre-
cedent. Because this case involves a woman’s funda-
mental right to choose an abortion, the court is not
persuaded that it should afford congressional findings
that undermine that right the same substantial de-
ference utilized by the Supreme Court in cases involv-
ing economic regulation, like Turner lJ. In Turner 11,
regarding the applicability of the standard of sub-
stantial deference, the Supreme Court explicitly noted
that:

[The] principle has special significance in cases, like
this one, involving congressional judgments con-
cerning regulatory schemes of inherent complexity
and assessments about the likely interaction of
industries undergoing rapid economic and tech-
nological change. Though different in degree, the
deference to Congress is in one respect akin to de-
ference owed to administrative agencies because of
their expertise.

520 U.S. at 196, 117 S. Ct. 1174 (citing FCC v. National
Citizens Comm. for Broadcasting, 436 U.S. 775, 814, 98
S. Ct. 2096, 56 L. Ed. 2d 697 (1978)) (emphasis added).

Nevertheless, while recognizing the importance of
the issue, this court need not articulate the precise de-
gree of deference to be accorded the congressional
findings in this case. That is because, even if this court
were to assume that the findings are entitled to the
most stringent standard of deference advocated by
the government and Congress: that of substantial de-
ference, the court concludes for the reasons set forth

172a

below, that Congress has not drawn reasonable in-
ferences based on substantial evidence, and its findings
are therefore not entitled to substantial deference.

3. Congress’ Determination that the Partial-Birth
Abortion Procedure is Never Medically Necessary
is not Reasonable and is not Based on Substantial
Evidence

In City of Boerne, the Supreme Court recognized
that “[ojur national experience teaches that the Consti-
tution is preserved best when each part of the Govern-
ment respects both the Constitution and the proper
actions and determinations of the other branches.” 521
U.S. at 535-36, 117 S. Ct. 2157. In recognition of this
principle and the pertinent congressional findings, this
court believes it necessary to set forth in detail the
history of the congressional proceedings and Congres-
sional Record underlying Congress’ ultimate finding,
and to discuss the specific findings made by Congress,
in support of this court’s conclusion that Congress’
finding regarding the necessity of a health exception is
not entitled to deference.

a. Overview of Congressional Record

In evaluating the congressional findings in this case,
it is helpful first to briefly summarize the record before
Congress. The evidence presented before Congress
was qualitatively different than the evidence presented
before this court. While some witnesses testified both
before Congress and the court, the court was presented
with much more extensive medical and scientific evi-
dence on both sides of the issue concerning the safety
and necessity of intact D & Es. Congress, on the other
hand, heard significantly more policy-based arguments. _

173a

From 1995 to 2003, the 104th through the 108th Con-
gresses held a total of six hearings relating to “partial-
birth abortion.” In addition, various individuals and
organizations submitted numerous policy statements
and letters for inclusion in the Congressional Record.*

i. 104th Congress (1995)

In 1995, Congress held three hearings on intact D &
E

House Judiciary Committee Hearings

The first hearing of the 104th Congress took place
before the House Judiciary Committee on June 15,
1995. Partial-Birth Abortion Hearing before the Sub-
comm. on the Constitution of the House Comm. on the
Judiciary, 104th Cong Ist Sess (1995) (“Record Exh.
G”). In those proceedings, various representatives de-
bated the issue of intact D & E in the context of Dr.
Haskell’s description of the procedure before the
National Abortion Federation in 1992.

Two physicians, Dr. Pamela Smith and Dr. Robert
White, and one nurse, Mary Ellen Morton, testified in
favor of a ban. Dr. Smith, a gynecologist who does not
perform abortions, gave a general overview of the
procedure, and stated that there was no medical need
for the procedure, while Dr. White, a neurosurgeon
with no obstetrics training, testified that he believed
that the fetus would feel intense pain during an intact D
& E procedure. Record Exh. G at 38-44, 90 (Smith
testimony), 67-71 (White testimony). Morton, a neona-

© As both parties have agreed, the court takes judicial notice
of the fact that materials and testimony are included in the Con-
gressional Record but not necessarily for the truth of the matters
asserted therein. See Fed. R. Evid. 201.

174a

tal nurse, presented photographs of premature infants
and testified in a written statement that she believed
that premature infants were identical to fetuses in the
second trimester of pregnancy and that they would feel
pain during an intact D & E procedure. /d. at 76-86.

One physician testified against the ban, Dr. J. Court-
land Robinson, an obgyn with training in public health.
Dr. Robinson testified that intact D & E is a rare
procedure, that the ban seemed vague, and that Con-
gress should not substitute its judgment for those of
women and their physicians. Dr. Robinson did not pro-
vide information about how an intact D & E is per-
formed, and stated that he was unfamiliar with this
technique until a few weeks before testifying. Record
Exh. G at 63-67, 88.

One woman, Tammy Watts, who had undergone an
intact D & E, also provided testimony. Watts had
discovered 7 moriths into her pregnancy that her fetus
suffered from trisomy 13, a fatal chromosomal anomaly,
and decided to terminate the pregnancy. Because she
had an intact D & E, Watts was able to see and hold the
fetus, and the fetus was autopsied for future diagnostic
purposes. Record Exh. G at 71-76.

The four testifying witnesses were then questioned
by various members of Congress. The witnesses did
not provide extensive medical explanations of the pro-
cedure, as the representatives focused mainly on policy
issues in the debate. Record Exh. G at 86-97.

Various statements were also read into the Record,
including newspaper articles on intact D & E, state-
ments from pro-life groups, letters from pro-life
doctors, including Dr. Bowes, letters from the National
Abortion Federation (a pro-choice organization), a copy

175a

of Dr. Haskell’s article and a written response from Dr.
Haskell generally objecting to mischaracterizations of
his article, and statements from attorneys on the consti-
tutionality of a ban. See, e.g., Exh. G at 4-28, 97-142. —

Senate Judiciary Hearings

The second hearing on intact D & E took place before
the Senate Judiciary Committee on November 19, 1995.
Partia] Birth Abortion Ban Act of 1995: Hearing on
H.R. 1833 before the Senate Comm. on the Judiciary,
104th Cong. Ist Sess. (1995) (“Record Exh. F”). -

The first witness to testify was Brenda Pratt Shafer,
a nurse who claimed to have worked in Dr. Haskell’s
office. Shafer testified that she observed an intact D &
E procedure where a 26-week fetus visibly struggled
during the procedure. Dr. Haskell’s office submitted a
letter in response stating that they do not perform
intact D & E procedures after 24 weeks and noting
other inconsistencies in Shafer’s testimony. Certain
senators also noted that Shafer’s deposition testimony
had previously been ruled inadmissible in Ohio’s litiga-
tion concerning a state ban on intact D & E. Record
Exh. F at 17-21, 205-06.

Next, the Senate heard from the first panel of
witnesses, which included: Dr. Smith and Dr. Robinson,
who had previously testified before the House; Dr.
Mary Campbell, Dr. Nancy Romer, Dr. Norig Ellison,
and Helen Alvare. Dr. Smith and Dr. Romer, who sup-
ported a ban on intact D & E, discussed yenerally the
dangers of intact D & E and the lack of medical neces-
sity for the procedure. Dr. Romer indicated that she
had never performed an intact D & E.

Dr. Campbell, the medical director for the
Washington DC Planned Parenthood affiliate, discussed

176a

in general how second trimester abortions are per-
formed, and Dr. Robinson reiterated his belief that
Congress should not legislate how doctors practice
medicine. Dr. Ellison, an anesthesiologist, offered testi-
mony solely on the issue of whether anesthetic given to
the woman would cause fetal demise, and he testified
that it would not. Alvare offered testimony as a
representative of the Catholic church that intact D &
Es were immoral. The witnesses did not explain mat-
ters in great scientific detail, though they were ques-
tioned extensively on policy issues by the committee
members and some medical research issues were dis-
cussed in that context. Record Exh. F at 75- 158.

The next panel of witnesses consisted of three
women, two of whom had undergone intact D & Es:
Coreen Costello, Viki Wilson, and Jeannie French.
Costello was carrying a -fetus diagnosed at seven
~ months with a fatal neurological anomaly and needed to
terminate the pregnancy. She had requested a
caesarean but her doctors advised against the risk, and
she could not undergo an induction because the fetus
was suffering from hydrocephaly. She underwent an
intact D & E, believed that the fetus had died before
birth, and was able to hold the baby after the pro-
cedure. Wilson testified that her fetus was diagnosed
at 36 weeks with an encephalocoele, where the brain
develops outside the fetal skull, and would not live
outside the-uterus. Because of the size of the head,
Wilson could not undergo an induction, and thus
underwent an intact D & E. French testified that she
gave birth to twins, one of whom was diagnosed with an
encephalocoele and did not survive, and that intact D &
E was not necessary for her. Record Exh. F at 158-168.

177a

The third panel consisted of two law professors who
debated the constitutionality of a ban, Record Exh. F at
169-207, and the remainder of the hearing materials
consist of written statements from various doctors,
medical associations, and pro-life advocacy groups. /d.
at 207-363.

House Hearings on Anesthesia

The third and final hearing of the 104th Congress,
held on March 21, 1996, focused on the issue of whether
anesthesia given to the mother in an intact D & E
would cause fetal demise.” Effects of Anesthesia
During a Partial-Birth Abortion: Hearing before the
Subcomm. on the Constitution of the House Comm. on
the Judiciary, 104th Cong. 2nd Sess (1996) (“Record
Exh. E”).

In previous hearings, some doctors, patients, and -
pro-choice advocacy groups had indicated that they
believed that the anesthetic given to a woman under-
going an intact D & E would be sufficient to cause fetal
demise before the extraction procedure began. Record
Exh. E at 1-3. A congressman who is also a doctor,
Tom Coburn, testified that it would not. Jd. at 135-136.

Next, a panel of four anesthesiologists provided
testimony: Dr. Ellison, who had testified previously,
Dr. David Birnbach, Dr. David Chestnut, and Dr. Jean
Wright. All four doctors testified that anesthetic given
to the mother would not cause fetal demise, and Dr.
Wright testified that beginning around 26 weeks after
gestation (28 weeks Imp) fetuses can feel intense pain.

* Plaintiffs in this matter agree with the government that the
anesthetic given to women will not cause fetal demise, and thus
this question is not an issue in this litigation.

178a

Record Exh. E at 137-150. The panel was then ques-
tioned by various members of Congress. /d. at 291-303.

The final panel consisted of Shafer, who had pre-
viously testified before the Senate; Costello, who had
previously testified before the Senate, Mary-Dorothy
Line, who had undergone an intact D & E, and Alvare,
who had previously testified before the Senate. Shafer
reiterated her testimony from the first hearing, as did
Costello and Alvare. Line, who had not previously
testified, stated that her fetus had been diagnosed as
hydrocephalic at 22 weeks, and she had undergone an
intact D & E where a needle was used to aspirate the
fluid from the fetus’ head. Record Exh. E at 310-335.
Members of Congress then questioned the witnesses.
Id. at 385-352.

The remainder of the record of this hearing consists
of letters from advocacy groups and doctors, a letter
from President Clinton opposing the ban, excerpts from
previous portions of the Congressional Record before
the Senate Judiciary Committee, medical research
articles on fetal pain, a letter from Dr. Creinin, who
testified before this court, stating that fetuses do not
feel pain, and a copy of the order from the Ohio district
court finding the Ohio ban on intact D & E unconsti-
tutional. See, e.g., Record Exh. E at 4-134, 151-282, 352-

The proposed bill was then passed by both chambers
of Congress, and President Clinton vetoed it on April
10, 1996. 142 Cong. Rec. H3338 (daily ed. Apr. 15,
1996). The Senate was unable to override the veto, and
it was sustained. 142 Cong. Rec. S11389 (daily ed. Sept.
26, 1996).

179a

ii. 105th Congress

New legislation to ban intact D & E was then pro-
posed in the 105th Congress. The House and Senate
Judiciary Committees held a joint hearing on March 11,
1997, on the issue. Partial-Birth Abortion: The Truth:
Joint Hearing on S. 6 and H.R. 929 before the Senate
Comm. on the Judiciary and the Subcomm. on the
Constitution of the House Comm. on the Judiciary,
105th Cong. 1st Sess (1997) ( “Record Exh. D”).

The first panel to testify at this hearing consisted of
members of various advocacy groups: Renee Chelian,
of the National Coalition of Abortion Providers; Kate
Michelman, of NARAL; Helen Alvare, of the Catholic
Church; Gloria Feldt, of Planned Parenthood; Vicki
Saporta, of NAF; and Douglas Johnson, of the National
Right to Life Committee. The witnesses presented
primarily policy-based reasons for their positions, and
not medical ones; some statistics on both sides were
introduced into the record, but not discussed. Record
Exh. D at 17-66. Members of Congress then exten-
sively questioned the panel. /d. at 67-119.

The second panel consisted of Dr. Cook, who testified
before this court, and is one of the co-founders of
Physicians’ Ad-Hoc Coalition for Truth (“PHACT”), a
group opposed to intact D & E; Eileen Sullivan and
Maureen Britell, who underwent intact D & Es; and
Whitney Goin, whose fetus was diagnosed with fetal
anomalies but who declined an abortion. Dr. Cook testi-
fied that there was no need for intact D & E but did not
explain the medical reasons for his conclusions. Sulli-
van’s fetus was diagnosed with a fatal heart anomaly at
26 weeks, and Sullivan decided on an intact D & E so
the fetus could be autopsied to help her in making her
future reproductive decisions. Britell, who was pre-

~

180a

viously active in the pro-life movement, was pregnant
with a fetus diagnosed with anencephaly at the be-
ginning of her third trimester. When Britell’s induction
abortion failed, she underwent an intact D & E so her
priest could deliver religious rites to the fetus. Goin’s
fetus was diagnosed with abdominal defects which were
not fatal but would require extensive surgery after
birth. Goin declined a second trimester abortion and her
child is alive today. Members of Congress questioned
the women and Dr. Cook whether intact D & E pro-
cedures were necessary in their circumstances. Record
Exh. D at 120-135.

The remainder of the record consists of prepared
statements by attorneys on the issue of the consti-
tutionality of the~bill, copies of medical research
articles, copies of previous testimony given before
Congress on the issue, and letters from advocacy
groups. See, e.g., Record Exh. D at 1-17, 135-142,
Record Appendix.

The bill was passed,and President Clinton vetoed it.
143 Cong. Rec. H8891 (daily ed. Oct. 21, 1997). The
Senate was again unable to override the veto. 144
Cong. Rec. 810564 (daily ed. Sept. 18, 1998).

iii. 106th Congress

~ No hearings were held in the 106th Congress, but
other written materials were introduced into the
Congressional Record, such as letters from doctors and

policy groups.
The Supreme Court decided Stenberg on June 28,

2000, and relied in part on evidence presented in the
Congressional Record up to this point.

18la

iv. 107th Congress

On July 9, 2002, Congress again held a hearing on the
issue of intact D & E. Partial Birth Abortion Ban Act of
2002: Hearing before the Subcomm. on the Consti-
tution of the House Comm. of the Judiciary, 107th
Cong. 2nd Sess (2002) (“Record Exh. C”).

The only panel of witnesses that testified at this
hearing consisted of Dr. Aultman and Dr. Cook, both of
whom supported the ban and had previously testified
before Congress; Simon Heller, an attorney on behalf of
the Center for Reproductive Law and Policy who be-
lieved the proposed law to be unconstitutional; and
Robert Destro, an attorney who believed the proposed
law to be constitutional. Dr. Aultman testified that the
bill was not vague and that no health exception was
needed, and Dr. Cook testified that intact D & E was
not medically necessary. Dr. Aultman also provided a
position paper outlining the medical basis for her
opinion. Heller and Destro presented opposing views
on the constitutionality of the ban. Record Exh. C at 6-
28. Members of Congress then questioned the wit-
nesses. Id. at 28-46.

The record also includes an extensive appendix of
materials, which includes letters from doctors and
advocacy groups, statements from senators, and medi-
cal papers on both sides of the issue. Record Exh. C at
47-280.

v. 108th Congress

The House held its final hearing on this issue on
March 25, 2003. Partial-Birth Abortion Ban Act of
2003: Hearing before the Subcomm. on the Constitution
of the House Comm. on the Judiciary, 108th Cong. Ist
Sess (2003) (“Record Exh. B”).

182a

Only one panel of witnesses testified at this hearing,
consisting of Dr. Mark Neerhof, who supported a ban,
and Simon Heller and Gerard Bradley, attorneys testi-
fying regarding the constitutionality of the act. Dr.
Neerhof provided an overview of his medical opinion
concerning the lack of necessity for the procedure. The
Congressional Findings of Fact appear to have drawn
in significant part from this overview. Record Exh. B
at 6-10. Heller and Bradley discussed the constitu-
tionality of the act in light of Stenberg, and Bradley’s
conclusions appear to have been incorporated into the
Congressional Findings of Fact as well. Jd. at 10-22.
Members of Congress then questioned the witnesses.
Id. at 22-35.

The record of this hearing also includes an extensive
appendix, consisting of statements from doctors and
policy groups on both sides of the issue. Record Exh. B
at 37-279.

b. Analysis re: Congressional Record
i. Witnesses

The oral testimony before Congress was heavily
weighted in favor of the Act. As was the case with
many of the government’s witnesses before this court,
Congress heard disproportionately from physicians
opposed to abortion generally, unless the life of the
mother was absolutely compromised. This court’s
review of the Congressional Record reflects that over a
period of approximately eight years, Congress enter-
tained live testimony from a total of eight physicians,
six of whom supported the ban, and two of whom

183a

opposed the ban.“ Of those six physicians who sup-
ported the ban, two are related to the instant case: Drs.
Cook and Neerhof. Like the government’s witnesses in
this case, none of the six physicians who testified before
Congress had ever performed an intact D & E. Several
did not provide abortion services at all; and one was not
even an obgyn.

It is apparent to this court, having heard the testi-
mony of the thirteen expert witnesses in this case, and
having reviewed the deposition testimony of an ad-
ditional six expert witnesses, that the oral testimony
before Congress was not only unbalanced, but inten-
tionally polemic. In contrast to the evidence before
Congress, this court heard from eight physicians who
have all performed the banned procedure, and have
been instructed in the procedure, many of whom teach
the procedure themselves.

This court cannot evaluate ‘‘e credibility of those
witnesses who appeared both before this court and also
testified or submitted materials to Congress as they
appeared before Congress. However, this court has
made findings regarding those witnesses’ credibility,
set forth above, as they appeared before this court.
That group includes Drs. Cook, Sprang, and Bowes.

While Dr. Sprang did not testify personally before
Congress, he submitted letters in favor of the ban, and
along with Dr. Neerhof, who testified before Congress
in support of a ban, is the co-author of an article sub-
mitted to and cited by Congress in support of its
findings. See Exh. A-55, Sprang & Neerhof, Rationales

4 This does not include the four physicians who testified ex-
clusively regarding the effect of maternal anesthesia on the fetus,
not at issue here.

184a

for Banning Abortions Late in Pregnancy, 280 Journal
of the American Medica] Association (“JAMA”) 8, at
744-47 (August 26, 1998). Many of the congressional
“findings” mirror substantially the conclusions reached
in Dr. Sprang’s article. That article, upon which Con-
gress very obviously relied, and which was admitted
into evidence at trial, was published in 1998, prior to
_ the Supreme Court’s decision in Stenberg, and was
considered and implicitly rejected by the Supreme
Court in its decision. See 530 U.S. at 933, 120 S. Ct.
2597 (citing to article).

This court finds a number of the conclusions in that
article, including those resembling many of Congress’
findings, troublesome and contrary to the medical
evidence presented by both sides to this court. The
article itself constitutes an opinion piece, representing a
generally anti-late-term abortion view. The article was
published in the “Controversies” section of the journal,
a section that includes “one article pro and one article
con on an issue.” Dr. Sprang himself agreed that the
_article was one part of a two-part piece taking opposite
viewpoints on restrictions on late-term abortions. Tr.
Vol. 7 at 1020:19-23; 1032:17-19 (Sprang).”

Unlike other studies that this court admitted into
evidence, the article did not rely on any clinical re-
search or medical studies conducted by Dr. Sprang.
Instead, it was based on his review of the literature on
the issue—literature which included non-medical
sources like newspaper articles and weekly periodicals.
For that reason, this court indicated at trial that it

Dr. Sprang was asked to draft his article in response to an
article by Dr. David Grimes, opposing restrictions on late-term
abortion methods. /d. at 1020:17-25.

185a

found the article itself to be lacking in trustworthiness.
Tr. Vol. 8 at 1340:2-11 (Sprang). Moreover, given Dr.
Sprang’s lack of expertise in late-term abortion pro-
cedures, and intact D & E procedures specifically, and
the contradictory testimony that Dr. Sprang gave at
trial, the article and many of its conclusions become
even more questionable.

This court shares similar qualification and credibility
concerns regarding Dr. Cook, another government
witness, based on his testimony before this court. Dr.
Cook testified before Congress several times and also
submitted written materials to Congress in opposition
to the ban from himself, and from an organization that
he co-founded, PHACT. Congress relied in part on Dr.
Cook’s testimony for its findings, testimony which
included his opinion regarding two specific medical
situations concerning the necessity of intact D & E.*
Tr. Vol. 9 at 1437:13-20 (Cook).

“ Dr. Cook testified, however, that he did not review the
actual medical records associated with the cases about which he
testified. /d. at 1382:3-11. The two medical situations regarding
which Dr. Cook opined before Congress were in rebuttal to a letter
written by a physician, Dr. Phillip Darney, in opposition to the Act.
In that \»tter, Dr. Darney detailed two specific situations for Con-
gress in which he believed that the intact D & E procedure had
been necessary to the life of the women. Dr. Cook responded, re-
butting the necessity of the intact D & E procedure. /d. at 1437:13-
20.

Government counsel posed the same two situations as hypo-
theticals to Dr. Cook before this court, both of which included
women with placenta previa and other disorders or emergency cir-
cumstances requiring pregnancy termination. Jd. at 1438:10-
1441:14. Dr. Cook opined that intact D & E was neither necessary
nor recommended. However, Dr. Chasen, in subsequent testi-

186a

Both Dr. Bowes, who testified for the government,
and Dr. Creinin, plaintiffs’ witness, submitted letters to
Congress in support of, and in opposition to the Act,
respectively. However, this court does not have the
same credibility concerns with respect to the govern-
ment’s witness, Dr. Bowes, or plaintiffs’ witness, Dr.
Creinin.

ii. Medical Organizations

Congress also had before it policy statements and
materials from numerous medical organizations, the
majority of which opposed the Act. Among the medical
organizations who submitted materials in opposition to
the Act were ACOG, CMA, AMWA, NAF, APHA,
PRCH (“Physicians for Reproductive Choice and
Health”), and ANA (“American Nurses Association”).
Two organizations supporting the bill also submitted
materials: PHACT, co-founded by Dr. Cook, and
AAPS. As noted, the AMA, which supported a ban
initially, subsequently withdrew its support.

In the materials submitted before Congress, the two
largest medical organizations, ACOG and AMA, while
agreeing in their opposition to the Act, disagreed
regarding their positions on “partial-birth abortion.”
The AMA was ethically opposed to “partial-birth abor-
tion,” whereas ACOG believes that there are circum-
stances during which “partial-birth abortion” “may be
the most appropriate and safest procedure to save the
life or health of a woman.” See Record Exh. B, at 146-
152 (1997 AMA “Fact Sheet”); Record Exh. C, at 186
(AMA Statement); id. at 260 (AMA Policyfinder); /d. at
240 (4/00 ACOG “Fact Sheet”); Record Exh. B, at 197

mony, disagreed with Dr. Cook’s opinions. See Tr. Vol. 11 at 1768-
1782 (Chasen).

187a

(702 ACOG Statement). In recognition of their dif-
ferences, the AMA and ACOG submitted to Congress a
“Joint Statement,” noting that “they were concerned
regarding the negative impact caused by different
positions reached by [the organizations],” a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0253%3A03. Public record. Not legal advice.