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PARTIAL-BIRTH ABORTION TRIAL UPDATE April 1, 2004 Information Compiled by:Secretariat for Pro-Life Activities, U.S. Conference of Catholic Bishops Full transcripts are accessible at: www.usccb.org/prolife/index.htm NEW YORK CASE. DAY FOUR: Thursday, April 1, 2004. A. So when we do this procedure, I've got the patient
asleep, I've got a device that I can hold on to the top of the cervix with….
So I can lift the cervix, look at the back of the neck, and then a scissors, which
we have on our operating table, and make an incision in the back of the fetal
neck. That whole time I can see what I am doing. And in the very rare cases where
I can't see what I am doing, I can usually put my finger, in fact always put my
finger, on top of my scissors, which are against the back of the fetal neck, and
I have complete control and feeling the entire time I do this. In those cases,
feeling is just as good as seeing. I know exactly where the scissors are. They
are not anywhere near the patient's cervix or uterus. It is a completely visible,
completely palpable in the sense of feeling operation. If you contrast that with
a D&E that is by Q. Dr. Hammond, do you always use scissors or other instruments to breech the fetal head or the fetal neck in the course of doing an intact D&E of this kind? A. Not always. It depends on the fetus. If you've got a fetus that is earlier in gestation, the skull, or calvarium, it is soft. It isn't as firmly formed. So in those cases you can often do this just with your finger, you can do this digitally. In some cases the scissors probably after 20 weeks I am more likely to use them. We actually have a number of instruments on the table that I can use, whatever seems like it is going to be most effective. ~ THE COURT: Excuse me. You don't feel any obligation whatsoever to protect the life of the fetus? THE WITNESS: We are seeing -- THE COURT: I am asking you something. THE WITNESS: With many of my patients, yes, particularly post-viability, your Honor. THE COURT: You don't find any dual responsibility, your obligation is only to the woman? THE WITNESS: In the circumstances in which I am doing terminations, that is correct. ~ Q. What do you do under those circumstances when you have delivered a fetus that is alive in the course of an induction termination? A. The very first thing we do is
to assess the viability of the fetus. By that, we perform a very
Q. [Y]ou told the Judge that you explained to your patients what compressing the head means, correct? A. Yes, we do. Q. But in fact, you don't explain
to every patient that there is a possibility that you might remove the fetus intact
up to the point where the head is stuck in the internal cervical os A. Not to every patient, no. Q. You only do it if the patient asks you, isn't that right, Doctor? A. In some cases, yes. ~ Q. And in fact, Dr. Hammond, no patient has ever asked you, has she? A. I don't know. Somebody might have. I don't have an independent recollection at this point. Q. Directing
your attention to page 233, line 4 of your deposition in this case: ~ Q. In fact, the closest you have ever come to having this kind of conversation with any of your patients is when they've come in and they've said to you, Doctor, is the procedure similar to what we've been hearing about in the media as being encompassed by the partial-birth abortion ban act of 2003 or a similar statute? Isn't that right, Doctor? A. That is true. ~ A. So, if they choose to pursue this in any way or bring it up we will have this conversation with our patients. THE COURT: With the technical language that you used here? A. No. No. No. No. With patients I make the most, the best attempt
I can not to use words like calvarium and to replace it with skull and so forth,
but we don't -- we don't sugar coat it THE COURT: You use reduction rather than crushing the skull. A. I will say crush, clamp and extract and I use those very words because those are what patients understand. We want them to know exactly what the procedure is going to entail and we actually try not to sugar coat this for them because they're the ones who are going to undergo the procedure. THE COURT: But only if they ask. THE WITNESS:
No. Occasionally a patient clearly wants more information and if we sense that
we try to give what's appropriate to the patient. Keep in mind, a lot of my patients
are emotionally quite fragile so we don't have to bring up the terms -- we don't
have to go into gory detail about everything that we are doing. But does that
mean that we don't share with them, that this involves dismemberment or separation
of parts of the fetus or taking the fetus apart? We do. And we use that term.
We say we take the fetus apart. We say, it is coming out in pieces and we make
sure that that's clear with the patients. And they understand it. And given the
circumstances that they confront and their alternatives, the majority of them
want us to do the THE COURT: Do you tell them whether or not it hurts the baby? THE WITNESS: We have that conversation quite a bit with patients, your Honor. THE COURT: And what's your answer? THE
WITNESS: We say several things to the patient, your Honor. First of all, we tell
the patient that it's controversial what exactly -- what the fetus experiences
of pain at various gestational ages. We share with them the fact that even for
normally developed fetuses people debate the beginning of sensation of the fetus.
They debate at what gestational age the fetus is able to interpret pain as we
think about it. We share with the patients that even though there are speculations
about these things among normal fetuses, when you start dealing with the kind
of circumstances that we confront where a baby may not have its forebrain or may
not have its THE COURT: How about when there is no anomaly instead of
all these exceptions, how about THE WITNESS:
We say that there is a possibility and one of the things that we are doing with
~ Q. You have seen a fetus born alive after induction abortion in the second trimester, haven't you? A.
I'm sorry, can I just -- you said after induction abortion in the second trimester?
Am I Q. Yes. Doctor. A. Yes, I have. Q. And you have observed signs of life in the fetus, didn't you? A. That is correct. Q. You have seen spontaneous respiratory activity, right? A. Yes. Q. Heartbeat? A. Yes. Q. Spontaneous movements? A. Yes. Q. And you have seen these signs at 24 weeks, right? A. That is correct. Q. 23 weeks? A. Yes. Q. 22 weeks? A. Yes. ~ Q. Doctor, don't you make an effort when you perform D&E by dismemberment to count the fetal parts after the procedure is over? A. No. We look for sentinel parts. … But we don't count every single part that we've extracted after one of these procedures, no. Q. Well you make an effort to count the four extremities and the head, don't you? A. That we do, yes. ~ Q. You could use a combination of your hand and your instrument; not really grasping but helping and assisting the delivery of the infant to the point its head gets stuck, right? A. That is correct. Q. Sometimes you place an instrument in the uterus, grasp a lower extremity, deliver it into the vagina, take the instrument off, grasp the lower extremity with your right hand, feel with the fingers of your left hand beyond the external os to the opposing extremity, deliver that extremity to get a better grasp on the fetus and then continue the delivery, correct? A. That is correct.
THE COURT: Doctor, that isn't my question. Do you discuss dismemberment? Do you tell them about ripping or tearing a limb off the fetus? THE WITNESS: I may very often discuss that I remove the fetus in pieces but that is not necessarily a uniform part of the discussion. THE COURT: Well do you do it most of the time? I mean, do they really understand what are you doing when you tell them all these clinical terms? THE WITNESS: I try to use everyday language and not use terms that are going to be confusing to the patient. We try to -- THE COURT: Do any of them ask you whether or not the fetus experiences pain when that limb is torn off? THE WITNESS: I do have patient who ask about fetal pain during the procedure, yes. THE COURT: And what do you tell them? THE WITNESS: I, first of all, assess their feelings about this, but they of course even notwithstanding the abortion decision, would generally tell me they would like to avoid the fetus feeling pain. I explain to them that in conjunction with our anesthesiologists that the medication that we give to our patients during the procedure will cross the placenta so the fetus will have some of the same medications that the mother has. THE COURT: Some. THE WITNESS: Yes, that's right. THE COURT: What do you tell them, does the fetus feel pain or not when they ask? THE WITNESS: What I tell them is that the subject of the fetal pain and whether a fetus can appreciate pain is a subject of some research and controversy and that I don't know to what extent the fetus can feel pain but that its -- THE COURT: Do you tell them it feels some pain? THE WITNESS: I do know that when we do, for instance an amniocentesis and put a needle through the abdomen into the amniotic cavity that the fetus withdraws so I certainly know based on my experience that the fetus with withdraw in response it a painful stimulus. ~ THE COURT: Don't you make it simple for them and say yeah, they feel it? THE WITNESS: … I am not confident what the fetus feels with the anesthesia that we use and I don't want to shy away from the possibility the fetus feels pain but I do not believe it's fully determined what the fetus feels during this procedure. THE COURT: Do you care? THE WITNESS: Certainly. ~ THE COURT: Have you ever lacerated the cervix? THE
WITNESS: Yes. I have had patients experience cervical laceration under my care
during ~ THE COURT: I want to know whether that woman knows that you are going to take a pair of scissors and insert them into the base of the skull of her baby, of her fetus. Do you tell her? THE WITNESS: I do not usually tell patients specific details of the operative approach. I'm completely -- THE COURT: Do you tell her that you are going to then, ultimately, suck the brain out of the skull? THE WITNESS: In all of our D&Es the head is collapsed or crushed and the brains are definitely out of the skull but those are -- THE COURT: Do you tell them that? THE WITNESS: Those are details that would be distressing to my patients and would not -- information about that is not directly relevant to their safety. THE COURT: Don't -- whether it's relative to their safety or not don't you think it's since they're giving authorization to you to do this act that they should know precisely what you're going to do? THE WITNESS: That's actually not the practice I have of discussing surgical cases with patients. THE COURT: I didn't ask you that. I said don't you think they ought to know? THE WITNESS: No, sir, I don't. ~ Q. Do you tell a woman who is considering a D&E that the fetal arms, legs, extremities may be dismembered is in the course of a dismemberment variation D&E, Dr. Westhoff? A. I tell patients that we will remove all of the fetus and the uterus and membrane, the placenta and membranes from the uterus as safely as possible and that that proceeds somewhat differently for all patients. ~ Q. How often will it be necessary to collapse the fetal skull during D&E whether the D&E proceeds by a dismemberment or more relatively intact, Doctor? A. For the vast majority of D&Es [] be necessary it either crush or collapse the fetal skull. THE COURT: Do you tell the woman that? Do you use the word crush? THE WITNESS: Your Honor, I do not. THE COURT: I didn't think so. ~ Q. Is there a difference, Dr. Westhoff, between the way a head, fetal head may be collapsed in a D&E by dismemberment and the way it may be collapsed during a D&E performed by the intact [method]? A. Yes. The approaches are different. In the dismemberment D&E the fetal head will be up inside the uterus. It is necessary to insert our forceps, open them as wide as possible to try to capture the head within the opening of the forceps and then crush the head using external force applied against the head. …With an intact D&E, when we have put a hole into the base of the skull we can generally do that under direct visualization because the base of the skull is, thanks to traction, held right in the cervical opening and so it is, in my experience and my opinion, less risky to put a hole in the base of the skull. Because the contents of the skull are liquid the skull contents may often drain out spontaneously as soon as there is a hole in the skull. In some cases it is necessary to use [suctioning]. … THE COURT: Doctor, when you are doing any of these crushing procedures, whether it be to an extremity or to the body, the skull, does the baby, does the fetus ever make any noise or cry? THE WITNESS: It absolutely does not. And in our setting it does not move. It does not withdraw, it does not move. It has very limited tone to its body. ~ A. Abortion is safer than continuing pregnancy to term and continuing childbirth, and it is also overall extremely safe. Q. Without going into the relative safety of different methods of abortion at this point -- THE COURT: Before you go further, safer than childbirth? THE WITNESS: Yes, your Honor. THE COURT: Would you recommend abortions rather than childbirth then? THE WITNESS: If a woman wants to have a baby, she should [] definitely go the full nine months. ~ Q. What have women told you as to reasons why they wish to terminate pregnancies after the first trimester? A. There are several categories of. One is personal problems such as relationship problems and social problems. A much larger group in our practice is women who HIV abnormalities in the pregnancy itself. These may be chromosomal abnormalities that have been diagnosed or anatomical abnormalities of the fetus, and a smaller group are … problems with maternal health. That is a smaller category than the other two. ~ Q. How do the contractions during induction [abortion] during the second trimester, Dr. Westhoff, compare to those typically experienced at term during labor? A. The uterine contractions during an induction abortion are similar to the contractions that women experience during childbirth where labor is also induced using similar med situations. I believe based on my experience that contractions that are induced with medication are more painful than contractions that occur spontaneously. THE COURT: How could you know that without feeling it yourself? THE WITNESS: Your Honor,
if it is appropriate, I have been through childbirth and have had ~ Q. Dr. Westhoff, can you state whether in your opinion the intact variation of D&E facilitates a grieving by the woman or parents with respect to the D&E abortion? A. Yes. We have taken care of several patients who have availed themselves of the opportunity to hold the fetus after a termination done by the intact D&E meld. Because it is the back of the skull that collapsed, since this is not disfiguring, and the face, for instance, is intact. Several of my patients have wished to hold the fetus after the procedure and have expressed gratitude that they were able to do so. THE COURT: Would any of those patients that have expressed that desire to assist them in grieving, and certainly grieving is a serious thing, in any of those instances did you tell those mothers that what they authorized you to do was to make an incision at the base of the skull of their baby and suck its brain out? THE WITNESS: Your Honor, I definitely -- THE COURT: It is a simple question, Doctor. Did you in any of those cases? THE WITNESS: I definitely in those cases discussed collapsing the skull. I definitely don't recall exactly what words I used to communicate it.… THE COURT: But
did you tell them that you would be sucking the brain out of the same baby THE WITNESS: I definitely tell them I collapsed skull. THE
COURT: How about [sucking] the brain out, did you tell them that before they wanted
to THE WITNESS: They know that the head is empty. I do not use the term "sucking the brain out" with my patients. I don't think that helps the grieving process. ~ Q. Dr. Westhoff, you mentioned a moment ago that the face may remain even though the head is collapsed and the intracranial content suctioned out. Can you explain how that occurs? A. Yes. The fetus has a tiny face and a relatively large head. The bones of the back of the skull are very soft. When we make an incision in the base of the skull, we don't disturb any of the skin covering the entire skull, we don't disturb the scalp. So the top and back of the head itself just collapses and looks a little wrinkly and collapsed, but the facial structures are not disturbed at all by that procedure. Q. Do you or the hospital take any other steps to help facilitate the grieving process in circumstances where parents may indicate they desire it? A. Yes, sir. We have clergy available to meet with our patients during their pre-op visits or on the day of their surgery. We have social workers available. And we also have a variety of referrals available. We have arrangements to permit burial of the fetus if the patients want…. Because the hospital also has small coffins present, both for stillbirths or for fetuses after a termination, and in the case of our D&E patients we actually have little hats available so we could in fact cover the back of the head where the incision had been made. ~ Q. When you perform an intact D&E, Dr. Westhoff, is the fetus living when you commence vaginal delivery? A. Although I don't always check for it, I believe there is usually a heartbeat and that the fetus is living. ~ Q. And at the time you either cut the umbilical cord or collapse the skull, is the fetus living? A. Yes. ~ Q. Dr. Westhoff, do you make it a practice either to effect fetal demise by using potassium chloride, as we have heard about, or injecting a toxin into the amniotic sac prior to the time that you effect a surgical evacuation of the uterus? A. No, Mr. Hut, I usually do not do so Q. Why not? A. The main reason that it is an additional procedure that does not offer any benefit to the woman that I am taking care of. The procedure itself is not trivial, it can be difficult to accomplish, can fail, and has some risks. Those are the main reasons I do not use this procedure. THE COURT: As you
said this morning, there is some dispute as to fetal pain. If you had done THE WITNESS: I don't think we know whether intracardiac injection would cause fetal pain, your Honor. ~ THE COURT: I take it, then, the question of the infliction of pain to the fetus is not on the top of your list of concerns when doing your work? THE WITNESS: While I wish to avoid fetal pain, I have no desire to inflict fetal pain… top of my list is the safety of the woman who is undergoing the procedure. THE COURT: In fact, do you consider fetal pain at all? THE WITNESS: Yes, your Honor. As I previously stated, I think one of the benefits of using general anesthesia with my patients, since I don't know if there is fetal pain, is that the general anesthesia crosses the placenta and does circulate in the fetal circulation and may have a physiologic effect in the fetus, and I think that is a benefit. THE COURT: That is the limit of your concern? OK. Next question. NEBRASKA CASE. DAY FOUR: Thursday,
April 1, 2004. Q. Are you currently a member of the Board of Directors for Physicians for Choice, Physicians for Reproductive Health and Choice? A. Exactly. I am Q. And are you also on the National Board of Directors of the Religious Coalition of Reproductive Choice? A. Yes, ma'am. I am Q. Doctor, are you board certified? A. No, ma'am. I'm not ~ Q. Okay. And, Doctor, is the fetus living at the point at which it's stuck at the calvarium, lodged at the cervical os? A. Normally, my 16 and 17-week patients are -- the fetuses are alive at the time of the final delivery. Q. And what's your next step, at that point, if the fetus has lodged at the cervical os? A. Under 17 weeks, I would use a forcep. ...remove the part of [the] fetus that was easily reachable. Hopefully try to use small bites to work the way up and remove the rest of the fetus so that it comes out intact. If not, then remove whatever part that I could get easily and then go back and remove the rest. Q. Okay, Doctor, have you had a circumstance...where the fetus has been not intact, partially dismembered, and yet part of the fetal trunk passed the naval passed the umbilicus, has come outside the body of the mother? A. ....But, certainly, when an upper extremity comes through the vagina, and I have to remove it, at that point -- the shoulder, the shoulder joint actually tends to be more substantial than other joints in the body. So mostly if I can grab above the elbow, I will get part of the scapula, and sometimes even part of the chest wall from that extremity; ribs, and possibly even lung tissue or other tissue inside of the chest cavity. ~ Q. Doctor, focusing on your 12 through 17-week procedures, can you tell me, does the cervical dilation that you achieve have any effect on the size of the fetal parts that you're able to remove? A. Yes, ma'am. I can normally remove, virtually intact, as I said, two, three pieces. I can often get up to the base of the skull then go back and remove the skull. I can often get both lower extremities, and divide somewhere at the upper part of the spinal cord, removing abdominal organs and some even thoracic organs on the very first removal.
Q. Do you agree with the statement, Doctor, that dismemberment at 20 weeks and beyond is difficult due to the toughness of the tissue at that stage of the development? A. I think it's fair to say that, yes, sir. Q. And would you agree that it's fair to say that because of the progress and the ossification and calcification of the fetal bones as gestation increases, it becomes more difficult to dismember the fetus after 19 weeks? A.
....I don't think that up through 24 weeks anybody would say that it's truly a
difficult ~ Q. So would you agree, Doctor, that in the process of disarticulating a fetal part is a process of traction, counter-traction, grasping what you can get ahold of, pulling it down through the cervical os and rotating to dismember the part; is that a fair statement? A. If one is trying to disarticulate, yes. ~ Q. In those instances then, where the head is stuck in the os you testified a moment ago you'll either compress or open the skull to drain, correct? A. Yes, sir, if traction alone, yeah, compressing, grabbing and bringing it down that alone doesn't work, yes, sir. Q. You try the compression and grabbing first? A. I usually try to remove it manually before I use any instruments, yes, sir. Q. And what in forms your decision on whether either to open the skull and have the fetus drained or have the head drained or use forceps or some other means of compressing the skull? A. Well, I don't know if I can put that into words. It's a judgment call at the time. ~ Q. Your declaration says you use a sharp instrument to open the skull on those occasions on which you do it? A. I have to see that. I don't even own a sharp instrument in my clinic. Q. Yeah, 22, last, second-to-last sentence [referring to Carhart's earlier declaration], I use a sharp object either under direct visualization or with real-time ultrasonography to penetrate or enter the fetal skull. A. Well, my actual choice is a uterine packing forceps, but I would accept that that could be, by some, considered sharp. I'm not saying there is anything wrong with this. Q. You consider that forceps to be more of a blunt instrument; is that correct, Doctor? A. I generally like to open the tissue slowly and dissect it apart the same way much like you're doing surgery because you're less likely to involve any other structures, and if you do, you're not causing a vast amount of problems. It's rather limited. ~ Q. My question is, simply, I want to get to the actual process that you utilize in trying to bring the fetus out intact. A. I rarely try to dismember a fetus after the 20th week. I'm not sure I understand how to get my point and what I'm doing to be understood. If I -- if nothing is coming through the os and nothing has come through the os and it appears to be that waiting another hour or four hours is going to not produce any different change than what I have seen already, at that point we will put the patient in the operating room and remove the fetus. I may grab a foot and bring it down. ... If I bring an arm down and bring it outside of the uterus and possibly even outside of the vagina, depending on where the uterus is, I'm not going to put that arm back inside of the woman's body to take that bacteria back inside, so I'll remove that arm.... ~ Q. And you would agree, Doctor, that if you have been successful in inducing fetal demise, the risk or the danger of bony fragments coming out is less because the dead fetus is much softer and much more pliable; is that correct? A. No, I don't think there is any change at all in the bone density when the fetus has been dead for 24 hours… Q. Well, let's take a look at page 147. A. Wait a minute. That's of the deposition? Q. Yes, sir. Line 18. Question: Is the risk of a sharp bone fragment reduced after the 18 week period through the use of the injection of Digoxin? Answer: It is my opinion that they are. Question: Okay. And why is that? Answer: Well, I was telling Ms. Smith at lunch today that, you know, we are talking about a fetus that's not only been dead for 48 hours, but we are talking about a fetus that has been dead for 48 hours in essentially a warming oven or crockpot. It has been kept at a hundred degrees for 48 hours, and if, you know, that's enough, that's enough temperature to cook meat, so we are not only dealing with a fetus that has been dead in my practice, we are dealing with a fetus that's both dead and soft, so it's much more pliable. Is that your testimony at your depositions? A. That's my testimony today also, and that's not the question you asked me. ~ Q. And, Doctor, would you agree that in skilled hands, D & E in which a surgeon dismembers the fetus is safe up to 24 weeks? A. It has to be because people do that all the time. ~ Q. You recommend the use of ultrasound? A. If -- I think for second trimester D & E, it would be considered not within the standard of care to not have obtained an ultrasound. I don't think there is a standard of care that involves the real-time, as you're doing it, ultrasound. I know many, many doctors do not do that, [and] they do very well. I also know that I sleep better at night when I know what I've done. ~ Q. Doctor, when you are expelling the fetus, attempting to remove the fetus through the use of the Misoprostol, I think you said that in 90% of the cases, the fetus just expels on its own; is that correct? A. With Misoprostol and Oxytocin, yes, sir. Q. Is there ever an instance in which you or one of your assistants puts pressure on the woman's abdomen to assist in the expulsion process? A. There is always an ever, and there is never a never. Okay? So yes. Yes. ~ A. Not in the United States. In my practice in Omaha or in Nebraska, my practice. It's fairly rare. THE COURT: Right. You have not administered Digoxin at that time, and when the fetal, when the fetus comes out intact, what is the method of death? WITNESS: I think it's oxygen deprivation because the fetus, if it comes out intact, they have usually done this when I rupture the membranes, and many times, I think and sometimes I'm absolutely certain that the fetus has died on its own overnight, and I think that the medications we use for paracervical block, the amount of anesthesia or Lidocaine that we use and some of the other medicines that we use, the Misoprostol and the two to three hours before, cause enough construction of the uterus on the fetus to minimize circulation and at least obtund the fetus, make it so it's not conscious so that we don't really see signs. I don't think, I cannot say honestly I have ever seen signs of movement on a fetus even though we may well have a very slow heartbeat. The fetus, if, indeed, alive is probably unconscious. ~ THE COURT: Okay. Now, once again, in the ages that we are talking about here, the later ages, 18 weeks to 24 weeks, are there any circumstances where you in the recent past have been unable to cause fetal demise by use of injection? WITNESS: Yes, sir, there was one incident where that happened with a 21 week twin pregnancy, and can I describe - - ....She was a multi-parous patient, and I attempted with her to do the fetal injection first which used to be my practice. I thought I had obtained adequate, that I had obtained that, and I started to place laminaria and very shortly. By the time I had put in the third or fourth laminaria, I started to get bleeding, and it just became worse and worse as time went on. ...we gave her everything to try to constrict the uterus because if you can impact the fetus into the uterus, you can cause enough construction to slow the blood flow down. . . .However, one of the twins had, I thought, probably was dead. The other one, I'm sure, was not, but I had to remove both of those fetuses in virtually a nibble-nibble fashion. I don't know how else to describe it, because I had an opening, the maximum I could get was like maybe one-and-a-half to two centimeters which was not adequate to deliver the fetuses.
Q. ....The procedure you talk about from 14 to 17 weeks where you were able to remove the fetus intact or largely intact up to the calvarium, if the next step was the compression or collapsing of the skull, whichever method you use to do that, could that cause fetal demise? A. I think it eventually would. It may not cause immediate fetal death though. I mean, the fetus is going to die.
DAY THREE:
Thursday, April 1, 2004 Q. Do some women deliver the fetus partially as a result of the misoprostol? A.. Yes, they can. Q. And when that happens, could the fetus be outside the uterus past the navel of the fetus? A. Outside the uterus, yes, and potentially even outside the vagina. Q.. And could it be alive? A. Yes. Q.. And when that happens, how do you complete the procedure? A. Usually, if the fetus is coming out, the easiest method is to try to do how we would do a breech. It often comes out in a breech presentation. And, again, that is feet first, head second. We do the similar maneuvers that we would do to do a breech delivery. However, sometimes the cervix is not dilated enough to allow the calvarium to pass. Q. And what do you then do? A. I would separate the calvarium from the body. ~ Q. And when during in induction does fetal demise occur; do you know? A. I don't know. It really depends on gestational age, and sometimes the fetus is born alive. ~ Q.
And do you ever -- do patients ever ask you whether there is something they could
use to A. Yes. I would -- I don't know what percentage of my patients, but a certainly small number of patients ask could there be fetal demise prior to the procedure. When I talk to them about what it would entail to do, most of them do not want to proceed with that. And I don't think they are particularly worried about the effects. They don't think -- I think about the infection risk. They don't think about the infection risk. They just don't want to go through that procedure, to have a needle placed, and under ultrasound guidance maybe see the ultrasound and see the fetus again. The vast majority of the patients don't want to have that done. Excerpts from cross-examination of Dr. "Doe": Q. And I think you testified earlier that in about 15 percent of the d&e's you perform, the fetus is delivered partially intact so that the calvarium gets stuck in the cervix; is that correct? A. It was - I think my testimony, I believe,
is approximately 15 percent would be delivered Q. Do you have a -- can you give me an estimate of that 15 percent how many are delivered where the calvarium does get stuck in the cervix? A. I would probably say at least 80 percent the calvarium would be stuck in the cervix. Q. And just to be clear, the calvarium, again, is just the fetus' head, correct? A. Correct. Q. In those cases in which you are doing a D&E and the fetus delivers partially intact except for the calvarium getting stuck in the cervix, you have to insert forceps and crush the calvarium; is that right? A. I
would separate the calvarium from the fetal -- how I would perform the procedure
is, I would separate the calvarium from the fetal body, thorax, and then insert
the forceps to ~ Q. Let me just ask you. Can you describe for us how you get the forceps around the calvarium before crushing it? A. In a situation where the fetus is delivered up until the calvarium? Q. That's right. A. Again, as I testified, I would separate the calvarium from the fetus, so -- Q. Let me stop you
right there. A.
Under direct visualization, I would use, seeing outside of the cervix within the
vagina that I Q. And after you've done that, the calvarium is still
in the A. Or in the lower uterine segment. Q. Okay. Then what is the next step that you do? A. The next step I would use is to put the bierer forceps -- is what I most likely would be using in the situation - into the uterus, get around, open them wide, get around the calvarium, and crush the calvarium. Just as if it were higher up and not stuck in the cervix, I would be doing it just the same way. Q. And is it fair to say that the calvarium is one of the largest parts of the fetus? A. Yes. Q. It is also one of the widest parts of the fetus? A. Yes. Q. Is it fair to say that when you are opening the forceps to get around the calvarium, you are opening them wider than you would if you were attempting to grasp a fetal limb? A. Yes. Q. Could there potentially be risks to the cervix when you are opening the forceps wide enough to get around the calvarium? A. Yes. Q. In fact, one of those risks might be a perforation or a laceration of the cervix, right? A. Yes. Q. And another risk might be a perforation or a laceration of the lower uterine segment? A. Yes. ~ Q. And let's talk about
that a little bit. Are the -- can the bones of the calvarium, can they be A. Yes. Q. Are they in any -- are they sharper say than the bones of the fetal leg or are they roughly comparable? A. It depends on how -- if it's a disarticulation of how it went. A calvarium could be crushed and there are not sharp edges and the femur, which is a leg bone, could be broken and be sharper. I think you can't predict that. But I think any of the major long bones, certainly not ribs, but femur, humorous could be sharper than a calvarium that has been crushed. Q. And when you are crushing the calvarium, there is the same risks that we talked about earlier, possible perforation or laceration of the cervix, the lower uterine segment, or the uterus; is that right? A. Yes. Q. And a cervical or uterine laceration, it can be relatively minor or it could be relatively severe; is that right? A. Yes. Q. If it's severe enough, there are some cases where a woman might exsanguinate and die, right? A. Yes. Q. Can you tell us what exsanguinate means? A. To bleed to death. Excerpts from re-cross examination of Dr. "Doe": Q. And Ms. Parker asked you a question about why some of your patients don't prefer a labor induction abortion. I think one of the reasons you gave was that your -- the woman may not want to see the fetus; is that right? A. Yes. Q. Now, in a labor induction abortion you are not showing the fetus to the mother in every case, are you? A.
No, we are not. But with a labor induction, it is often kind of unpredictable
when the fetus delivers. And it is probably a minority of times the physician
is actually there at the time to deliver the fetus. Often you don't have the normal
kind of cervical dilation that you might have in a term labor. You have nothing,
nothing, nothing. And then, all of a sudden, she goes: "I have got to push,"
and the fetus kind of pops into the bed.
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