Planned Parenthood of Southeastern Pennsylvania v. Casey Joint Appendix Vol. 1
Public Court Documents
April 30, 1988 - February 29, 1992
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Brief Collection, LDF Court Filings. Planned Parenthood of Southeastern Pennsylvania v. Casey Joint Appendix Vol. 1, 1988. d7bd4c56-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/04db268e-3446-4ea7-8f22-eebdc4cdd340/planned-parenthood-of-southeastern-pennsylvania-v-casey-joint-appendix-vol-1. Accessed October 08, 2025.
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Nos. 91-744 and 91-902
In the
lintpreme (Emtrt of ttyz United States
October Term, 1991
P lanned Parenthood of Southeastern Pennsylvania,
Reproductive Health and Counseling Center, Women’s
Health Services, Inc., Women’s Suburban Clinic, Allentown
Women’s Center, and Thomas Allen, M.D., on behalf of himself
and all others similarly situated, _ . . , _ _Petitioners and Cross-Respondents,
—v.—
Robert P. Casey, Allan S. Noonan, and Ernest D. Preate, Jr.,
personally and in their official capacities,
Respondents and Cross-Petitioners.
ON writs of certiorari to the united states court of appeals
FOR THE THIRD CIRCUIT
JOINT APPENDIX
VOLUME I
Kathryn Kolbert
('Counsel o f Record)
Andrew Dwyer
Ellen K. Goetz
American Civil Liberties Union
Foundation
132 W. 43rd Street
New York, New York 10036
(212) 944-9800
Linda J. Wharton
Women’s Law Project
125 South Ninth Street
Suite 401
Philadelphia, Pennsylvania 19107
(215) 928-9801
Attorneys fo r Petitioners
and Cross-Respondents
Ernest D. Preate, Jr.
John G. Knoor, III
(Counsel o f Record)
Kate L. Mershimer
Office of the Attorney General
15th Floor, Strawberry Square
Harrisburg, Pennsylvania 17120
(717) 783-1471
Attorneys for Respondents
and Cross-Petitioners
PETITION FOR CERTIORARI (NO. 91-744) FILED NOVEMBER 7, 1991
PETITION FOR CERTIORARI (NO. 91-902) FILED DECEMBER 9, 1991
CERTIORARI GRANTED JANUARY 21, 1992
1
TABLE OF CONTENTS
Page
Relevant Docket Entries ..........................................1
Excerpts from Transcript of Hearing on Plaintiffs’
Motion for a Temporary Restraining Order,
April 21, 1988 ...................................................... 23
Excerpts from Transcript of Hearing on Plaintiffs’
Motion for a Preliminary Injunction,
May 9, 1988 ......................................................... 27
Order Granting Plaintiffs’ Request for Class
Certification (Oct. 25, 1988)............................... 42
Plaintiffs’ Amended Complaint for Declaratory
and Injunction R elie f.............................................44
Order Clarifying May 23, 1988, Preliminary
Injunction (Jan. 11, 1990) ................................. 72
Defendants’ Answer..................................................... 74
Stipulation of Uncontested Facts ............................... 86
Supplemental Stipulation of
Uncontested Facts ............................................. 102
Stipulation of Voluntary Dismissal ............................112
Excerpts from Trial Transcript,
July 30 through August 1, 1990 ......................... 113
Non-Jury Trial - Day 1 ..................................... 113
Non-Jury Trial - Day 2 ..................................... 204
Non-Jury Trial - Day 3 ...................................... 315
Excerpts from Defendants’ Trial Exhibits ................ 393
Defendants’ Exhibit 1: Excerpts from
Magee-Womens Hospital Informed
Consent for Termination of
Pregnancy Form ................................................. 393
Defendants’ Exhibit 2: Excerpts from
Women’s Health Services (WHS)
Individual Counseling Guidelines/
Post Abortion Group Guidelines/
Personal Counseling Guideline........................... 396
Defendants’ Exhibit 3: WHS Consent
for Abortion Form .............................................410
Defendants’ Exhibit 4: WHS
November 20, 1986
Memo Re Parental Notification .......................415
Defendants’ Exhibit 5: Excerpts from
WHS Patient Record Form ................................418
Defendants’ Exhibit 8:
WHS Advertisements .........................................441
Defendants’ Exhibit 9: Excerpts from
Planned Parenthood of
Southeastern Pennsylvania (PPSP)
Center Policy and Procedure Manual .............. 444
11
Ill
Defendants’ Exhibit 10: Excerpts from
PPSP R equest for A bortion Form ....................451
Defendants’ Exhibit 11: Excerpts from
PPSP Fact Sheet ................................................. 453
Defendants’ Exhibit 13: Excerpts
from Guidelines of
Women’s Suburban Clinic (WSC) ...................... 457
Defendants’ Exhibit 14: WSC
Disclosure of Risk,
Benefits and Alternatives Form ........................ 461
Defendants’ Exhibit 17: WSC Information
Prior to Consent/Certification
by Patient Form ................................................. 464
Defendants’ Exhibit 18: WSC
Parental Involvement Form ................................465
Defendants’ Exhibit 19: WSC
Physician’s Certification Form ........................... 466
Defendants’ Exhibit 20: WSC
Protocol Regarding Minors ................................467
Defendants’ Exhibit 26: Excerpts from
Reproductive Health and Counseling
Center (RHCC) Consent Forms .......................469
Defendants’ Exhibit 30:
RHCC Advertisements ...................................... 473
IV
Defendants’ Exhibit 32: Allentown
Women’s Center (AWC)
Counseling Checklist ...........................................474
Defendants’ Exhibit 33: Excerpts
from AWC Confidential Patient
Record Form ......................................................477
Defendants’ Exhibit 35:
AWC Advertisements ........................................ 484
Defendants’ Exhibit 36:
AWC Consent Form ...........................................486
Defendants’ Exhibit 37:
Northeast Women’s Center
Guidelines for Informed Consent .....................487
Defendants’ Exhibit 39:
Summary Compilation of
Quarterly Reports ...............................................488
Defendants’ Exhibit 45: Commonwealth
of Pennsylvania Department
of Health (DOH) Abortion Facility
Registration Form .............................................489
Defendants’ Exhibit 46: DOH
Abortion Quarterly
Facilities Report Form ...................................... 491
Defendants’ Exhibit 47A: DOH
Report of Induced Termination
of Pregnancy Form
(version no. 1) 493
V
Defendants’ Exhibit 47B: DOH
Report of Induced Termination
of Pregnancy Form
(version no. 2) ...................................................497
Defendants’ Exhibit 47C: DOH
Report of Induced Termination
of Pregnancy Form
(version no. 3) 500
Defendants’ Exhibit 48: DOH
Certification Regarding
Spousal Notice Form ........................................ 504
Defendants’ Exhibit 49: Excerpts
from DOH Directory of
Social Service Organizations
for Referrals for
Pregnant Women ............................................... 506
Defendants’ Exhibit 50: Excerpts
from DOH Printed Information
on Medical Assistance Benefits ......................... 508
Defendants’ Exhibit 51: DOH Notices
Required by Abortion Control Act .................. 518
Defendants’ Exhibit 54: Deposition
Excerpts of Thomas E. Allen, M .D .....................519
Defendants’ Exhibit 55: Deposition
Excerpts of Sue Roselle .................................... 522
Defendants’ Exhibit 56: Deposition
Excerpts of Carol C. Wall ..................................527
VI
Defendants’ Exhibit 57: Deposition
Excerpts of Sherley Hollos ................................532
Defendants’ Exhibit 58: Deposition
Excerpts of Jane S. Green ..................................538
Defendants’ Exhibit 59: Deposition
Excerpts of Sylvia Stengle ..................................541
Defendants’ Exhibit 60:
Discovery Excerpts .............................................552
Excerpts from Plaintiffs’ Trial Exhibits......................556
Plaintiffs’ Exhibit 49: DOH Instructions
and Definitions for Report of
Induced Termination of
Pregnancy Form (July 1988) ..............................556
Plaintiffs’ Exhibit 60: Veto Message
to the Pennsylvania Senate on
S.B. 742 of Governor Dick Thornburgh
(Dec. 23, 1981) ....................................................572
Plaintiffs’ Exhibit 61: Message
to Pennsylvania Senate on Signing
of 1982 Pennsylvania Abortion
Control Act of
Governor Dick Thornburgh
(June 11, 1982) ....................................................583
Plaintiffs’ Exhibit 62: Veto Message
to Pennsylvania House of Representatives
on H.B. 1130 of Governor
Robert Casey (Dec. 17, 1987) .......................... 592
Vll
Plaintiffs’ Exhibit 67: Excerpts from
The Federal Role in Determining the
Medical and Psychological
Impact of Abortion on Women,
H.R. Rep. No. 392,
101st Cong., 1st Sess. (1989) .............................599
Plaintiffs’ Exhibit 89:
Diagnostic Criteria for
Post-Traumatic Stress Disorder ......................... 606
Excerpts from Verifications Filed
in Support of Plaintiffs’
Preliminary Injunction Motion ......................... 608
Excerpts from Verification
of Sue Roselle (Apr. 19, 1988) ........................ 608
Excerpts from Verification
of Sylvia Stengle (Apr. 18, 1988) .......................615
The following opinions and orders have been omitted in
printing this Joint Appendix because they appear on the
following pages in the Appendvc to the Petition for a Writ
of Certiorari in No. 91-744.
Planned Parenthood v. Casey, 947 F.2d 682
(3d Cir. 1991) ......................................................... la
Planned Parenthood v. Casey, 744 F. Supp. 1323
(E.D. Pa. 1990) ..................................................... 104a
Order of the United States District Court
for the Eastern District of Pennsylvania,
filed August 24, 1990 ............................................. 285a
1
RELEVANT DOCKET ENTRIES
United States District Court for the Eastern
District of Pennsylvania (No. 88-3228)
No. Date Discription of Entry
1988
Apr
1 " 18
" " 18
2 " 18
Complaint, filed.
Summons exit (given to counsel).
MOTION AND ORDER APPOINTING
NICK VINCI TO SERVE SUMMONS
AND COMPLAINT UPON DEFT
3 " 18
MICHAEL MARINO, FILED. 4/18/88:
Entered and copy given
MOTION AND ORDER APPOINTING
TO M S P E A K E R TO S E R V E
SUMMONS AND COMPLAINT UPON
4 " 20
DEFTS CASEY, RICHARDS &
ZIMMERMAN, FILED. 4/18/88:
Entered and copy given
PLFFS’ MOTION FOR TEMPORARY
5 " 20
RESTRAINING ORDER, MEMO.,
CERT OF SERVICE, FILED.
Summons returned with Affidavit of Tom
Speaker re: served Dee Lynch,
receptionist, Office of the Governor on
4/19/88; Jonathan Neipris, Chief Counsel,
PA Dept of Health on 4/19/88; Naida
Huber, receptionist, Office of Attorney
General on 4/19/88; and affidavit of
Nicholas Vinci re: served Ann Fleer,
Secretary to Michael e. Marino, on
4/18/88, filed.
2
6 "
7 "
8 "
9 "
10 "
11 "
12 "
21 Verification of James M. Bucci, Esq. and
Barry Steinhardt, filed.
21 TEMPORARY RESTRAINING ORDER
THAT DEFTS ARE ENJOINED &
RESTRAINED FROM ENFORCING
THE PROVISIONS OF SEC.3206 OF PA
ABORTION CONTROL ACT OF 1982
UNTIL FURTHER ORDER OF COURT
AND FROM PUBLICLY DISCLOSING,
E T C ., ANY R E P O R T F I L E D
PURSUANT TO SEC. 3207(b) OR
3214(f) OF PA ABORTION CONTROL
ACT OF 1982 UNTIL JURTHER
ORDER OFTHIS COURT; THIS T.R.O.
SHALL REMAIN IN EFFECT UNTIL
5/9/88, filed. 4/21/88: Entered and
copies mailed.
21 ORDER THAT A PRELIMINARY
INJUNCTION HEARING BE HELD
5 / 9 / 8 8 AT 10:00 A.M. ETC.,
FILED. 4/21/88: Entered and copies
mailed.
22 Appearance of Gregory R. Neuhauser and
Kate L. Mershimer on behalf of defts
Robert P. Casey, N. Mark Richards &
LeRoy Zimmerman, filed.
22 PLFFS’ MOTION FOR PERLIMINARY
INJUNCTION, MEMO., CERT OF
SERVICE, FILED.
26 Hearing 4/21/88 re: application for
T.R.O., filed.
27 DEFT’S MOTION FOR LEAVE TO
APPEAR PRO HAC VICE, CERT OF
SERVICE, FILED.
Plffs’ Witness List, filed.13 27
3
(12) " 28
14 " 27
May
15 " 05
16 " 05
17 " 06
18 " 09
19 " 09
20 " 10
- " 10
21 " 11
22 " 11
23 " 13
Plffs’ Proposed Findings of Fact and
Conclusions of Law for Determination of
Motion for Preliminary Injunction, filed.
ORDE R THAT G R E G O R Y R.
NEUHAUSER, ESQ. IS GRANTED
LEAVE TO APPEAR AS COUNSEL
FOR DEFTS PRO HAC VICE, FILED.
Stipulation of Uncontested Facts for
Determination of Motion for Preliminary
Injunction, filed.
Plffs Supplemental Memo in support of its
motion for preliminary injunction, filed.
Ltr. from Deft’s conusel for Judge Huyett,
dtd 5/4/88, re: corrected table of content
to Defts’ memo in opposition to plffs’
motion for preliminary injunction, filed.
ORDER THAT T.R.O. ISSUED 4/21/88
SHALL REMAIN IN EFFECT UNTIL
R U L I N G ON M O T I O N F O R
PRELIMINARY INJUNCTION, ETC.,
FILED. 5/10/88: Entered and copies
mailed.
Ltr. from Frederic Wentz, Counsel to M.
Marino, to Judge Huyett, dtd 5/3/88, re:
does not plan to participate in this matter,
filed.
Answer of Defts Casey, Richards and
Zimmerman, filed.
ISSUE JOINED.
Plffs’ Exhibits to Plffs’ Motion for
Preliminary Injunction, filed.
Supplemental Declaration of Patricia
Potrzebowski, Ph.D., filed.
Preliminary Injunc. Hearing 5/9/88,
witnesses sworn, Court rules C.A.V., filed.
4
24 " 23
25 " 25
26 " 25
Jun
27 " 06
28 " 14
29 " 22
FINDINGS OF FACTS, DIXCUSSION,
CONCLUSIONS OF LAW AND
PRELIMINARY INJUNCTION THAT
DEFTS. ARE HEREBY ENJOINED
F R O M I M P L E M E N T I N G OR
ENFORCI NG ANY AND ALL
PROVISIONS OF THE PENNA.
ABORTION CONTROL ACT OF 1982
ETC., FILED. 5/23/88 entered & copies
mailed
DEFTS’ PROPOSED FINDINGS OF
FACT AND CONCLUSIONS OF LAW
ON P L F F S ’ M O T I O N F O R
P R E L I M I N A R Y I N J U N C T I O N ,
CERTIFICATE, FILED.
Defts’ memo of law in opposition to Plffs’
motion for preliminary injunction,
certificate, filed.
DEFTS’ MOTION FOR CODIFICATION
AND CLARIFICATION, CERTIFICATE,
FILED.
ORDER THAT IN RESPECT TO
FINDINGS OF FACT, DISCUSSION,
C O N C L U S I O N S OF LAW &
PRELIMINARY INJUNCTION ISSUED
5 /2 3 /8 8 , THE DISCUSSION &
PRELIMINARY INJUNCTION ORDER
ARE AMENDED, NUNC PRO TUNC,
ETC., FILED. 6/14/88: Entered and
copies mailed.
Ltr. To Judge Huyett, dtd 6/13/88, from
plffs Counsel, requesting para. 4 & 5 of
Court’s 5/23/88 Order be modified &
amended, etc., filed.
5
30
31
32
33
34
33
35
" 22 ORDER THAT DEFTS’ MOTION FOR
MODIFICATION & CLARIFICATION
OF THE PRELIMINARY INJUNCTION
ISSUED 5/23/88 IS DENIED, FILED.
6/22/88: Entered and copies mailed.
Jul
" 22 D E F T S ’ M O T I O N F O R
MODIFICATION OF PRELIMINARY
INJUNCTION, CERT OF SERVICE,
FILED.
" 27 O R D E R T H A T A S T A T U S
CONFERENCE IS SCHEDULED FOR
8/9/88 AT 2 P.M., FILED. 7/28/88:
Entered and copies mailed.
Aug
02 Plffs’ Memo in response to Deft’s Motion
for modification of Preliminary Injunction,
Cert of service, filed.
" 09 ORDER THAT THE STATUS CONF.
S C H E D U L E D FOR 8 / 9 / 8 8 IS
CANCELLED & RESCHEDULED FOR
8/22/88 AT 2 P.M., FILED. 8/9/88:
Entered and copies mailed.
09 ORDER THAT THE PA DEPT OF
HEALTH MAY DISTRIBUTE &
UTILIZE ITS REVISED "REPORT OF
I NDUCED TERMI NATI ON OF
P R E G N A N C Y " F O R M F O R
COLLECTION OF INFORMATION,
ETC., FILED. 8/10/88: Entered and
copies mailed
" 23 ORDER THAT ALL DISCOVERY BE
COMPLETED BY 12/23/88 ETC.,
FILED. 8/23/88: Entered & copies
mailed.
6
36
37
38
39
40
41
42
43
Oct
24 Withdrawal of appearance of Kathryn
Kolbert, Esq. on behalf of plff, filed.
" 27 ORDER THAT THIS ACTION WILL
BE MAINTAINED AS A CLASS
ACTION ON BEHALF OF A CLASS OF
PHYSICIAN PLFFS AS DEFINED,
ETC.; PLFF THOMAS ALLEN, M.D. IS
D E S I G N A T E D C L A S S
REPRESENTATIVE & COUNSEL OF
RECORD FOR PLFFS IN THIS
ACTION ARE DESIGNATED AS
COUNSEL FOR THE CLASS, FILED.
10/28/88: Entered and copies mailed.
Dec
07 Transcript of Hearing of 4-21-88, filed.
07 Transcript of hearing of 5-9-88, filed.
" 22 S T I P U L A T I O N AND O R D E R
EXTENDING DISCOVERY TIME TO
2/23/89, ETC., FILED. 12/27/88
ENTERED AND COPIES MAILED
" 23 STIPULATION AND ORDER RE:
C O N F I D E N T I A L M A T E R I A L ;
CONFIDENTIAL MATERIAL SHALL
BE SUBMITTED & FILED IN A
SEALED ENVELOPE, ETC., FILED.
12/27/88: Entered and copies mailed.
1989
Feb
" 01 DEFTS’ MOTION TO FILE AMENDED
RESPONSES TO PLFFS’ REQUESTS
FOR ADMISSION, BRIEF, CERT OF
SERVICE, FILED.
06 Withdrawal of appearance of Gregory R.
Neuhauser, Sr.Dpty, and appearance of
John G. Knorr, III on behalf of defts, filed.
7
(42) " 24 ORDER THAT DEFTS’ MOTION TO
FILE AMENDED RESPONSES TO
PLFF’S REQUEST FOR ADMISSION IS
GRANTED, ETC., FILED. 2/24/89:
Entered and copies mailed.
Mar
44 " 03 ORDER THAT A TELEPHONE
CONFERENCE IS SCHEDULED FOR
3/10/89 AT 3 P.M.; FILED. 3/3/89:
Entered and copies mailed.
45 " 09 ORDER THAT THE TELEPHONE
CONFERENCE SCHEDULED FOR
3/10/89 IS CONTINUED FOR 3/14/89
AT 3:00 P.M., FILED. 3/9/89: Entered
and copies mailed
46 " 30 ORDER THAT ALL PROCEEDINGS
ARE STAYED PENDING ISSUANCE
OF THE DECISION OF THE U.S.
SUPREME COURT IN WEBSTER ET
AL VS. REPRODUCTIVE HEALTH
SERVICES ET AL, NO. 88-605;
FURTHER ORDER THAT ALL
DISCOVERY SHALL BE COMPLETED
WITHIN 30 DAYS OF PUBLICATION
OF THE WEBSTER DECISION IN U.S.
LAW WEEK, FILED. 3/30/89: Entered
and copies mailed.
47 " 31 ORDER THAT THE CLERK MARK
THIS ACTION CLOSED FOR
STATISTICAL PURPOSES AND PLACE
MATTER IN THE CIVIL SUSPENSE
FILE, FILED. 4/3/89: Entered and
copies mailed.
1990
Jan
8
48
49
50
51
52
53
54
55
56
11 Consent to file amended complaint, filed.
11 Amended complaint, filed.
" 12 O R D E R T H A T C O U R T S
PRELIMINARY INJUNCTION OF
5 /2 3 /8 8 IS CLARIFIED ETC.,
FILED1/12/90 ENTERED AND COPIES
MAILED
" 19 ORDER OF TRANSFER CASE OUT
OF CIVIL SUSPENSE, FILED. 1/22/90
ENTERED AND COPIES MAILED
" 22 STIPULATION AND ORDER THAT
DISCOVERY BE COMPLETED BY
3/27/90, ETC., FILED. 1/22/90
ENTERED AND COPIES MAILED
26 Answer of defts. Casey et al to amended
complaint, filed.
" 26 DEPTS JOHN F. WHITE, JR. ET AL
MOTION FOR A STAY, CERTIFICATE,
FILED.
Mar
" 16 STIPULATION AND ORDER THAT
DISCOVERY SHALL BE COMPLETED
BY 4/30/90, FILED. 3/16/90
ENTERED AND COPIES MAILED
" 16 ORDER THAT THE STIPULATION OF
C O U N S E L S H A L L B E
SUPPLEMENTED AS FOLLOWS: THE
PARTIES SHALL SUBMIT PROPOSED
FINDINGS OF FACT ON ALL FACTS
IN DISPUTE AND, IN ADDITION,
CONCLUSIONS OF LAW ON OR
BEFORE 5/31/90, ETC. FILED.
3/19/90 ENTERED AND COPIES
MAILED
9
57
58
59
60
61
62
63
64
65
66
67
21 Notice of change of address of Thomas E.
Zemaitis, esq, filed
May
" 10 JOINT MOTION FOR EXTENSION OF
TIME, CERT. OF COUNSEL, CERT. OF
SERVICE, FILED.
" 23 ORDER THAT THE PARTIES JOINT
MOTION FOR EXTENSION OF TIME
IS GRANTED IN PART AND DENIED
IN PART. ALL DISCOVERY SHALL
BE COMPLETED NOT LATER THAN
JUNE 22, 1990, ETC., TRIAL SHALL
TAKE PLACE ON JULY 30, 1990, ETC.,
FILED. 5/23/90 Entered and copies
mailed.
Jun
" 25 DEFTS’ MOTION TO COMPEL
DISCOVERY, CERTIFICATE OF
SERVICE, FILED.
Jul
03 Defts’ praecipe to withdraw defts’ motion
to compel discovery, cert of service, filed.
06 Deft Casey, Richards, & Preate’s proposed
findings of fact and conclusions of law
06 Deft Casey, Richards, & Preate’s Pretrial
Brief, filed.
06 Plffs Stipulation of Uncontested Facts,
filed.
06 Plffs’ Proposed Findings of Fact &
Conclusions of law, filed.
06 Plffs’ Pretrial memo, filed.
" 16 ORDER THAT DEFTS’ MOTION TO
C O M P E L D I S C O V E R Y IS
WITHDRAWN, FILED. 7-17-90
ENTERED & COPIES MAILED
10
69
68
70
71
72
73
74
75
76
77
78
79
16 Plffs’ Pretrial memo of law, cert of service,
filed.
" 18 ORDER OF UNCONTESTED FACTS,
FILED. 7-19-90 ENTERED & COPIES
MAILED
" 23 DEFTS’ Casey, Richards & Preate’s memo
of law, filed.
" 24 Stipulation of Voluntary Dismissal of
MICHAEL D. MARINO, FILED.
" 24 PLFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT RESPECTING
SECTION 3210, MEMO, & CERT OF
SERVICE, FILED.
25 Supplemental Stipulation of Uncontested
Facts, filed. 8-3-90 ENTERED &
COPIES MAILED.
31 Defts’ Brief in opposition to plffs’ motion
for partial summary judgment, filed.
Aug
02 Trial resumes 7/31/90, filed.
" 02 ORDER THAT WITHIN 4 DAYS OF
THE CLOSE OF EVIDENCE, PLFFS
S H A L L F I L E R E V I S E D OR
S U P P L E M E N T A L P R O P O S E D
FINDINGS OF FACT & CONCLUSIONS
OF LAW & A MEMO OF LAW IN
REPLY TO DEFTS’ MEMO OF LAW
ON OR ABOUT 7-20-90 ETC., FILED.
8/3/90 ENTERED AND COPIES
MAILED
" 02 ORDER THAT D EFTS’ ORAL
MOTION IN LIME TO EXCLUDE THE
TESTIMONY OF MS. DILLON IS
DENIED, FILED.
03 Trial 8/1/90; Witnesses sworn, filed.
06 Trial resumes 8/2/90, filed.
11
81 "
82 "
83 "
84 "
85 "
86 "
87 "
88 "
89 "
80 " 07 Plffs’ revised proposed findings of fact &
conclusions of law, filed.
07 Plffs’ Post-trial memorandum of law, filed.
10 Transcript of Status Conference 7/30/90,
filed.
10 Transcript of non-jury trial 7/30/90 filed.
10 Transcript of non-jury trial 7/31/90, filed.
10 Transcript of non-jury trial 8/1/90, filed.
10 Transcript of non-jury trial 8/2/90 filed.
17 Defts revised proposed finds of fact and
conclusions of law, filed.
17 DEFTS’ SURREPLY BRIEF, FILED
24 OPINION AND ORDER THAT
JUDGMENT IS ENTERED IN FAVOR
OF PLFFS AND AGAINST DEFTS.
DE F T S ARE P E R M A N E N T L Y
ENJOINED FROM IMPLEMENTING
AND ENFORCING ALL PROVISIONS
OF THE PA. ABORTION CONTROL
ACT OF 1982, AS EMENDED BY ACT
31 AND ACT 64, THAT CONTAIN THE
TERM "MEDICAL EMERGENCY" AS
DEFINED IN SECTION 3202 OF THE
ACT. DEFTS ARE PERMANENTLY
ENJOINED FROM IMPLEMENTING
AND ENFORCING ANY AND ALL
PROVISIONS OF SEC. 3205, 3206, 3209
OF THE PA. ABORTION CONTROL
ACT OF 1982, AS AMENDED BY ACT
31 AND ACT 64. DEFTS ARE
HEREBY PERMANENTLY ENJOINED
FROM DISCLOSING OR OTHERWISE
MAKING AVAILABLE FOR PUBLIC
INSPECTION ANY REPORT THAT
HAS BEEN FILED OR THAT MAY BE
FILED PURSUANT TO SEC. 3207(b)
12
OR 3214(f) OF THE PA. ABORTION
CONTROL ACT OF 1982, AS
AMENDED BY ACT 31 AND 64.
DEFTS A RE P E R M A N E N T L Y
ENJOINED FROM IMPLEMENTING
OR ENFORCING THE PROVISION OF
SEC. 3214(a)(1), INSOFAR AS IT
REQUIRES THE IDENTIFICATION OF
THE REFERRING PHYSICIAN, ETC.,
DEFTS ARE HEREBY ENJOINED
FROM DISTRIBUTING OR UTILIZING
THE PA. REPORT OF INDUCED
TERMINATION OF PREGNANCY
EXCEPT IN A APPROPRIATE FORM
CONSISTENT WITH THE DISCUSSION
AND CONCLUSIONS OF LAW
CONTAINED IN THE FOREGOING
OPINION, FILED. 8/24/90 Entered and
Copies mailed
90 " 24 ORDER THAT PLFFS MOTION FOR
PARTIAL SUMMARY JUDGMENT IS
DENIED, FILED. 8/24/90 Entered and
copies mailed.
Sept
91 " 07 Defts’ Notice of Appeal, filed. (USCA
901662) 9/7/90 copies to: Clerk, USCA
Appeals Clerk, Judge Huyett, Susan
Harrison, Esq.
92 " 07 Copy of Clerk’s notice to USCA, filed.
93 " 17 Appellant’s copy of TPO, filed.
-- " 18 R E C O R D C O M P L E T E F O R
PURPOSES OF APPEAL-TRANSCRIPT
ALREADY ON FILE
13
United States Court of Appeals
for the Third Circuit (No. 90-1662)
1990
Sept
94 " 11
95 " 11
96 " 11
97 " 13
98 " 14
99 " 17
100 " 18
101 " 18
102 " 18
CIVIL CASE DOCKETED. Notice filed
by Robert P. Casey, N. Mark Richards &
Ernest D. Preate, Jr. (ghb)
TRANSCRIPT (Clk), already on file in
the District Court Clerk’s Office, (ghb)
BRIEFING NOTICE ISSUED. Appellant
brief and appendix due 10/22/90. (ghb)
LETTER MOTION dated: 9/12/90 by
Appellants for extension of time to file
brief and appendix, Certificate of Service
dated 9/12/90. (dir)
ORDER (Clerk) An extension to file
appellants’ brief until 11/1/90 is granted.
No further extensions will be granted for
any reason, filed, (dir)
TRANSCRIPT PURCHASE ORDER
(Part I), already on file in the District
Court Clerk’s Office, filed, (sdt)
CERTIFIED LIST filed, (ghb)
APPEARANCE from Attorney Thomas E.
Zemaitis on behalf of Appellees Planned
Parenthood, Reproductive Health &
Counseling Center, Women’s Health
Services, Women’s Suburban Cline,
Allentown Women’s Center & Thomas E.
Allen, M.D., filed, (ghb)
DISCLOSURE STATEMENT on behalf
of Appellees Planned Parenthood,
Reproductive Health & Counseling
Center, Women’s Health Services,
Women’s Suburban Clinic, Allentown
14
103 ti 21
104 ii 21
Oct
105 it 02
106 " 11
107 " 22
Nov
108 " 01
109 " 01
Women’s Center & Thomas E. Allen,
M.D., filed, (ghb)
APPEARANCE from Attorney Kate L.
Mershimer on behalf of Appellants, filed.
INFORMATION STATEMENT on behalf
of Appellants, RECEIVED, (ghb)
LETTER TO Attorney Roger K. Evans,
Kathryn Kolbert, Susan Cary Nicholas,
Linda J. Wharton requesting the following
documents: ** Appearance Form**
Disclosure Statement, (ghb)
MOTION by Appellees to hold case in
abeyance pending the U.S. Supreme
Court’s decision in Rust v. Sullivan, Nos.
89-1391 and 89-1392 (oral argument
scheduled for 10-30-90) Second Circuit,
889 F.2d 401, filed. Certificate of Service
dated 10/11/90. (emd)
RESPONSE by Appellants Robert P.
Casey, N. Mark Richards, and Ernest D.
Preate in opposition to Appellees’ Motion
to hold case in abeyance, filed. Certificate
of service dated 10/19/90. (emd)
BRIEF on behalf of Appellant Robert P.
Casey, Appellant N. Mark Richards,
Appellant Ernest D. Preate, Pages: 50,
Copies: 10, Delivered by mail, filed.
Certificate of service date 11.1.90. (wab)
APPENDIX on behalf of Appellant
Robert P. Casey, Appellant N. Mark
Richards, Appellant Ernest D. Preate,
Copies: 4 Volumes: 8, Delivered by mail,
filed. Certificate of service dated 11/1/90.
(wab)
15
110 " 05
111 " 06
112 " 27
113 " 27
114 " 27
115 " 27
Dec
116 " 04
MOTION filed by John E. McKeever,
Esq., counsel for American Academy of
Medical Ethics for leave to file an amicus
curiae brief in support of Appellants and
for leave to file instanter (out of time).
Certificate of service dated 11/5/90.
(emd)
ORDER filed (Becker and Greenberg,
Circuit Judges) denying motion to hold
case in abeyance by Appellee Thomas
Allen, Allentown Womens Ctr, Womens
Suburban, Womens Heal th Ser,
Reproductive Health, Planned Parenthood,
(rmg)
ORDER filed (Becker, Circuit Judge)
granting motion by American Academy of
Medical Ethics for leave to file an amicus
curiae brief in support of Appellants and
for leave to file instanter (out of time),
(rmg)
AMICUS BRIEF on behalf of American
Academy of Medical Ethics. Pages: 29,
Copies: 10, Delivered by mail, filed.
Certificate of service date 11/5/90 (see
11/27/90 order), (rfl)
APPEARANCE from Attorney John E.
McKeever on behalf of Amicus-appellant
American Academy of Medical Ethics,
filed, (ghb)
DISCLOSURE STATEMENT on behalf
of Amicus-appellant American Academy
of Medical Ethics, filed, (ghb)
BRIEF on behalf of Appellee Planned
Parenthood, Appellee Reproductive
Health, Appellee Womens Health Ser,
16
Appellee Womens Suburban, Appellee
Allentown Womens Ctr, Appellee Thomas
Allen, Pages: 48, Copies: 10, Delivered by
mail, filed. Certificate of Service dated
12/4/90. (rfl)
117 " 04 AMICUS BRIEF on behalf of The
Pennsylvania Chapter of the American
College of Emergency Physicians. Pages:
13, Copies: 10, Delivered by mail, filed.
Certificate of service date 12/4/90. (rfl)
118 " 04 MOTION filed by PA Coalition, PA
Coalition Against, Domestic Violence,
Natl Woman Abuse, Natl Coalition, CT
Coalition Against, NJ Coalition For,
Clinton Cty Womens, Hospitality House,
Laurel House, Tioga Cty Womens,
Women Against, Women Against Abuse,
Womens Center for leave to proceed as
amicus curiae on behalf of appellees with
consent. Certificate of Service dated
12/14/90. [No order necessary has written
consent] (dir)
119 " 07 MOTION filed by Amici Curiae-Appellees
PA Coalition, PA Coalition Against,
Domestic Violence, Natl Woman Abuse,
Natl Coalition, CT Coalition Against, NJ
Coalition For, Clinton Cty Womens,
Hospitality House, Laurel House, Tioga
Cty Womens, Women Against, Women
Against Abuse, Womens Center for
extension of time to file brief until
12/11/90. Certificate of service dated
12/4/90. (dir)
120 " 10 ORDER (Clerk) granting motion by Amici
Curiae, PA Coalition Against, et al., for
extension to file amici brief until
17
12/11/90. Appellants are granted a three
day extension to file their reply brief
beyond the normal 14 day period, filed,
(dir)
121 " 11 AMICUS BRIEF on behalf of PA
Coalition Against Domestic Violence, et
al. Pages: 42, Copies: 10, Delivered by
mail, filed. Certificate of service date
12/11/90. [See 12/10/90 order] [FILED
BY CONSENT IN MOTION] (wab)
122 " 14 APPEARANCE from Attorney Phyllis
Gelman on behalf of Amicus-appellees
Pennsylvania Coalition Against Domestic
Violence, Pennsylvania Coalition Against
Rape, Domestic Violence Research and
Resources, National Woman Abuse
Prevention Project, National Coalition
Against Domestic Violence, Connecticut
Coalition Against Domestic Violence, New
Jersey Coalition For Battered Women,
Clinton County Women’s Center,
Hospitality House Services for Women,
Inc., Laurel House Survivors, Inc., Tioga
County Women’s Coalition, Women
Against Abuse, Inc., Women Against
Abuse Legal Center, Inc. & Women’s
Center and Shelter of Greater Pittsburgh,
filed, (ghb)
123 " 14 DISCLOSURE STATEMENT on behalf
of Amicus-appellees Pennsylvania
Coalition Against Domestic Violence,
Pennsylvania Coalition Against Rape,
Domestic Violence Research and
Resources, National Woman Abuse
Prevention Project, National Coalition
Against Domestic Violence, Connecticut
18
Coalition Against Domestic Violence, New
Jersey Coalition For Battered Women;
Clinton County Women’s Center,
Hospitality House Services For Women,
Inc., Laurel House Survivors, Inc., Tioga
County Women’s Coalition, Women
Against Abuse, Inc., Women Against
Abuse Legal Services, Inc. & Women’s
Center and Shelter of Greater Pittsburgh,
filed, (ghb)
124 " 14 APPEARANCE from Attorney James
Eiseman on behalf of Amicus-appellee
Pennsylvania Chapter of the American
College of Emergency Physicians, filed,
(ghb)
125 " 14 DISCLOSURE STATEMENT on behalf
of Amicus-appellee Pennsylvania Chapter
of the American College of Emergency
Physicians, filed, (ghb)
126 " 21 REPLY BRIEF on behalf of Appellant
Robert P. Casey, Appellant N. Mark,
Richards, Appellant Ernest D. Preate,
Copies: 10, Delivered by mail, filed.
Certificate of Service date 12/21/90. (rfl)
127 " 27 CALENDARED for Monday, February
25, 1991. (agb)
1991
Feb
128 " 20 Clerk’s letter, written at the direction of
the Court, requesting counsel be prepared
at oral argument to comment on Marks v.
United States, 430 U.S. 188 (1977), in the
context of the question listed as Issue I at
page 1 of Appellant’s brief, etc. (sdt)
129 " 20 APPEARANCE from Attorney Kathryn
Kolbert on behalf of Appellees Planned
19
130 " 25
Mar
131 " 13
Jul
132 " 09
133 " 26
Oct
134 " 21
135 " 21
Nov
136 " 07
Parenthood, Reproductive Health &
Counseling Center, Women’s Health
Services, Women’s Suburban Clinic,
Allentown Women’s Center & Thomas E.
Allen, M.D., filed, (ghb)
ARGUED 2/25/91 Panel: Stapleton,
Alito, Seitz, Circuit Judges. At oral
argument Court directed counsel to have
transcript of oral argument prepared,
(agb)
Copy of transcript of tape of oral
argument on 2/25/91 prepared at the
direction of the Court, (sdt)
LETTER dated 7/9/91 pursuant to Rule
28(j) from Thomas E. Zemaitis, Esq.,
counsel for Appellee, with service, with
enclosure, received, (emd)
LETTER dated 7/25/91 pursuant to Rule
28(j) from Kate L. Mershimer, Esq.,
counsel for Appellants, with service,
received, (emd)
OPINION (Stapleton, Authoring Judge,
Alito and Seitz, Circuit Judges), with a
concurring and dissenting opinion by
Judge Alito, filed, (bj)
JUDGMENT: AFFIRMED in part and
REVERSED in part in accordance with
the opinion of this Court, filed, (bj)
MOTION filed by Appellees, Planned
Parenthood et al., to stay mandate.
Certificate of Service dated 11/7/91. (bj)
20
137 " 12 Supreme Court of U.S. notice filed
advising petition for writ of certiorari filed
by Appellees, Planned Parenthood, et al.,
filed in the Supreme Court on 11/7/91 at
Supreme Court, case number: 91-744.
(anh)
138 " 19 RESPONSE by Appellants Robert P.
Casey, et al. in opposition to Appellees’
motion to stay mandate, received.
Certificate of service dated 11/18/91. (bj)
139 " 20 APPELLEES’ APPLICATION for
A t t o r n e y ’s fees t o g e t h e r wi th
Memorandum in Support Thereof.
Certificate of service dated 11/20/91,
filed, (bj)
140 " 26 ORDER filed, (Stapleton, Circuit Judge)
granting motion to stay mandate by
Appellee Planned Parenthood. Mandate
Stayed to 12/12/91. (bj)
141 " 26 APPELLANTS’ MOTION TO STAY
APPELLEES’ APPLICATION FOR
ATTORNEYS FEES, filed. Certificate of
Service dated 11/25/91. (bj)
Dec
142 " 05 Appellants’ Brief in Opposition to
Appellees’ Application for Attorney’s Fees,
received. Certificate of service dated
12/4/91. (bj)
143 " 16 Supreme Court of U.S. notice filed
advising petition for writ of certiorari filed
by Appellants, Robert P. Casey et al. Filed
in the Supreme Court on 12/11/91 at
Supreme Court, case 91-902. (bj)
144 " 30 ORDER filed (Stapleton, Authoring
Judge, Alito and Seitz, Circuit Judges)
granting motion to stay Application for
21
Attorneys Fees by Appellant, Ernest D.
Preate, Jr., pending final disposition by the
Supreme Court of the matter before it.
(bj)
1992
145 " 16 REPORTER at 947 F2d: 682 (kot)
146 " 24
147 " 24
Feb
148 " 03
149 " 06
U.S. Supreme Court order dated 1/21/92
at S.C. number: 91-744, granting
LIMITED petition for writ of certiorari by
Appe l l ee P l anned P a r en t hood ,
Reproductive Health, Womens Health Ser,
Womens Suburban, Allentown Womens
Ctr, Thomas Allen, limited to following
questions, definition of medical
emergency, informed consent, spousal
notice. This case is consolidated with S.C.
No. 91-902, Casey, et al. (bj)
U.S. Supreme COurt order dated 1/21/92
at S.C. number: 91-902, granting
LIMITED petition for writ of certiorari by
Appellant Robert P. Casey, LIMITED as
to definition of medical emergency,
informed consent, parental consent,
reporting requirements, spousal notice, etc.
This case is consolidated with S.C. No. 91-
744, Planned Parenthood of Southeastern
Pennsylvania et al., filed, (bj)
Letter dated January 31, 1992 from the
U.S. Supreme Court requesting that the
record be certified and transmitted to
them, received, (bj)
WITHDRAW OF APPEARANCE:
Thomas E. Zemaitis for Allentown
22
150 "
151 "
Women’s Center, for Women’s Suburban
Clinic, for Women’s Health Services, Inc.,
for Reproductive Health Services & for
Planned Parenthood of Southeastern PA,
withdrawing appearance, (ghb)
06 APPEARANCE from Attorneys Linda J.
Wharton & Andrew R. Rogoff on behalf
of Appellees, filed.
10 Certified copy of briefs, appendices and
partial proceedings in this Court sent to
Clerk of Supreme Court of the United
States, (anh)
23
EXCERPTS FROM TRANSCRIPT OF
HEARING ON PLAINTIFFS’ MOTION FOR A
TEMPORARY RESTRAINING ORDER,
APRIL 21, 1988
[13] THE COURT: Mr. Neuhauser, is the
Pennsylvania Court system totally unprepared to proceed
as required by the amended act?
MR. NEUHAUSER: I can’t answer that, your
Honor.
[14] THE COURT: I assume you have read the
affidavits which are attached to the motion for a
temporary restraining order?
MR. NEUHAUSER: I have, your Honor.
THE COURT: As well as the two presented today?
MR. NEUHAUSER: That’s right.
THE COURT: They would seem to tell us that the
Pennsylvania Court system simply is totally unprepared,
that many courts are unaware of the situation and that
on a county-to-county basis there has been simply
nothing done to implement and execute the provisions of
the amended act, as required by my earlier opinions and
by the Court of Appeals as pointed out by Mr. Zemaitis.
MR. NEUHAUSER: Well, assuming for the
moment the admissibility of the hearsay statements in
those affidavits, I would argue nevertheless, your Honor,
that as the case law firmly establishes from this Court
and other courts that all the Commonwealth has to do is
to establish an alternative procedure to parental consent
that’s prompt, clear, simple and assures confidentiality.
Now, as Mr. Zemaitis has himself conceded, the
statute is self-executing. We would submit to the Court
that that self-executing statute passes the Constitutional
test set by this Court and the Third Circuit in its
24
previous decisions. I think that Mr. Zemaitis’ argument
amounts to a [15] statement that the President Judges of
the various Courts of Common Pleas either cannot or
will not implement a statute that goes into effect, and I
don’t think that’s a proper assumption to make.
The Supreme Court many times has said that state
courts are equally capable of enforcing the law and there
is no evidence in the cases to suggest that they would not
properly implement a statute.
THE COURT: Well, the act goes into effect on
Sunday. The language, as cited by Mr. Zemaitis, which
is the Third Circuit opinion and which I cite in my
opinion last year refers to the fact that the judicial
procedure must be an established and practical avenue
and may not rely solely on generally stated principles of
availability, confidentiality and form.
In other words, the key words, of course, would be
established and practical avenue. Now --
MR. NEUHAUSER: And I would submit - I’m
sorry.
THE COURT: -- do we have that here?
MR. NEUHAUSER: I would submit, your Honor --
THE COURT: At this time.
MR. NEUHAUSER: That the statute on its face
satisfies that test. It’s very explicit, it has very explicit
rules contained in it that all proceedings are confidential,
the Court must rule within three business [16] days. The
record is sealed, the name of the applicant is not on the
docket at any place. All persons are excluded from
hearings except the applicant and those persons that the
applicant wishes to attend. There is an expedited,
confidential appeal within five days of either the Court
of Common Pleas failure to rule or the Court of
Common Pleas denial of the application and that would
satisfy the test, in our view, of a clear, concise and simple
means to effectuate the judicial bypass procedure.
25
THE COURT: But at this time if there is a total
unawareness, if there is a total unawareness of the
provisions in the act and the entire Pennsylvania Court
system, by Sunday how can the court system possibly gear
itself up to do what is required by the act, the amended
act?
MR. NEUHAUSER: Well, your Honor, again, I
would indicate that assuming for the purposes of this
proceeding that those hearsay statements are admissible,
all that amounts to in our view is that there’s an
argument that the Judges of the Courts of Common
Pleas will not see that the law is implemented and I
don’t think that’s a proper presumption to make.
THE COURT: Well, I think you have to come up
with some evidence. You’ve had these affidavits for a
few days, I suppose?
[17] MR. NEUHAUSER: No, your Honor, we’ve
had them since yesterday afternoon.
THE COURT: Since yesterday. Well, you’ve had
since yesterday to put yourself together on this. I am
reluctant to intrude in this area as a Federal Judge
intruding into the State Court system; Pm really reluctant
to do it.
MR. NEUHAUSER: I understand, your Honor.
THE COURT: And it seems to me the ideal thing
to do would be to have some agreement to maintain the
status quo until we can go into this carefully in a
preliminary injunction hearing. And I think Mr.
Zemaitis suggests and I think there is some merit to
what he suggests is that the affidavits do shift the burden
to the Commonwealth. In other words, you have these
affidavits, they should be accepted on their face. There
is no reason to believe that they’re not accurate and
correct. Considering that, then, the Commonwealth has
to come up with something and you’ve come up with
nothing. I’m not criticizing you for it, you’ve had no
26
time. But it seems to me it’s something you have to look
into immediately and, ideally, an agreement to maintain
the status quo would give you time to do that.
* * *
27
EXCERPTS FROM TRANSCRIPT OF HEARING
ON PLAINTIFFS’ MOTION FOR A PRELIMINARY
INJUNCTION, MAY 9, 1988
* * *
[10] BY MR. ZEMAITIS:
Q What is there about Section 3206(A) that prompts
you to believe you’re required to have the parent make a
visit to the clinic?
[11] A I’d like to quote from the law that’s in front of
me, it just is a line. "He first obtains the informed
consent both of the pregnant woman and of one of her
parents" and it’s the use of the term "informed consent."
Q What is it about the use of that term?
A I’ve been in health care administration for -- since --
in and out since 1970 and know that there’s certain
expectations of informed consent that are different from
consent and it requires the parents to come in to receive
informed consent.
Q If you were told that the parent need not come to
the clinic in order to receive informed consent, are there
any other reasons why you would nevertheless require
parents to come to the clinic?
A Yes. We would still require the parents to come in
for identification purposes.
Q Any other reasons that would suggest to you that you
require the parent to attend?
A Well, the parents would need to come in for
identification and for informed consent because the
penalties are severe that are associated with this law, the
violation of informed consent rule.
Q When you say the penalties are several, what do you
mean by that?
A I consider a three-month revocation of our
physician’s [12] license to practice medicine a severe
penalty, especially for physicians who practice within our
28
clinic. But the decisions as to what patients we serve are
not their own.
Q Are there any other reasons that you believe that the
parent would be required to come into the clinic?
A They - to protect the clinic as well.
Q What do you mean by that?
A Well, we would not be able to function for six
months.
Q What’s the basis for that statement?
A Well, within the law, that we would not be able to
function, with that, that’s the risk, that we could have our
permission to function revoked by the Department of
Health and that our - that we could -- this failure to
obtain informed consent from the parents could be used
as evidence in a civil suit against us as well.
Q Do you have any reason to believe you might be
subject to such civil actions?
A Well, Women’s Health Services is under scrutiny a
great deal of the time. We have women who come in
who pretend to be patients when they are not, they’re
just seeking information. We’ve been asked questions or
tested about every possible aspect of the rules and
regulations.
Q Who are these people that pretend to be patients?
A Well, primarily the women who pretend to be
patients are either themselves or representing groups
that are in [13] opposition to abortion.
Q Are you saying that you’ve had women prior to now
pretend to be patients?
A Oh, sure, that happens on a regular basis that they
come in and have a pregnancy test or sometimes they’ll
come in, not being pregnant, and come in with urine that
tests pregnant and they’ll get as far as the examining
table.
* * *
29
[14] Q Ms. Roselle, given your experience as director,
Executive Director of Women’s Health Services, what do
you think the impact on minor women who seek
abortions at Women’s Health Service will be if parents
are required to come to the clinic for informed consent?
A Well, we’re going to have -- we’re going to see delays
and those delays are going to mean increased risks to
health and increased economic forces, increased
economic problems for these minors.
Q Why do you expect there to be delay?
A Well, teenagers having a hard time overcoming
denial when they make a decision, when they even
recognize the fact that they’re pregnant. To - like now
they’re going to have to overcome the denial, recognize
they’re pregnant and approach parents to inform them of
the pregnancy and to discuss with them their decision
and their desire to have an abortion.
Q Any other reasons why there might be additional
delay, in your experience?
A Well, once we have a parent involved then we’re
going to be experiencing some delays in terms of
transportation, [15] logistics, other child care,
transportation and additional expense relating to that
whole logistical issue.
Q You said also that there would be increased risks to
minor women, increased health risks. What’s your basis
for that statement?
A The health risk is associated with the need for more
second trimester procedures. There are -- the longer
they delay, the more likelihood they’re going to be
pushed into that category.
Q You also mentioned increased expense to minor
women. What’s the basis for that statement?
A Well, the increased expenses, the increased logistics
and then the increased costs, the increased fee associated
with a second trimester procedure.
30
* *
[18] Q Have you determined whether the reporting
requirements in the new statute will have any financial
impact on Women’s Health Services?
A At this point I know that I will have to hire one
full-time clerical staff person with salaries and benefits.
That will cost about $14,000 and then we’ll have to hire
— buy some additional office equipment at a cost of
another 5,000.
Q Why do you believe you’ll need to add a clerical
person to your staff?
A I simply don’t have — I’m not staffed at the level to
report on -- at this detail on every procedure we do. We
don’t do that kind of staffing, we don’t have extra people.
And we have to have it accurate. It just must be [19]
accurate. The penalty is too severe.
Q Directing your attention to the form which is Exhibit
V?
A Mm-hmm.
Q And specifically to Item 18 of that form which states
"Referring physician, agency or service," do you see that?
A Yes.
THE COURT: What exhibit is this?
MR. ZEMAITIS: This is Exhibit V, your Honor.
THE COURT: V.
MR. ZEMAITIS: V as in victor.
THE COURT: Thank you.
MR. ZEMAITIS: And it’s Item 18.
THE COURT: Thank you.
BY MR. ZEMAITIS:
Q That item, do you believe that item will have any
impact on referring physicians that are currently referring
patients to Women’s Health Services?
MR. NEUHAUSER: Your Honor, I’m going to
object at this point as to what effect it would have on
31
referring physicians. I think the witness could be
competent to testify as to what effect it would have on
the clinic, but not on referring physicians.
THE COURT: Overruled. Can this be rephrased?
MR. ZEMAITIS: Yes, your Honor.
BY MR. ZEMAITIS:
[20] Q What do you anticipate the impact on the
referral of patients to Women’s Health Services will be
as a result of requiring the recording of the name of the
referring physician, agents to your service?
MR. NEUHAUSER: For the record, your Honor,
the same objection.
THE COURT: Overruled.
THE WITNESS: Could you repeat the question, Mr.
Zemaitis, please? I’m sorry.
MR. ZEMAITIS: That’s all right.
BY MR. ZEMAITIS:
Q What impact do you think the requiring of the
naming of the referring physician, service or agency will
have on the referral of patients to Women’s Health
Services?
A Thank you. The naming of the referring physician
will guarantee that fewer physicians will refer women to
abortion clinics.
Q What’s the basis for that statement, Ms. Roselle?
A Referring physicians, especially in areas outside
urban areas, are under intense pressure from certain
elements, from people opposed to abortion who reside in
their community not to make referrals for abortions.
And once this becomes known that these physicians are
making these referrals they face loss of practice, loss of
referral, referrals within their practice, to some extent
they may even lose their privileges [21] at a hospital.
MR. NEUHAUSER: Your Honor, for the record I’d
like a continuing objection to this testimony.
THE COURT: Yes, you may do that.
32
Shall we move along?
BY MR. ZEMAITIS:
Q Do you have any personal experience that supports
the statement you just made?
A Yes, I do. I approached a group of physicians from
a rural area who I know currently make referrals to
Women’s Health Services. I was hoping I could get them
here today or at least to participate in this. Not only
would they not do that, they told me that once we had to
start reporting this information, they absolutely would
never make another referral to us.
Q Did you explain to those gentlemen that the form as
filed with the Commonwealth would be maintained in
confidence?
A Yes.
Q Did that change their reaction in any way?
A No.
* * *
[27] Q Can you briefly describe the process at
Allentown Women’s Center for counseling abortion
patients?
A The counselor’s function is to ensure that the
decision to have an abortion is the patient’s own
decision, that she is not coerced by either a parent or a
husband or boyfriend, to explain the medical risks, to
assuage fear, to teach birth control, to prepare the
patient for the procedure.
Q Is this counseling customarily provided on the day
the abortion is performed?
A That’s correct.
* * *
[30] Q What is your understanding of the meaning of
the term "informed consent," as it applies to Allentown
33
Women’s Center’s responsibilities under this act?
A The informed consent for a medical procedure
implies a careful explanation of the risks of the
procedure and in some cases in the options to the
procedure by the physician or his appointee for someone
who is anticipating surgery, or in this case whose child is
anticipating surgery.
Q Does Allentown Women’s Center currently require
parents to come to the clinic to provide consent for
abortions for their minor children?
A No, we have not and do not.
Q Is it your understanding that under Section 3206(A)
that the parent will need to attend to provide consent?
A Informed consent for any medical procedure implies
presence.
Q Do you then intend to change your practice of not
requiring parental accompaniment should the act go into
effect?
A If the act goes into effect we will require parental
[31] accompaniment to the clinic when the patient comes
for her procedure. In difficult situations of which I
anticipate there will be many, a visit at a separate time
to the clinic with the minor would be possible, but
parental presence at the clinic would be required
absolutely.
* * *
[35] Q What effect, if any, do you anticipate that the
requirement of informed parental consent, in other
words as you’ve testified, the accompaniment by a parent
to provide consent will have on the ability of your minor
patients to obtain abortions at the center?
A If the parent needs to come physically to the clinic,
that is burdensome. The rigors of just struggling with a
service that must be kept confidential, sometimes even
from another parent, are hard to imagine. There is a
34
great deal of intensity around keeping privacy and there’s
a great deal of intensity around conflict within a family
at a crisis moment like this.
Most of our patients come, more than half of our
patients come a great distance to get to us; they travel
more than an hour. So working out all of those logistics
for two people that must both be given, it has to be one
parent and the minor instead of a support person to
come with the minor will cause additional delays, delays
beyond the delays already caused by requiring parental
involvement or bypass. TTiose delays will be great, these
delays will be additional.
Q Do you foresee an impact on the emotional state of
some of your minor patients through this requirement?
A Yes.
MR. NEUHAUSER: Objection, your Honor,
speculation.
THE COURT: Can the question be rephrased?
[36] BY MS. NICHOLAS:
Q In your experience as a counselor are you able to
predict an impact on the emotional state of minor
patients through this provision?
MR. NEUHAUSER: I’m sorry, your Honor, same
objection.
THE COURT: Overruled.
THE WITNESS: In my experience as a counselor I
can speak to the 54 percent of our minors who do have
parental consent and have sought that voluntarily. Even
in that situation, the anguish in a family and the intensity
in a family around an abortion service is considerable
and when there is dysfunction or hostility in the family
unit and the parent is physically present, it is sometimes
physically dangerous for the minor. It certainly causes us
great concern when there is intensity and upset that they
will have an automobile accident as they leave the clinic.
These are extremely human, extremely intense and
35
difficult situations even without the Commonwealth
coercing communication in families where there is not
support from the parents.
BY MS. NICHOLAS:
Q You’ve testified about your view that delay will be
occasioned in at least some cases by this requirement.
Will there be harmful medical effects for minor patients
that would result from the delay you’ve described?
[37] MR. NEUHAUSER: Objection, your Honor,
speculation and no foundation.
THE COURT: Overruled. I’m sure you can
rephrase that to overcome the objection.
BY MS. NICHOLAS:
Q In your experience as Director and as counselor at
Allentown Women’s Center is it your view that delay in
obtaining abortion can result in adverse medical
consequences for patients?
MR. NEUHAUSER: Same objection, your Honor.
THE COURT: Overruled.
THE WITNESS: Delay is grave. Delay after the
twelfth week of gestation increases the possibility of a
medical complication from the abortion at a very steep
incline. There are other problems that don’t show up
immediately that are caused by delay. The cervix needs
to be dilated mechanically for an abortion. We don’t
really know each week that goes by how much worse it is
in terms of impairment of future childbearing ability, but
certainly for young women future childbearing ability is
extremely important. And as those weeks go by it’s
worse and worse on many levels. It’s also very serious in
terms of the expense and the psychological impact on
that young woman if she has a later abortion. Each
week that goes by is a difference in degree. But many of
these minors who are required to either [38] cope with
the court system which is a frightening and overwhelming
prospect or with their parents which is a frightening and
36
overwhelming prospect for many of them will delay right
past the second trimester abortion situation and have a
child as a child for the sole reason that they can’t cope
with the burdens of these requirements. That’s, I think,
you know, very sobering.
BY MS. NICHOLAS:
Q I’d like to turn briefly to the reporting sections of the
act and in particular direct your attention to Section
3214(A) which requires filing a report to the Department
of Health for each abortion performed. Are you familiar
with this section?
A Yes.
Q And I would like to further direction your attention
to Subsection 1 which requires identification in the
individual abortion report of the physician performing
the abortion and of the referring physician, service or
agency. Are you familiar with this section?
A I’m extremely familiar with this.
Q What effect do you believe this reporting subsection
will have on the operations of Allentown Women’s
Center?
MR. NEUHAUSER: Objection, your Honor,
speculation.
THE COURT: Overruled.
THE WITNESS: I was devastated when I read this.
[39] I think that this is going to make it more difficult
for us to recruit the kinds of physicians we want working
for us providing abortion services. I have already been
told by a physician who formerly worked for us that
whether or not this law goes into effect, whether or not
these reports are made public, he would never darken
our door again because of his fear of the possibility of
harassment that might ensue from these reporting
requirements.
It will have a chilling effect on the number of
physicians and the quality of physicians willing to provide
37
abortion services.
* *
[42] BY MR. ZEMAITIS:
Q Dr. Dratman, let me just confirm for the record that
you are a licensed physician?
A Yes, I am.
Q In what states are you licensed?
A I’m licensed in Pennsylvania and New Jersey.
Q And where did you receive your medical degree?
A From Hahnemann Medical College in Philadelphia.
Q Are you a member of any professional
organizations?
A Yes, I am.
Q And what are those?
A I am a member of the American College of
Obstetrics and Gynecology, I am a Fellow of that college.
I am a member of the American Fertility Society and the
American Medical [43] Women’s Association.
Q Have you received any certification in a specialty?
A Yes, I have. I am Board Certified in the practice of
obstetrics and gynecology.
Q What is your current position, Dr. Dratman?
A Since 1986 I have been the Medical Director for
Planned Parenthood, Southeastern Pennsylvania.
Q What are your responsibilities as Medical Director of
Planned Parenthood?
A As Medical Director I oversee medical policy for our
contraceptive and abortion services. I assist in the
training of physicians in the abortion service and of
mid-level practitioners in the contraceptive service.
* *
[45] Q Dr. Dratman, do you have an opinion as to the
38
first point in a pregnancy that a fetus is likely to be
viable?
A Yes, I do.
Q And what is your opinion in that respect?
A A fetus is -- it’s impossible for a fetus to be viable,
that is to sustain extrauterine life, even with the best
available technological supports, before 23 to 24
menstrual weeks gestation.
Q What is the basis for your opinion in that respect?
A A fetus needs lung matrix in order to breathe on the
outside, whether mechanically ventilated or not, and
alveoli do not develop in the human fetus until 23 to 24
weeks gestation.
Q Are you aware of any literature that contradicts your
opinion with respect to 23 or 24 weeks?
A There have been sporadic reports in the medical
literature of survivals of fetae of 22 weeks gestation. But
most of those reported before the use of ultrasound for
data and it’s possible that the data may have been off by
a week or so.
Q Are you aware of medical literature that supports
your conclusion with respect to 23 or 24 weeks?
A Yes. There are considerable numbers, both in the
obstetrical and the neonatology literature. It’s also
possible to find descriptions of fetal womb development
in [46] pathology textbooks.
Q In your opinion, Dr. Dratman, is there any possibility
that a 19 or 20 or 21 week old fetus would be viable?
A Not if properly dated, no.
Q Is that also true for a 22 week old fetus?
A Yes.
* * *
[57] Q Now, directing your attention to Item 17 on the
form Report of Induced Termination of Pregnancy, there
39
are a series of questions that are asked in that item and
the direction is to explain the answers on the back. Are
you aware of any other procedure, Dr. Dratman, where a
physician is required to report his or her basis for certain
medical judgments made during the treatment of a
patient?
[58] A No, sir, I am not.
Q What is your reaction, as a practicing physician, to a
requirement that you report the basis for certain medical
judgments on this form?
A I find them confusing at best, intrusive at worst. In
the face of a medical emergency which is not very well
defined in this act, although an attempt is made at it, the
difficulties that a physician and his or her patient face
must take precedence over anything else. Were the
statute to be upheld, the statute itself would get in the
way of these treatments. The way the statute is written,
and that is Section ...
Q Are you referring to the definition of medical
emergency, Dr. Dratman?
A Yes, I am.
Q That’s Section 3203, if you’ll find that section.
A Okay. Yes, here it is. On the face of it --
Q Before you comment on the medical emergency
section, the question I had asked you was whether you
had any reaction to all of Item 17, that is to say all of the
requests by the reporting form to report your basis for a
medical judgment?
MR. NEUHAUSER: Asked and answered, your
Honor, I believe.
THE COURT: Overruled.
THE WITNESS: I find that this has nothing to do
[59] with medical practice and it’s causing me to make
artificial judgments and therefore reports.
BY MR. ZEMAITIS:
Q Specifically referring to the definition of medical
40
emergency and you now have that before you, I believe,
don’t you?
A Yes.
MR. ZEMAITIS: That’s Section 3203, your Honor.
BY MR. ZEMAITIS:
Q Do you have an opinion as to whether that section
would or may cause physicians to practice in emergency
situations different than they otherwise would?
A Oh, absolutely.
Q It would, that’s your opinion is that it would have
that effect?
A Certainly.
Q Now, can you explain the basis for your opinion in
that respect?
A Let me give you an example. There is in the body of
this statute the requirement for parental consent or
judicial bypass, including some reasonable time in which
such judgments can be made. I think three days is in the
statute. Let’s say a 16 year old woman comes into the
emergency room, she is pregnant, she’s about 18 weeks
pregnant, she is swollen, her blood pressure is 210 over
160, normal being [60] between 100 and 120 over 60 to
80 in that age range, and her urinalysis shows a
considerable amount of protein in the urine and her
reflexes are very brisk. This is a clinical syndrome
known as preeclampsia or toxemia of pregnancy. This is
in obstetrical terms a medical emergency. However,
under this statute, before I could operate as if this were
a medical emergency, I would have to prove that
irreversible major bodily harm would come to this
patient if I were not to wait for a judicial bypass to go
through.
Now, preeclampsia is a very serious condition. It can
lead to eclampsia, which means that the woman would
have a seizure. However, most of these women don’t die
as a result of the seizure, they don’t have any long-term
41
effects from it, but she could certainly be terribly ill, she
could certainly sustain a concussion or other injury from
the seizure. She could develop a condition known as
DIC, disseminated intravascular coagulation in which all
of the blood clotting products in her body are used up;
this is part of the syndrome. And what the statute is
asking me to do in effect is to guarantee that this woman
is going to be okay for the up to three days it’s going to
take to get judicial bypass for me to abort here because
the only treatment that there is for this condition is
emptying the uterus and ending the pregnancy. And
there are medications that can be used in an attempt to
stabilize her, drugs to bring down her blood [61]
pressure, magnesium sulfate to attempt to keep her from
having a seizure, but those are only temporizing
medications in this situation.
I can’t guarantee that she’s going to have any lasting
or non-lasting effects from this. She may have an
underlying kidney problem that caused her to become so
severely ill at this point in the pregnancy, but I can’t
diagnose that until afterwards. So there is no way that I,
using my good medical judgment and with concern for
the safety of my patient, can comply with this.
* * *
42
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
PLANNED PARENTHOOD : CIVIL ACTION
OF SOUTHEASTERN : NO. 88-3228
PENNSYLVANIA, et al.
v. :
ROBERT P. CASEY, et al. :
ORDER
AND NOW, this 25th day of October, 1988, upon
consideration of plaintiffs’ request for class certification
and of the Stipulation of the parties with respect thereto,
the Court hereby finds as follows:
1. The class of physician plaintiffs is so numerous
that the joinder of all members is impracticable. At the
end of 1986, there were at least 1,578 gynecologists
practicing in Pennsylvania, and there were at least 144
facilities in Pennsylvania where abortions are performed,
each of which has one or more physicians on its staff.
2. There are questions of law and fact common to
the class of physician plaintiffs including the
constitutionality of provisions of 1988 Amendments to
the 1982 Pennsylvania Abortion Control Act, Act of
March 25, 1988, No. 31, §§ 3-10, amending 18 Pa. C.S.A.
§ § 3201-20 (the "Act").
3. The claims of plaintiff Thomas Allen, M.D. as
the representative of the class of physician plaintiffs are
typical of those of the class as a whole.
4. Plaintiff Thomas Allen, M.D. will fairly and
43
adequately represent the interests of the class of
physician plaintiffs because he possesses the requisite
personal interest in the subject matter of the lawsuit and
because he is represented by lawyers with substantial
experience in civil rights and class action litigation,
particularly cases involving the reproductive rights of
women seeking abortion and the rights of physicians to
provide such care.
5. Plaintiff Thomas Allen, M.D. possesses no
known interests that are antagonistic to those of the class
of physician plaintiffs.
6. The defendants have acted on grounds generally
applicable to the class of physician plaintiffs.
7. The prosecution of separate actions by the
individual members of the class of physician plaintiffs
would create a risk of inconsistent or varying
adjudications with respect to the constitutionality of the
Act or the particular provisions thereof that could
establish incompatible standards of conduct for the
defendants who are charged with enforcing the Act’s
provisions.
WHEREFORE, it is hereby ORDERED and
DECREED that this action will be maintained as a class
action pursuant to Rules 23(B)(1)(A) and 23(B)(2) of the
Federal Rules of Civil Procedure on behalf of a class of
physician plaintiffs defined as follows: "All licensed
physicians in Pennsylvania who provide abortions at
locations in Pennsylvania." Plaintiff Thomas Allen, M.D.
is designated class representative, and counsel of record
for plaintiffs in this action are designated as counsel for
the class.
BY THE COURT:
/s/.
DANIEL H. HUYETT, 3rd
44
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
PLANNED PARENTHOOD
OF SOUTHEASTERN
PENNSYLVANIA;
REPRODUCTIVE HEALTH
AND COUNSELING
CENTER;
WOMEN’S HEALTH
SERVICES, INC.; WOMEN’S
SUBURBAN CLINIC;
ALLENTOWN WOMEN’S
CENTER; AND THOMAS
ALLEN, M.D., on behalf of
himself and all others
similarly situated;
Plaintiffs,
v.
CIVIL ACTION
NO. 88-3228
CLASS ACTION
ROBERT P. CASEY,
N. MARK RICHARDS,
ERNEST PREATE, personally
and in their official
capacities, and
MICHAEL D. MARINO,
personally and in his
official capacity, together
with all others similarly
situated,
Defendants.
45
AMENDED COMPLAINT
Plaintiffs, by their undersigned attorneys, bring this
Amended Complaint against the defendants, their
employees, agents and successors and in support thereof
aver the following:
I. Preliminary Statement
1. This civil rights action challenges the 1988 and
the 1989 amendments to the Pennsylvania Abortion
Control Act of 1982, Act of March 25, 1988, No. 31 §§
3-10, amending 18 Pa. Cons. Stat. Ann. §§ 3201-20, and
Act of November 17, 1989, No. 64, amending 18 Pa.
Cons. Stat. Ann. §§ 3201-20, (collectively "the Act") as
violating the United States Constitution, 42 U.S.C. §
1983 and the Pennsylvania Constitution. (Copies of each
amending enactment are attached as Exhibits "A" and
"B," respectively.)
2. Plaintiffs seek declaratory and injunctive relief
on the ground that the Act unduly restricts the
availability of abortions and women’s access to necessary
medical care and counseling, as well as the rights of
physicians and facilities providing abortions in violation
of the right of privacy to make personal decisions, the
right of informational privacy, the right to free speech,
the right to equal protection under the law, the right to
equality of rights under the law, the right to due process
of law, and the right to freedom of association, all as
guaranteed by the First, Fourth, Fifth, Ninth and
Fourteenth Amendments to the United States
Constitution, 42 U.S.C. § 1983, and Article I §§ 1, 26
and 28 of the Pennsylvania Constitution.
II. Jurisdiction
3. Jurisdiction is conferred on the Court by 28
46
U.S.C. §§ 1331, 1343(a)(3), 1343(a)(4), the Fourteenth
Amendment to the United States Constitution, and,
because plaintiffs’ state law claims are inextricably tied to
plaintiffs’ federal claims, the doctrine of pendant
jurisdiction.
4. Plaintiffs’ claim for declaratory and injunctive
relief is authorized by 28 U.S.C. §§ 2201 and 2202 and
by Rules 57 and 65 of the Federal Rules of Civil
Procedure.
III. Parties
A. Plaintiffs
5. Plaintiff Planned Parenthood of Southeastern
Pennsylvania is a non-profit corporation organized under
the laws of the Commonwealth of Pennsylvania that
operates a facility where abortion counseling services and
abortions are provided at a location in Pennsylvania.
6. Plaintiff Women’s Suburban Clinic is a
non-profit corporation organized under the laws of the
Commonwealth of Pennsylvania that operates a facility
where abortion counseling services and abortions are
provided at a location in Pennsylvania.
7. Plaintiff Reproductive Health and Counseling
Center is a for-profit corporation organized under the
laws of the Commonwealth of Pennsylvania that operates
a facility where abortion counseling services and
abortions are provided at a location in Pennsylvania.
8. Plaintiff Women’s Health Services, Inc. is a non
profit corporation organized under the laws of the
Commonwealth of Pennsylvania that operates a facility
where abortion counseling services and abortions are
provided at a location in Pennsylvania.
9. Plaintiff Allentown Women’s Center is a
for-profit corporation organized under the laws of
Pennsylvania that operates a facility where abortion
counseling services and abortions are provided at a
47
location in Pennsylvania.
10. Each of the corporate plaintiffs (hereinafter
collectively referred to as "medical providers") sues on its
own behalf, on behalf of the physicians, counselors and
staff that each employs at its facility, and on behalf of
the women who receive abortions and other obstetrical,
gynecological, family planning, or counseling services at
its facility.
11. Plaintiff Thomas Allen is a physician licensed to
practice medicine in Pennsylvania who specializes in the
practice of obstetrics and gynecology. Dr. Allen
performs abortions during the first and second trimesters
of pregnancy at locations in Pennsylvania.
12. Plaintiff Allen sues on his own behalf and on
behalf of his patients and seeks to represent a class of all
other physicians similarly situated.
B. Defendants
13. Defendant Robert P. Casey is the Governor of
the Commonwealth of Pennsylvania. He is the chief
executive officer of the Commonwealth, and he is
constitutionally mandated to ensure that the laws of the
Commonwealth, including the Act, are faithfully
executed.
14. Defendant N. Mark Richards is the Secretary of
Health for the Commonwealth of Pennsylvania. As such,
he is responsible for the implementation and
enforcement of those provisions of the Act which pertain
to the Department of Health.
15. Defendant Ernest Preate is the Attorney
General of Pennsylvania. As such, he is responsible for
the enforcement of all laws of the Commonwealth,
including the Act.
16. Defendant Michael D. Marino is the District
Attorney for Montgomery County, Pennsylvania. As
such, he is responsible for the enforcement of the Act
and the criminal prosecutions of persons charged with
48
violating it in his county.
17. Upon information and belief, unless restrained
by order of the Court, all defendants will perform their
official duties to ensure the Act is enforced, and will
cause criminal prosecutions or license suspension or
revocation hearings to be instituted against the physician
or medical provider plaintiffs or others who may aid or
assist the physician or medical provider for failure to
comply with the Act, and against married women who
provide false statements in violation of Section 3209 of
the Act.
IV. Class Action Allegations
A. Plaintiff Allegations
18. Plaintiff Allen is a physician licensed to practice
medicine in Pennsylvania who provides abortions at
locations in Pennsylvania.
19. Dr. Allen sues on behalf of all other physicians
similarly situated and seeks, pursuant to Fed. R. Civ. P.
23(b)(1)(A) and (2), to represent a class composed of all
licensed physicians in Pennsylvania who provide
abortions at locations in Pennsylvania.
20. The prerequisites to class certification are met in
that:
(a) At the end of 1988, there were at least 1,567
gynecologists practicing in Pennsylvania, and
there were at least 140 facilities in
Pennsylvania where abortions are performed,
each of which has one or more physicians on
its staff; consequently the class is so
numerous that joinder of all members is
impracticable;
(b) The provisions of the Act apply with equal
force to all members of the class, such that
questions of law and of fact relating to the
constitutionality of the provisions of the Act
49
that seek to regulate abortions are common
to all members of the class;
(c) The claims of the representative party as to
the unconstitutionality of the provisions of
the Act are typical of those in the class; and
(d) The representative party has the requisite
personal interest in the outcome of this
action and will fairly and adequately protect
the interests of the class.
21. The prosecution of separate actions by individual
members of the class would create a risk of inconsistent
or varying adjudications with respect to the
constitutionality of the Act or the particular provisions
thereof that would establish incompatible standards of
conduct for the defendants who are charged with
enforcing the Act’s provisions.
B. Defendant Allegations
22. Defendant Michael D. Marino is sued in his
capacity as the District Attorney of Montgomery County,
Pennsylvania and, pursuant to Fed. R. Civ. P.
23(b)(1)(A), as the representative of the class of all
district attorneys of the various counties of the
Commonwealth of Pennsylvania.
23. The prerequisites to certification of a defendant
class are met in that:
(a) There are 67 counties in Pennsylvania each
of which has a district attorney and many of
which have a substantial number of assistant
district attorneys rendering the class so
numerous that joinder is impracticable;
(b) Because each member of the class is charged
with enforcing the Act in a particular county,
questions of law and of fact relating to the
constitutionality of the Act’s provisions are
common to the class;
(c) The defenses of defendant Marino will be
50
typical of the defenses of the class; and
(d) Defendant Marino will fairly and adequately
represent the interest of the class.
24. The prosecution of separate actions against
individual members of the defendant class could create a
risk of inconsistent adjudications with respect to
members of the defendant class which would establish
incompatible standards of conduct for physicians
presently performing abortions, desiring to perform
abortions, or referring patients for abortions in
Pennsylvania.
V. Factual Allegations
25. In 1988, 50,786 abortions were performed in
Pennsylvania and reported to the Pennsylvania
Department of Health. Many of the women who sought
abortions did so because they suffer from diseases or
conditions including, but not limited to: diabetes, cancer,
essential hypertension, cardiac disease, kidney disease,
history of post partum hemorrhaging, or sickle cell
anemia and, therefore, carrying a pregnancy to term
would endanger their health or life. Others sought
abortions because their age, their psychological, familial
or financial condition or their religious or conscientious
beliefs mandated the procedure or because they were
infected with the AIDS virus or because fetal anomalies
had been discovered.
26. 47,548 (or 93.6%) of all reported abortions in
1988 in Pennsylvania were performed during the first
trimester of pregnancy; 3,122 (or 6.2%) were performed
during the second trimester. 127 abortions were
performed between 23 and 26 weeks from the woman’s
last menstrual period and one abortion was performed at
27 weeks or beyond.
27. Abortion at any stage of pregnancy is considered
an extremely safe surgical procedure, eleven times safer
51
from the standpoint of mortality than carrying a
pregnancy to full term. Early abortion is safer than
later abortion.
28. Delay in performance of abortion increases the
health risk that women face in connection with the
procedure. Nevertheless, second trimester abortions are
safer than carrying the pregnancy to full term.
29. Physicians practicing at clinics operated by the
medical provider plaintiffs regularly treat women patients
who need abortion services. The physicians either
perform the abortions or they refer patients to other
physicians or clinics for abortions, and thus are subject to
the criminal and civil penalties contained in the Act.
30. Physicians and medical providers who refer
patients for abortions normally provide medical services
for those patients before and/or after the procedure is
performed.
31. Physicians and medical providers desire to
provide comprehensive and confidential medical care of
the highest quality to their patients.
32. Some or all of the plaintiffs provide abortion
services to women including: women who need
immediate abortions due to a medical emergency,
women who need immediate abortions because of danger
to their health but whose health problems do not fall
within the definition of "medical emergency" as contained
in the Act, women who travel long distances to obtain
abortions, women for whom a waiting period of
twenty-four hours would greatly increase the cost of and
delay in obtaining an abortion, emancipated minors,
mature minors, immature minors for whom an abortion
would be in their best interest, immature minors for
whom consent of one parent would be in their best
interest, immature minors for whom parental
involvement would not be in their best interest and
married women who for varied reasons are unable or
52
unwilling to notify their husbands of their decision to
have an abortion.
33. The purpose, intent and effect of the Act is to
impose burdens upon women attempting to obtain
abortions in Pennsylvania, to restrict the availability of
abortion services, and to exact medical, psychological and
financial penalties upon women who seek abortions.
34. The Act is the only provision of law enacted by
the Pennsylvania General Assembly that provides
detailed regulation of a particular surgical procedure.
This regulation embodies legislative determinations that
are inconsistent with currently accepted medical practice,
and that require physicians to violate medical, ethical
and professional standards.
35. If the Act is permitted to take effect, the
cumulative impact of its provisions will be to burden
unduly the constitutionally protected rights of plaintiffs
and their patients with respect to the abortion decision,
as more fully described in paragraphs 36 through 104 of
this Amended Complaint.
A. Definition of "medical emergency" (Section 3203).
36. Section 3203 defines the term "medical
emergency" in a way that does not make clear to the
practicing physician when s/he will risk incurring license
suspension or revocation or other liability by terminating
a pregnancy because s/he may interpret the definition
differently from the prosecuting attorney.
37. The definition of "medical emergency" is unduly
narrow and, as such, does not comport with either
generally accepted medical definitions and usage or with
Pennsylvania statutory and common law definitions of
the term.
38. The Act’s definition of "medical emergency" may
cause the physician to practice medicine in a manner
contrary to the physician’s best medical judgment in
instances where a delay in the abortion procedure will
53
have significant adverse effect on a woman’s health but
where an immediate abortion is not necessary to avert
the death of the woman or to prevent substantial and
irreversible loss of a major bodily function.
39. The Act’s definition of "medical emergency" may
cause the physician to refuse to perform an abortion
when, in the exercise of judgment and in the absence of
the provision, s/he would do so, thereby interfering with
the patient’s ability to obtain an abortion.
B. Informed Consent (Sections 3205 and 3208).
40. Except in a "medical emergency" as defined in
Section 3203, Section 3205 requires that a doctor wait
twenty-four hours between the time a woman is supplied
information which the Act declares to be necessary for
informed consent and the performance of the abortion,
under penalty of license suspension or revocation or
criminal liability.
41. Of 67 counties of Pennsylvania, 10 have no
practicing obstetricians/gynecologists. In 22 counties, 5
or fewer obstetricians/gynecologists practice and in many
of these locations no physicians perform abortions.
97.8% of all abortions in the state are performed in only
8 counties: Allegheny, Dauphin, York, Lehigh,
Philadelphia, Delaware, Chester and Montgomery
Counties. Women from every county in the
Commonwealth, as well at 2975 women from other states
and territories, obtained abortions in Pennsylvania in
1988.
42. Because of the scarcity of providers and a desire
for privacy, many women travel long distances at
considerable expense to obtain abortions. Many women
are forced to travel in excess of 50 miles, or 2 hours
travel time, to reach a provider. For women in remote,
rural counties of the state, this distance can exceed 100
miles and 4 hours travel time, each way.
43. Because of shortages of medical personnel and
54
other resources, plaintiff physicians and medical
providers do not provide abortion services every day.
The twenty-four hour waiting period will therefore create
delays in excess of twenty-four hours, endangering
women’s health. Conflicts with patients’ personal
schedules will compound these delays.
44. The 24-hour waiting period will require that
women make two or more, often long-distance,
roundtrips to their physicians or medical providers,
thereby increasing their travel and lodging costs, child
care expenses, time lost from work for themselves and
others wishing to accompany them on the visit and
physical and emotional strain.
45. Prior to seeking medical treatment, women who
seek abortions have given thought and moral
deliberation to the matter and have concluded in
accordance with their own life circumstances that an
abortion is in their best interest. Therefore, the 24-hour
delay mandated by the statute serves no legitimate state
interest.
46. In some circumstances, delaying an abortion for
twenty-four hours will jeopardize a woman’s health but
not so severely as to fall within the medical emergency
exception, thereby requiring the physician to postpone
the abortion procedure contrary to his or her best
medical judgment and to the woman’s interest in health
and personal security.
47. The 24-hour waiting period imposes additional
trauma upon women who seek abortions because they
are the victims of rape or incest, and upon young women
who generally delay seeking medical care longer than
adult women and who are subject to other delays as a
result of the operation of Section 3206 of the Act.
48. The 24-hour waiting period constitutes a direct
and unwarranted interference with the physician-patient
relationship in that it prevents the physician and patient
55
from deciding that an abortion after a delay of less than
twenty-four hours is in the patient’s best interest.
49. Section 3205(a)(1) requires the attending or
referring physician orally to supply certain information to
the woman. By prohibiting the delegation of this task to
another qualified professional, this requirement
interferes with a woman’s abortion decision, by
increasing costs, constricting medical judgment, and
preventing the proper allocation of scarce medical
resources, while serving no legitimate interest.
50. Section 3205(a) also requires that specific
categories of information, declared to be necessary for
"informed consent," be provided to each woman seeking
an abortion.
51. Sound medical practice requires that a physician
or other provider carefully tailor the information
communicated to each patient in the informed consent
dialogue. Section 3205 eliminates the exercise of
discretion and may cause a physician to provide
information contrary to his or her best medical judgment
in his or her explanation of the procedure and its
attendant risks.
52. Pennsylvania law governing informed consent for
surgical procedures other than abortions allows the
physician to exercise sound medical discretion in
determining the nature and extent of the information
provided to the patient consistent with the patient’s
particular needs.
53. Section 3205(a)(2) requires that the physician or
the physician’s designated agent supply legal advice
concerning the potential availability of medical assistance
benefits and liability for child support which is not the
physician’s, or his or her agent’s, area of expertise.
54. Sections 3205(a)(2) and 3208 require that a
physician or his or her designated agent inform a woman
that she has a right to printed materials that describe the
56
fetus at two week gestational increments, contain
"pictures" of a fetus at two week gestational increments,
and list agencies that offer alternatives to abortion.
55. Such a requirement will compel physicians and
medical providers to act contrary to their best medical
judgment by furnishing information which in some cases
will cause substantial psychological harm to their
patients.
56. Sections 3205(2) and 3208 severely and unduly
interfere with the quality of the physician-patient
relationship by calling into question the integrity of the
physician and undermining his or her ability or the ability
of the physician’s agent to counsel the patient on an
individualized basis.
57. These sections violate the right of free speech of
physicians or their agents by compelling them to furnish
information prepared and provided by the
Commonwealth, even when contrary to their own
religious or conscientious beliefs, or even when
provisions of the information may violate professional
standards.
C. Parental Consent/Judicial Bypass (Section 3206).
58. 11.6% of all women having abortions in
Pennsylvania in 1988 were under the age of 18.
59. Except in the case of a "medical emergency" as
defined by Section 3203 of the Act, Section 3206
establishes a requirement that one parent give his or her
informed consent to an abortion for any minor daughter
who is less than 18 years of age and who is not
emancipated, unless a court determines that she is
mature and capable of making her own decisions or, if
immature, that an abortion is in her best interest.
60. This section does not set forth what procedures
and documentation are necessary for obtaining legally
valid parental informed consent. Physicians and
facilities, therefore, will be subject to professional
57
sanction and criminal liability for acts or omissions a
prosecutor or court may later deem proscribed by the
Act.
61. Because of its vague and ambiguous language,
Section 3206 has the purpose and effect of discouraging
physicians and facilities from providing abortions for
unemancipated minors, or causing unnecessary and
possibly dangerous delay in performing such abortions.
62. Under Section 3205, obtaining the "informed
consent" of a woman seeking an abortion requires that
the performing or referring physician, a qualified
physician assistant, health care practitioner, or a
technician to whom the responsibility has been
delegated, orally convey information regarding the
procedure, the risks and alternatives to the procedure
and other information a reasonable patient would
consider material to the abortion decision. Additionally,
section 3205 provides that the woman certify in writing
prior to the abortion that she has been provided such
information.
63. Because the provisions of Section 3205 regarding
"informed consent" also apply to Section 3206’s provision
for parental informed consent, physicians and facilities
will be required to comply fully with Section 3205’s
provisions, including the requirements of separate
personal counseling with, and certified proof of, a
parent’s consent to an abortion for a minor daughter.
64. Particularly where a parent is prepared to
consent but, because of work schedules, illness or other
circumstances finds it difficult to receive personal
counseling, Section 3206 is unduly burdensome and is
likely to cause dangerous and expensive delay in the
abortion procedure and dramatically to increase the cost
of obtaining the medical service.
65. Some parents, although willing to consent to an
abortion for their minor daughter, are not willing to
58
accompany her to the medical provider nor to provide
assistance to her which creates an appearance that the
parent supports the daughter’s choice.
66. The operation of the informed consent provision
in Section 3206 will interfere with family integrity in that
it will force previously unwilling parents to consent and
to papticipate in the minor’s abortion decision.
67. Section 3206(f), sets forth the procedure by
which an unemancipated minor may obtain judicial
authorization for an abortion in the absence of parental
consent ("the judicial bypass"). It provides that a minor
woman may apply to the Court of Common Pleas for a
determination of whether she is mature and capable of
giving informed consent or, if she is immature and
incapable of consent, whether having an abortion would
be in her best interests.
68. This section, if implemented, will cause
dangerous delays and will increase the risk of invasions
of privacy of pregnant minors choosing the judicial
bypass procedure. Neither the trial courts nor the
appellate courts of the Commonwealth are prepared to
effectuate this procedure and to assure expedition and
confidentiality. No implementing rules have been issued
by the Supreme Court of Pennsylvania. The common
pleas courts of many counties are now straining under
the burden of overloaded dockets and a shortage of
judges and court personnel. Under these circumstances,
pregnant minors availing themselves of the judicial
bypass procedure cannot be assured that their rights to
confidentiality and expedited consideration will be
preserved. It is the Commonwealth’s burden to
demonstrate that its courts are prepared to implement
this section to assure that the rights of minor women
seeking abortions are protected.
59
D. Husband Notification (Section 3209).
69. Except in the case of a "medical emergency" as
defined by Section 3203 of the Act, Section 3209
prohibits a physician from performing an abortion upon
a woman if that woman has not provided him or her with
a signed statement that she has notified her spouse that
she intends to have the procedure performed, with the
exceptions that no such statement is required if the
spouse is not the father of the fetus, the spouse "after
diligent effort" could not be found, the pregnancy is the
result of spousal sexual abuse, or the woman has reason
to believe that notifying the spouse is "likely" to result "in
the infliction of bodily harm upon her by her spouse or
by another." While the statement need not be notarized,
it must "bear a notice that any false statements made
therein are punishable by law." The woman making a
false statement is thus subject to the criminal penalties of
a misdemeanor of the third degree. The physician is
subject to license suspension or revocation and civil or
criminal penalties for violation of this provision.
70. This provision purports to further "the
Commonwealth’s interest in promoting the integrity of
the marital relationship and to protect a spouse’s interest
in having children within the marriage and in protecting
the prenatal life of that spouse’s child . . . ."
71. None of these "interests" are sufficiently
compelling to warrant a burden on the woman’s right to
an abortion. Further, this provision is not narrowly
tailored to further the purported "interests" and is an
unjustifiable governmental intrusion into the privacy of
the marital relationship.
72. The vast majority of married woman consult with
their husbands when deciding whether to terminate a
pregnancy that is the product of that marriage. When
they do not, it is for legitimate reasons many of which
are not covered by the statutory exceptions including:
60
dysfunctional marital relationships, separations, the
woman’s fear of violence against her children, fear that
her husband will physically prevent her from having an
abortion or cut off financial support for her and her
children and/or religious or ethical differences between
spouse. In a healthy marital relationship, reproductive
decisions can and will be made without the intrusion of
the Commonwealth, and such intrusion is likely to
damage the integrity of the marital relationship.
73. No third party, including the spouse, has an
interest the Commonwealth may further as against the
woman’s right to decide to have an abortion.
74. The requirement of Section 3209 that a woman
notify her husband is likely to cause delay in the
scheduling of a woman’s abortion when her husband may
be unavailable for notification at the time she needs to
have the abortion performed. If the spouse is living
apart from the woman, she will be required to delay the
medical procedure for additional time while she makes a
diligent effort to locate him.
75. In some circumstances, the delay caused by the
operation of Section 3209 will jeopardize a woman’s
health, but not so severely as to fall within the definition
of "medical emergency" as defined by Section 3203 of the
Act, thereby causing, the physician to postpone the
abortion in violation of his ethical and professional
standards.
76. Section 3209 allows an exception where the
spouse cannot be located but only after "diligent effort"
has been made to find him. The term "diligent effort" is
undefined thus subjecting the woman who invokes the
exception in a certified statement to her physician to
criminal sanction for violating a vague and ambiguous
provision.
77. Section 3209 provides for an exception where the
woman "has reason to believe that the furnishing of
61
notice to her spouse is likely to result in the infliction of
bodily harm upon her by her spouse or another
individual."
78. This provision does not specify what factors the
woman is authorized to consider in determining whether
bodily harm is "likely." The provision therefore threatens
women who invoke this exception by certified statement
to their physicians with criminal sanction without
providing any guidance as to what constitutes a
reasonable belief she is likely to be harmed as a result of
compliance with the spousal notice requirement.
79. Women who have been harmed are not always
able to determine when and for what reason they will be
harmed again. A woman who may not think it is "likely"
that she will be physically harmed, may nonetheless
choose not to subject herself to the risk.
80. A woman seeking an abortion is not necessarily
in the best position to know all of the psychological
factors that might trigger bodily harm to her. Section
3209 is an unjustifiable burden on the woman’s right to
have an abortion, an intrusion into the physician-patient
relationship and into the marital relationship, and fails to
further the asserted Commonwealth interests.
81. Section 3209 provides no exception for and,
accordingly, no protection against non-physical coercion
by husbands. Even if a husband opposed to a woman’s
attitudes regarding an abortion has threatened to
publicize her choice, to retaliate economically, to
retaliate in future child custody proceedings, or has
threatened psychological intimidation or harm, the
Commonwealth provides no exception to the husband
notification requirement. In many circumstances,
therefore, Section 3209 grants husbands an effective
means of intimidation to burden unduly women’s
reproductive choices.
82. The fact that a woman is pregnant, the fact that
62
she is considering an abortion, and the fact that she has
chosen to obtain an abortion are personal matters of the
most intimate, sensitive and private nature. Such facts
are protected by longstanding and powerful expectations
of confidentiality. By forcing women to disclose those
facts, Section 3209 offers no protection against arbitrary,
irresponsible or malicious dissemination by husbands of
personal information which their wives have been forced
by the Commonwealth to disclose to them.
83. A variety of medical and surgical interventions,
including, but not limited to, vasectomies, prostate
operations and chemotherapy can affect the capacity of
males to have children within marriage.
84. The Commonwealth places no limits on the
ability of a husband to make choices that will or may
affect his own reproductive capacity without notifying his
wife.
85. The Commonwealth of Pennsylvania’s husband
notification requirement is based on an invidious,
outmoded and stereotypical conception of women’s roles
within marriage as being responsible to their husbands
for their reproductive status and choices.
86. Imposing a spousal notice requirement upon
women’s reproductive choices, but not upon men’s
abridges women’s right to equality under the law and
denies women equal protection of the law.
E. Determination of Gestational Age (Section 3210).
87. Except in the case of a medical emergency as
defined by Section 3203 of the Act, Section 3210 requires
that physicians performing an abortion must "perform or
cause to be performed such medical examinations and
tests as a prudent physician would consider necessary to
make or perform in making an accurate diagnosis with
respect to gestational age."
88. The physician must then make a report as to the
tests conducted and the results thereof or be subject to
63
license suspension or revocation and criminal sanction.
This requirement subjects physicians to harsh penalties
without specifying the examinations to be performed and
is an unjustified intrusion into the physician-patient
relationship.
89. Although a physician is able through discussion
and physical examination, to date a pregnancy for
purposes of choosing an abortion technique, modern
technology now enables physicians to determine with
extreme accuracy gestational age of the fetus.
90. Rather than requiring the physician to make a
determination of the gestational age of the fetus
sufficient to perform his medical duties in accordance
with ethical and professional standards, Section 3210 will
require physicians to perform unnecessary tests, that
typically cost $250 to $300, but that may cost far in
excess of that amount, solely to comport with the Act’s
requirement. The use of these tests will not to promote
patient health, in violation of the physician’s right to due
process and privacy rights and in violation of the privacy
rights of his patient.
F. Reporting requirements (Sections 3207 and 3214).
91. Section 3207(b) requires, under threat of a daily
fine of $500, that all facilities in the Commonwealth,
including physician’s offices, at which abortions are
performed, file and update reports disclosing the name
and address of the facility, affiliated or subsidiary
facilities and other facilities having contemporaneous
ownership or directorship. These reports will be open to
public inspection if filed by facilities that received any
state-appropriated funds for any purpose in the twelve
months prior to the filing of the report.
92. Section 3214(f) requires each facility to file
quarterly reports showing the total number of abortions
performed per trimester of pregnancy, under threat of
license suspension or revocation and criminal liability.
64
These reports will be open to public inspection if filed by
facilities that received any state-appropriated funds for
any purpose in the twelve months prior to the filing of
the report.
93. This conditioning of confidentiality upon receipt
of state-appropriated funds is unconstitutional and serves
no legitimate Commonwealth interest.
94. It is reasonable to fear violent actions by
abortion opponents because, in the Commonwealth and
throughout the United States, there have been numerous
incidents of violence and harassment directed at abortion
providers. These incidents include picketing with intent
to block the entrances of abortion facilities and prevent
abortions, building takeovers, firebombing, kidnappings,
written and telephones threats and malicious cancellation
of telephone lines.
95. Disclosure of reports filed by facilities receiving
state-appropriated funds has the purpose and effect of
penalizing physicians who perform abortions or medical
providers by exposing them to violent actions,
harassment or interference with business relationships by
persons who oppose abortion. Women who seek
abortions from these facilities may also be exposed to
violent actions or harassment, thereby penalizing them
for exercising their constitutional right to choose to have
an abortion.
96. This disclosure discourages others from
associating with abortion providers for fear that
disclosing their affiliation will subject them to an
increased risk of violent actions, harassment, or
interference with business relationships by persons who
oppose abortion.
97. Section 3214(e)(3) requires that reports of
individual abortions be made available to public officials
for use in their enforcement of the Act. This provision
has the purpose and effect of discouraging physicians
65
from providing abortions for fear that the physician will
be subject to enforcement proceedings because
enforcement officials disagree with the physician’s best
medical judgment as set forth in the report.
98. Sections 3214(a) and 3214(h) establish reporting
requirements for individual abortions and abortion
complications. The definition of "medical complication"
in 3214(h) is vague and overbroad, and the matters
required to be reported in connection with a
complication report serve no public health-related
purposes.
99. Section 3214(a) requires that a report of each
abortion performed be filed containing, among other
things, identification of the referring and performing
physicians. Such information serves no public health
purpose and serves only to intimidate and deter
physicians from referring or performing abortions for
fear of public exposure and harassment.
100. Section 3214(a) requires a physician who has
performed an abortion pursuant to Section 3211 to
report the basis for his medical judgment that the
abortion was necessary to prevent either the death of the
woman or to prevent the substantial and irreversible
impairment of a major bodily function. Under this
section, a physician who has been excused from
compliance from any provision because the abortion was
performed due to medical emergency must report the
basis of his or her medical judgment that a medical
emergency existed. Further, this provision requires that
all physicians report the tests performed and the results
of those tests to determine gestational age, and that each
physician report whether the abortion was performed on
a married woman, if so, whether the woman informed
her spouse, and if she did not, the reason she did not.
This provision serves no public health purpose, is an
unjustified intrusion into the physician-patient
66
relationship, interferes with the physician’s exercise of his
or her best medical judgment, and will result in increased
costs, thereby creating an undue burden on women who
seek abortions.
101. Section 3214(h), requiring that a physician’s
report of all complications resulting from an abortion be
filed with the Department of Health, provides that the
name and address of the facility where the abortion was
performed must be listed. This provision exposes
abortion facilities to harassment and unfair treatment by
Commonwealth officials as well as persons opposed to
the performance of abortions.
102. Section 3214(e)(1) states that the
Department of Health shall prepare a comprehensive
annual statistical report of the non-public information
provided under sections 3214(a) and 3214(h). However,
section 3214(e) states only that the Department’s report
shall not lead to the disclosure of the identity of any
person filing a report or about whom a report is filed.
103. The language of this section, taken together
with sections 3214(a) and 3214(h), could be interpreted
to permit the Department in its annual report to identify
performing and referring physicians of abortions, as well
as the facilities in which the abortions were performed,
exposing those identified to harassment or violence and,
in the case of physicians, loss of hospital and other
professional privileges.
104. Identification of physicians and facilities in
connection with reports filed pursuant to sections 3214(a)
and 3214(h) may result in heightened harassment and
abusive treatment. Much of the information sought in
these sections serves no health-related goal, is vaguely
defined and is intended to discourage the performance of
abortions.
67
VI. First Cause of Action
105. Plaintiffs hereby incorporate by reference
Paragraphs 1 through 104 above.
106. The Act denies the right of privacy
guaranteed by the First, Fourth, Fifth, Ninth and
Fourteenth Amendments to the United States
Constitution in that it:
(a) imposes direct, substantial, and undue
burdens on the exercise by women in
Pennsylvania of their right to choose to
terminate a pregnancy by means of abortion;
and
(b) imposes direct, substantial and undue
burdens on the right of a physician to
practice medicine and to provide counseling,
education and other services in accordance
with that physician’s medical judgment and
with currently accepted medical standards.
VII. Second Cause of Action
107. Plaintiffs hereby incorporate by reference
paragraphs 1 through 106 above.
108. The criminal and other penalty provisions of
the Act fail to provide adequate notice as to the precise
nature of conduct prohibited, thereby inhibiting the
exercise of constitutionally-protected rights and inviting
selective prosecution. They are, therefore, void for
vagueness because they deprive plaintiffs and their
patients of the due process of law, in violation of the
Fourteenth Amendment to the United States
Constitution.
VIII. Third Cause of Action
109. Plaintiffs hereby incorporate by reference
paragraphs 1 through 108 above.
110. The Act denies the right of informational
68
privacy guaranteed by the United States Constitution and
by the Pennsylvania Constitution in that it requires
plaintiffs and their patients to disclose personal matters
of the most intimate, sensitive and private nature which
are protected by longstanding and powerful expectations
of confidentiality.
IX. Fourth Cause of Action
111. Plaintiffs hereby incorporate by reference
paragraphs 1 through 110 above.
112. Section 3209 of the Act deprives plaintiffs’
patients of equal protection under the law guaranteed by
the Fourteenth Amendment to the United States
Constitution and Article I § § 1 and 26 of the
Pennsylvania Constitution and abridges equality of rights
under the law in violation of Article I §§ 28 of the
Pennsylvania Constitution because it imposes burdens
upon women’s reproductive choices that are not imposed
upon the reproductive choices of men.
X. Fifth Cause of Action
113. Plaintiffs hereby incorporate by reference
paragraphs 1 through 112 above.
114. Sections 3206 and 3209 of the Act deprive
plaintiffs of their rights to familial and marital integrity
by forcing family members — parents, children or spouses
- to participate in decisions in a manner contrary to
their own moral judgments and best interests in violation
of the First and Fourteenth Amendments to the United
States Constitution.
XI. Sixth Cause of Action
115. Plaintiffs hereby incorporate by reference
paragraphs 1 through 114 above.
116. The Act violates plaintiffs’ rights under the
First and Fourteenth Amendments to the United States
69
Constitution by compelling medical providers to
communicate the Commonwealth’s ideology and by
requiring women seeking abortions to receive
information setting forth the Commonwealth’s view
regarding abortion.
XII. Irreparable Harm
117. If the Act is allowed to take effect, plaintiffs
and their patients will be subjected to immediate and
irreparable injury for which no adequate remedy at law
exists in the following respects:
(a) Plaintiffs will face criminal prosecution,
license suspension or revocation and civil
liability if they do not comply with the Act;
(b) Patients whose interests the plaintiffs
represent will be discouraged, impeded and
possibly prevented from obtaining the abortions
they desire, and thus suffer physical, emotional,
and other harm;
(c) The right of privacy accorded by the United
States Constitution to a woman’s decision
whether to terminate a pregnancy will be
violated for women seeking abortions in
Pennsylvania;
(d) The right to equal protection under the law
guaranteed to women by the United States
Constitution and the Pennsylvania Constitution
and the right to equality of rights under law
guaranteed by the Pennsylvania Constitution will
be violated;
(e) The rights of familial integrity, marital
integrity and free speech accorded by the United
States Constitution will be violated by operation
of the Act;
(f) Minors in Pennsylvania will suffer emotional
and physical harm to themselves and irreparable
70
damage to their families because of the parental
consent provisions in the challenged statutes;
and
(g) The right of plaintiff physicians to practice
medicine and communicate with their patients in
accordance with their best medical judgment and
the right of their patients to receive complete,
confidential and unbiased information will be
violated.
WHEREFORE, plaintiffs ask this Court:
A. To issue a temporary restraining order or
prelim inary injunction restrain ing
defendants, their employees, agents and
successors from enforcing the Abortion
Control Act;
B. To enter an order certifying this action as a
class action for each class described herein
and naming the respective parties as class
representatives;
C. To enter judgment declaring the
amendments to the Abortion Control Act to
be in violation of the United States
Constitution and permanently enjoining the
enforcement of its provisions;
D. To enter judgment declaring the
amendments to the Abortion Control Act to
be in violation of the Pennsylvania
Constitution;
E. To award plaintiffs their costs and attorneys’
fees pursuant to 42 U.S.C. § § 1988; and
F. To grant such other and further relief as this
Court shall find just and proper.
71
N _______________________
THOMAS E. ZEMAITIS
STEPHEN J. CIPOLLA
JODY MARCUS
Pepper, Hamilton &
Scheetz
3000 Two Logan Square
18th & Arch Streets
Philadelphia, PA
19103-2799
KATHRYN KOLBERT
American Civil Liberties
Union
Reproductive Freedom
Project
132 W. 43rd Street,
7th Floor
New York, NY 10036
LINDA WHARTON
Women’s Law Project
125 South Ninth Street
Suite 401
Philadelphia, PA 19105
ROGER K. EVANS
DARA KLASSEL
Planned Parenthood
Federation of America,
Inc.
810 Seventh Avenue
New York, NY 10019
Attorneys for Plaintiffs
72
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
PLANNED PARENTHOOD : CIVIL ACTION
OF SOUTHEASTERN : NO. 88-3228
PENNSYLVANIA, et al.
v. :
ROBERT P. CASEY, et al. :
ORDER
HUYETT, J. JANUARY 11, 1990
Upon consideration of the parties’ respective
positions as expressed at the conference on this date
attended by Thomas E. Zemaitis, Esquire, and Kathryn
Kolbert, Esquire, attorneys for plaintiffs, and Kate L.
Mershimer, Esquire, attorney for defendants, IT IS
ORDERED that this court’s preliminary injunction of
May 23, 1988 in this action is clarified as follows:
Paragraph 3 of the preliminary injunction, enjoining
the enforcement of certain provisions of Section 3214(a)
of the Act applies and will continue to apply to Section
3214(a) as amended by the 1989 amendments to the Act.
Act of November 17, 1989, No. 64, amending 18 Pa.
Cons. Stat. Ann. § § 3201-20.
Paragraph 6 of the preliminary injunction, enjoining
defendants from implementing or enforcing any provision
of the Pennsylvania Abortion Control Act of 1982 that
contains the term "medical emergency" as defined in
Section 3203 of the Act applies and will continue to
apply to all provisions of the Act that contain the term
"medical emergency," including, but not limited to, the
73
following provisions amended or added by the 1989
amendments to the Act: Sections 3205, 3206, 3209, 3210
and 3211(c).
IT IS SO ORDERED.
N ___________________________
Daniel H. Huyett, 3rd, Judge
74
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
PLANNED PARENTHOOD
OF SOUTHEASTERN
PENNSYLVANIA;
REPRODUCTIVE HEALTH
AND COUNSELING
CENTER;
WOMEN’S HEALTH
SERVICES, INC.; WOMEN’S
SUBURBAN CLINIC;
ALLENTOWN WOMEN’S
CENTER; AND THOMAS
ALLEN, M.D., on behalf of
himself and all others
similarly situated;
Plaintiffs,
v.
CIVIL ACTION
NO. 88-3228
(Judge Huyett)
CLASS ACTION
ROBERT P. CASEY,
N. MARK RICHARDS,
ERNEST PREATE, JR.,
personally and in their
official capacities, and
MICHAEL D. MARINO,
personally and in his
official capacity, together
with all others similarly
situated,
Defendants.
75
DEFENDANTS CASEY, RICHARDS, AND PREATE’S
ANSWER TO THE AMENDED COMPLAINT
Defendants, Governor Robert P. Casey, Secretary of
Health N. Mark Richards, and Attorney General Ernest
Preate, by their counsel, submit the following Answer to
the Amended Complaint in the above-captioned matter:
1-4. Paragraphs 1 through 4 contain conclusions
of law that require no response; to the extent they are
deemed factual, however, they are DENIED.
5-9. Paragraphs 5 through 9 are ADMITTED.
10. Paragraph 10 states a conclusion of law that
requires no response.
11. Paragraph 11 is ADMITTED.
12. Paragraph 12 states a conclusion of law that
requires no response.
13. It is ADMITTED that Robert P. Casey is the
Governor of Pennsylvania. The remainder of Paragraph
13 states conclusions of law that require no response.
14. It is ADMITTED that N. Mark Richards is the
Secretary of Health for the Commonwealth of
Pennsylvania. The remainder of Paragraph 14 states
conclusions of law that require no response.
15. It is ADMITTED that Ernest Preate, Jr. is the
Attorney General of Pennsylvania. The remainder of
Paragraph 15 states conclusions of law that require no
response.
15. It is ADMITTED that Michael D. Marino is the
District Attorney for Montgomery County, Pennsylvania.
The remainder of Paragraph 16 states conclusions of law
that require no response.
17. Paragraph 17 states conclusions of law that
require no response.
18. Paragraph 18 is ADMITTED.
19-21. Paragraphs 19 through 21 state conclusions
76
of law that require no response; to the extent they are
deemed factual, however, they are DENIED.
22-24. Paragraphs 22 through 24 state conclusions
of law that require no response; to the extent they are
deemed factual, however, they are DENIED.
25. It is ADMITTED that in 1988, 50,786 abortions
were performed in Pennsylvania and reported to the
Pennsylvania Department of Health. As to the remainder
of the averments in Paragraph 25, defendants, after
reasonable investigation, lack sufficient knowledge or
information to form a belief as to the truth of the
averments.
26. Paragraph 26 is ADMITTED with the exception
that 6.1%, rather than 6.2%, of the abortions performed
in Pennsylvania in 1988 were during the second
trimester.
27. It is ADMITTED that an abortion performed
earlier in a pregnant woman’s term is safer than an
abortion performed later in the term from the standpoint
of mortality. As to the remainder of Paragraph 27,
defendants, after reasonable investigation, lack sufficient
knowledge or information to form a belief as to the truth
of the averments because of the vagueness of the term
"extremely safe".
28. Paragraph 28 is ADMITTED in part. It is
ADMITTED that delay in performance of an abortion
generally increases the health risk that women face in
connection with the procedure to some degree, but it is
further ADMITTED that such increased risks are not
necessarily significant. As to the remainder of this
paragraph, defendants lack sufficient knowledge to form
a belief as to the truth of the averments.
29. As to the averment that physicians practicing at
clinics operated by the plaintiffs are subject to the
criminal and civil penalties contained in the Abortion
Control Act of 1982, as amended, [hereinafter the "Act"],
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such averments state conclusions of law that require no
response. As to whether such physicians refer women to
other physicians for abortions, defendants lack sufficient
knowledge or information to form a belief as to the truth
of the averment. The remainder of paragraph 29 is
ADMITTED.
30-31. Defendants, after reasonable investigation,
lack sufficient knowledge or information to form a belief
as to the truth of the averments in Paragraphs 30 and 31.
32. It is DENIED that plaintiffs provide abortion
services to women who need immediate abortions due to
a medical emergency. As to whether the plaintiffs
provide abortion services to women who travel long
distances to obtain such abortions, defendants are unable
to respond due to the vagueness of the term "long
distances." As to the remainder of the averments in
Paragraph 32, defendants, after reasonable investigation,
lack sufficient knowledge or information to form a belief
as to the truth of the averments.
33. Paragraph 33 states a conclusion of law that
requires no response; to the extent it is deemed factual,
however, it is DENIED.
34. As to the averment that the Act is the only
provision of law enacted by the General Assembly that
provides detailed regulation of a particular surgical
procedure, such averment states a conclusion of law that
requires no response. The remainder of Paragraph 34 is
DENIED.
35-39. Paragraphs 35-39 state conclusions of law
that require no response; to the extent they are deemed
factual, however, they are DENIED.
40. Paragraph 40 states a conclusion of law that
requires no response.
41. Paragraph 41 is ADMITTED to the extent that
plaintiffs have provided statistical information concerning
M.D.s. Nevertheless, plaintiffs have not provided
78
information about D.O.s who are also obstetricians/
gynecologists.
42. It is ADMITTED that some women who seek to
obtain an abortion in Pennsylvania may have to travel
distances that could range between 50 to 100 miles.
Otherwise, defendants, after reasonable investigation,
lack sufficient knowledge or information to form a belief
as to the truth of the averments.
43. Defendants, after reasonable investigation, lack
sufficient knowledge or information to form a belief as to
the truth of the averments and, therefore, they are
DENIED.
44. It is DENIED that women necessarily will be
required to take two trips to plaintiff providers or other
medical providers due to the 24-hour waiting period.
Otherwise, as to the remainder of the averments in
Paragraph 44, defendants, after reasonable investigation,
lack sufficient knowledge or information to form a belief
as to the truth of the averments.
45. As to the allegation that the 24-hour waiting
period mandated by the Act serves no legitimate state
interest, such averment states a conclusion of law that
requires no response. To the extent it is deemed factual,
however, it is DENIED. As to the remainder of the
averments in Paragraph 45, defendants, after reasonable
investigation, lack sufficient knowledge or information to
form a belief as to the truth of the averments.
46-47. Defendants, after reasonable investigation,
lack sufficient knowledge or information to form a belief
as to the truth of the averments and, therefore, they are
DENIED.
48. Paragraph 48 is DENIED.
49. Paragraph 49 states a conclusion of law that
requires no response. To the extent the averments are
deemed factual, however, they are DENIED.
50. Paragraph 50 states conclusions of law that
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require no response.
51. It is ADMITTED that sound medical practice
requires a physician to have an informed consent
dialogue with each patient. As to the remainder of the
averments in Paragraph 51, these averments state
conclusions of law that require no response; to the extent
they are deemed factual, however, they are DENIED.
52. Paragraph 52 is ADMITTED with the exception
that it is DENIED that the Pennsylvania law governing
abortions prohibits a physician from exercising his or her
sound medical discretion.
53-54. Paragraphs 53 and 54 state conclusions of
law that require no response.
55. Paragraph 55 is DENIED.
56-57. Paragraphs 56 and 57 state conclusions of
law that require no response; to the extent they are
deemed factual however, they are DENIED.
58. Paragraph 58 is ADMITTED.
59. Paragraph 59 states conclusions of law that
require no response.
60-61. Paragraphs 60 and 61 state conclusions of
law that require no response; to the extent they are
deemed factual, however, they are DENIED.
62. Paragraph 62 states conclusions of law that
require no response.
63-64. Paragraph 63 and 64 state conclusions of law
that require no response; to the extent they are deemed
factual, however, they are DENIED.
65. Defendants, after reasonable investigation, lack
sufficient knowledge or information to form a belief as to
the truth of the averments.
66. Paragraph 66 states a conclusion of law that
requires no response; to the extent it is deemed factual,
however, it is DENIED.
67. Paragraph 67 states a conclusion of law that
requires no response.
80
68. It is ADMITTED that the Supreme Court of
Pennsylvania has not issued implementing rules regarding
Section 3206(f) of the Act. It is DENIED that pregnant
minors availing themselves of the judicial bypass
procedure cannot be sure that their rights to
confidentiality and expedited consideration will be
preserved. Defendants lack sufficient knowledge or
information to form a belief as to whether the Common
Pleas courts of "many" counties are now straining under
the burden of overloaded dockets and a shortage of
judges and court personnel. Defendants are unable to
ADMIT or DENY whether the trial courts or the
appellate courts of the Commonwealth of Pennsylvania
are prepared to effecttuate Section 3206(f) to assure
expedition and confidentiality due to the vagueness of
the term "prepared to effectuate"; nevertheless,
defendants maintain that the trial and appellate courts of
the Commonwealth of Pennsylvania are required to obey
all Commonwealth laws. As to the remainder of the
averments in Paragraph 68, they state conclusions of law
that require no response; to the extent they are deemed
factual, however, they are DENIED.
69. Paragraph 69 states a conclusion of law that
requires no response.
70. Paragraph 70 states a conclusion of law that
requires no response.
71. Paragraph 71 states a conclusion of law that
requires no response; to the extent the averments are
deemed factual, however, they are DENIED.
72. Defendants, after reasonable investigation, lack
sufficient knowledge or information to form a belief as to
the truth of the averments in Paragraph 72, with the
exception that it is DENIED that Section 3209 will
damage the integrity of marital relationships.
73. Paragraph 73 states a conclusion of law that
requires no response; to the extent it is deemed factual,
81
however, it is DENIED.
74. As to plaintiffs’ averments regarding possible
delay when spouses are living apart, defendants, after
reasonable investigation, lack sufficient knowledge or
information to form a belief as to the truth of the
averment. The remainder of Paragraph 74 is DENIED.
75. Defendants, after reasonable investigation, lack
sufficient knowledge or information to form a belief as to
the truth of the averment and, therefore, they are
DENIED.
76. Paragraph 76 states a conclusion of law that
requires no response. To the extent it is deemed factual,
however, it is DENIED.
77. Paragraph 77 states a conclusion of law that
requires no response.
78. Paragraph 78 states conclusions of law that
require no response; to the extent they are deemed
factual, however, they are DENIED.
79. Defendants, after reasonable investigation, lack
sufficient knowledge or information to form a belief as to
the truth of the averments in Paragraph 79.
80-82. Paragraphs 80 through 82 state conclusions
of law that require no response. To the extent they are
deemed factual, however, the averments are DENIED.
83. Paragraph 83 is ADMITTED.
84. Paragraph 84 states a conclusion of law that
requires no response.
85. Paragraph 85 is DENIED.
86. Paragraph 86 states conclusions of law that
require no response; to the extent they are deemed
factual, however, they are DENIED.
87. Paragraph 87 states a conclusion of law that
requires no response.
88. Paragraph 88 states a conclusion of law that
requires no response. To the extent the averment is
deemed factual, however, it is DENIED.
82
89. It is ADMITTED that modern technology now
enables physicians to determine with extreme accuracy
the gestational age of a fetus. The remainder of
Paragraph 89 is DENIED is stated. It is ADMITTED
that an experienced physician may be able, through
discussion and physical examination, to generally
determine the length of a pregnancy for purposes of
choosing an abortion technique, but it is DENIED that
all physicians will always be able to determine pregnancy
lengths or gestational ages by such methods.
90. Paragraph 90 states conclusions of law that
require no response; to the extent the averments are
deemed factual, however, they are DENIED.
91-92. Paragraphs 91 and 92 state conclusions of
law that require no response.
93. Paragraph 93 states a conclusion of law that
requires no response. To the extent the averment is
deemed factual, however, it is DENIED.
94. It is ADMITTED that abortion providers in the
Commonwealth and the United States have experienced
protests in various forms, including some of the methods
identified in this paragraph. Otherwise, defendants, after
reasonable investigation, lack sufficient knowledge or
information to form a belief as to the truth of the
averments in Paragraph 94.
95. It is DENIED that disclosure of reports filed by
facilities receiving state-appropriated funds has the
purpose and effect of penalizing physicians who perform
abortions or medical providers by exposing them to
violent actions, harassment, or interference with business
relationships by persons who oppose abortion. As to the
remainder of the averments in Paragraph 95, they state
conclusions of law that require no response. To the
extent such averments are deemed factual, however, they
are DENIED.
96. Defendants, after reasonable investigation, lack
83
sufficient knowledge or information to form a belief as to
the truth of the averments and, therefore, they are
DENIED.
97-101. Paragraphs 97 through 101 state conclusions
of law that require no response; to the extent they are
deemed factual, however, they are DENIED.
102. Paragraph 102 states conclusions of law that
require no response.
103-104. Paragraphs 103 and 104 state
conclusions of law that require no response; to the extent
they are deemed factual, however, the averments are
DENIED.
105. Defendants hereby incorporate by reference
their answers to Paragraphs 1 through 104 above.
106. Paragraph 106 states conclusions of law that
require no response; to the extent the averments are
deemed factual, however, they are DENIED.
107. Defendants hereby incorporate by reference
their answers to Paragraphs 1 through 106 above.
108. Paragraph 108 states conclusions of law that
require no response; to the extent the averments are
deemed factual, however, they are DENIED.
109. Defendants hereby incorporate by reference
their answers to Paragraphs 1 through 108 above.
110. Paragraph 110 states conclusions of law that
require no response; to the extent the averments are
deemed factual, however, they are DENIED.
111. Defendants hereby incorporate by reference
their answers to Paragraphs 1 through 110 above.
112. Paragraph 112 states conclusions of law that
require no response; to the extent the averments are
deemed factual, however, they are DENIED.
113. Defendants hereby incorporate by reference
their answers to Paragraphs 1 through 112 above.
114. Paragraph 114 states conclusions of law that
require no response; to the extent the averments are
84
deemed factual, however, they are DENIED.
115. Defendants hereby incorporate by reference
their answers to Paragraphs 1 through 114 above.
116. Paragraph 116 states conclusions of law that
require no response; to the extent the averments are
deemed factual, however, they are DENIED.
117. Paragraph 117 states conclusions of law that
require no response; to the extent the averments are
deemed factual, however, they are DENIED.
FIRST DEFENSE
The amended complaint fails to state a claim upon
which relief can be granted.
SECOND DEFENSE
The Abortion Control Act of 1982, as amended in
1988 and 1989, does not violate the Constitution of the
United States.
THIRD DEFENSE
Plaintiffs cannot satisfy that prerequisite to
preliminary or permanent injunctive relief.
FOURTH DEFENSE
The Complaint fails to state a case or controversy
under Article III of the Constitution of the United
States.
FIFTH DEFENSE
Suit against the defendants in their personal
capacities is meritless, frivolous, or vexatious.
85
Respectfully submitted,
ERNEST D. PREATE, JR.
Attorney General
By: /s /______________
KATE L. MERSHIMER
Deputy Attorney General
JOHN G. KNORR, III
Chief Deputy Attorney
General
Chief, Litigation Section
Office of Attorney General
15th Floor, Strawberry
Square
Harrisburg, PA 17120
717/783-1471
Date: January 25, 1990
86
STIPULATION OF UNCONTESTED FACTS
Plaintiffs and Defendants, by their respective
undersigned counsel, hereby stipulate and agree that,
solely for purposes of this litigation, the following facts
are uncontested. This stipulation is made without
prejudice to any party’s right to challenge the relevance
of any uncontested fact to the matters at issue in this
litigation.
1. Plaintiff Thomas E. Allen is a physician licensed
to practice medicine in Pennsylvania and is an Associate
Clinical Professor in the Department of Obstetrics and
Gynecology at the University of Pittsburgh. He
graduated from the University of Pittsburgh School of
Medicine. He is an emeritus staff member of Magee
Women’s Hospital, is on the Consulting Staff of
Presbyterian University Hospital, and is Medical Director
of Women’s Health Services Incorporated. He has been
a Diplomate of the American Board of Obstetrics and
Gynecology since 1954, has been a Fellow of the
American College of Obstetrics and Gynecology since
1955, and a Fellow of the Pittsburgh Obstetrical and
Gynecological Society since 1974. From 1972 to the
present, Dr. Allen has been active in planning,
establishing and administering Women’s Health Services,
Pittsburgh’s first free standing abortion clinic. From
1970 to 1979, he was active in establishing and
contributing services to the Pittsburgh Free Clinic. Dr.
Allen has a private obstetrical and gynecological practice
with one other specialist.
2. Plaintiff Planned Parenthood of Southeastern
Pennsylvania (PPSP) is non-profit corporation providing
comprehensive family planning, medical and counseling
services, including birth control education, pregnancy
testing and counseling, gynecological care, first trimester
87
abortions and vasectomies at medical clinics in
Philadelphia, Montgomery and Delaware counties. The
Center City Philadelphia clinic offers these services
Monday through Friday. Abortions are performed on
Wednesdays, Thursdays, Fridays and Saturdays at PPSP’s
Center City Philadelphia Clinic.
3. PPSP performs approximately 2,800 first
trimester abortions a year. The abortion procedure
presently costs full-payment patients $240 if the woman
is 12 weeks or less from her last menstrual period. All
fees cover only the direct costs of the procedure,
including personal counseling, medical testing and
examination, the abortion procedure, medical supervision
during the post-surgical recovery, and a post-abortion
examination.
4. PPSP charges $180 for abortions for women who
are on medical assistance but whose abortions are not
reimbursable by the state.
5. PPSP accepts state medical assistance
reimbursement in lieu of direct payment for abortions for
victims of rape and incest, and for women with
life-threatening conditions. In 1987, approximately 53 of
the abortions performed at PPSP were reimbursed by the
Commonwealth.
6. In 1987, PPSP performed 359 abortions for
women under the age of 18.
7. When a woman believing she is pregnant
presents herself at a PPSP clinic, she is given a
pregnancy test and examined by a nurse practitioner or
physician. Women who believe they have just recently
become pregnant are offered early detection by means of
a blood test or special urine test. Once it is determined
that she is pregnant, the woman is encouraged to
participate in an individual options counseling session
with a PPSP counselor.
8. Options counselors are volunteers or staff
88
counselors who have completed a special training
program under the supervision of PPSP counselors and
other senior staff. This training program consists of 43
hours of group sessions that focus on factual information
regarding adoption, abortion, contraception and referral
resources. The course also gives participants the
opportunity to evaluate, explore and share their attitude
and feelings. The course is certified by Temple
University. Participants receive four CEU credits for
completion of the training.
9. Abortion counselors are members of PPSP’s
counseling staff or college student interns working under
the supervision of a staff counselor. These counselors
have college backgrounds and experience in a health or
social services related field. All have had on-site training
in pregnancy counseling and abortion care and are
required to participate in ongoing in-service training.
10. Each PPSP client participates in an individual
abortion counseling session on the day her procedure is
scheduled. In this session, the counselor and the woman
discuss the women’s medical history, personal situation
and feelings about abortion. The counselor explains the
abortion procedure and its risks. Post-abortion care and
contraceptive plans are also explored. If the client has
been accompanied to the clinic by a person she wishes to
involve in the counseling, that person will be included in
part of this session. In some cases the abortion
counselor will serve as the support person and
accompany the woman through the procedure.
11. PPSP counseling sessions for minors are more
extensive, to assure that minors are informed of all
options, and are making a free and informed choice. In
the course of the counseling session, minors are given
detailed information on the procedure and its risks.
Minor women are also counseled on future contraceptive
care. When a minor does choose to involve a parent or
89
other supportive adult such as an aunt, guardian or older
sibling, the counselor will first meet privately with the
minor. Then, at the counselor’s discretion and with the
minor’s consent, the parent or adult will be brought in
for joint counseling.
12. Plaintiff Reproductive Health and Counseling
Center (RHCC) is a for-profit corporation in Chester,
Pennsylvania, which operates a clinic that performs
approximately 2,900 first and early second trimester
abortions annually.
13. RHCC employs a staff of approximately four
physicians, one nurse practitioner, and two full-time and
two part-time counselors. Abortions are performed on
Tuesday, Wednesday and Friday afternoons. Additional
counseling services are available by appointment.
14. First trimester abortions (up to 12 weeks from
the last menstrual period) with local anesthesia cost
RHCC clients $220. For abortions from 12 to 16 weeks
from the last menstrual period the cost is $375, plus an
additional $70 for a required ultrasound.
15. If RHCC’s clients are eligible for medical
assistance reimbursement, RHCC seeks reimbursement
from the Commonwealth. In 1987, RHCC was
reimbursed for no more than 20 such abortions. The
reimbursement rate was $59.50 to the clinic and $81.50
to the physician.
16. Where a client receives medical assistance from
the state but is not eligible for medical assistance for an
abortion, RHCC provides a $50 cost reduction for first
trimester abortions with local anesthesia.
17. While RHCC’s clients come primarily from
Delaware, Philadelphia, Chester and Bucks counties,
approximately 3-4% of its clients come from areas in
excess of three hours travelling time.
18. In 1987, RHCC performed abortions on 349
minors. Approximately 60% of these minors were
90
accompanied by a parent. All minors who choose not to
be accompanied by a parent are required to bring a
responsible adult with them to RHCC who will stay in
the building as long as the minor is there and will
accompany the minor home.
19. A women’s first contact with RHCC is usually by
telephone. Women who call RHCC may or may not
have had a pregnancy test prior to calling. Before any
appointment is made, she must have had a positive
pregnancy test. Telephone counselors refer the woman
to RHCC or to the agency closest to her home or place
of work for the test.
20. If a woman has a positive pregnancy test and
wants to terminate the pregnancy, RHCC will schedule
an abortion appointment, usually within one week’s time.
If the woman indicates uncertainty about her decision,
the telephone counselor will recommend her making an
appointment to talk further with an options counselor
about her decision.
21. RHCC strongly urges options counseling for all
minors who have not involved their parents in the
decision.
22. In an options counseling session, an RHCC
counselor talks with the woman about her feelings about
her pregnancy. The purpose of the session is to let the
woman know about each of the three options available
to her: carrying to term and keeping the child, carrying
to term and giving the child up for adoption, and
abortion. Where appropriate, the woman is urged to talk
about these options with supporting family members and
friends. The role of the counselor in these sessions is to
support the decision of the woman and to provide
information that would be necessary as she acts on her
decision.
23. Pre-abortion counseling at RHCC, which each
woman must participate in on the day of her abortion
91
and which is different from options counseling, involves a
discussion of the woman’s decision, a review of her
medical history and a description of the risks and
complications of the abortion procedure. The informed
consent part of the session is done with groups of four
women. The counselor describes the medical procedure,
reviews the risks and complications, and answers
questions or addresses concerns. RHCC also provides
counseling to the person or persons who accompany
women for abortions.
24. Pre-abortion and options counselors are trained
and supervised by RHCC’s head counselor who has nine
years counseling experience.
25. Plaintiff Women’s Health Services, Inc. (WHS)
in Pittsburgh, Pennsylvania, is a non-profit health center
providing fertility control education, pregnancy
counseling, general counseling for individuals and
couples, PMS counseling and treatment, contraceptive
and gynecological care, public education and first and
early second trimester abortions. WHS has a staff of
approximately 75 people (including 8 physicians, 14
nurses and 33 counselors) and offers ongoing programs
which are inclusive of approximately 2,700 client contacts
a month.
26. Free pregnancy testing and counseling are
available at WHS daily, Monday through Saturday.
Abortions are performed Tuesdays, Fridays and
Saturdays. Gynecology clinics are held on Wednesdays
and Thursdays and any other day a patient’s condition
dictates. Once their pregnancy is diagnosed, clients
usually schedule their abortions by telephone.
27. WHS provides approximately 12,900 free
pregnancy tests and 7,000 first and early second trimester
abortions each year. The abortion procedure as WHS
costs as follows: $330 if twelve weeks or less from the
last menstrual period; $430 if thirteen to fourteen weeks
92
from the last menstrual period; and $650 if fifteen to
sixteen weeks from the last menstrual period. The fee
includes the abortion procedure, laboratory testing,
personal counseling, contraceptive care, pathological
examination and medical supervision during the
post-surgical recovery period.
28. If clients are eligible for medical assistance,
WHS takes the necessary information and seeks
reimbursement from the Commonwealth. Medical
assistance is available only where the abortion is
necessary because of life-threatening condition, or
because the patient was a victim of rape or incest. In
1989, WHS was reimbursed for 46 such abortions.
29. Where a client receives medical assistance from
the state, but is not eligible for medical assistance for an
abortion, WHS nevertheless will discount the cost of the
abortion. Last year WHS accommodated 1,170 clients
who were unable to pay the full amount. WHS has
never turned away any client seeking an abortion merely
because of inability to pay.
30. WHS’s clients come primarily from Allegheny
County. In 1989, however, 909 of their abortion patients
came from areas in excess of two hours traveling time
(100 miles) from the clinic.
31. In 1989, 703 of WHS’s abortion patients were
under the age of 18. WHS presently encourages minors
to bring a parent or other adult with them. Because
WHS believes that parental involvement should be
encouraged, clinic counselors are instructed to offer to
speak with a minor’s parents if the minor would prefer
that to making direct contact herself. When minors
refuse to inform their parents under any circumstances,
their wishes are currently respected.
32. When a patient presents herself at the WHS
clinic, she receives a pregnancy test and blood tests.
33. All women are required to have an individual
93
interview with a counselor on the day their abortion is to
be performed. During this interview, a woman is
counseled with respect to her options and her decision to
have an abortion. Information regarding the risks and
benefits of the abortion procedure and the patients’
medical history is provided to her. In that connection,
the counselor seeks to ensure that the woman is not
unduly ambivalent about her decision and that she is not
being coerced. In addition, the counselor discusses
future contraceptive use with the patient.
34. If the client appears ambivalent about her
decision, the counselor will refer her to one of the staff
therapists and the abortion will be rescheduled to give
the patient more time to consider her options. On
occasion, the clinic will refuse to perform the abortion if
convinced of a patient’s continued ambivalence. This is
rare.
35. When a parent accompanies a minor seeking an
abortion, WHS first counsels the minor with respect to
her options and her decision to have an abortion, and
also provides her with information on future
contraceptive use. The parent is then asked to join the
minor, at which time the abortion procedure and possible
complications are described. The counselor also answers
any questions they might have. An informed consent
form is then read out loud to the parent and minor while
they follow along with their own copies. Each then signs
the form in the medical record.
36. Options counseling is provided on the day of the
procedure by WHS paraprofessional counselors who are
selected on the basis of personal qualifications and
maturity.
37. Extensive and intensive problem pregnancy
counseling is available at WHS at no charge to clients
either before or after a decision with respect to an
abortion has been made, regardless of what that decision
94
may be. Personal counseling is also available after the
abortion procedure and clients are encouraged to take
advantage of the service.
38. At present, WHS’s director of personal
counseling holds a Ph.D.
39. Personal counselors at WHS are professional
therapists who have at least five years of clinically
supervised experience at the master’s degree level or
above.
40. Both paraprofessional and professional
counselors at WHS are required to begin their
employment with a week of classroom preparation,
consisting of approximately 35 hours of medical and
counseling orientation to the abortion clinic. This
instruction is provided by the associate medical director,
director of counseling, and director of clinic services.
41. The medical information to be presented is
developed under the supervision of a physician, the WHS
associate medical director. The counseling protocols are
developed and presented under the supervision of the
director of counseling who holds a Ph.D. from the
University of Pittsburgh. WHS also has an ongoing
training module comprised of monthly in-services and
quarterly individual supervision.
42. Plaintiff Women’s Suburban Clinic (WSC) is a
non-profit corporation in Paoli, Pennsylvania which
operates a health care facility providing abortions,
ongoing gynecological services, mini-laparoscopies,
pregnancy testing, community education and counseling.
43. WSC performs approximately 3,350 first
trimester abortions a year. Abortions are performed
Tuesdays, Wednesdays and Thursdays.
44. Of the approximately 3,350 abortions WSC
performed in 1987, 410 (12.25%) were performed on
minors.
45. The fee for an abortion at WSC is $275. At
95
present WSC accepts state medical assistance
reimbursement for abortions for cases of rape, incest and
life endangerment. Approximately 40 such claims per
year are reimbursed by the Commonwealth.
46. Appointments for counseling and abortions are
made through WSC telephone counselors. A positive
pregnancy test is required before an abortion is
scheduled.
47. Depending upon patient interest and availability,
appointments are made at WSC in one of the following
ways:
a. If a woman requests counseling and the
abortion on the same day, the first available appointment
is given. There is often a one to two week wait in
obtaining such an appointment. Approximately 70% of
the abortion appointments are scheduled this way.
b. If a woman wants to see a counselor prior to
the day of her abortion, a pre-abortion counseling session
is made. Approximately 30% of the abortion
appointments are scheduled this way.
48. All minors who have not informed a parent
about their decision to have an abortion are asked to
come to WSC for pre-counseling before the abortion
appointment. This is done to give adolescents the
opportunity to explore with a counselor their reasons for
not involving their parents and affords them the time and
opportunity to reevaluate that decision prior to the
abortion.
49. A woman who calls WSC and expresses concern
and confusion over an unwanted pregnancy is offered an
opportunity to see a counselor to discuss her options.
Resource information is available for options including
keeping the child, foster care and adoption. Information
concerning maternity homes is also available for those
women who wish to carry their pregnancy to term.
50. All counseling at WSC is provided on an
96
individual basis by a trained counselor. All but one
member of WSC’s counseling staff have master’s degrees;
the other has a bachelor’s degree with several years
experience in counseling and family planning. All have
backgrounds in various fields of human services.
51. It is WSC’s policy that in order to counsel
effectively, without becoming overstressed by the
emotional demands of the job, counselors are not
permitted to provide counseling for more than 20 hours
a week.
52. WSC encourages that partners and/or parents be
seen by the counselor during or after the counseling
session. However, all clients are first seen alone by a
WSC counselor.
53. Counseling at WSC is provided in an objective,
nonjudgmental manner. The client’s decision is reviewed
and explored. The counselor also reviews the client’s
medical history, describes the abortion procedure,
reviews birth control methods and goes over the
informed consent form. Disclosure of medical risks and
benefits is made as well. Also, post-abortion
information, including what to do in the event of an
emergency, is reviewed.
54. For women who express ambivalence over their
abortion decision, the WSC counselor will further
explore the issues. If the counselor feels that the woman
is not sure of her decision, it is suggested that she take
some time to reevaluate her choice. Additional
counseling is available to assist the woman to come to a
decision with which she feels comfortable.
55. Plaintiff Allentown Women’s Center (AWC) is a
for-profit corporation in Allentown, Pennsylvania which
operates a clinic providing pregnancy testing and
counseling, contraceptive and gynecological care and first
trimester abortions.
56. AWC provides approximately 5,300 pregnancy
97
tests and 4,000 first trimester abortions each year.
57. Abortions are performed at AWC three to five
days a week, depending on patient need.
58. The abortion procedure at AWC costs $280, with
additional charges for services such RhoGam shots for
women more than 12 weeks’ pregnant, and general
anesthesia. The fee includes personal counseling both
before and after the abortion, the abortion procedure,
laboratory testing, and medical supervision during the
post-surgical period.
59. For patients who receive medical assistance from
the Commonwealth, AWC’s fee for an abortion is $225.
60. In the case of those medical assistance patients
who require an abortion because of a life-threatening
disease or because they were victims of rape or incest,
AWC has received reimbursement from the state, so that
no fee was charged directly to the patient. In 1987,
AWC received less than $4,000 in medical assistance
funds.
61. AWC’s patients come primarily from an
18-county area in northeastern Pennsylvania
encompassing the counties of Lehigh, Northampton,
Carbon, Schuylkill, Luzerne, Lackawanna, Lebanon,
Berks, Bucks, Pike, Chester, Lancaster, Susquehanna,
Wayne, Monroe, Montgomery, Columbia and Wyoming.
Many of these counties have no clinics or hospitals at
which abortions are performed, AWC being the closest
facility to which the women can come.
62. In 1987, 563 of AWC’s abortion patients were 17
or under. Of these, 3 were age 13; 32 were age 14; 64
were age 15; 178 were age 16; and 286 were age 17.
63. AWC encourages its minor patients to involve
their parents in the abortion decision and to bring a
parent or other supporting adult with them at the time of
counseling and the procedure. Clinic counselors are
routinely available to speak with a minor’s parents.
98
When a minor refuses to inform her parents under any
circumstances, AWC respects those wishes.
64. In most cases, appointments for counseling and
abortions at AWC are made through AWC’s telephone
counselors. A positive pregnancy test is required before
an abortion will be scheduled. When a woman calls
requesting an abortion, the telephone counselor collects
personal data, menstrual history and medical history. If
the caller is a minor, the telephone interview is more
extended to assure that the minor fully understands what
she must do and what the procedure will involve.
65. When a telephone counselor makes an
appointment, pre-abortion instructions are given to the
woman. These instructions include what the woman
must do and what she must bring with her on the day of
the appointment.
66. Any woman who calls AWC and expresses
concern and confusion over an unwanted pregnancy is
offered an opportunity to see a counselor to discuss her
options. Resource information is available for options,
including keeping the child, foster care and adoption.
Information concerning prenatal care, welfare and
support services is also available for those women who
wish to carry their pregnancy to term.
67. A nurse practitioner or physician’s assistant is
available to examine all women and, where necessary,
provide a pregnancy test and blood work-up. In
addition, all women are required to have an individual
interview with a counselor on the day their abortion is
scheduled. In this interview, the abortion procedure and
other alternatives are explained to the woman.
68. If the patient appears ambivalent about her
decision to have an abortion, the AWC counselor will
review options and suggest that the patient take more
time to consider her decision before terminating the
pregnancy. On occasion, the clinic has refused to permit
99
an abortion if, after consultation, the counselor and the
clinic supervisor are convinced of the woman’s extreme
ambivalence, coercion, or that she is otherwise overly
distraught. Sometimes, they will refer these women to
outside counselors. Such instances are infrequent.
69. When a parent does accompany a minor to the
AWC clinic, a counselor will first meet privately with the
minor. After assuring that the minor has reached her
decision to have an abortion freely and without coercion,
the counselor will give the minor the option to continue
the counseling session jointly with her parent, or to be
counseled separately. In either case, the counselor will
describe the procedure and possible complications as
well as answer any questions they may have. The minor
is then asked to sign an informed consent form.
70. When a minor chooses not to have a parent
involved, AWC counselors explore and encourage the
involvement of a supporting adult. Counseling of a
minor who has not informed her parents is more
extensive and includes a discussion of why she has
chosen not to involve her parents.
71. The options counseling provided on the day of
the procedure at AWC is conducted by paraprofessional
staff counselors who are selected on the basis of personal
qualifications. Most of the counseling staff have
bachelor’s degrees. Two are presently working on
master’s degrees. All have backgrounds in various fields
of human services.
72. All of AWC’s counselors are required to begin
their employment with at least a week of orientation.
Instruction is provided by the Director, the nurse
practitioner, the Patient Services Coordinator and other
counseling staff. During the first several months of work,
the new staff has frequent meetings either on an
individual basis or as a group with administrative staff to
reinforce correct integration of medical information and
1 0 0
continued development of interviewing skills.
73. All medical information is developed and
presented under the supervision of a physician who is
AWC’s medical director. The counseling protocols are
developed under the supervision of the Patient Services
Coordinator.
74. On March 25, 1988, Act. No. 31, amending the
Pennsylvania Abortion Control Act of 1982, 18 Pa.C.S.A.
§§ 3201-20, was enacted. Act 31 was scheduled to take
effect thirty days after enactment, or April 24, 1988.
75. On November 17, 1990, Act No. 64, further
amending the Pennsylvania Control Act of 1982 was
enacted. Act 64 was scheduled to take effect sixty days
after enactment, on January 16, 1990.
76. In 1988, 50,786 abortions were performed in
Pennsylvania and reported to the Pennsylvania
Department of Health.
77. Of the 50,786 abortions performed in
Pennsylvania in 1988, 47,548 (93.6%) were performed
within the first three months of pregnancy.
78. Patients under the age of 18 accounted for
11.6%, or 5,888 of the abortions reported in Pennsylvania
in 1988.
79. Of the 50,786 abortions performed in
Pennsylvania and reported to the Department of Health,
47,802 were performed on Pennsylvania residents.
Residents of other states and territories accounted for
2,975 abortions, and residents of other countries
accounted for 9. Of the 1988 abortion patients residing
in Pennsylvania, 15,269 (30%) resided in Philadelphia;
7,337 (14%) resided in Allegheny County; 2,863 (6%)
resided in Montgomery County, 2,270 (4%) resided in
Delaware County; and 2,141 (4%) resided in Bucks
County.
80. Of the 50,786 abortions performed in
Pennsylvania and reported to the Department of Health
1 0 1
in 1988, 1 was performed on women age 11 or less; 20
were performed on women age 12; 113 were performed
on women age 13; 377 were performed on women age
14; 855 were performed on women age 15; 1,702 were
performed on women age 16; 2,820 were performed on
women age 17.
81. Of all abortions performed in Pennsylvania in
1988 and reported to the Department of Health, 50,256
involved a dilation, evacuation, and curettage procedure.
Intrauterine saline instillation accounted for 471
abortions. Intrauterine prostaglandin instillation was the
procedure for 41. One abortion was performed by a
hysterotomy procedure, and none was performed by
hysterectomy.
Respectfully submitted,
N ________________________
THOMAS E. ZEMAITIS
STEPHEN J. CIPOLLA
JODY KATHLEEN MARCUS
PEPPER, HAMILTON &
SCHEETZ
3000 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103
(215) 981-4000
N ______________________
KATE L. MERSHIMER
Deputy Attorney
General
Office of Attorney
General
15th Floor, Strawberry
Square
Harrisburg, PA 17120
(717) 783-1471
KATHRYN KOLBERT Attorney for Defendants
American Civil Liberties
Union
Reproductive Freedom
Project
132 W. 43rd Street, 7th Floor
New York, NY 10036
1 0 2
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PLANNED PARENTHOOD
OF SOUTHEASTERN
PENNSYLVANIA, et al.,
Plaintiffs
v.
ROBERT P. CASEY, et al.,
CA. 88-3228
(Judge Huyett)
(Class Action)
Defendants
SUPPLEMENTAL STIPULATION OF
UNCONTESTED FACTS
Plaintiffs and Defendants, by their respective
undersigned counsel, hereby stipulate and agree that,
solely for purposes of this litigation, the following facts
are uncontested. This stipulation is made without
prejudice to any party’s right to challenge the relevance
of any uncontested fact to the matters at issue in this
litigation.1
82. During 1989, minor women received abortions at
plaintiff clinics as follows:
RHCC: 14 years and under - 27
15-17 years - 267
1 The parties previously filed 81 stipulations of uncontested facts on
July 6, 1990. Subsequently, the parties stipulated to additional
uncontested facts. For ease in reference, these supplemental
stipulations will commence with paragraph 82.
AWC:
WSC:
PPSEP
WHS
103
13 years old - 4
14 years old - 22
15 years old - 71
16 years old - 160
17 years old - 257
12 years - 1
13 years - 6
14 years - 15
15 years - 27
16 years - 66
17 years - 119
12 years - 2
13 years - 14
14 years - 27
15 years - 80
16 years - 122
17 years - 189
12 years - 2
13 years - 11
14 years - 33
15 years - 117
16 years - 226
17 years - 314
83. The risk of death from an abortion is dependent
upon numerous factors, which factors include length of
gestation, the type of procedure used to perform the
abortion, the medical condition of the patient, and the
skill of the physician performing the abortion.
85. WHS does not perform abortions after 17 weeks
gestation.
86. At Magee, an ultrasound or sonogram is used to
determine gestational age for pregnancies beyond 12
104
weeks.
87. At WHS, an ultrasound or sonogram is used to
determine gestational age for any pregnancies beyond 14
weeks.
88. None of the plaintiffs have physicians who
perform abortions without the physicians talking to the
women prior to the abortion procedure.
89. Dr. Allen always does some counseling with his
patient prior to a procedure and goes over the informed
consent form with them.
90. Both WHS and Magee take a patient’s history
prior to performing an abortion.
91. In Dr. Allen’s private practice, a patient
completes a history form, which is sort of a health
questionnaire, which is then amplified by a nurse’s
questions and further amplified by the physician when he
sees her.
92. At WHS, the patient completes the history form,
which is gone over by a counselor, and then the physician
reviews it prior to performing the abortion.
93. Dr. Allen signs the Department of Health
reporting forms for Magee but WHS uses his signature
stamp for such forms.
94. No abortion can be performed on a minor at
Magee without a parent’s written consent.
95. Approximately 30% of Dr. Allen’s patients
seeking abortions are minors.
96. If a parent comes with a minor for an abortion
procedure at Magee, Dr. Allen will speak to the parent
too. If a parent comes with a minor for an abortion
procedure at WHS, a counselor speaks to the parent.
97. When a parent accompanies a minor at WHS,
the parent is involved in the counseling session, and
particularly as to informed consent. Fifty percent of the
minors who go to WHS are accompanied by a parent.
98. If a patient is ambivalent about having an
105
abortion and decides to postpone the procedure to have
additional counseling, that will cause a delay in the
performance of an abortion.
99. Plaintiffs encourage minors to bring their parents
with them to the clinics and plaintiffs further encourage
parental involvement with a minor’s decision concerning
an abortion.
100. There can be delays in performing an
abortion on a minor who chooses to wait for her parent
to be able to come to the clinic, which delay can exceed
2 weeks.
101. If a parent accompanies a minor, WHS
explains the abortion procedure and possible
complications to the minor and the parent, reads the
informed consent provisions out loud, and has both sign
it.
102. At WHS the average counseling takes 20
minutes.
103. WHS has a hot-line for women to call if they
have any unusual symptoms or problems after an
abortion to make sure there is immediate treatment.
104. Abortion is another "pregnancy outcome", in
addition to births and fetal deaths, upon which the
Health Statistics Division gathers information.
105. WHS provides information to the National
Abortion Federation and the Alan Guttmacher Institute,
including information concerning complications and the
frequency that WHS’s patients report them or WHS
observes them.
106. There are various methods for determining
gestational age, including physical examination, patient
medical history, and ultrasound.
107. All plaintiffs make a determination of
gestational age prior to performing an abortion.
108. The plaintiff clinics utilize the following
methods of determining gestational age at the following
106
charges:
RHCC: Pelvic examination $10.00
Ultrasound $70.00
AWC: Medical history and pelvic examination -
cost included in $280 fee for abortion
procedure
Sonogram - $50.00
WSC: (1) Date of last menstrual period as told to
WSC by client; and (2) Pelvic
examination by physician performing
abortion just prior to starting the
abortion.
Occasionally, when a client is unsure of
her last menstrual period or is late in
her first trimester, the physician will do
a pelvic examination separate from the
procedure of abortion.
PPSEP: Pelvic sizing is performed by the
physician prior to each abortion
procedure. This is included in the fee
for the abortion. An ultrasound is
performed on all patients in their last
two weeks of the first trimester to
determine gestational sizing. This is
done by a staff RN or Medical Assistant
whose pay per hour ranges from $8.60 to
$13.60. Each ultrasound requires
approximately fifteen minutes to
perform. Other staff involvement would
include telephone scheduling of
appointment at $9 per hour and intake
107
procedure at $9.80 per hour. Cost to
patient is $25 - $50. The clinic would
incur additional costs for supplies and
equipment.
WHS: Prior to the abortion, the length of the
pregnancy during the first fourteen
weeks is determined by the length of
time since the first day of the last
normal menstrual period. This is
verified by pelvic examination prior to
the performance of the abortion. No
fee is charged for this examination. If
the woman is uncertain of the date of
her last menses or the date indicates the
pregnancy is greater than fourteen weeks
LMP, the length of pregnancy is
determined by a pelvic examination at a
fee of $30 and ultrasonography at a fee
of $100.
109. Plaintiffs are unaware of any free standing
abortion clinics in Pennsylvania that perform pregnancy
termination procedures after the 18th week of gestation.
110. As to WHS, free pregnancy tests and
counseling are available Monday through Saturday, but
95% of counseling services are provided on the same day
of the abortion.
111. If a medical emergency resulting from an
abortion performed at WHS occurs, an ambulance is
called to take that person to a hospital.
112. Planned Parenthood performs sonograms if
the gestational age is near the end of the first trimester.
113. Planned Parenthood refers women with
medical problems that make them high-risk patients to
hospitals.
108
114. Planned Parenthood encourages minors to
bring a parent with them.
115. Many of Planned Parenthood’s abortion
patients come from referrals from the other clinics where
they previously have received options counseling.
116. During options counseling at Planned
Parenthood, the counselors discuss with the woman the
option of keeping her baby or giving it up for adoption.
117. Approximately sixty-five percent of the
minors bring a parent with them to the counseling
session in Planned Parenthood’s experience.
118. If the parental consent provision of the Act
(§3206) goes into effect, Planned Parenthood will
counsel parents who attend with their minor child at the
same time they counsel the minor.
119. If the parental consent provision of the Act
goes into effect, parents may receive counseling sessions
at any of Planned Parenthood’s clinics.
120. No physician has stopped performing
abortions for Planned Parenthood because his/her
identity was stated on the Individual Reporting Form to
DOH.
121. Ms. Wall has no knowledge of any case
where DOH released the identity of a physician who
performs abortions.
122. Planned Parenthood collects information for
its internal use concerning medical complications
following an abortion.
123. It is typical for a woman to receive
counseling about her options once she has her pregnancy
diagnosed at one of Planned Parenthood’s centers, and
to receive counseling again at the surgical center in
Center City.
124. Planned Parenthood advises minors (and
others) that if anything unusual or any sort of
complications occur to let Planned Parenthood know and
109
to come back for treatment or go to an emergency room.
125. The telephone counselors at WSC make
appointments and receive clients but they do not counsel
about pregnancy options.
126. Counselors at WSC start at $8.50 per hour
and are all part-time employees.
127. WSC encourages minors to attend with a
parent.
128. WSC does not perform abortions due to
medical emergencies as defined by the Act or otherwise.
129. If an emergency occurs when performing an
abortion at WSC, a crash cart is used to stabilize the
woman and then, in all probability, the woman would be
transferred to a hospital based upon the physician or
medical director’s decision.
130. If a parent comes in with a minor to WSC,
the minor is first seen alone by the counselor and then
the parent joins the counseling session.
131. Ms. Hollos, the Executive Director of WSC,
knows of no physicians who have stopped performing
abortions because their identity is on the Pennsylvania
Individual Report of Termination of Pregnancy form.
132. WSC never uses a sonogram in determining
gestational age; rather, that is determined by questioning
the woman and a pelvic exam by a doctor. If an
ultrasound is ordered, it is performed at another facility.
133. WSC maintains or collects internal data
regarding complications that occur.
134. Telephone counselor’s salaries at RHCC are
between $6.00 and $6.30 an hour. For options
counselors, they start at $6.30 an hour.
135. RHCC counselors are not required to have
bachelor degrees.
136. If a woman receives options counseling and
pre-abortion counseling at RHCC, such counseling
occurs on different days, with options counseling being
110
available on Tuesdays and Thursday.
137. In general, RHCC supports and encourages
parental involvement in the abortion decision where
possible.
138. If a parent accompanies a minor to RHCC
for the abortion procedure, the minor reviews the risks
and informed consent provision in the group session
while the waiting room counselor goes over that
information, including possible complications, with the
parent.
139. RHCC keeps statistics on complications.
140. No physician at RHCC has ceased
performing abortions because their identity is listed on
DOH pregnancy termination forms.
141. At RHCC, one physician works at a time
during those hours of operation when abortions are
performed.
142. The Abortion Medical History Form used by
RHCC was being used prior io the 1988 amendments to
the Act.
143. RHCC submits quarterly reports of
complications to the National Abortion Federation.
144. Doctors at RHCC sign the individual
reporting forms (Report of Induced Termination of
Pregnancy) submitted to DOH immediately following the
abortion procedure.
145. Approximately sixty percent of the minors
that had abortions at RHCC in 1987 were accompanied
by one or both of their parents. That percentage has
decreased to approximately 50 percent.
146. There is no minimum education requirement
for AWC’s counselors.
147. AWC determines gestational age by a
woman’s menstrual history and pelvic examination and, if
AWC is unclear of the length of the woman’s pregnancy,
it will do a sonogram. The fee for a sonogram is $50.00
I l l
and is frequently waived.
148. AWC does not accept state appropriated
funds.
149. AWC provides information to the National
Abortion Federation (NAF) regarding AWC’s
complication rate.
150. AWC, prior to 1988, advertised in the
newspapers although it does not presently advertise
there. AWC does advertise in telephone directories.
151. All of the plaintiff clinics advertise by one or
more of the following methods: newspapers, radio, and
telephone directories.
N _______________________
THOMAS E. ZEMAITIS
STEPHEN J. CIPOLLA
JODY KATHLEEN MARCUS
Pepper, Hamilton & Scheetz
3000 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103
215/981-4000
KATHRYN KOLBERT
American Civil Liberties
Union
Reproductive Freedom
Project
132 W. 43rd Street, 7th Floor
New York, NY 10036
212/944-9800
N ________________
KATE L. MERSHIMER
Senior Deputy Attorney
General
OFFICE OF
ATTORNEY
GENERAL
15th Floor, Strawberry
Square
Harrisburg, PA 17120
717/783-1471
LINDA WHARTON
Women’s Law Project
125 South Ninth Street
Suite 401
Philadelphia, PA 19105
1 1 2
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PLANNED PARENTHOOD
OF SOUTHEASTERN
PENNSYLVANIA, et al.,
C A. 88-3228
Plaintiffs
(Judge Huyett)
v.
ROBERT P. CASEY; N-MARK
RICHARDS; ERNEST
PREATE, JR; and MICHAEL
DL. MARINO,
(Class Action)
Defendants
STIPULATION OF VOLUNTARY DISMISSAL
Pursuant to the provisions of Fed. R.Civ. P. 41(a)(1),
plaintiffs and defendants stipulate to the voluntary
dismissal of Michael D. Marino, who has not appeared in
the above-captioned action, as
M _________________
THOMAS E. ZEMAITIS
STEPHEN J. CIPOLLA
PEPPER, HAMILTON &
SCHEETZ
3000 Two Logan Sq.
18th & Arch Streets
Philadelphia, PA 19103-2799
215/981-4000
Counsel for Plaintiffs
a defendant.
N _________________
KATE L. MERSHIMER
Senior Deputy Attorney
General
Office of Attorney
General
15th Floor, Strawberry
Square
Harrisburg, PA 17120
717/783-1471
Counsel for Defendants
113
EXCERPTS FROM TRIAL TRANSCRIPT,
JULY 30 THROUGH AUGUST 1, 1990
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PLANNED PARENTHOOD
OF SOUTHEASTERN
PENNSYLVANIA, et al.
CIVIL ACTION
NO. 88-3228
v.
ROBERT P. CASEY,
N. MARK RICHARDS,
et al.
Reading, Pennsylvania
July 30, 1990
10:20 o’clock a.m.
NON-JURY TRIAL - DAY 1
* * *
[10] MR. ZEMAITIS: Your Honor, Dr. Davidson is
being tendered as an expert in the practice of emergency
medicine in Pennsylvania. Consistent with your rules of
practice, I will read a brief statement regarding his
qualifications, follow up with a few questions on
qualifications. Dr. Davidson received his A.B. from
Temple University in 1971 with a major in chemistry and
he received honors. He graduated from Temple
University Medical School [11] in 1975 and he graduated
from the Wharton School of the University of
Pennsylvania with a Master’s in Business Administration
in 1989.
His internship took place at the Medical College of
Pennsylvania in Philadelphia and his residency also took
114
place at MCP.
Your Honor, I neglected to say that Dr. Davidson’s
curriculum is Exhibit 77 which is in the binders that we
submitted.
Sir, if you would like to have that in front of you,
that might be helpful.
THE COURT: Very well.
MR. ZEMAITIS: Dr. Davidson is licensed in
Pennsylvania and in California to practice medicine. His
residency was in the emergency medicine program at
MCP. He is a diplomat of the American Board of
Emergency Medicine, having become so in 1980, and he
was re-certified by that board in 1990.
His hospital appointments include attending
physician at the Hospital of the Medical College of
Pennsylvania, associate at the Mercy Catholic Medical
Center, Department of Emergency Medicine, and at the
Jefferson Park Hospital affiliate staff, ICU attending
staff.
Dr. Davidson is teaching, has academic appointments
at the Medical College of Pennsylvania. I’ll let him [12]
describe those in more detail, but he currently has an
academic appointment there.
DIRECT EXAMINA TION
BY MR. ZEMAITIS:
Q Dr. Davidson, are you currently treating patients in
emergency medicine?
A Yes, sir.
Q Where do you treat patients?
A Primarily in the Emergency Department at the
Hospital of the Medical College of Pennsylvania in
Philadelphia.
Q Approximately how many hours per year do you
spend in clinical practice?
A I see patients in the emergency department about
600 hours per year, sir.
115
Q How would that compare to someone who was
involved in full-time clinical practice in the emergency
room?
A Full-time clinical practice of emergency medicine is
generally considered to be approximately 2,000 hours a
year of practice.
Q Dr. Davidson, as I said earlier, you’re a Fellow of
the American College of Emergency Physicians. Would
you describe the process that you undertook to become a
Fellow of the American College?
A A Fellow of the American College of Emergency
Physicians is first of all a diplomat of the American
Board of Emergency [13] Medicine. That is, that
physician is certified in the specialty by the American
Board of Emergency Medicine, which is one of 23
recognized specialty boards.
In addition, a Fellow of the American College of
Emergency Physicians must have sufficient career and
specialty accomplishments that rise to a level for election
to the rank — to the category of Fellow and there is a
laundry list which includes publication in learned
journals, presentation at national meetings, participation
in organizations, both locally, regionally and nationally,
etcetera.
Q You’re also a diplomat of the American Board of
Emergency Medicine. Could you describe the
qualifications for that position?
A The American Board of Emergency Medicine is one
of 23 recognized specialty boards that certifies physicians.
The process for certification by the American Board of
Emergency Medicine includes recognition of previous
practice and training and then successful completion of
both a written examination and an oral examination.
Certification is limited to ten years and recertification is
required every ten years.
Q Dr. Davidson, could you describe your teaching
116
duties at MCP?
A The teaching of clinical medicine is very much a
master- [14] apprentice type of relationship and I teach
medical students in the clinical years and house staff,
interns and residents at the bedside with the patients that
I see in the emergency department. I also, to a much
lesser extent, teach informal didactic settings from a
podium, in a lecture hall or classroom, and do a great
deal of one-to-one or one-to-two teaching in emergency
medical services pre-hospital care.
Q Is all of your teaching responsibility in emergency
medical services?
A It’s all in emergency medicine and related
subspecialties such as emergency medical services.
MR. ZEMAITIS: Your Honor, we’d tender Dr.
Davidson as an expert in the practice of emergency
medicine in Pennsylvania.
THE COURT: Any objection or any voir dire?
MS. MERSHIMER: No, your Honor.
THE COURT: Your motion is granted.
BY MR. ZEMAITIS:
Q Dr. Davidson, in your practice of emergency
medicine, how do you define a medical emergency?
A Well, a medical emergency is any medical condition
that requires intervention, usually both diagnosis and
treatment, in an emergency kind of fashion, usually
within minutes, seconds or minutes, you need to
intervene quickly.
Q Is that a definition that is used among medical
emergency [15] physicians, generally?
A I think so. I think that’s a generally accepted
operative definition.
* * *
Q I have placed before you, Dr. Davidson, the codified
117
version of the Emergency Medical Services Act which is
found at 35 Purdon’s Statutes, Section 69-22. Is there a
definition in there of medical emergency or emergency?
A There’s a definition here in the act of emergency,
yes.
[16] Q Would you read that definition for us?
A It reads: "A combination of circumstances resulting
in a need for immediate medical intervention."
Q Is that definition of emergency consistent with the
definition you use in your practice as an emergency
physician?
A Yes, I think so, it’s -- immediate is seconds to
minutes, yes.
* *
[17] In your opinion, Dr. Davidson, is the definition of
medical emergency in Section 3-203 of the Abortion
Control Act consistent with the definitions of medical
emergency that you just provided in your testimony?
A No, it’s not.
[18] Q And why not?
A Well, I find this definition to be confusing and using
terminology which in this context seems to me to be --
create absolute standards, and that’s unfamiliar to me.
Q Let’s look at some of the specific language of the
definition. There’s the term "serious risk" appearing
three lines from the bottom of the definition. Do you
see that?
A Yes, sir.
Q Is serious risk a term that has a standard meaning
among emergency physicians?
A In point of fact, as a -- as a standardized
terminology, it does not. Serious is more - has a more
relative -- relative term, something is more serious than
something else, not a particular absolute sense.
118
Q The definition also talks in terms of a substantial
and irreversible impairment, and I’d like to break that
down to substantial impairment and irreversible
impairment. Does the term "substantial impairment
have a standardized meaning among practitioners of
emergency medicine?
A Substantial to me is a very unfamiliar term in this
kind of context. I don’t know - I really don’t understand
what is sufficient to be substantial? Is it a major risk of a
moderate kind of impairment or is it a very low risk, but
nonetheless possible of a very serious kind of
complication or problem.
[19] Q What about the term irreversible impairment, is
that one that has a standard meaning among
practitioners?
A Well, I think irreversible is a little - is somewhat
clearer than the -- than the other terms we’ve just talked
about, although here again, irreversible for the physician
may be — may be pretty clear, but our patients often tell
us that which we interpret one way is not really the way
they under -- they understand it.
For example, I may say a wound has healed perfectly
and yet the scar is considered an irreversible impairment
by the - on the part of the patient.
Q I gather from that, you’re saying that people can
differ on what constitutes an irreversible impairment?
A Yes.
Q Is that true within the medical profession that there
may be differences?
A Well, again, I think some people -- as an emergency
physician, I might not consider that scar to be much of
an issue, yet the patient’s psychiatrist, who feels that the
patient has had some kind of problem ongoing because
of it, may feel it’s significant. So it’s --
Q What about --
A - situational.
119
0 Excuse me. What about the term "major bodily
function," is that a term that has meaning to you?
[20] A All normal bodily functions are major or - I
don’t know how to differentiate what’s major and
what’s - what’s not major.
Q In your experience, in your clinical experience, has
anyone ever talked to you in terms of a major bodily
function versus a minor bodily function?
A It’s not a term that’s generally used among clinicians
or really in giving advice to patients.
Q Would you have any way of determining for yourself
what a major bodily function is versus a minor bodily
function?
A Again, I can relatively, but not in an absolute kind of
sense.
Q What do you mean by relatively?
A Well, it’s very clear that, you know, loss of extremity
is a bigger loss of a major bodily function than is that
scar, but to my mind -- and that’s why I spend time
carefully doing plastic repairs of wounds - one attempts
to minimize any impairment of a bodily function.
Q In your practice of emergency medicine, the idea is
to heal, whether it’s major or minor?
A Correct.
Q Now, in your opinion, Dr. Davidson, what would the
consequences be if this definition of medical emergency
were to become applicable to emergency services in
Pennsylvania?
A I think it would certainly create a degree of
confusion [21] and likely delay care in those situations
where it applied, namely to those pregnant patients who
seek care.
Q Do pregnant women come into emergency rooms?
A Sure.
Q Why?
A Well, they come into emergency departments
1 2 0
because they have the same problems anybody has.
They may have a minor, acute and recurrent illness, a
severe sore throat or headache or something, something
total -- or injury, trauma, that’s not associated with the
pregnancy. They may come to the emergency
department because of a problem of some sort that may
be related to the pregnancy, but -- such as urinary tract
infection, which is not specific to the pregnancy, or they
may come to the - seeking medical care because of
problems directly with the pregnancy.
Q What kinds of problems directly related to the
pregnancy cause women to seek emergency medical
services?
A Ectopic pregnancy is a common problem,
spontaneous abortion, threatened spontaneous abortion,
inevitable spontaneous abortion and complete
spontaneous abortion.
Q Do any of these conditions that require women to
come for emergency treatment ever require pregnancy
termination as a result?
A Uhm, patients with inevitable spontaneous abortion
typically undergo a termination of pregnancy, yes.
[22] Q what are the symptoms of inevitable abortion?
A Oh, inevitable abortion is characterized by vaginal
bleeding, bleeding coming from the uterus, typically in
association with some lower abdominal cramping,
discomfort. In addition then the physician will find on
examination that the uterine cervix has dilated, has
begun to -- has begun to open up somewhat and it is at
that point in association with the pain and bleeding that
the - that the term "inevitable abortion" is applied.
Q When a woman has the symptoms of inevitable
abortion in your clinical judgment is it possible for the
pregnancy to continue through the term?
A Those pregnancies, at least it’s my understanding, go
on and ultimately abort, miscarry in layperson’s
1 2 1
terminology. Anyway, typically in current setting these
patients are referred for elective D and C to empty the
uterus.
Q Is that the course of treatment that occurs when a
woman comes to the emergency room with a inevitable
abortion?
A Well, it depends -- that’s the typical ultimate
treatment, yes. There may be variations that depend on
the urgency and the urgency typically depends on the
extent and amount of bleeding that the patient is
suffering.
Q Who performs, in your clinical experience, the
procedure when the inevitable abortion patient comes to
the emergency room?
[23] A These patients are referred to obstetrician/
gynecologists pretty uniformly for completion of
performing an elective D and C.
Q Have you ever been required to perform the D and
C procedure because of an emergency situation?
A I don’t perform a complete D and C procedure, but
a patient who is bleeding heavily with inevitable
abortion, it is common practice to use an instrument to
remove tissue so as to products of conception and
potentially fetal parts so as to reduce the extent of
bleeding.
Q What’s the term "products of conception" mean?
A Well, we’re talking about uterine contents that result
from conception. It may be -- may include fetal parts, it
includes parts of the placenta.
Q What happens to the woman if there is a
postponement or what are the risks to the woman if
there is a postponement of the procedure in the
inevitable abortion situation?
A Well, the patient who is bleeding is at risk of
bleeding into shock and requiring treatment for shock,
fluid therapy and blood transfusion.
1 2 2
Q Are there any risks associated with blood
transfusions that would not be encountered if there were
no transfusion?
A If a transfusion - every blood transfusion carries
some risk. While the current state of the art has reduced
that, there remains a risk of — of infectious disease
transmission [24] down the road, as well as acute risks
from allergic or other kinds of immediate transfusion
reactions. The major risks though in the current
environment are infectious risks, particularly non-A,
non-B, recently started to be called Hepatitis-C, which
kills about 4,000 Americans annually and infects many
more with a chronic illness.
There remains a small but real risk of passage of the
HIV, human immuno deficiency virus which is associated
with causation of AIDS.
Q Now, if there is a delay in the procedure to evacuate
the uterus, the D and C procedure, what happens to the
woman during that period of time?
A Well, presumably the patient would be observed
during that period and the patient would have some pain
from the continuing pressure on the uterine cervix and
the patient can bleed, continues to bleed.
Q In your experience, Dr. Davidson, is inevitable
abortion generally life-threatening?
A No, inevitable abortion is not generally
life-threatening.
Q Does inevitable abortion typically result in a
permanent impairment to the woman?
A Not a permanent physical impairment, no. That’s —
patients recover from that.
Q In your opinion, Dr. Davidson, is inevitable abortion
a [25] medical emergency requiring immediate medical
treatment?
A Yes.
Q Would - Dr. Davidson, do you believe that in your
123
experience inevitable abortion results in an irreversible
impairment to patients who undergo it?
A No.
* * *
BY MS. MERSHIMER:
Q Dr. Davidson, you said that an inevitable abortion
requires immediate medical treatment?
A Yes.
Q So it must be done within seconds to a few minutes,
is that correct?
A It requires -- it requires immediate attention within
minutes to a few hours. Again, it varies, depending on
the degree of patient’s bleeding. There are patients who
bleed [26] heavily enough that, in point of fact, we take
them out of order and go see them immediately.
* * *
Q Okay, have you ever performed any abortions due to
a medical emergency?
A Uhm, again, and here I’m confused because I have
removed pregnancies or part of the tissue associated with
pregnancy from the uterus of women with inevitable
abortions.
Q How many times?
A It’s a regular occurrence, maybe a couple of times a
year.
Q And when that happens is that always in the
emergency room context where you work?
A That’s where I work, so that’s where it occurs, yes.
Q Medical emergencies that require immediate
abortions are very rare, aren’t they?
A Well, inevitable abortion is a regular occurrence. I
mean, probably at my level of practice, I see it a couple,
124
you know, maybe a couple, three times a year, and we
have enough exposure to it so that three dozen trainees
get to see it more than five and less than fifty times in
the course of a three-year training program. So it’s a,
regular, it’s a regular occurrence.
[27] Q Well, when you say regular occurrence, about
how many would you estimate your hospital sees in a
year?
A Uhm, oh, I would guess in a 40,000 visit a year ER
you’re talking about once a week in an emergency
department, give or take a little bit.
Q And an abortion is performed each time?
A The uterus is emptied, yes.
Q So when I say an abortion is performed, that’s what
you mean by the uterus is emptied?
A Well, I mean in each of those occasions the patient
may not have heavy enough bleeding so that the
emergency physician using a ring forceps will withdraw
tissue. On the other hand, all of those patients go on to
a D and C by a gynecologist, yes.
Q And these - how soon after the women present
themselves to the hospital - wait, I take it -- well, let me
back up. I take it they present themselves to the
emergency room?
A Yes.
Q Okay and how soon after they present themselves to
the emergency room is the abortion performed?
A Well, again, that’s a feature of the patient’s
presentation. If the patient is bleeding heavily, it will be
performed much sooner than if the patient is not
bleeding as heavily. Nonetheless, these are performed in
a non-scheduled fashion. It’s not put off until -- till 8
o’clock the next [28] morning in the operating room.
Q In your expert report you said that it’s -- you gave an
example of an inevitable abortion where a pregnant
woman presents herself in the emergency room context
125
experiencing copious vaginal bleeding, lower abdominal
pain and progressive cervical dilation. How soon would
the abortion be performed on such a woman? A patient
bleeding like that who I assess is at risk of shock, if I see
-- if I see or can feel tissue, I’m going to withdraw it with
ring forceps in the ER and those patients will go to the
operating room pretty quickly. Certainly we would like
to try to get them there within 60, 90 minutes.
Q Okay. And if you don’t perform the abortion that
quickly for that woman then she’s going to keep
bleeding, isn’t she?
A That’s highly likely.
Q And she’ll go into shock then, won’t she?
A There’s risk of that, yes.
Q And she’ll probably die, won’t she?
A Not necessarily, with optimum shock treatment.
Q Is there a risk that she’ll die?
A Certainly.
Q Is it a serious risk that she’ll die?
A Well, if there’s a risk, and most pregnant woman are
young and relatively healthy and, you know, it doesn’t
occur in the hospital very commonly in 1990. The
patient would get [29] fluid resuscitated with -- with
balanced salt solutions and then receive transfusion.
And so shock treatment begins early, irreversible shock
and death is very uncommon.
Q In these situations with inevitable abortions, in the
cases you’ve seen when the women have presented
themselves at the emergency room, have they wanted to
have that baby?
A There are many patients who wish to retain their
pregnancy, yes.
Q Would it be fair to say that for most abortions that
are performed in the emergency context that the woman
wants to have a child?
A Uhm, I - I don’t -- I really don’t know that. I mean,
126
I can only speak of my own experience and certainly is
mixed, it’s not universal.
Q Well, what would be the majority of the cases?
A Uhm, in my experience, probably around a 50-50
division.
Q So at least 50 percent of the women that come into
the emergency room experiencing the conditions of an
inevitable abortion, they want an abortion anyway?
A They may or may not have confronted that issue; I
don’t really know. They may - since I don’t have a
previous relationship with them, I don’t know what
they’ve been thinking.
Q If a woman - if a pregnant woman would arrive at
the emergency room ill and she’s in a medical condition
that you [30] believe an abortion is medically indicated,
but you don’t know if she wants to have the baby or not,
would you consult with her first before performing an
abortion?
A Certainly. I consult with all my patients before
performing any procedure.
Q And would you get her informed consent to perform
that abortion?
A I get my patient -- whenever possible, with the
generally understood exceptions to the requirement for
consent, I get my patients’ consent before performing any
procedure.
Q And would you attempt to determine the gestational
age if you had the time?
A Again the only -- the only situation I can really
envision is this situation of inevitable abortion. In my
years of practice it’s the only — it’s the only circumstance
that I’ve personally confronted. And those -- those
patients I usually don’t have the resources to definitively
determine gestational age. I do it on the basis of last
known menstrual period which is as good as the patient s
history is, but I don’t usually have access to ultrasound or
127
titered levels of cumencorionic anatatropin (ph.) in the
blood and so forth.
Q And that’s because you don’t have the time to
determine gestational age because you have to
immediately abort that child?
[31] A In the situation of the bleeding patient, yes.
Q Now, if this pregnant person that came in that was
suffering from an inevitable abortion, if that person
happened to be a minor would you attempt to get her
parent’s consent before performing the abortion?
A In the current -- in the current situation I speak to
the, to the minor — I speak to the patient and I — and in
my practice we commonly see parents or grandparents
with that minor child. I certainly speak to family
members and explain the situation, but it’s my
understanding and my practice, as I’ve had it explained
to me by our hospital attorneys, that a pregnant patient
consents for herself and so while I share information
with the family, I seek the consent from my patient.
Q Do you perform any other surgical procedures on
minors without obtaining their parents’ consent first?
A In the case of the emergency exception to consent,
all the time in patients with life-threatening or extremely
urgent situations that occurs with regularity. In other
situations, there are cases where patients have — I see—
I’ve seen minors with wounds, both parents are at work,
there is a caretaker who has not been given a legal
document of some sort that indicates that they’re
responsible, but the patient and the caretaker indicate
that they’d like the care taken — care provided and
delaying repair of the wound [32] worsens the outcome
and so I will typically do what I believe to be best for the
patient and repair the wound.
Q Let me see if I understand this. If it’s a
non-emergency situation and there is time to get the
consent of the parent, you will do that?
128
A Well, I think, you know -
Q Could you just say yes or no?
A Well, it’s not -- it’s not a clear yes or no. What is
time? A wound requires - in order to reduce the risk of
infection, wounds should be closed from six to eight
hours from the time -- from the time that they occur. It
may not be possible to get what I understand is legal
guardians available to consent for repair of that wound.
All wounds heal, it doesn’t need to be sewn, but the
outcome for the patient will be less salutary if I delay.
Q Well, do you just try first to contact the parents?
A Certainly.
Q And then if you can’t contact the parents, then you
use your best medical judgment about the treatment that
should be provided under the circumstances?
A Yes, with proper advisement to our institutional,
administrative and other authorities.
Q Well, what do you mean by that?
A Well, I -
Q You call up a lawyer first?
[33] A That’s -- that’s -- basically, that’s an outgrowth of
the current environment. I document in the record that I
believe this is a situation that should receive care at this
time and with this degree of urgency because in my
medical opinion delaying is -- puts the patient at risk.
The patient agrees with me but the competent legal
guardian is not available to provide the formal kind of
consent. I write that in the record and I, by our
institutional policy, I must discuss that with the
administrator on call who commonly has me discuss it
with one of the people in the corporate law department.
Q Is closing a wound considered surgery?
A Certainly.
Q Now, if a pregnant woman presented herself in the
condition of -- you diagnosed it as inevitable abortion
and she was married, would you tend to notify her
129
spouse before performing an abortion?
A No, that’s not something that I do.
Q Well, if a married woman ever presents herself in an
emergency situation where treatment is needed, is there
any attempt ever to notify the spouse that the woman is
there?
A No. If the patient is able, is conscious and alert and
able to consent for themselves, no. If the patient is
unable to do so then certainly we attempt to reach next
of kin, a spouse being the closest next of kin.
[34] Q Isn’t it correct that most abortions that occur as
a result of a medical emergency are performed in a
hospital?
A I think that that’s - that’s certainly correct in my
experience.
* * *
Q Okay, but you are saying that inevitable abortion is
not, would not fall within the Pennsylvania’s act
definition of medical emergency?
A I - I am saying that in my experience, inevitable
abortion with significant bleeding which is a clinical
condition that I see with regularity to my mind does not
fit [35] in this definition and would cause me, especially
since I understand criminal sanctions are involved, would
cause me to delay or to seek additional consultation and
would alter my current practice of - of care.
* *
THE AUDIO OPERATOR: Would you state and
spell your name for the record, please?
THE WITNESS: Thomas E. Allen, A-l-l-e-n.
MR. ZEMAITIS: Your Honor, Dr. Allen is
tendered as an expert in the practice of obstetrics and
130
gynecology in Pennsylvania. Again I will give a brief
synopsis of his qualifications. [36]
His curriculum appears as Exhibit 81 in plaintiffs
exhibit binders, your Honor.
Dr. Allen attended college at the University of
Pittsburgh where he received a Bachelor of Science
degree in 1940. He attended medical school at the
University of Pittsburgh where he received his degree in
1943. He served an internship at the University of
Pittsburgh Medical Center in 1944 and a residency in
gynecology at Elizabeth Steel Magee Hospital. That
residency was interrupted by his military service and he
returned to Magee Hospital in 1948, completed his
residency in obstetrics and gynecology in 1951. He is an
Emeritus staff member at Magee Women’s Hospital
today. I will note that the curriculum says active, that’s a
change that occurred fairly recently and I’ll let Dr. Allen
explain that.
He is on the consulting staff at the Presbyterian
Hospital in Pittsburgh and he serves as Executive
Medical Director of Women’s Health Services, one of
the plaintiffs in the case.
He has been a member of the faculty of the
Department of Obstetrics and Gynecology at the
University of Pittsburgh, serving as an associate clinical
professor, an assistant clinical instructor and a teaching
fellow.
He is a Fellow of the American College of Surgeons;
has been since 1953. He’s a diplomat of the American
Board [37] of Obstetrics and Gynecology, became so in
1954, was re-certified in 1979 and again in 1989 and,
again, your Honor,that does not appear in the
curriculum,.
He is also a Fellow of the American College of
Obstetricians and - excuse me - the American College
of Obstetrics and Gynecology and he has served in that
131
capacity since 1955.
DIRECT EXAMINA TION
BY MR. ZEMAITIS:
Q Dr. Allen, do you currently maintain a private
practice of obstetrics and gynecology?
A I do.
Q And where is your office located?
A We have three offices; two of them suburban, the
principal office is in Oakland, in Pittsburgh.
Q How many partners do you have in that practice?
A Currently I have only one.
Q Is he an obstetrician?
A Yes, he is.
Q In your private practice do you see patients, pregnant
women who are intending to carry their pregnancy to
term?
A Yes.
Q And do you treat those women throughout their
pregnancy?
A Throughout their pregnancy.
Q Do you do deliveries on your patients who carry
their [38] pregnancies to term?
A Not since my 70th birthday last year. We have a --
the medical staff has a bylaw that upon reaching that
august age, they ship you upstairs and discontinue your —
your delivery privileges and major surgical privileges
unless you have one of your younger colleagues scrubbed
with you.
Q Is that the difference between active staff member
and emeritus staff?
A Emeritus staff, correct.
Q And that’s the position you assumed when you
became 70 years of age?
A That’s right.
Q During the years that you did do deliveries on your
pregnant patients, how many deliveries would you
132
perform in the course of a year?
A Well, it varied from a maximum probably of 300 to a
minimum of 150.
Q Dr. Allen, do you perform abortions?
A Yes, I do.
Q Where do you perform abortions?
A A few at Magee Women’s Hospital and -- and a
great many at Women’s Health Services.
Q What role did you play in the founding of Women’s
Health Services?
A I was on the original committee that assessed the
need [39] for such a service in Pittsburgh and raised the
funds for establishment of the clinic as a nonprofit clinic
and was its first medical director and have continued in
that capacity since 1973.
Q When was Women’s Health Service founded?
A We made the plans in ’72, opened the doors in April
of 1973.
Q Now, you said that there was a need for such service.
What particular services are you talking about?
A For abortion services.
Q And has Women’s Health Services continued to
perform abortions since its opening?
A Yes, they have.
Q Have you been actively involved on the staff at
Women’s Health during that whole period of time?
A Yes, I have.
MR. ZEMAITIS: Your Honor, we tender Dr. Allen
as an expert in the practice of obstetrician and
gynecology in Pennsylvania.
THE COURT: Any objection or voir dire?
MS. MERSHIMER: No voir dire and no objection,
your Honor.
THE COURT: Very well, your request is granted.
He may testify in that area.
MR. ZEMAITIS: Thank you, your Honor.
133
[40] BY MR. ZEMAITIS:
Q Dr. Allen, what does the concept of informed
consent mean to you as a physician?
A It — it means assessing a patient’s need for treatment
and discussing with her the risks as well as the proposed
benefits from the treatment that — that is suggested and
gaining her complete consent to that treatment.
Q What is the process that’s undertaken to obtain
informed consent from a patient?
A I or one of my designates sits down and talks with
the patient about the problem for which she has sought
treatment and make certain that she understands the
risks and the probable outcome of that treatment and
make certain that she joins in the desire to proceed with
the treatment, whatever it might be.
Q Is that a process that takes place in a dialogue
between you and the patient?
A It’s a dialogue between, primarily between the
patient and the physician or the physician, the patient
and a designate whom the physician has confidence in.
Q In your experience, Dr. Allen, when you obtain
informed consent from a patient, do you do it in a
face-to-face conversation?
A Right.
Q In your opinion could you obtain informed consent,
as you [41] understand it, through a telephone
conversation with a patient?
A I could not.
Q Could you obtain an informed consent from a
person, from any person giving informed consent over -
through the telephone?
A No, you have to have -- you have to have eye-to-eye
contact with them to make certain that they understand
and agree with what has been proposed.
Q How does that eye-to-eye contact facilitate your
knowing that the patient understands and consents?
134
A It’s largely a matter of body language, I believe, that
you naturally have some people who are fearful when
you explain risks to them, but so long as they — at the
end they come, you’re satisfied that they understand what
is proposed and agree that it should -- that it should be
entered into willingly.
Q In your experience and opinion, Dr. Allen, is it
consistent with standard medical practice to conduct an
informed consent dialogue in person?
A Yes.
Q Would it be consistent with accepted medical
practice to perform that dialogue by telephone?
A No, I couldn’t do it by telephone.
Q Would it be acceptable to do it by mail, sending a
form [42] and having it sent back?
A No.
Q If you were told by one of your patients who was
referred to you by another physician that she had
discussed all the procedures with another physician, that
she had given her informed consent to that physician,
would you rely on that in going forward with the medical
procedure?
A I might do it if it were a colleague with whom I
worked, for instance, one of my partners and he was not
able to perform the -- I would still have the discussion
with the patient, but I wouldn’t have to go through all
the ramifications that I know that he had done. But I
couldn’t do it with someone out in the field who may
have been a referring physician.
Q When you say you couldn’t, I take it that you would
conduct your own informed consent dialogue?
A Yes, I would still do that.
Q And you would feel that was necessary in your
medical practice?
A Right. It doesn’t matter whether it’s -- whether it’s
care of an obstetrical patient or care of a gynecological
135
patient either.
Q Now, are you aware that the Pennsylvania Abortion
Control Act if it goes into effect would require that there
be a 24-hour waiting period between the time a women
is given the [43] information to obtain her consent in the
performance of the abortion?
A Yes, I’ve read that in there.
Q In your opinion, Dr. Allen, is there any medical
reason to delay a procedure, once a woman has decided
to have an abortion and has given her informed consent
to the abortion procedure?
A There is no reason for delay and actually there may
be some harm produced from it.
Q How so?
A The patient comes into the clinic or to the hospital
anticipating the procedure and it’s not been an easy
decision, as a rule, she’s made the decision prior to that.
She confronts harassment as she enters the clinic and
from - from the people who are trying to change her
mind and comes in and has her counseling session with --
and it’s quite evident for most of these people that they
just need to have the risks explained to them because
they’ve already reached the decision or they wouldn’t be
there. And then to make that woman go through a
counseling session prescribed by act of the legislature
that includes things in an attempt to deter her from that
decision which she has made creates a more stressful
situation for the woman, then she has to come back and
do it a second time in order to have the procedure done.
[44] Q So let me make sure I understand. You’re
saying the combination of the mandated delay and the
specific information required by the statute would in
your opinion increase stress among the patients seeking
abortions?
A In the -- on the part of the patient, correct.
Q And I also take it from your answer that in your
136
experience, most women who come to Women’s Health
Services for an abortion have already decided to have
the abortion before they arrive there?
A Yes, they have.
Q Are there ever circumstances where women arrive
having not made that decision ahead of time?
A Yes. Well, some women arrive at the clinic with
ambivalent feelings, they - because of teaching and some
of the harassment that they’ve faced on the street coming
in. They — they have made a decision but that changes it
a bit, or it makes them less certain of their decision, and
that’s the situation in which the counselor can spend
more time with the patient and refer her to a personal
counselor, if need be, who makes certain that this woman
really wants to terminate her pregnancy before we go on.
And some of these women do leave the clinic, do come
back another day farther along in their pregnancy and
with their mind definitely made up.
Q For those women who are ambivalent do you feel
that it is [45] useful for them to have some additional
time to reflect on the procedure?
A Yes, yes, but it’s a small percentage. It’s probably
only about probably -- I don’t know the exact figures --
probably only about five percent.
Q For a woman who shows no ambivalence or
expresses no ambivalence, do you see any reason -
A No reason.
Q - medically or otherwise for a delay?
A No reason for delay, that’s correct.
Q Now, would delay of 24 hours - and I mean just 24
hours at this point, Dr. Allen -- normally increase the
risk to a woman’s health in an abortion procedure?
A Normally it would not.
Q If the delay expands beyond 24 hours, is a point
reached where the risks, the medical risks to the woman
increase?
137
A Yes. Beyond -- beyond eight weeks of pregnancy
there is an increased risk of complications that is about
30 percent for each additional week and there is a risk of
mortality that is about 50 percent for each week of delay
beyond eight weeks. Now, admittedly, the risk of
mortality is extremely low, but it does increase with
advancing pregnancy.
* * *
[47] Q How does the mortality rate for abortion, even
at 15 or 16 weeks, compare to the mortality rate for
bearing children?
A It’s seven -- depending on whose statistics you’re
reading, it’s seven to ten times more dangerous to
continue a pregnancy to term.
Q Do you know how the risk of abortion compares to
other relatively minor surgical procedures, such as a
tonsillectomy?
A It’s about twice as safe as a tonsillectomy and about
a hundred percent - about a hundred times as safe as an
appendectomy.
* *
Q Has ACOG taken a position on whether it’s
appropriate to mandate waiting periods for all women
seeking abortion services?
A They have taken a position against that mandated
waiting period.
* * *
[48] Q . . . Could you give us a brief description of the
counseling regimen as it occurs at Women’s Health
Services?
138
A The — the procedure, the counselor who sits down
with the patient and discusses the procedure, the risks,
the expected outcome makes certain that she is not being
coerced into this by some family member or somebody
outside the counseling room and who secures her
informed consent by reading to her, as a basis for the
counseling, the consent as it exists in our chart, which we
think it’s fairly conclusive, and then describing for her
any of the -- of the medical terms which the patient does
not understand. That is all done prior to the patient’s
coming to the procedure room.
* * *
[49] Q Now, you said that the person who counsels
before the procedure will read a specific bit of
information to the patient regarding risks.
A That’s right.
Q Is that writing contained in standard documents that
Women’s Health Services uses?
* * *
[51] Q Do you have a professional opinion, based on
your experience at Women’s Health Services, Dr. Allen,
as to whether counselors are capable of giving
information for informed consent and obtaining informed
consent from patients?
A I - I certainly believe that they’re capable of it and
probably do a better job than we physicians would do
because that’s their primary job.
Q Why do you conclude that they would probably do a
better job than physicians in conveying the information?
A Because -- because they take more time and they’re
-- the counselors are all women who relate to women
very well.
139
Q Are there other reasons why you think it’s beneficial
to use counselors to obtain informed consent rather than
physicians?
A It’s much more economic to pay a counselor who is a
specially trained to do this to spend the time, it’s
economic of both times and dollars because it allows the
physicians to devote their time in patient care with the —
with the knowledge that the needs of the patient have
been met satisfactorily before she reaches the procedure
room.
[52] Q In your experience has the practice of medicine
grown more specialized as the years have passed by?
A Yes. I think it doesn’t only pertain to medicine.
Q Okay. Do you find the use of counselors for the
informed consent purpose to be consistent with this
trend?
A Yes.
Q Do you find that the use of counselors to provide
informed consent is consistent with accepted medical
practice?
A Yes, it certainly is.
Q In your opinion that is consistent?
A In my opinion it is.
Q To your knowledge, Dr. Allen, has ACOG taken a
position on whether the use of counselors is appropriate
for informed consent?
A They have — they have come out in favor of
counseling, as has the American Public Health
Association.
Q Now, you mentioned the category of personal
counselor a few minutes ago and I want to explore that
for a minute and make sure we understand. When do
personal counselors get involved at Women’s Health
Services and what do they do?
A The - the counselors have - the abortion counselors
have primarily been trained on the job by the personal
140
counselors. They do the individual patient counseling
and if they detect any ambivalence or undue fear on the
part of [53] women, some areas of some psychological
problem that the patient may have, they will refer the
patient to the personal counselor who is a trained
psychologist or trained social worker, Master in social
work, who can sit down with the patient and delve more
deeply into whatever her problem may be that may not
be related to the pregnancy that she has at all.
Q So that the personal counselor gets involved when
the pre-abortion counselor detects a need for more
involved counseling?
A That’s right.
Q Do you know what percentage of women at
Women’s Health Services have or require personal
counseling?
A I don’t know, but it seems to me that in a -- in a day
in which we see 40 or 50 patients, there may be three or
four of them who -- who are referred to the personal
counselor.
Q How long does the personal counseling session take?
A I don’t know. It probably varies. It takes as long as
it takes for that personal counselor to resolve the
problem and sometimes they have to come back, you
know, they have to come back for other sessions.
Q That would be when the ambivalence isn’t resolved
in the first --
A That’s correct.
* *
[54] Q . . . Dr. Allen, in your obstetrical practice with
patients who are intending to carry their pregnancy to
term and have a child, do you typically inform them of
the medical risks of the abortion procedure?
A No.
141
[55] Q Do you see any reason to inform them of the
medical risks?
A There is -- there is none, the medical risk of abortion
there certainly isn’t, if she’s anticipating the child to
term.
Q Let me make sure I understand.
A You’re not trying to change her mind.
Q If she is not going to have an abortion, there is no
reason to tell her?
A No reason to do that, that’s right.
Q How do you feel about the requirement that a
woman who has decided to have an abortion must be
told under this provision of the act the medical risks
associated with carrying the child to term?
A I don’t see any reason for it at all.
Q Do you think it’s a helpful thing to do?
A No, I don’t.
Q Could it be a harmful thing?
A It might strengthen her feeling that she should go
ahead and have the abortion because the risks are less.
Q But if she’s already decided to have the abortion you
see no reason?
A Then there’s no reason to do so.
Q There are a series of items that are set forth under
the paragraph Arabic 2, reference to printed materials,
reference [56] to medical assistance benefits, reference to
the liability of the father of the unborn child for support,
et cetera. In your experience, Dr. Allen, are these items
that are part of the dialogue for securing the informed
consent of a patient to a medical procedure?
A No, they’re not.
Q How would you characterize these provisions of the
statute?
A Well, they have to do with social and economic
things which may or may not be available. There’s some
-- I mean, and legal things, also, which I don’t feel
142
competent to advise a patient that she can get child
support from the alleged father of the pregnancy.
Q Let me make sure I understand. Are you saying that
this information, first of all, is not information that would
be given for informed consent?
A That’s right.
Q And it’s not necessarily information that all women
should be receiving?
A That’s certainly true and it’s -- I have some problems
with it because I don’t think that it’s -- that it’s always
true, some of these things that are -- some of these
statements here I don’t think are really fact.
Q What statements would you think, Dr. Allen --
A That - that there may -- well, I guess the "may" takes
[57] that out of it, there "may" be available to the patient
medical assistance and there may be available support
from the father of the pregnancy.
Q In your experience, could telling a woman that there
may be medical assistance benefits available mislead
her?
A Yes, it could, and I have enough patients who have
gone through pregnancy with very little support from
either of these two sources.
Q Who otherwise might need that help?
A That’s right, who do need it.
Q But the fact that they may be available did not in
those cases turn into a reality, they were not —
A They were not available to them.
Q - in fact receiving the benefits?
* *
[58] Q In your opinion, Dr. Allen, is it the obligation of
the counselor to try to persuade the person being
counseled to one or another position?
A No. No, she should just find out how the patient
143
feels. She’s not -- she’s not there as a partisan for either
position.
Q And in your experience do the counselors at
Women’s Health Services adopt that nonpartisan position
in their counseling?
A Yes, they do.
Q Is that part of the training that the counselors go
through?
[59] A That’s part of their training.
Q In your opinion, Dr. Allen, if these items that are set
forth in the statute were required to be incorporated into
the counseling session, would that affect the nonpartisan
nature of the counseling?
A Yes, in -- in -- it could because they sort of balance
each other maybe a little bit if you gave the patients the
statistics on the risks of carrying the pregnancy to term
and then countered with some of this other extraneous
material, why you’d probably come out about even.
* * *
Q Does the limitation of civil liabilities set forth in that
subsection cause any concern for you in the context of
good patient care?
A It -- it might abbreviate your -- on the part of some
physicians — the careful explanation and rendering of an
adequate informed consent because it reduces their -- it
eliminates their liability to malpractice civil suits if they
include the things that are mandated.
Q So your concern is that other necessary information
won’t be conveyed to the patient?
[60] A Well, it -- it could, sometimes it might be
short-shunted.
* * *
144
[61] Q Are you aware, Dr. Allen, that a violation of the
informed consent provisions of the statute carries with it
criminal penalties?
A Yes, I am.
Q Is there any other context you’re aware of in which
failure to provide informed consent information results
in criminal penalties?
A No. Civil penalties, but not criminal penalties.
Q If the criminal penalties in Section 3205, the
informed consent section of the statute, become
effective, what impact do you think it would have on
physicians who perform [62] abortions?
A I think it may deter some of my colleagues from
providing the service.
Q What’s the reason that you’ve concluded that?
A Well, they’re a little more fearful of criminal
accusations than they are of civil, because they’re
medical malpractice insurance tends to cover them pretty
well for civil suits, but it has no coverage for criminal
suits.
Q Have you discussed that with your colleagues?
A We’ve had several meetings between the time that
the act was passed last fall and the time it was to take
effect.
MS. MERSHIMER: Your Honor, I would object on
hearsay grounds and ask that Dr. Allen’s testimony on
this point be stricken.
THE COURT: It’s overruled.
* * *
Q In your experience, do minors tend to seek help for
pregnancy and pregnancy-related problems later in the
pregnancy or earlier in the pregnancy than adult women?
[63] A Later.
Q In your experience, why is this the case?
145
A There’s a certain amount of denial, they’re not so
well informed as to symptoms and signs of early
pregnancy; they’re frequently fearful of sharing this
information adults, particularly parents. They might tell
their best friend in junior high school, but a good
percentage of them don’t confide early in their parents.
Q For minors who seek abortions, what are the
consequences of this delay in seeking medical treatment?
A They usually arrive -- as a group, they arrive a little
bit later in their pregnancies.
Q Are they closer to the second trimester of
pregnancy?
A Well, all the way up the line they’re a little bit
farther along in their pregnancies.
Q So there are larger percentages of minor women at
later weeks seeking abortions --
A That’s correct.
Q -- than there are adult women at later weeks?
A Right.
Q In your experience, Dr. Allen, are minor women
capable of understanding the medical risks associated
with abortion and giving informed consent to the
abortion procedure?
A I think with a careful explanation of it by either a
physician or a counselor, they can grasp the significant
[64] points of it and given an informed consent.
Q Under Pennsylvania law, what’s your understanding
of whether — today, that is, whether a minor woman can
give informed consent for any procedure connected with
her pregnancy?
A They can consent to continuing the pregnancy and
they can consent to treatment for sexually transmitted
diseases, but because of the Abortion Control Act, which
is currently enjoined, if it were not enjoined they would
not be able to do that.
Q To consent to abortion?
146
A That’s right.
Q Now, in your experience, Dr. Allen, are minor
women capable of knowing when parents should and
should not be involved in the minor’s decision-making
process on abortion?
A They’re much better informed of that than I am, or
the counselor, or the State Legislature, I think.
O In your experience, do they generally make
responsible choices when they decide not to involve
parents?
A Right, and most of the very young minors come to
the clinic with their parent, with one parent, or at least a
significant person. But there are some of them who just
don’t have that relationship, and they usually bring some
other person with them who is older, but it doesn’t have
to be parent, it might be an older sister, grandmother.
[65] Q Dr. Allen, has ACOG taken a position on
whether minors should be forced to involve parents in
the abortion decision?
A They’ve taken a negative attitude to that.
Q So ACOG’s position is that minors should not be
required to involve parents?
A They should not be required, but it’s desirable for
them to notify their parents.
Q Is that consistent with your personal medical
opinion?
A That’s the way we feel too.
Q Dr. Allen, let me ask you a few questions finally
about the husband notification provision of the statute.
Is there any other statute or regulation you’re aware of
that requires a husband to be notified when a woman is
about to undergo a medical procedure?
A No, adult woman, so long as she’s conscious.
Q For example, if a woman chooses to have a tubal
ligation that would render her sterile, does she need to
notify her husband?
147
A No.
Q If a husband chooses to have a vasectomy that would
render him sterile, to your knowledge is he required to
notify his wife of that fact before having the vasectomy?
A He’s not required. Most husbands and wives, if they
have a good relationship, share this knowledge with their
spouse.
Q Is it accepted medical practice, Dr. Allen, not to
inform [66] a spouse when your patient is about to have
a medical procedure?
A No, that’s the responsibility of the patient, whether
it’s male or female, to notify whomever she wishes to.
We don’t discuss a patient’s treatment with anyone but
the patient, unless we have her request to do so.
Q So I take it you respect the patient’s wishes with
regard to confidentiality?
A Right.
Q Would a husband notification provision prior to
abortion be inconsistent with medical practice as you
understand it?
A It would be.
Q Why would that be?
A Because the wife is -- if I were to do it -
Q To require it, whether it be the patient or the
doctor?
A Yeah, I think that it’s inconsistent with other forms
of medical treatment. If it applies only to abortion, then
it certainly is not consistent with sound medical practice.
Q Has ACOG taken a position, Dr. Allen, with regard
to husband notification provisions?
A They’re opposed to husband notification.
* *
[67] BY MS. MERSHIMER:
Q Doctor, how many days a week do you work at
148
WHS, or Women’s Health Services?
A About one a week.
Q And how many hours a day do you work?
A If I’m there — if I work a full day, it’s about seven
hours.
Q And does that seven hours - is that seven hours
always performing abortions, or does that include breaks
and lunch hour?
A That doesn’t include much lunch hour, but it does
include checking patients in the examining rooms,
determining duration of gestation and --
Q And how - I’m sorry. How many abortions do you
perform a day, in an average workday?
A It varies. It’s about -- it depends on how many
doctors there are there, but it is usually about 15.
Q Sometimes 20?
A Sometimes 20.
Q And how many physicians do work a day at Women’s
Health Services?
A Usually two or three.
Q And they’re all treating about 15 to 20 patients a
day?
[68] A Well, we do abortions only three days a week
and sometimes it’s not a full day.
Q But aren’t --
A I’m not there three days a week.
Q Do you know whether the other physicians are
averaging about 15 to 20 abortions a day?
A I would judge that it may be closer to 15, it depends
on the patient load.
Q And how much are you paid for performing an
abortion?
A We’re just on an hourly basis.
Q Well, what is that hourly rate?
A It’s currently 175 an hour.
Q And is that true of all the physicians at Women’s
149
Health Services?
A That’s correct.
Q Now, do you normally know who the patient is
before you perform the abortion on that woman at
Women’s Health Services?
A I look over the chart beforehand.
Q All right, you look over the chart, but you haven’t
met her before until you meet her in the --
A Until I walk into the -- well, sometimes we have, if
we’ve been involved in determining what her period of
gestation is in the examination room, prior to her being
counseled. If she comes in with an inaccurate date or is
[69] beyond 13 weeks by date, we will — one of us will
see her. It may not be the same physician who sees her
in the procedure room, but one of us will see her.
Q So, you meet the woman for the first time either in
the examination room or the procedure room?
A That’s correct, except for a few of my private
patients who come down there for the procedure.
Q What percentage of the patients do you meet for the
first time in the procedure room?
A In the procedure, probably about 80 percent of them.
Q And how much time do you spend with the woman
in the procedure room?
A During the procedure or prior to the procedure?
Q Both, why don’t you break it down?
A All right, prior to the procedure, about five minutes--
Q And then -
A -- during the procedure, about ten minutes.
Q And do you see her at all after the procedure?
A In the recovery room we sometimes do.
Q Sometimes?
A We frequently do, yes.
Q If you don’t, does another physician or nurse see the
patient in the recovery room?
A The nurses usually take care of them in the recovery
150
room; we dispense all medication to them and see any
problems [70] that may arise there during their hour or
two-hour stay in the recovery room.
Q And when you — if you see them in the recovery
room, how much time do you spend with the woman?
A It varies, depending upon whether she’s having a
problem or not.
Q Well, what’s the average time? What’s the average
time if there’s no problem?
A No problem, maybe a minute.
Q If there’s a problem?
A If there’s a problem, it depends upon the problem.
Q Well, what are the problems that can occur?
A The most common problem is hematometra.
* * *
[71] Q And how often does that problem occur?
A Probably in two or three percent of procedures.
* * *
[73] Q You personally do the informed consent
procedures for the abortions you perform at Magee
Women’s Hospital, is that correct?
A That’s correct.
Q And -
A With help from my nurse practitioners in the office,
whom I trust.
* *
[76] Q Dr. Allen, I’m handing you yet another black
book. Would you turn to the exhibit that’s marked
Number 1? Axe you familiar with Defendant’s Exhibit
No. 1?
151
A Yes.
Q Can you tell me what it is?
A It’s Magee Women’s Hospital informed consent for
termination of pregnancy.
Q And is this a form that you have all women sign
before you perform an abortion at Magee?
A Yes, this is gone over with them by the nurse in our
office. And I’ve answered any questions that they might
have about it.
* * *
[77] Q Doctor, you’ve testified that informed consent
should be face to face, correct?
A That’s correct.
Q Is it possible to provide information over the
telephone to a woman, and then follow it up with a
face-to-face meeting another day?
A You mean to get a --
Q To obtain an informed consent?
A To obtain the informed consent. That should be
possible, if you can have time to —
Q Thank you, Doctor.
A -- follow that -- yes.
* * *
[80] A No, it was 1970 to ’76, were their graphs. But
the statistics are better now, but the ratio between early
abortions and later abortions has not changed. We have
fewer total -- a lower total mortality, it has continued to
go down. The ratio between early abortions, which is
almost zilch, and later abortions is still pretty much the
same, it increases. It doubles every two years after eight
to nine weeks.
Q Every two years or every two weeks?
152
A I mean every two weeks, yes.
Q You said that abortion is twice as safe as a
tonsillectomy, from a mortality standpoint?
A Mortality is twice.
Q And what did you say it was as to an appendectomy?
A One hundred.
Q And in the case of a tonsillectomy or an
appendectomy, if that was a minor, wouldn’t the
physician get the parent’s consent before performing
either of those medical procedures?
A If possible, I should think. I don’t do either of those.
Q Well, do you think they would wait at least 24 hours
to obtain the parent’s consent?
A Well, a tonsillectomy is certainly an elective
procedure. Appendectomies are a little bit less so, and
so I don’t think that there would be any problem with
delay for a [81] tonsillectomy. I’m not sure what --
there’s no law that says that you would have to get
parental consent if it were considered an acute appendix
and the parents were not available, somebody could give
it.
* * *
[82] Q Does the abortion counselor, when they
determine that the patient is a battered woman,
automatically refer them to personal counseling?
A I’m sure they do.
* * *
[83] Q Now, is my understanding correct that you say
the information in the written part, under consent for
abortion on Page 11 of Plaintiffs Exhibit 6, is the base
line of information as given to a woman?
A Yes, this is --
153
Q At Women’s Health Services?
A That’s right. This is read to the patient by the
counselor, and then any questions that the patient may
have are answered by the counselor. And then - that
forms the base, and then any other thing that the
counselor feels is necessary to achieve informed consent
is gone into it.
Q What if a woman asks about fetal development and
asks, [84] like, what does the fetus look like, is she given
answers to that?
A Yes, we have some pictures to show the patient what
the—but we don’t offer them, we don’t display them in
the wall or anything. They’re in the counseling room,
but they’re not displayed and not every patient every
needs to see them.
* *
Q And if the woman would ask about whether there’s
any agencies available should she want to carry the child
to term, such as adoption agencies, does Women’s
Health Services answer those questions?
A Yes, they do, and they refer some patients to them.
That’s usually the job of the personal counselor.
Q All right. And if the woman asks about whether
there [85] might be financial assistance benefits out there
for her, do you try and refer her to the appropriate
person to answer that question?
A Usually to a social service agency.
* * *
[86] Q You also said that if the informed consent
provisions go into effect that your colleagues might be
deterred from performing abortions, is that correct?
A Well, we’ve had some discussions about this —
154
Q Well, yes or no?
A Yes.
[87] Q And that’s based upon your discussions with your
colleagues?
A That’s right, when they were expressing concern
about the act and what effect it might have upon them,
and were particularly concerned about the criminal
charges to be levied under the act. And it became more
difficult for us to maintain adequate physician supply at
Women’s Health Services.
MS. MERSHIMER: Your Honor. I renew my
objection that this is hearsay, and I would ask that Dr.
Allen’s testimony on how the act would deter or not
deter his colleagues be stricken.
THE COURT: Overruled. I think we’re not
interested in the truth of this, but merely whether these
conversations took place; overruled.
* * *
Q Do you agree, Dr. Allen, that it’s essential to the
psychological and physical well being of a woman
considering [88] abortion that she receive complete and
accurate information on all options available to her in
dealing with her unwanted pregnancy?
A Only if she hasn’t already reached a decision.
Q Well, to reach a decision she needs to have
information available to her, doesn’t she?
A Yes, and we try to provide that, but I don’t know . . .
Q All right. Now, when a woman comes in with an
unwanted pregnancy, you said she could be under
heightened stress or anxiety, is that correct?
A I said that the decision-making process is usually
fairly stressful for the women - woman.
Q And is that for the various reasons such as that she
just realized she’s pregnant, she’s going to have to make
155
a quick decision about whether she wants to carry the
child to term?
A It’s not a physiological stress, it’s a psychological
stress. And it’s usually a very difficult decision for a
woman to make unless she has, prior to becoming
pregnant, made a decision that abortion would be a
backup for her contraceptive method, if it failed.
Q Would you agree that for a woman deciding whether
to have an abortion that she should look at her
individual circumstances, be provided complete and
accurate information, and then have sufficient time for
deliberation?
A Yes, and most of that has taken place prior to her
coming [89] into the clinic.
Q And wouldn’t you agree that as good crisis pregnancy
counseling dictates that a woman be presented
information in a non-directive manner, with sufficient
information on all options, to insure that her decision as
how to deal with her pregnancy is an intelligent, knowing
and voluntary one?
A I don’t know about intelligent, I would certainly
agree with the voluntary.
* * *
BY MR. ZEMAITIS:
[90] Q Dr. Allen, in your experience, is the informed
consent dialogue different for each patient?
A It is different, yes.
* * *
[91] MS. KOLBERT: Your Honor, Dr. Michael
Alan Grodin is a pediatrician and a professor with over
11 years of experience in the field of medical ethics.
Presently, Dr. Grodin is the Associate Director of the
156
Law, Medicine and Ethics program, and Director of
Medical Ethics at Boston University Schools of Medicine
and Public Health, where he is also an Associate
Professor of health law, pediatrics and social medical
sciences and community medicine.
In addition, he is an adjunct Associate Professor of
philosophy in the College of Liberal Arts at Boston
University. Dr. Grodin is a medical ethicist and human
studies chairman for the Department of Health and
Hospitals [92] of the City of Boston, and serves on the
Board of Directors of Public Responsibility in Medicine
and Research, and the American Society of Law and
Medicine. He is also a member of the National
Committees on Bioethics of the American Academy of
Pediatrics, and serves on the National Committee on
Ethics of the American College of Obstetricians and
Gynecologists.
Following completion of his B.S. degree at the
Massachusetts Institute of Technology and his M.D.
degree at Albert Einstein College of Medicine, Dr.
Grodin performed his post-doctoral and fellowship
training at UCLA and Harvard. He has been on the
faculty of Boston University since 1979.
Dr. Grodin has served as medical ethics reviewer for
the New England Journal of Medicine and Oxford
University Press, as well as other respected medical
journals. Dr. Grodin has also delivered hundreds of
addresses, is editing two books, and has authored or co
authored over 35 articles in chapters in books and
professional journals, in the area of moral dilemmas in
medicine and problematic decision making in clinical
health.
DIRECT EXAMINATION
BY MS. KOLBERT:
Q Dr. Grodin, do you have a particular area of
expertise in medical ethics?
157
A Yes, I primarily focus on the beginnings and ends of
life, and ethical dilemmas surrounding those two periods.
[93] Q When you say the beginnings and ends of life,
does that include pregnancy?
A Includes pregnancy, reproductive issues, abortion,
new reproductive technologies, perinatal, neonatal issues.
Q Now, I told the Court that you are on the National
Committee on Ethics for the American College of
Obstetricians and Gynecologists, can you explain to the
Court what your job responsibilities are there?
A The American College of Obstetricians and
Gynecologists, which is a national organization
association of board certified obstetricians and
gynecologists, have several committees. One of the
committees they have is called the Committee on Ethics,
and that committee at a national level deals with policy
implications surrounding questions that either the
membership of the college and/or its administration seek
to have elucidation on, illumination on. And the
college’s Committee on Ethics therefore studies these
problems and gives statements — issues statements on
what the position, or what a reasonable position might
be with regard to various issues, whatever the college
wishes to ask us.
Q And I also understand you’re on the National
Committee on Bioethics for the American Academy of
Pediatrics, what are the job responsibilities for that?
A The Committee on Ethics for the Academy of
Pediatrics is [94] a parallel organizations for that group.
As opposed to the College of Obstetricians, the Academy
of Pediatrics is a national organization of board certified
pediatricians who deal with issues of practice and policy,
as well as children’s issues. And they also have various
committees, one of those being the Committee on
Bioethics of the American Academy. And I sit on the
national committee, which deals again with policy issues,
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recommendations, concerns, whatever the administration
and/or pediatricians should wish us to look at.
Q In your writings, professional activities and as a
physician have you had an occasion to provide informed
consent?
A Yes, I have.
Q And have you studied the doctrine and principle of
informed consent?
A Yes, extensively.
Q Have you reviewed the literature taught and lectured
on both the doctrine and the principle of informed
consent?
A Yes.
Q And in your capacity-- can you explain for the Court
that-- you are the medical ethicist, as I understand it, of
the Department of Health and Hospitals for the City of
Boston, can you explain for the Court the job
responsibilities there?
[95] A Right. That is the clinical component of my job,
as opposed to my academic responsibilities. That clinical
responsibility is that I am the official medical ethicist for
the Department of Health and Hospitals for the city,
which includes not only the Public Health Department,
but Boston City Hospital, which is a major municipal
hospital in the City of Boston, as well as two other
hospitals, chronic care hospitals. And in that capacity I
am asked to not only educate and not only create
policies for the Department of Health and Hospitals, but
to do specific clinical consultations on patient care
problems at the bed side, in the intensive care units,
wherever they may ask me to come and consult and help
them try to understand, illuminate and come to some
conclusions about difficult moral and ethical dilemmas
regarding patient care.
Q Approximately how many patients do you consult
with in that capacity per year?
159
A I would say on the average maybe 50 or 60.
Q And can you explain for the Court your job
responsibilities in teaching at Boston University?
A I am a professor of philosophy in the College of
Liberal Arts, where I teach undergraduate and graduate
doctoral students medical ethics and philosophy of
medicine; I’m a professor of health law in the School of
Public Health, where I teach ethical issues in medicine,
public policy and public [96] health; and I’m a professor
in the School of Medicine in the social and behavioral
sciences -- socio-medical sciences and community
medicine, where I direct the program of medical ethics
and teach medical students at the undergraduate,
graduate and post-doctoral level, as well as faculty.
MS. KOLBERT: Your Honor, at this time I would
move the Dr. Grodin be certified as an expert on the
question of medical ethics.
THE COURT: Any objection or any questions?
MS. MERSHIMER: No questions and no
objections.
THE COURT: Motion granted.
MS. KOLBERT: Thank you, your Honor.
BY MS. KOLBERT:
Q Dr. Grodin, can you explain what is informed
consent?
A Informed consent is both a procedural and
substantive concept, which relates to the notion of a
specific act that a patient in this case might wish -- be
approached with a specific act and it relates to giving
information, and having a discourse and dialogue with
that individual, so that they understand various elements
of choice, what choice they’re going to have and what the
elements of that choice are; and then ultimately, in a
voluntary, competent manner, consenting to that act.
Q Is there a difference between the principle of
informed consent and the doctrine of informed consent?
160
[97] A Yes. As I understand those two concepts, the
doctrine of informed consent would be a legal concept,
which would be viewed in the legal legislature or by
courts, whereas the principle of informed consent is a
philosophical moral-ethical notion, which relates to the
notion of respect for persons and autonomy and various
ethical concepts which would be derived independent, for
instance, of a law being in existence. So the principle of
informed consent is a philosophical or ethical notion, and
the doctrine of informed consent would be the legal
embodiment, perhaps, of that ethical notion, or whatever
the law says the doctrine of informed consent might be.
* * *
[98] Q What are the standards of this ethical informed
consent?
A Well, there are several elements, first of all, to
informed, voluntary consent. The first notion would be
that it’s free and uncoerced, meaning that it’s voluntary.
And the other notion would be that it is consent or
competent, meaning that the person has the capacity, the
mental capacity, if you will, to understand what they’re
being asked and what the elements of the informed
consent process are.
More specifically, the question of standard would
come up within the concept of what the information
need be [99] transferred in getting this voluntary
informed consent. And contemporary ethical discourse
on this subject has suggested that the standard, meaning
what information needs to be transferred in this
doctor-patient relationship in the consent process, first of
all is not an objective standard, meaning that the
information that be transferred in an ethical sense should
not be dictate purely by the physician. It seems to me
that if in fact informed consent is to be grounded in
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autonomy, giving people the right and the information
they need to make decisions, than it’s for the patient’s
needs that the informed consent process has occurred.
Therefore, the information should not be objectively
what physicians think. If all physicians got together and
decided that no information should be given, it seems to
me that shouldn’t be the standard, it should be what
patients need. So that is not an objective standard, the
standard--
Q Am I correct in saying that your testimony is the
standards go to voluntariness and that they go to the
subjective needs of the particular patient?
A Correct. So, insofar as informed consent is for
patients, not for doctors, they’re the ones that are being
asked to have a certain action and to consent to it, the
consent doctrine is set up for the needs and to create the
autonomous situation, so that an empowered person can
make a [100] decision.
Then the question would be, what is the content of
that subjective information. And the modern,
contemporary view of informed consent, from an ethical
standpoint, would be that of course it is the patient’s
needs, but it is more than just what a generic patient
would need, it is in fact what that individual, unique
patient would need, because that’s the person who is
need of the respect that will cause them to be
autonomously making the decision that they alone will
need to make. So --
Q So are you saying then that the -- let me ask this,
does that mean that informed consent varies from
patient to patient?
A Absolutely.
Q What is the problem with content-based notion of
informed consent?
A As I understand your question of content-based,
meaning that there would be a specific direction as to
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what information need be said or need not be said,
seems to me that that goes against this ethical concept
that each individual patient needs to be taken on their
own merits. And some of them will have the need for
more information, and some of them will have the need
for less information, depending on their own clinical
circumstances. And therefore, the contemporary view of
informed consent from an [101] ethical standpoint would
be that you should not have specific content-based
informed consent, that that needs to be determined in
the context of the relationship of the individual patients
needs and the doctor or professional who’s involved in
giving the information.
* *
[102] Q Now this morning, Dr. Grodin, there was a
lot of talk about counseling and the informed consent
dialogue. Is there, in your view, a difference between
options counseling and the dialogue of informed consent
as you’ve described it?
A Absolutely. And the distinction I would make is that
informed consent can only be obtained in relationship to
some action that need be taken, you are getting consent
for an action, if you will. And that’s quite different and,
therefore, the standards of information and what have
you relate to the notion of informed consent. Options
counseling is just that, it’s a discussion. There is no need
for action at that point, it’s basically discussing what the
various options that are available and counseling,
discussions around that. But that is quite different than
asking for informed consent to a specific action. And
therefore, usually, you would start off with options
discussions and then move into informed consent for a
specific action.
163
* *
[103] Q Can informed consent ever be obtained over
the telephone?
A I would say no.
Q Why not?
A Because as I’ve suggested informed consent is to a
specific action, and you would need to understand not
only that the person has been informed adequately, but
that they are giving consent and that it’s voluntary. And
the concern I have, for instance, in obtaining consent is
the voluntariness independent of being able to see the
person, and to see how they react and understand and
ask questions. How do I know, for instance, on the
phone that somebody isn’t holding a gun to the person’s
head and asking them to respond to the questions, there
is no way to know that. So in the absence of actually
coming face to face with the individual, I have a difficult
understanding that they are giving their voluntary, if you
will, uncoerced informed consent.
So there are many elements, not only the
information that I would need, encounter and interaction
to see about unsaid types of experiences and
uncomfortableness and what [104] have you, but also the
consent part. So I would need to make an assessment of
competency, if you will, or capacity in a medical sense,
which would require seeing the person. And then the
voluntariness would be of great concern to me over the
phone.
Q Can information be imparted over the telephone?
A Yes.
Q But that, in your view, is different from obtaining
informed consent?
A Correct. By giving information, you’re not asking for
a specific action and consent to that.
Q Can informed consent be obtained through the use
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of a tape-recorded message?
A No.
Q And how about through the use of printed materials?
A No. Those might be adjuncts, but consent could not
be obtained.
Q During the informed consent dialogue, should a
physician or counselor try to lead his patient to his or
her preferred medical choice?
A No, the idea should be to lead the patient to what
their choice is, not what the professional’s choice is.
Again, informed consent is for patients, not for doctors
or counselors.
Q And is this true also with the informed consent
dialogue [105] for abortions?
A Absolutely.
Q Now, you’ve said that the disclosure of information
about the risks and the benefits of a particular medical
procedure is the key to the ethical underpinnings of this
principle, how extensive should that disclosure be?
A To the specifics of the information?
Q Mm-hmm.
A Again, that would depend on the individual clinical
encounter, it would depend on the patient on their
background, on their history of encounters with the
medical system, on any one of a number of factors. And
I would not be able to say specifically how much or how
little, because it would depend on the clinical
circumstance.
Q Can inappropriate disclosure, that is providing either
too much information or not enough information ever be
harmful to a patient?
A Absolutely. First of all, insufficient information
would not give them perhaps the elements that they need
to make that informed, knowledgeable, free, uncoerced,
voluntary consent; and giving them more information
than they need might cause them to be unnecessarily
165
confused, cause stress, cause anxiety, cause them to
misunderstood in fact what the nature of the relationship
is. So it would depend on how much more information
and what the context of that [106] information was, as it
would depend on how little information and what the
context of that little information was.
Q Do you have a view on whether or not inappropriate
disclosure can be harmful to the doctor-patient
relationship?
A Absolutely. Again, if in fact the physician is giving
what we call inappropriate information, meaning
information that they don’t feel is necessary in the
doctor-patient relationship, it would confuse the
physician in terms of understanding what the goal of the
relationship is and try to figure out what the limits and
extent of the informed consent process are, which as I
said needs to be individualized. So it seems to me that it
would cause confusion equally, confusion, problems,
anxiety and concerns for the physician for not knowing -
not being in control of the mutual participation between
the physician and the patient in this consent process.
* * *
[107] Q Dr. Grodin, do you have an opinion about
the provisions of this act and whether or not it may
cause physicians — or will cause physicians to violate
ethical standards in providing informed consent?
A This act as written, or as I understand it to be
written, is specifically content-based. Meaning that it
directs physicians to give, or maybe even not give,
depending on how you read it, certain information to
patients, which again would stipulate what the nature of
the patient’s need is. And as I have said before, the
patient’s need has to be assessed on an individual basis.
And therefore, this is a content-based notion of informed
166
consent, which is not what I think is the present
contemporary standard of what informed consent should
be.
Q Now, I direct your attention to Subsection l(i) in
Section 3205, which appears on Page 8 of the document
before you, which states that the nature of the proposed
procedure or treatment that a reasonable patient would
consider material to the decision of whether or not to
undergo the abortion must be given to the patient.
A Right.
Q Do you have an opinion about whether or not that
standard is appropriate?
A I would again note that I think it’s not a reasonable
patient that’s the relevant issue here, but rather the [108]
specific patient. And there may be patients, for instance,
who are quite unreasonable, that they want a lot more
information than what a reasonable patient would want,
or there may be specific patients who want less
information or need less information. And therefore,
again, it seems to me that you don’t want to stipulate
even in what is a standard, which is most people would
want to discuss the risks, benefits and alternatives. As to
what the content of that might be, it seems to me that
the standard should be the individual patient, not
necessarily what a generic — if I even knew, reasonable
patient might need. So the materiality, it seems to me,
goes to-- you can’t materiality outside of an individual
patient.
Q I direct your attention to Subsection 3(i), which is
directly below, which requires the physician to provide
the medical risks associated with carrying her child to
term; do you have an opinion about whether or not that
standard is appropriate and consistent with current
medical practice?
A I would again make the notion that this is a
content-based directive, which I think is inappropriate in
167
and of itself, because you would need to deal with the
specific patients. It’s particularly problematic though in
the content of an abortion consent, because it seems to
me that if in fact the patient has already made a decision
based on the option discussion and now we’re into the
informed consent [109] part, that it is not relevant to be
going into informed consent around issues that are
unrelated to the action that the patient is there to give
consent for. So, it seems to me that it’s immaterial and
not relevant.
Q Now, are you saying that the woman never should
have information concerning the risks of carrying the
pregnancy to term?
A Oh, of course not. But if a patient came to your
obstetrics office and was going to carry a pregnancy to
term, as an example, and that was her decision, it would
seem equally inappropriate to say what the risks of an
abortion are if she’s coming to your clinic to be talking
about pregnancy and carrying a pregnancy to term. And
therefore, again, I would say on either side the issue is
the appropriateness of the information in relationship to
the specific consent that’s being obtained around the
specific action that the patient is being asked.
Q I direct your attention to Subsection 2(i), which
requires that prior to an abortion a physician or a
qualified physician assistant, health practitioner,
technician or social worker provide or offer to the
pregnant woman information that the department
publishes, printed materials which describe the unborn
child and list agencies which offer alternatives to an
abortion; do you have an opinion about whether or not
this section comports with medical evidence?
[110] A Not only do I think it inappropriate to have
content-based consent, but it seems to me that to go
beyond that and once you’ve decided that there’s
content-based need for bringing up information, to give
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specific information that’s generic for all parties seems to
me inappropriate because that may not be the needs of
that individual patient.
Q I direct your attention to Subsection 2(ii), which
requires the provision of information involving medical
assistance benefits that may be available for prenatal
care, child birth, neonatal care, and the availability of
that assistance; do you have an opinion about whether or
not that particular subsection comports with medical
evidence?
A Again I believe it’s content-based, therefore
problematic. But insofar as the information, it does not
say whether in fact there is or isn’t benefits, it seems to
me it’s confusing even at that level. It may or may not
be the case, in fact, that there is or is not medical
assistance available and, therefore, that doesn’t say very
much. And it also seems to be problematic for the
physician to know whether in fact there may be medical
care available, depending on where one lives and what
the availability is of obstetrical care or of pediatric care,
or what have you. It depends on what one means by
available.
Q I direct your attention to Subsection 3(i), and ask
you whether or not you have an opinion about the
medical ethics [111] of providing information that the
father of the unborn child is liable to assist in the
support of the child?
A Again, it seems to me that that is information that’s
beyond the expertise of a physician to know whether a
father is or is not liable, it seems to me that that’s a legal
question that is not for a physician or clinician to be
discussing. Even if it be true, I might add, it seems to
me that that’s beyond the expertise of a physician, any
more so than a lawyer giving medical information.
Q Now, if you take these sections together, from
Subsection 2 and Subsection 1, little 3, that is the
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information involving carrying the pregnancy to term, do
you have an opinion about whether or not those aspects
of the content-based informed consent will change the
dialogue and, if so, in what way?
A Again, it seems to me that it dictates and intrudes on
the standard, the notion of doctor-patient relationship in
this material, individual-based notion of informed
consent, because it dictates what will or will not occur.
And, therefore, may in fact cause conflict between what
the physician and/or patient needs or wants are, and at
minimum might confuse what the outcome or what the
importance is, what the goal is of that relationship, which
is to have a patient informed.
* * *
[112] Q Dr. Grodin, I’m going to show you what has
been marked as Defendant’s Exhibit 49. I’d like, if you
could, to take a look at that exhibit for me.
(Pause.)
Q And could you identify it for us?
[113] A It’s dated January, 1990, and entitled Attachment
Number 2, Directory of Social Service Organizations, and
there are listing with addresses and phone numbers of a
number of organizations in various counties in
Pennsylvania, with also numbers under special services,
and those numbers I believe refer to another document
- I presume refer to another document that list what
those special services are or might be.
Q Dr. Grodin, do you have an opinion about whether
or not it is appropriate as a matter of medical ethics to
offer this type of information as part of the informed
consent dialogue?
A Again, clearly not as part of the informed consent
dialogue, because the informed consent is to an action
and it seems to me that at that point we’re talking about
170
the informed consent around an abortion, if that’s the
situation. So clearly it is not appropriate as part of the
informed consent part of the dialogue.
Q Now, if some of these agencies listed in this
document are agencies that provide services to pregnant,
and may or may not be religiously based organizations,
do you again have an opinion about whether or not it is
inappropriate for doctors to offer this information as a
part of the informed consent dialogue?
A Not as a part of the informed consent dialogue.
* *
[114] Q Could you identify Defendant’s Exhibit 51
for us?
A It is a one-page sheet with a number H520.705P,
called the Commonwealth of Pennsylvania Department
of Health Notices Required by Abortion Control Act,
July, 1990.
Q Have you had an opportunity to review this
document?
A Yes.
Q Do you have an opinion about whether this
document and the notices that are listed therein are
consistent with contemporary medical ethics?
A Again, this is a content-based document which
specifically directs information to be given, which may or
may not be appropriate, depending on the individual
needs of an individual patient with the doctor-patient
relationship in that clinical circumstance.
* * *
Q Within Subsection C, that begins on Page 9 and ends
on Page 10, there is a provision that says that no
physician [115] shall be guilty of violating this section for
failure to furnish information if he or she can
171
demonstrate by a preponderance of the evidence that he
or she reasonably believed that furnishing the
information would have resulted in a severely adverse
effect on the physical or mental health of the patient --
are you with me here?
A Yes.
Q Do you have an opinion about whether -- first of all,
what- what -
A That is often called in medical ethics parlance of
therapeutic privilege, as well be in the legal, which
means that in certain situations, and it is usually related
to a specific case and a specific time, or a specific
concern is brought up that giving certain information that
the physician might otherwise think would be material to
that individual person, or they might not give that
information because of concern, for instance, about
someone committing suicide or having some other
serious reaction to the information in the context of
informed consent.
Q Do you have an opinion about whether or not this
particular therapeutic privilege comports with medical
ethics?
A The problem I have with this notion of therapeutic
privilege is that it’s in the context of a content-based
notion of informed consent. If in fact one follows the
[116] contemporary view of medical ethics in terms of
informed consent, which is that one goes to the material
needs of an individual patient at that specific time with
the specific concerns and materiality of that individual
patient, then it seems to me one doesn’t need to invoke
the notion of therapeutic privilege very often unless there
happens to be a specific situation, again, with a very
serious concern that something will happen in the
material base of what information you thought should be
transferred. But in the context of this statute, it seems to
me that you might want to or need to invoke this quite a
172
bit, because it’s a general statute saying that all
reasonable would need certain information and for that
specific individual you might make the assessment that
they need less information than what’s in this. And
therefore, you have to, if you will, invoke this therapeutic
privilege more than, I would think, as the standard
notion of therapeutic privilege, which is it should be
invoked very, very rarely, if at all.
Q Do you have a -- within the circumstance that a
physician was following this statute as outlined, do you
have an opinion as to this particular therapeutic
privilege, let’s assume for a minute that this informed
consent were applied?
A Then I would have concern about what the word
severely means.
Q And what’s that concern?
[117] A I don’t know what it means. I’m not sure
severely adverse effect would mean vis-a-vis a specific
patient, outside of the context of that individual patient.
* * *
Q I refer your attention to Subsection D, which is the
limitation on civil liability, are you familiar with this
subsection?
A Yes.
Q Do you have an opinion about whether or not this
subsection comports with medical ethics?
A Yes.
Q And what is that opinion?
A I feel that no statute should make physicians immune
for liability, no statute should make physicians immune
from liability for meeting specific content-based informed
consent. Again, as I said, if a patient needs more or less
information to make an informed, empowered,
autonomous decision, then that’s the information that
173
they should have. And I would be quite disturbed by the
notion that a physician is immune from liability for
meeting just the minimum standard that for instance is
set up in this statute, when in fact the patient may need
much more information or much less information. And
therefore, I have a problem with, [118] statutorily,
making a physician immune from liability based on
specific content-based information.
Q Now, Dr. Grodin, this Section 3205 also requires that
a physician wait for 24 hours from the time that he or
she obtains informed consent until the abortion is
performed; do you have an opinion about the medical
ethics of this 24-hour waiting period?
A Again, it seems to me that that is a content-based
notion of informed consent that in some circumstances
that may be appropriate for individual patients and in
some circumstances it may not be appropriate. And
therefore, it seems to me that you should not have a
generic statement for all reasonable persons, if you will,
because again some people may in fact not need or not
want that amount of time, or may in fact need or want
more time than that.
Q Are you aware of any other area of medical decision
making which would have a similar 24-hour waiting
period.
A Not to my knowledge.
Q Section 3208 of the act, which begins on Page 18,
requires that the physician, as part of the informed
consent dialogue, offer materials which are those which I
have shown to you, do you -- this merely requires the
physician to offer those materials, do you have an
opinion as to whether or not that would violate your
standards of professional ethics?
A Again, in the context of informed consent, which is
what [119] I understand this to be about, it is consent to
a specific action. And therefore, it seems to me
174
inappropriate to even offer, as an example, material that
is irrelevant to the specific action that the person is
being asked. As an example, if I were a patient that had
discussed with my I family or with physicians or nurses
whether I should have gallbladder surgery and have my
gallbladder, by either surgery or by medical therapy, as
an example, and then I’ve come to a conclusion over
time that I want to have surgical procedure and I don’t
want to live with taking medicine any more, I want to
have my gallbladder taken out, I’ve now come in to get
consent for the gallbladder surgery. It seems to me
inappropriate to say but, you know that I could give you
information about medical therapy, when in fact the
patient has already thought about that and now is coming
in for a specific consent related to a specific action,
which is a surgical procedure.
Q Do you have an opinion about whether or not
offering pictures at two-week gestational increments of
the fetus would violate medical ethics?
A Again, the same situation. I would not offer
routinely information, that I would have to depend on
individual patient for their individual needs. And then it
seems to me that occurs in the option-based part of the
two-part option counseling in informed consent approach
to patient care. So [120] I don’t have a problem
specifically with pictures, if in fact that’s what the patient
needs and wants and asks for.
Q Now, you’ve testified in a number of different
instances that the act as currently drafted would violate
professional ethics. What’s the effect on a physician who
is required to provide this information which in your
view would violate those professional standards?
A Well, it seems to me it may have many effects, not
the least of which is to cause them to be confused and
can cause them to not understand what the goal -- who
the informed consent process is for; is it for patients, is it
175
physicians, is it for hospitals, is it for legislatures, what is
the goal and intent? So that would be confusing and,
again, problematic. If in fact the physician were to act
on what they felt was the present standard of ethics and
it was contrary, for instance, to what the law said, that
would cause increased stress, not just confusion, but
stress as to what one should do. Whether one should in
fact follow what one believes or thinks the law is, if one
can understand it, or what their medical ethics and their
profession dictates to them. That would cause stress
over time, which would be detrimental to their patient
care as well as to them. More specifically, over time,
many people will not want to place themselves in that
type of situation and, therefore, they will stop doing
whatever it is that is constantly placing [121] them in a
situation where they have to act differently than what
someone is telling to do.
Q In your view, would that mean the physician would
stop performing abortions?
A I believe some would.
Q Dr. Grodin, I’d like to give you a hypothetical
situation that is based on facts that will be presented in
evidence in this trial. I want you to assume that you are
a physician providing abortion services and that into your
office comes a woman who has been battered and that
you suspect that this woman has, from her injuries and
her demeanor, that she has been battered, and you
offered that woman assistance for the underlying
problem of battering, but that woman refuses the
assistance because she does not consider herself a
battered woman. Similarly, you have a suspicion that
informing that woman’s husband of her pregnancy will
lead to danger to her and may well place her in a
life-threatening situation, do you have an opinion -- let
me say one more fact, which is that the battered woman
would be unwilling to declare herself battered under the
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exception to Section 3209 of the act, that is she is
unwilling to sign a statement that she considers
herself to be at a risk of bodily harm as a result of
notification. Do you have an opinion about what, if
anything, the physician should do as a matter of medical
ethics in that circumstance?
[122] A First and foremost, the physician’s obligation is
to meet the needs of the patient and to try to speak to
their welfare and their beneficence, to benefit them.
And therefore, it is clear that the information should not
be passed on to her spouse, in that it would cause --
there is good reason to believe that it would cause her to
have significant harm.
Q What, if anything, is your opinion about how the
physician would make that event occur if the act requires
him to -- or requires either a statement from the woman
that she’s notified her spouse or has exempted herself
from the act’s coverage?
A Well, again, the physician clearly cannot reveal the
information because that would cause harm to the
patient, according to the ethical principles of beneficence
and patient, doctor-patient relationship and care.
Therefore one would have to do, it seems to me, one of
two things: either have the pers- encourage the woman,
if you will, to lie and say that she has informed the
husband if she hasn’t, which I understand might have
some significance for her in terms of the statute, and/or
the physician would have to certify that according to the
statute there will be -- there are extenuating
circumstances that require one not to pass on the
information which apparently this doesn’t meet.
So either the physician would have to take on the
responsibility of disobeying the statute or the patient
[123] would, it seems to me, but one of those two things
would have to be done because one thing that clearly
should not be done from a moral standpoint is to pass
177
the information on to a spouse who you have reason to
believe will harm this woman.
Q Now, I would like to give you a second hypothetical
that involves a woman who has been a victim of marital
rape, that is, she’s been raped by her spouse. And under
Section 3209, prior to the performance of an abortion,
the woman would either have to notify her spouse or
again sign an affidavit that her spouse -- I’m sorry, that
the pregnancy is a result of spousal sexual assault which
has been reported to law enforcement agency having the
requisite jurisdiction.
Now, assuming this circumstance that a woman
comes forward to you, says she is a victim of marital
rape, the pregnancy is a result of that marital rape but
that for a variety of reasons she refuses to initiate
criminal activity criminal prosecution against her
husband and refuses to report to a law enforcement
agency having the requisite jurisdiction, do you have an
opinion about what if anything the physician should do as
a matter of medical ethics in the circumstances?
A My concern again would be to the welfare of that
individual patient who in fact I have developed a
relationship with and my goal is to try to beneficently
care for them and to give them the care that’s necessary
and [124] appropriate and to their best interests. And
therefore insofar as I would have deep concern of
passing that information on to a spouse which she says
that that will cause her harm and I have every reason to
believe it will, I would not pass that information on.
Q And again do you have an opinion about what the
likely effect is on the doctor to avoid the requirement of
the act?
A The doctor then to follow what is the ethical
appropriate course of action in the nature of
doctor-patient relationship then would either have to ask
the patient to violate the statute and/or would have to
178
violate it themselves.
* * *
Q I’m sorry, let me strike that. I would ask you to turn
to Page -- it’s Section 3206 of the act which is the
parental consent division, and that begins on Page 10.
A Mm-hmm.
Q Are you familiar with this provision?
A Yes.
Q Do you have an opinion on whether or not this
provision comports with medical ethics?
A As I understand the provision it requires the
informed consent of both the parent and the child.
Insofar as medical [125] ethics deals with informed
consent in an individual person, one cannot get informed
consent from two parties. Either the person is
competent and has the capacity to do a voluntary
informed consent and therefore they will consent and/or
they’re incompetent and therefore a proxy or surrogate is
the one who is making the informed consent. There is
no place in medical ethics, as far as I know, where you
could ask two people to give an informed consent for a
specific action. It is incompatible with the notion of a
doctor’s informed consent which again relates to an
individual person’s needs and a specific action that an
individual person is going to, so either someone gives
informed consent themselves or they are unable to and
someone else must be a surrogate or proxy for them to
give that informed consent.
Q Now, Dr. Grodin, were you in the courtroom this
morning when Dr. Davidson testified?
A Yes.
Q And did you have an opportunity to hear his
testimony?
A Yes.
179
Q As I recall the testimony -- and you may correct me
if I’m wrong — he testified that in his view in certain
circumstances there was a possibility that the act, if
applied, the definition of medical emergency if applied to
certain circumstances would cause him to change his
manner of medical care and violate what he termed his
ethical [126] obligations. Do you have an opinion about
the ethics and the dilemma that Dr. Davidson would be
faced when having to apply the definition of medical
emergency as contained by the act?
A Again, I feel that physicians’ obligation are to
patients, first and foremost, and that should be their
concern which is meeting the needs of patients and trying
to, particularly in an emergency situation, deal with those
particular problems and therefore it causes me great
distress to think that an emergency room physician might
be worried about statutory definitions, legal counsels or
anything else when, in fact, someone comes in with an
emergency situation and they are called upon to act to
the best of their medical judgment dealing with a
particular medical circumstance.
So I am quite concerned about an emergency
physician who says that there is a conflict or that they
think about it or in fact they have to do something
different than what they think the law dictates for them
which will cause stress, anxiety, maybe change in the way
they practice maybe for them to be less certain about
how they should proceed or have other concerns. The
primary if not sole concern should always be trying to
meet the best interests of a patient.
* * *
BY MS. MERSHIMER:
[127] Q And the therapeutic privilege that you were
talking about, that applies to the physician in the
doctor-patient relationship, is that correct?
180
A I’m sorry, I don’t understand.
Q The therapeutic privilege that you had described, you
said was contained in Section 3205(C), do you know what
I’m talking about?
A I do.
Q And that applies to the physician in the
doctor-patient relationship?
A As I understand it, yes.
* * *
[129] Q All right, well, can you think of any
circumstances other than the suicide example where
therapeutic privilege would apply in an abortion context?
A Ask the question again, please?
Q Can you, when I asked you can you give me any
examples other than the suicide example you gave where
the therapeutic privilege would apply in abortion cases,
you said "I can’t think of many." I’m asking you for any.
A Well, again, if in fact the patient were going to - if
you had reason to believe that they would have severe
depression and go into a severe depressive state and that
[130] based on their psychiatric history, many of these
things relate to psychiatric types of problems, but it
seems to me that those are the types of situations where
generally the therapeutic privilege might be invoked or
where somebody would cause harm to themselves or to
others based on the information being disclosed. But it
seems to me that should occur quite rarely, I would
hope. That’s what the notion of the therapeutic privilege
is because again you’re giving -- you’re not giving
information that you believe the patient needs and is
material; that’s critical.
Q We’ve been going through some sections,
3205(A)(1)(3), and also Sections 3205(2) and all the
provisions under that and you gave your opinion that you
181
had a problem with all those requirements under the
informed -- as being information provided by informed
consent, is that correct?
A Correct.
Q Now, if the Commonwealth took it out of the caption
of being informed consent and just required it as
additional information that had to be provided sometime
before the abortion then you don’t have the same ethical
problem?
A That’s a different question.
Q Well, I’m asking you.
A Could you ask me a question?
Q If the Commonwealth would take out the
requirements that are listed in Section 3205(A)(1)(3) and
all the provisions in [131] 3205(A)(2) and they take it out
of being under informed consent but would make it a
separate requirement that documents or information be
available to a woman before she had her abortion, would
you have the same ethical dilemma?
A I would still have problems with specific content
directed information, even in the counseling setting,
although I’m much more open to the notion of
presenting lots of different information than the -- that
are unrelated to the specific action of informed consent,
I have problems with any content based specific
information that all people need receive in all situations
because individual people have individual needs and
therefore some people need more and some people need
less information.
Q So if any state enacted any informed consent
provision that had content based requirements, that’s no
good ethically to you?
A My, again, sense is that the contemporary view of
medical ethics is that we should try to meet the
individual needs of the individual patient and therefore
to direct medical care through the legislature or through
182
law or anything else is inappropriate.
Q The requirements under Section 3205(A)(l)(iii)
talking about the nature of the proposed procedure and
treatment and of those risks and alternatives to the
procedure or treatment that a reasonable patient would
consider material to the [132] decision of whether or not
to undergo the abortion, that shouldn’t be required as
part of informed consent?
A Again, the infer- what I would say is that the
information about the risks, benefits and alternatives,
that that specific patient needs is what should be given.
Q So the statute would be all right if it just took out
reasonable patient to the specific patient?
A I -- yes.
* *
[135] Q When you were given the hypothetical about
the battered woman and you said there was a choice
between either the patient disobeying a law such as lying
on the form or else the physician disobeying the law by
going ahead and performing the abortion without having
the notice being given, isn’t another option is to
encourage the woman to check off the box saying that
she fears physical violence and guaranteeing her
confidentiality and try to get her some help?
A Well, absolutely. But as the case was presented to
me, she refused. Obviously you would want to discuss
why it is that she’s fearful, explain that checking off this
box would mean that we wouldn’t have to pass on the
information, et cetera, et cetera, et cetera, but as the
case was presented me in no uncertain terms even after
persuasive discussion, not just, you know, open discourse,
but in fact encouraging [136] and persuading which I
think would be in the realm of what an appropriate
doctor-patient relationship would be, if she absolutely
183
refuses, then you have only a few options available. The
other one perhaps would be to question her competence
or capacity, but I think that that was not as the case was
presented. If in the context of that she also relates
psychiatric symptoms or what have you or is delusional
or what have you, then there might be other modes to go
down, but it seems to me that as the case was presented,
that’s the only option available. In fact, it may be part of
her disease or battering that she’s unable to sign off on
that, but that’s a little bit outside of my expertise, but I
have in my clinical encounter dealing with child abuse
found parents that will not be able to admit and up front
say that they abuse their child, even though the child has
physical evidence of abuse in front of you and that they
clearly have abused the child, but they are unable to
specifically say that they abuse their child because of
concerns about their psychodynamics of intent, all kinds
of issues. So --
Q All right, thank you, Doctor, I think I get the point.
You would agree though it’s a doctor’s ethical obligation
in such a case when he is presented with a battered
woman to encourage her though to get help and get
treatment?
A I’m sorry?
[137] Q You would agree --
A Oh, in terms of the battering?
Q Right.
A Oh, yes, absolutely I would say that there is a serious
problem here and the fact that you won’t sign this may
be as much a part of the problem because it’s
recognizing, accepting there is a serious problem and I
would encourage her to explore this.
* * *
184
RONALD JOSEPH BOLOGNESE, Plaintiffs
Witness, Sworn.
THE AUDIO OPERATOR: State and spell your
name for the record, please?
THE WITNESS: My first name is Ronald,
R-o-n-a-l-d, middle name Joseph, J-o-s-e-p-h, last name
Bolognese, B-o-l-o-g-n-e-s-e.
MR. ZEMAITIS: Your Honor, Dr. Bolognese will
be [138] tendered as an expert in the practice of
obstetrics and gynecology in Pennsylvania and in
particular the practice of perinatal medicine.
Dr. Bolognese received his Bachelor’s degree from
Princeton University in 1959 and his M.D. from the
University of Pennsylvania School of Medicine in 1963.
After graduating from Penn, he served rotating
internship at Bryn Mawr Hospital in Bryn Mawr,
Pennsylvania, and he served as a resident in obstetrics
and gynecology at Pennsylvania Hospital, also in
Philadelphia.
He is licensed to practice medicine in Pennsylvania
and New Jersey and he has specialty certifications from
the American Board of Obstetrics and Gynecology in
1969 and the Internal Fetal Medicine Board, which is a
division of ACOG in 1974.
He has served on the faculty of the School of
Medicine at the University of Pennsylvania, serving as a
Clinical Assistant Professor of Obstetrics and
Gynecology, an Associate Professor of Obstetrics and
Gynecology. He also serves as the Director of the
section on Perinatology of the Department of Obstetrics
and Gynecology at Pennsylvania Hospital and he has
served as a Professor of Obstetrics and Gynecology at
the University of Pennsylvania School of Medicine.
Since 1985 he has been Chairman of the Department
of [139] Obstetrics and Gynecology at Pennsylvania
Hospital.
185
DIRECT EXAM IN A TION
BY MR. ZEMAITIS:
Q Dr. Bolognese, could you describe for us the practice
of perinatal medicine?
A In 1974, the early 1970’s actually, the American
College of OB/GYN determined that there were
subspecialty areas that required additional training and
expertise. One of those was maternal fetal medicine or
more loosely referred to as high risk obstetrics. And the
purpose was to produce a group of physicians who had
the expertise in the identification of patients who had
less than an ideal chance of a successful outcome of
pregnancy due to either maternal complications, medical
complications that the mother brought into the
pregnancy such as diabetes, hypertension, or
complications that arose in her previous pregnancies such
as premature labor, neonatal demise, stillbirths, that tend
to repeat during subsequent pregnancies. So then in
general the patient was at significant risk for a poor
outcome in a subsequent pregnancy.
Q Is perinatology now recognized as a specialty in the
obstetric and gynecological practice?
A Yes, in 1974 the American College of OB/GYN
established the subspecialty and I was one of the original
14 physicians boarded in maternal fetal medicine at that
time.
[140] Q What was the qualification process that you
had to go through to become qualified?
A The initial process was a grandfathering of the
physicians who had a level of expertise. To prove that,
they submitted a series of cases over a two or three-year
period, identifying the types of complications, the types
of patients that they cared for, and this was judged by
senior members of the American College that these
physicians indeed had an expertise and a familiarity with
the process of complicated obstetrics.
186
They were then asked to submit a thesis on
published material for approval by the board and at that
point subjected to a intense oral examination for the
completion of the process.
Q Since your qualification has your practice been a
specialty practice in perinatology?
A Yes, it has.
Q Now, as I mentioned a few moments ago, you have
some teaching responsibilities both at the University of
Pennsylvania and at Pennsylvania Hospital. Could you
describe the teaching responsibilities you have?
A Pennsylvania Hospital is the major affiliate of the
University of Pennsylvania and well over half of the
students who choose obstetrics and gynecology as their
course are trained at Pennsylvania Hospital as part of
the rotation. [141] And I participate in a lecture course
and daily rounds with the medical students. In addition
to that, we train 20 residents at any given time in
obstetrics and gynecology at Pennsylvania Hospital and
I’m responsible for some of the teaching of those
residents. And, lastly, we have a fellowship in maternal
fetal medicine. At any given time we have four fellows
who are a part of our program and I play an integral
part in training those fellows who will go on to be
perinatal specialists around the country.
MR. ZEMAITIS: Your Honor, we move that Dr.
Bolognese be qualified as an expert in the practice of
obstetrics and gynecology in Pennsylvania and in the
practice of perinatal medicine.
THE COURT: Any objection or any questions
concerning qualifications?
MS. MERSHIMER: No, your Honor.
THE COURT: Motion granted. Shall we proceed?
MR. ZEMAITIS: Yes, your Honor.
BY MR. ZEMAITIS:
Q Dr. Bolognese, could you get in front of you, I think
187
it’s the document you have right there, it’s the Abortion
Control Act and I would ask you to turn to Page 5 on
which is contained the definition of medical emergency.
Have you had an opportunity to review that
definition before your testimony here today?
[142] A Yes, I have.
Q Knowing the problems you encountered in your
practice of perinatal medicine, how do you react to that
definition as it would apply to that practice?
A It’s a vague and confusing definition that places the
physician in, I think, a dilemma in trying to interpret the
law as well as interpret the specific components and
words as substantial and good faith clinical judgment,
impairment of bodily function. The orthopedic service
may not interpret the uterus as a major body function
and I may not interpret the knee as a major body
function, so that there are just a vague, confusing
definition of medical emergency.
Q I’d like to point out some of the specific terms and
ask your reaction to them: serious risk. Is serious risk
standing alone a term that you use in your medical
practice?
A Alone we would try to define that a little bit better
than by serious risk. We’d specify indications or
conditions that would be -- would statistically tend to
point us in the direction of serious. Serious is such a
vague term and it is not a medical term.
Q Is the term "substantial impairment" a term that you
use in your medical practice?
A I’m not sure what a substantial impairment is. Is 75
percent impairment substantial? Is 50 percent
substantial? Is 25 percent? Depending upon the body
function, five [143] percent could well be substantial and
other body functions, 90 percent may not be considered
substantial. So again it’s a very vague, imprecise term.
Q Now, the final term I’d like you to take a look at is
188
"major bodily function." Do you have any understanding
as to what that term means?
A Again, as a physician, I can’t think of many body
functions that would not be considered major. Obviously
as an obstetrician-gynecologist, I suspect that I focus on
the pelvic organs as major body functions, but that
position may not be agreed upon. Certainly women can
live without major bodily functions of the uterus and the
ovaries, but in our judgment, that certainly a loss of the
uterus or ovaries would be a loss of a major body
function. So it’s very imprecise and again vague as to all
the medical terminology.
Q If the statute goes into effect and this definition of
medical emergency begins to apply to the practice of
obstetrics, what do you predict obstatricians will do?
A Panic. I think the first reaction of most physicians
would be to look at this law and decide that they just
don’t want to have anything to do with it. I think the
advent of increasing legal action on the part of physicians
has had a significant impact upon how they practice, and
that’s in a civil area. Physicians in general are not used
to a criminal area, but they are typically concerned and
afraid, so my [144] first reaction would be that the
assumption of most physicians is just not get involved
with this. The second reaction may well be to create
another layer of committee or judgment so that the
physician may seek advice or seek sharing the
responsibility of the decision by going through some type
of a committee or I could imagine myself as a chairman
of a department of being placed in the position of
judging each and every medical emergency because the
physician does not want to take that responsibility totally
upon his or her shoulders. So I think you create another
either no action or another layer of bureaucratic
administration to decide a medical judgment.
Q What consequences would those have on actual
189
treatment of patients in emergency situations?
A Well, I think it would confuse -- first of all, the
patient would either be rejected of that treatment and
time would be lost in finding another physician to
assume responsibility or liability or whatever to care for
the patient or to create the circumstance of time lost by
committee meeting or time lost in finding a chairman of
a department to make that decision.
As a chairman of a departmental might well choose
not to be involved myself because of the criminal
responsibility that I could assume by participating in that
judgment, so I think it would cause delay, confusion, and
the [145] person that would suffer, the persons that
would suffer in that end would be the mother and
potentially the fetus.
Q Now, are you aware that in the statute there is a
24-hour waiting period, mandatory waiting period
between giving of the information for informed consent
and the performance of an abortion?
A Yes, I am.
Q In your practice as an obstetrician, once a woman
has given her informed consent to any medical
procedure, is there any reason, any medical reason to
delay that procedure?
A Generally not. There are some situations and it was
in line with what Dr. Grodin was pointing out. There
are occasional circumstances where the complexity of the
judgment placed upon a couple does require some time
on their part to arrive at a decision one way or another,
but in most instances, if it’s truly a medical emergency or
a judgment or procedure, once we have provided
adequate explanation and informed consent tailored to
the patient, tailored to the understanding of the patient,
there are very few circumstances that would justify a
delay.
Q Can you think of any specific examples where you
190
think it might be to the patient’s benefit to have some
time between receiving the information and having the
procedure?
A There are certain circumstances in genetic
abnormalities, for example, one example would be a
Kleinfelder’s Syndrome, [146] the identification of a fetus
that has the Kleinfelder’s Syndrome. This is a child with
an extra Y chromosome, this so-called super male. Data
in the past used to imply that there was a higher
percentage of criminal behavior on the part of this type
of an individual and based upon the fact that examples
or blood tests in criminal -- in institutions, prisons tended
to demonstrate that. That data is of no validity today but
the fetus may well be unusual in certain circumstances,
this fetus will be sterile, the intellect of the fetus will
tend to be as an adult on the average side rather than
above average, but not retarded, so that there are some
subtleties in that judgment where the fetus indeed may
be quite normal as an adult, except for some limitations
and does that couple want to take those choices.
That requires a little bit of time and thought on that
couple’s part, so that would be an example that I could
see.
Q In your treatment of high risk patients, are the
women that you treat typically trying to carry their
pregnancy to term and have a child?
A That’s the primary purpose for seeing us, yes.
Q Do you ever face situations where you have to
terminate the pregnancy of one of your patients
prematurely, even though the woman would like to
continue the pregnancy?
A Yes.
[147] Q What are the most common conditions you
encounter in your practice of that type?
A The most common would be premature ruptured
membranes leading to infection. The second example
191
would be the development of a bleeding source, usually
from a placenta that is prematurely separating, that
chronically is causing a loss of blood to the mother and
necessitating or beyond her ability to proceed with blood
replacement. Or the development of preeclampsia which
can go on to eclampsia and that so-called HELLP
Syndrome, would be the three more common examples.
* * *
Q Dr. Bolognese, I’d like to focus for a moment on the
[148] situation where the woman has a ruptured
membrane ultimately leading to infection. How
frequently does that phenomenon occur in your patient
population?
A Well, prematurity represents about six to ten percent
of all births in the country, and about 25 to 30 percent of
cases of premature delivery are proceeded by rupture of
the membranes prematurely.
In our circumstance at Pennsylvania Hospital as a
tertiary care center, because of the expertise of the
perinatal service and because of the expertise of our
neonatal care, we receive a number of transfers of
patients who have prematurely ruptured membranes at
outlying institutions and who are going to be cared for at
Pennsylvania with the thought of either providing the
maximum care for the mother or the ideal delivery route
or the best possible care for the neonate at the time of
the delivery.
So it is a -- represents, prematurity represents well
over 50 to 60 percent of the complications we care for
and so it represents about 25 to 30 percent of those
complications, so it’s a fairly frequent problem.
Q Does the problem of the ruptured membrane occur
in women before the fetus is viable?
A Yes.
192
Q And it also occurs after, I take it?
A Yes.
* * *
[149] Q I’d like to take a particular example of this
and assume for the moment you have a patient for whom
the membrane has ruptured, a membrane has ruptured,
but there is no infection evident at this point in time.
What would be the accepted course of management for
that patient?
A Well, depending upon the point at which the rupture
occurred in the gestation, we will advise the patient that
if the rupture occurs before 24 weeks of gestation, the
further away from 24 weeks, the earlier in the gestation
from 24 weeks we might well recommend to the patient
that termination is or completion of delivery of the
pregnancy is the best route since the fetus requires the
presence of amniotic fluid for development of the lungs.
So, for example, take a patient who is an infertility
patient who has had many years of attempting [150]
pregnancy and finally succeeds at pregnancy, reaches 21
weeks of gestation and ruptures membranes. The
likelihood of a successful outcome of that pregnancy,
even if the patient remains pregnant, is extremely poor
to impossible because the fetus may well survive to 30
weeks of gestation and because of the absence of
amniotic fluid, when the fetus is delivered as a newborn,
it has no lungs to resuscitate. So the mother may go
through a prolonged period of hospitalization, increasing
positive thought process because she is reaching that
point, deliver a fetus which has no lungs and the baby
will die in the delivery room.
We will try to encourage that patient to discontinue
the pregnancy, but if a patient has been trying for many,
many years and this is her last hope in her mind, she will
193
insist that we maintain a pregnancy. We will then do, we
will hospitalize the patient, monitor her carefully for any
infection as we would do after the 24 weeks of gestation
and look for any opportunity to identify a risk to the
mother or the fetus and proceed for delivery, such as the
development of an early infection on the part of the
mother.
Q Now, in those instances where infection does appear,
what would the accepted course of treatment be?
A Once — once the infection has been identified in
developing in the mother, as best we can determine that
infection is developing, we proceed to delivery.
* * *
[151] Q Once an infection appears, in your medical
opinion, Dr. Bolognese, is there any reason to delay the
process, whether it be delivery or cesarean section?
A Absolutely not.
Q What are the risks to the woman if you delay any
procedure at the time the infection first manifests itself?
A The initial risk to the mother is an infection within
the uterus which causes seeding of infection in the
uterus. Then the patient potentially will begin to
develop a blood-borne sepsis or spread of the infection
throughout her body, which leads to an overwhelming
septic infection, shock. And, lastly, if that infection is
indeed an overwhelming infection she may develop
what’s called disseminated intravascular coagulopathy,
DIC, which is easier, and that represents her
coagulability, her ability to clot off her blood. She loses
that ability and she may frankly hemorrhage to death.
[152] Q At the time the infection first appears, is the
woman in any immediate danger?
A Not if we move rapidly for a delivery.
Q What are the risks to the fetus of a delay in the
194
procedure?
A The fetus will also develop an overwhelming
infection and if we’re dealing with a pregnancy that is
either close to viability or beyond viability, the best
approach for the fetus is for delivery and treatment with
antibiotic therapy, respiratory therapy on the part of the
intensive care specialists or neonatologists. So both
patients in that circumstance would be at risk and
delivery is in both their best interests.
Q When a woman presents an infection can you predict
how long it will take for that infection to develop into
the other problem, more problematic infections you
mentioned a few minutes ago?
A Not — not -- well, some infections can be chronic,
other infections can become life-threatening within a
matter of hours.
Q If you delay the procedure and the condition of the
woman worsens, will that have any impact on the
treatment of that woman?
A Not infrequently if the uterus becomes infected or
seeded with infection, the uterus fails to adequately
respond to [153] Pitocin and she may not be able to
deliver vaginally, we may not be able to successfully
induce the labor process or effective labor process and
then we’re forced to proceed to an operative delivery,
which places the patient at more risk. She is then
infected, the uterus is infected, the risks of a surgical
procedure then are substantial. After evacuating the
uterus she may not contract the uterus adequately and
begin uterine hemorrhage. We may end up having to
remove her uterus or perhaps her entire reproductive
organs as a result of a delay in overwhelming pelvic
infection, and we still may lose the patient.
Q So to make sure I understand, delaying the process
of evacuating the uterus may change the method of
treatment you have to employ?
195
A Absolutely.
Q And the method of treatment you would later have
to employ, the surgical method, is considerably riskier to
the woman than the vaginal delivery that would occur
early at the time the infection is discovered?
A Absolutely.
Q You also mentioned earlier, I believe, and if you
didn’t, I’ll mention it, preeclampsia.
A Yes.
Q Is that a condition that you encounter in your
perinatal practice?
[154] A Yes. In fact, preeclampsia and infection and
hemorrhage are three of the major causes of maternal
deaths in this country. And preeclampsia again is one of
the problems we encounter at our institution.
Q What is preeclampsia?
A As best we can determine, it’s a combination of
symptoms that may well be related to an immunologic
problem on the part of the mother. It occurs in the first
pregnancy of patients, tends to occur in the younger
patient rather than the older patient and, interestingly
enough, tends to recur, potentially may recur with a new
marriage or a new partner on the part of the patient.
The patient develops significant hypertension, she can
have destruction of the liver, hemorrhage into the liver,
she can have destruction of the kidneys and she may go
on to have eclampsia, which is a seizure disorder of the
brain, due to the edema that she tends or the excess
fluid, water intoxication that she may take on.
Q You mentioned earlier, I believe, the term HELLP
Syndrome?
A Yes.
Q What is HELLP Syndrome?
A HELLP Syndrome is a further development of
preeclampsia with respiratory distress, an adult
respiratory distress syndrome where the patient has a
196
significant complication in [155] the lungs fluid retention
and they go on to die secondary to that.
Q How frequently do you encounter cases of
preeclampsia?
A Again, preeclampsia tends to occur more commonly
in the lower socioeconomic patient, so that as an urban
hospital dealing with urban patients as well as, again, a
tertiary care center where complications are transferred
in, preeclampsia is a disease that we deal with not
infrequently on an ongoing basis.
Q When preeclampsia manifests itself, what is the
accepted method of treatment?
A The accepted method of treatment is the diagnosis
and then proceeding again to delivery, since there is no
cure for preeclampsia, and that a delay may again
worsen the maternal condition, as well as causing
hypoxia, loss of oxygen, reduction of oxygen to the fetus
and possible permanent damage to the fetus.
Q Can you predict at the time that preeclampsia
manifests itself what the outcome would be for a patient
if the condition went untreated?
A Again it can be a chronic nature or the earlier the
onset very frequently can be very severe and a patient
can go into a HELLP Syndrome or become eclamptic
within a matter of hours.
Q When the symptoms first manifest themselves, is the
[156] patient in immediate danger?
A Patient is at risk but not at immediate danger.
Q What are the consequences if you delay the
termination of the pregnancy for a preeclamptic patient?
A Again the problem would be the development of
eclampsia, the development of HELLP Syndrome, the
patient may go on to seizure, the patient may go on to a
respiratory distress and then eventually death. We may
also lose the fetus during the course of that time because
the mother, as she begins to spasm or contract her blood
197
vessels, she will reduce dramatically the blood supply to
the uterus, hence the blood supply to the placenta and
thereby the blood supply to the fetus. So we may end up
losing the fetus as well as the mother in a severe case.
Q In your opinion, Dr. Bolognese, once a patient
manifests symptoms of preeclampsia, is there any
medical reason to delay treatment?
A None.
Q Would a delay in treatment potentially have an
impact on the course of treatment?
A Again the decision, the longer one delays, the sicker
the patient, the poorer the response or less time one has
to induce a vaginal delivery and again you’re going to be
forced to proceed to an operative delivery and a very
sick patient.
* * *
[158] Q Dr. Bolognese, in your testimony you
mentioned on a number of occasions delivery of a
patient or delivery of the pregnancy. Is that in fact a
termination of the pregnancy?
A Absolutely.
* * *
BY MS. MERSHIMER:
[161] Q Have you performed any abortions --
A Yes.
Q -- that you felt were required to be performed
immediately, but don’t fall within the act’s definition of
medical emergency?
A Uhm, there would be instances again where ruptured
membranes occurred prior to 16 weeks of gestation
where again there’s no reason to delay the pregnancy --
the termination of the pregnancy or abortion under the
198
definition of the State of Pennsylvania because there’s no
chance of viability and a delay would be, again, a
potential risk to the mother because of infection. Once
the membranes rupture at any stage of pregnancy, the
mother is at risk to an infection. So once, whatever time
that occurs in the gestation, the decision to proceed to
delivery has to be considered, depending upon the
circumstances.
Q Any other examples other than ruptured membrane?
A Again there could be instances of significant
hypertension where a patient has been poorly controlled,
instance of severe diabetes, again poor control on the
part of the patient, where delivery of the pregnancy
would be [162] justified abortion, depending upon the
timing of the delivery, would be justified as a medical
emergency.
Q Okay. And for severe hypertension in such cases
how soon would you perform the abortion?
A If the patient has poor hypertensive control and
becomes pregnant and her hypertension worsens because
she has a chronic hypertensive disorder, not preeclampsia
as we talked about before, again pregnancy is
complicating her hypertension and immediate delivery
would improve the circumstance. So in those
circumstances that again, you’ve asked me for instances
of emergencies where I would move rapidly, that would
be another instance.
Q Okay. And that woman can’t wait 24 hours before
she had the abortion?
A If she has uncontrollable hypertension which is being
worsened by the pregnancy, she can indeed develop a
major hypertensive crisis and have a major -- major
problems, so again I would move for delivery.
Q Okay. And what would those major problems be in
that case?
A She could stroke out.
199
Q And die?
A Well, that’s sort of a major problem, too, but I
haven’t been thinking quite that far down the road; yes.
Q What happens when she has a stroke?
[163] A Well, she could be permanently paralyzed,
depending upon the age of the patient. She might
partially recover or, depending on where the stroke was,
she might have a hemorrhage and she could indeed die.
Q Okay. Now, in the case of diabetes that you gave,
what, the abortion would have to be performed
immediately, within 24 hours?
A If the patient has uncontrolled diabetes then she is
again in a situation where she is developing ketoaciduria
where she could have a seizure or a coma secondary to
the diabetic state. There’s no reason if the patient
requests a termination to move to delay that for 24 hours
to meet a regulation, when the best interests of the
patient would be served by moving to a delivery or
termination.
Q Well, is there some increased risk to her life, her
health, by waiting 24 hours?
A If her diabetes is poorly controlled and cannot be
controlled well because of the pregnancy then, indeed, I
would move for a termination, yes.
Q And what happens, what’s the result if there is no
termination of the pregnancy?
A The patient may well develop ketoaciduria and may
go into a diabetic coma or diabetic seizures.
Q And what does that all mean?
A What does that all mean?
[164] Q I mean, like does she lose her kidney or --
A Patients can again have a major central nervous
system disorder as a result of the seizure.
* * *
200
[165] A Delivery of the fetus at that point or
terminating the pregnancy would be recommended to the
patient because the likelihood of a successful outcome of
a live fetus or live newborn would be essentially zero.
Q So you explain the risks to her of terminating the
pregnancy compared to the risk of her carrying that child
to term?
A Well, it’s not the risk, the risk is to the fetus, largely,
of ending up with a fetus that has -- or a newborn with
no lungs. We would recommend the termination of the
pregnancy because of the outcome of the pregnancy, not
risk per se to the mother. We’re saying in this instance
because the fetus does not have adequate amniotic fluid
surrounding it, and that appears to be important in the
development of lungs of the fetus, that she, if she carries,
continues the pregnancy, that she will end up with a
newborn that has no lungs and cannot be resuscitated, so
that’s what we’re talking about.
Q Well, so the woman has absolutely no risk at all by
having a ruptured membrane?
A No, no, no. She has risk if she continues the
pregnancy, due to infection; that’s also discussed with
her.
Q Right. Now, you said that if there is a case where
[166] there’s ruptured membrane and infection has
developed, that you would proceed to deliver, is that
correct?
A Yes.
Q And you said you would move rapidly for delivery?
A Yes.
Q How rapid?
A Once the diagnosis is made, the patient is moved to
the labor and delivery and Pitocin is started.
Q So that would be like in approximately an hour?
A The unit at Pennsylvania Hospital is located right
across from labor and delivery so, yes, we can proceed
201
within a matter of an hour.
Q And if you don’t, what happens in the case where a
woman has a ruptured membrane and the infection and
you don’t, fail to deliver the fetus immediately, within an
hour or two?
A An hour or two? Nothing may develop or she may
start a worsening of the infection process.
Q Well, in the cases that you’ve handled where there’s
been a ruptured membrane and there’s been an
infection, in those cases how quickly did you move to
deliver the fetus?
A As quickly as possible.
Q And how fast is as quickly as possible?
A I think I answered that. As quickly as I can move
the patient to labor and delivery and begin an induction
of the labor process.
[167] Q And if you don’t do that, what happens to
the woman?
A I think I testified to the fact that if we don’t deliver
her at all, are you talking about?
Q Mm-hmm.
A The patient can then go on to develop a major
infection, she could theoretically lose her uterus, she may
go on to an overwhelming sepsis which may lead to
shock and possible coagulation problems and death.
* * *
[168] Q In the case of preeclampsia, you said you
would proceed to delivery?
A Yes, ma’am.
Q How fast would you do that?
A Again, as soon as the diagnosis is made, we would
proceed
to move the patient to labor and delivery, initiate a labor
process with Pitocin.
202
[169] Q And can you tell me again what would
happen if you didn’t proceed to delivery?
A Patient doesn’t, isn’t delivered? The pregnancy, per
se, is the cause of her preeclampsia, so the patient will
then develop extensive hypertension which may lead to
seizure, she can bleed into the liver, she can lose her
kidneys, she can go on to have a cerebral hemorrhage
and possibly die.
Q And HELLP is just a further along development of
preeclampsia?
A HELLP is a development of the process where the
patient becomes sick enough, she goes on to a
respiratory problem where the lungs, in essence her lungs
fail her and she requires ventilator support and it’s an
issue of whether she will — the lungs will return and she
can get off the ventilator or she goes on to die.
Q And does that also occur in fetuses about 18 weeks
gestational age earlier?
A Any time the patient has preeclampsia she can go on
through a sequence of severity, more severe
preeclampsia, go on to eclampsia or go on to a HELLP
Syndrome.
Q Is that a way of saying yes, it occurs in 18 weeks or
more?
A I’m sorry, yes, ma’am.
Q And again you would deliver the fetus as quickly as
possible, once you made that diagnosis of HELLP?
[170] A Absolutely.
Q And, what, she could die if you didn’t go ahead and
proceed with the immediate delivery?
A If we believe that the cause of the syndrome and the
worsening of the process is the pregnancy, then again
terminating or delivering the pregnancy hopefully will
improve her condition.
Q Jumping back to ruptured membranes, you said that
some of the cases that your hospital receives are transfer
203
cases from other facilities?
A Yes, ma’am.
Q Do you know how long it takes them to transfer the
patient?
A Depends on the distance.
Q Well, what’s the distance that your hospital usually
experiences?
A A more common distance would be within an hour
of our institution, although we do have some transfers
that go out as far as several hours.
BY MR. ZEMAITIS:
[171] Q Now, Dr. Bolognese, you drew a distinction
at 16 weeks between abortion and delivery, and I believe
you said that the source of that is Pennsylvania law, is
that correct?
A Yes.
Q Is that the Pennsylvania Vital Statistics Law?
A Yes.
Q If you deliver a fetus that is 16 or 17 or 18 weeks
old, does that fetus have any chance of surviving?
A No.
Q Up to what age would it have no chance of survival,
what gestational age?
A Approximately 24 weeks of gestation.
Q Now, you said that the preeclamptic patient could go
through a series of progressively more severe problems.
Does that happen with all patients that experience
preeclampsia?
A No.
Q Do some patients with preeclampsia move past the
symptoms to a less severe stage?
A Not less severe. They will either - they will become
more chronic or become more acute, but they won’t
become less sick unless the pregnancy is terminated.
204
* * *
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PLANNED PARENTHOOD
OF SOUTHEASTERN
PENNSYLVANIA, et al.
CIVIL ACTION
NO. 88-3228
v.
ROBERT P. CASEY,
N. MARK RICHARDS,
et al.
Reading, Pennsylvania
July 31, 1990
9:35 o’clock a.m.
NON-JURY TRIAL - DAY 2
* * *
[4] DR. LENORE E. WALKER, Plaintiffs Witness,
Sworn.
THE AUDIO OPERATOR: Would you state and
spell your name for the record, please?
THE WITNESS: Dr. Lenore E. Walker, L-e-n-o-r-e
W-a-l-k-e-r.
MS. KOLBERT: Your Honor, Dr. Lenore E.
Walker has over 20 years of experience as a licensed
clinical, forensic and school psychologist.
Currently she is the President of Walker &
Associates in Denver, Colorado, and the founder and
Executive Director of the Domestic Violence Institute, a
nonprofit organization which conducts research and
training on family violence.
[5] Dr. Walker is also an Adjunct Professor of
Psychology at the University of Denver. During her
205
career, Dr. Walker has been the Department
Chairperson and Associate Professor of Psychology at
Colorado Women’s College and an Assistant Professor of
Psychology at Rutgers University Graduate School of
Applied and Professional Psychology as well as Assistant
Professor of Psychiatry at the University Medicine and
Dentistry School of New Jersey’s Rutgers Medical
School.
Dr. Walker was one of the first scientists in the
nation to conduct clinical research on inner-family
violence and is today one of the foremost experts on the
psychology of battered women and families.
From 1978 to 1981 Dr. Walker was the principal
investigator for the National Institute for Mental Health
funded study on the battered women syndrome. She has
authored, edited and contributed to over 32 books and
articles and professional journals. For her first book,
"The Battered Woman" published in 1979, Dr. Walker
was awarded the Distinguished Media Award by the
Association for Women and Psychology.
In addition, Dr. Walker is a fellow of and has served
on the Board of Directors and the Council of
Representatives of the American Psychological
Association and is Chair of its Women’s Caucus.
[6] In 1987 she was awarded one of the organization’s
highest honors by being chosen as the recipient of its
BPA, Distinguished Professional Contributions to
Psychology and the Public Interest Award.
Dr. Walker has consulted with and delivered papers
to numerous professional organizations, governmental
hearings and has testified as an expert witness on
domestic violence and the battered women’s syndrome in
criminal and civil cases in approximately 30 states and in
the Federal Courts.
Dr. Walker received her Doctorate from Rutgers the
State University Of New Jersey in 1972, her Master’s
206
degree in Clinical School Psychology in 1967 from the
City University of New York and her Bachelor’s degree
from Hunter College of the City University of New York
in 1962.
Her curriculum vitae, actually I think it’s her resume,
is attached as Plaintiffs Exhibit No. 80.
THE COURT: Yes, I have that.
DIRECT EXAMINA TION
BY MS. KOLBERT:
Q Dr. Walker, I’ve told the Court that you’re a clinical
and forensic psychologist. Can you explain for the Court
the kinds of patients that you see and how many patients
per year as a general matter you see?
A As a clinical psychologist, which is only part of the
work that I do, I see a variety of different kinds of
people [7] for both evaluations and for treatment.
Basically they are people who come in with all different
kinds of problems in living and I use psychological
principles that come from abnormal psychology and
developmental psychology to try to understand what their
problems are and then develop a treatment plan for
interventions to try and help them in some way.
I usually see people in psychotherapy usually once a
week, but some people need it for a short period of time
longer than that. My subspecialization is in violence
against women and so I see many rape victims, battered
women, but I also work with families, with both men and
women and children in this practice.
Q As a clinical and forensic psychologist, as a professor
in the field, as an author in the field, do you follow the
research and the publications in the subspecialty of
family violence?
A Yes, I do.
Q Do you have occasion to review the work of other
clinical and forensic psychologists in the field of domestic
violence, family violence, sexual abuse and child abuse?
207
A I do. I serve as an assistant editor on a number of
the major journals in the field, both those that are
published by the American Psychological Association and
those that are published independently. I think it’s
approximately five of [8] them that I now serve as an
assistant editor of, in addition I review for a number of
other journals.
Q Would each of those journals, could they be referred
to as referee journals?
A Yes. A referee journal is one which will not publish
an article unless other peers review that journal, usually
it’s three people have to review it and decide that it’s
worthy of publication.
Q Are you a member of the American Psychological
Association?
A I’m a member but I have a higher than a member
classification, it’s a fellow classification.
Q Well, can you explain to the Court what that is?
A Mem-- after you’re a member for a certain period of
time, if you have made a contribution that is considered
substantial to the field of psychology, then your
colleagues nominate and elect you to fellow status. And
that’s a small percentage of psychologists who get that
honor and I have been so honored.
MS. KOLBERT: Your Honor, at this time I would
like to move that Dr. Lenore Walker be certified as an
expert in family violence.
* * *
[9] THE COURT: Your motion is granted.
* * *
[12] Q Have you had an opportunity to examine the
Spousal Abuse Statute in Pennsylvania which is 18
208
Purdon’s Section 3128?
A Yes, I have.
Q And is this statute consistent with the definition you
would use for marital rape?
A No, it is not.
Q How would you define marital rape differently?
[13] A Well, marital rape, as I understand the statute,
and I’m not a lawyer so it’s just my own interpretation of
the statute, it appears to be more narrow than would be
the common definition that I would use and researchers
use for marital rape in that it calls for sexual intercourse
to have occurred. In my definition I also use other forms
of coercive sexual behavior that may not include
penetration, but might include serious sexual abuse of
sexual organs, other kinds of penetration that might not
be with a man’s penis in the woman’s body. And so it
would be a little bit broader than what that definition
would call for, but it would also be coercion.
Q Now, are you familiar that in the Spousal Sexual
Assault Statute there is a reporting requirement of 90
days?
A Yes, I am.
Q Is the limitation -- I refer you to Subsection C of that
section — is the limitation of reporting to law
enforcement personnel within 90 days within your
definition of marital rape?
A No, it is not. That is an overly narrow time period.
One of the psychological effects of having been raped is
that women often in order to dull the pain of the
memory of the rape try to deny or forget the actual rape
itself and it can sometimes take several years before she
is able to talk about a it or to report what has happened
to her.
[14] Q Are there any particular type of women who are
battered?
A No.
209
Q Can you give the Court a description of the range of
women who fall within that category?
A Yes. All of the research, mine as well as that of
other researchers, indicates that battering occurs across
every single demographic group that we know, rich
women are battered and poor women are battered.
Women -- so it goes across all class levels, women who
work and have careers and are well educated are
battered as well as those who have no education and
have no job skills. All different racial groups are
battered, all ethnic groups are battered, all religious
groups are battered. There is no way to predict who
might become a battered woman.
Q How about the age range of women who are
battered?
A Well, in my own research the age range ran from the
age of an adult, which was 18 years old, even though we
know that teenagers are also abused, all the ways up
through women in their 70’s and 80’s.
Q Are there any particular type of men who are likely
to become abusers?
A. Again there are o particular demographic group, just
as for the women. Batterers come from every single one
of the sociological demographic group. There is one
factor, however, that is more likely to predict whether or
not a man [15] will become a batterer and that is
witnessing and experiencing battering in his own
childhood home. A man, a boy who watches his father,
who observes his father battering his mother, is 700 times
more likely to use battering in his own home. And if he
also has been abused himself, that raises the risk to 1,000
times more than a man who has not witnessed or
experienced such abuse.
Q Could you describe for the Court the kinds of abuse
that a batterer would use?
A Well, abuse ranges across physical, sexual and very
210
serious psychological levels. Physical abuse can take
minor forms such as pushing and shoving and slapping,
all the way--
MS. MERSHIMER: Your Honor, I’d like to object
at this point. I don’t see the relevance of the various
types of abuse. The statute that we’re challenging here
requires spousal notice and then it also has an exception
for if a woman fears, "If a woman has reason to believe
that the furnishing of notice to her spouse is likely to
result in infliction of bodily injury upon her by her
spouse or by another individual."
Dr. Walker has been proffered in her expert report
to testify that battered women are not likely to avail
themselves of the exception. I don’t see why getting into
the details of how battered women are indeed battered
which the Commonwealth does not dispute that there are
battered [16] women in this world, is relevant to this
whole line of questioning.
THE COURT: Ms. Kolbert, is this relevant or are
we going off on tangents here?
MS. KOLBERT: Your Honor, I think it’s very
relevant. We are prepared to prove through Ms.
Walker’s testimony and testimony of other witnesses that
not only are battered women — will not avail themselves
of the exception, but they’re psychologically incapable of
availing themselves of the exception and therefore will
suffer the harms that this statute requires them to notify
their husbands. The types of abuse that we’re talking
about are the very harms that will be inflicted upon
women in the state as a result of the statutory language.
THE COURT: Overruled; I believe this is relevant.
Also, I think it’s desirable to produce a complete record
and I’m just reluctant where a party does have a theory
of relevance to shortcut that and perhaps have a record
which is not as complete as it should be.
MS. MERSHIMER: Your Honor, so that I’m not
211
popping up all the time, can I have a continuing
objection to this line of questioning?
THE COURT: Yes, you may.
MS. MERSHIMER: Thank you.
THE COURT: Shall we continue?
[17] BY MS. KOLBERT:
Q Dr. Walker, I think you were trying to describe the
kinds of abuse that a batterer might use.
A Yes, I started with some of the more mild forms of
physical battering and it ranges all the ways up through
throwing a woman across the room, banging her head
against the floor if she is knocked down, kicking her both
with shoes on and with shoes off, pulling her hair,
dragging her from place to place, to the use of objects
and weapons with the battering, including throwing all
kinds of objects that are found in the home, tying her up
with objects from the home, using guns, knives, hatchets,
hammers, whatever is available to cause extreme damage
to women, burning them, poisoning them. Every time I
think that I have heard the worst, I am asked to review
and evaluate another case where there are more forms
of torture that I could never have thought about.
Q Now, does battering take other than physical forms?
A Yes. In addition to physical abuse there is also
sexual abuse within a battering relationship. When I first
began my research I kept the physical and sexual abuse
together as one category, but as I began to collect my
data, I realized that sexual abuse is so difficult for
women to speak about that it needed to be looked at in
a separate way. And the sexual abuse ranges from being
forced into unwanted intercourse through the use of
being tied up, having objects inserted [18] inside of their
body against their will, being mutilated sexually, having
parts of their organs cut and being physically abused
while being sexually abused, as well.
Q Now, Dr. Walker, would that also include sexual
212
abuse as defined by the Spousal Sexual Abuse Act in
Pennsylvania?
A Yes, it would include that, then there’s also the
psychological abuse. And that has been the most
difficult to measure because it’s been very important,
both as a researcher and as a clinician, to separate the
normal kind of psychological dysfunction and the cruelty
that happens in a relationship when that relationship
starts to unravel and deteriorate from actual
psychological abuse. And my research spent a lot of
time trying to figure out what are the differences when it
goes beyond the normal kind of verbal and psychological
abuse that happens or psychological coercion that might
happen in a dysfunctional relationship and in an abusive
relationship.
And I have now settled on the definition that’s used
by Amnesty International for psychological torture as the
best description of the psychological abuse that happens
in a battering relationship. And they include a number
of different factors that include verbal degradation,
cursing and name calling and terrible putdowns. It
includes denial of a person’s powers. For example, for a
woman that might mean telling her she’s -- she can’t do
things in the house, [19] she doesn’t take care of the
children well enough, she doesn’t cook well enough, even
though she may indeed be adequate at doing those kinds
of jobs. It includes attempting to have some kind of
physical deterioration of the woman’s body so that she’s
unable to function, such as being woken in the middle of
the night and forced to sit up late for hours at night,
listening to what the man has to say, and not being
permitted to sleep. It may include food deprivation and
other physical forms of debilitation and it includes
isolation and monitoring of the woman’s activities. So
that men who batter women stalk them, find them,
always have to know where they are and what they’re
213
doing and they want to know what they’re thinking, as
well. The women describe it as the need for power and
control, and particularly mind control over their activities
all of the time. They become over-possessive and may
become pathologically jealous. Much of that jealousy
centers around sexual jealousy, and so they’re often
accusing the woman of having affairs with other people
when most battered women have enough trouble with
the one man and they’re not going to be out having
affairs with other men, although some women of course
do that. It’s a very small number compared to the, I
think in my research, almost over 90 percent of the
women said that they were being accused of sexual
jealousy.
Q Dr. Walker, can abuse also take the form of harm to
[20] children or to other persons in the family?
A Yes, it can and does take that form. For example, in
my own research, 55 percent of the women said that the
men who battered them also physically battered their
children, which is a high number. There is a new study
that has just come out of Denver, Colorado, that shows
the overlap between child sexual abuse and battering of
women at about one-third of all of the cases that the
Department of Social Services in Denver has seen. And
those kinds of figures are being replicated across the
country.
Q Can abuse also occur in the economic arena, using
economic coercion rather than physical or psychological
coercion?
A Yes. Many men actually starve women and children.
They do not give them a sufficient amount of money to
feed, to clothe, to shelter their families. In many of
those cases the women may actually work outside of the
home for money and they are forced to turn their whole
paycheck over to the men. In a recent case that I have
been working on, all of the children were also forced to
214
turn their paychecks over to the man and he gave them
two dollars a day spending money and he kept all of the
money and had the power and control over how it was
used. Now, that kind of economic deprivation is
common in both homes where there is a lot of money
and as well as in homes where the man may not even
work or bring [21] home money.
Q Now, you’ve testified about a range of violence. Do
we know anything or do you know anything as a
researcher about the scope of this violence, both within
the United States and here in Pennsylvania?
A Well, it’s been very difficult to get incidence and
prevalence figures, exactly how much violence there is,
because battered women are very reluctant to talk about
it. When I first began my research back in the middle
1970’s, very few people had even heard of battered
women. Of course, that is no longer true today. We
have, in offering women some safety and some
protection, some of them have come forward but it’s still
a very small number and generally they don’t come
forward until the violence is at life-threatening
proportions. So that even though there are many women
who are being battered today, we still don’t know about
who they are.
The best estimates, my estimate is that one out of
two women at some time will become battered in their
lives. The researcher who has collected the best
empirical data is a sociologist named Murray Straus and
his colleagues at the University of New Hampshire’s
Family Violence Research Center, and his research
shows that between 25 percent and 33 percent of all
women in the United States have been physically abused
at least one time in the year that they [22] collected their
information, and so that’s just for a one-year period of
time. So the estimates are very, a very high percentage
of women will be battered.
215
Q Do you have any reason to believe that the statistics
in Pennsylvania or the prevalence rate in Pennsylvania is
any different than the national figures that you’ve cited?
A No, there is no reason to believe that they’re any
different. In fact, I have been in the State of
Pennsylvania as a trainer for those programs that provide
services to battered women since the late 1970’s. The
most recent time was just this past September of 1989
where I was a keynote speaker for the Pennsylvania
Coalition Against Domestic Violence and the Alcoholism
Treatment Providers, where they had a joint conference
here. And there’s every indication that in the State of
Pennsylvania the statistics are the
same.
Q Do you as a scientist have any estimate of the
prevalence rates of homicides that result as a result of
wife battering?
A Yes, the best estimates are for husband and wife
homicides, about 25 percent of all the murders in this
country occur in homes where there’s violence.
Q How about a prevalence rate for spousal sexual
abuse which in defined by the Pennsylvania statute?
A I have no idea of what the prevalence rate would be.
The figures that we can get from official statistics are
very [23] small because most women who are sexually
abused in a marital situation simply do not report it.
Q What is your estimate of the level of marital rape at
this point?
A Well, in my research we attempted to measure
sexual abuse within the marriage and when you ask the
question "Have you ever been forced into having sex
against your will," then we found 59 percent of our
sample of 400 said that they had been. When we asked
how many of them had reported it, I am not even sure
one said yes.
Q And do you have any estimate of the prevalence of
216
violence against children within a battering family?
A Again, we -- we believe that over 50 percent of the
battering relationships, children are also physically
abused. We think about one-third may be sexually
abused and psychological abuse is probably all of the
children who watch a father or hear, lay awake at night
hearing a father batter a mother would be considered
psychologically abuse.
Q Now, Dr. Walker, you’ve talked about a range of
very horrendous abuse and I think most people want to
know, and I would like to know today, why do women
stay in abusive relationships, why don’t they just leave,
call the police, call a battered women’s center and just
leave the relationship?
A Well, the question of why women don’t leave has
been the [24] question that has caused most people the
most difficulty in understanding battering relationships
and it’s a complicated answer to why women don’t leave.
And it ranges, the complications range from fear of
being killed or more seriously hurt when they do leave
all the ways to the psychological theories of not being
able, rendered helpless and rendered with lower
self-esteem so they are unable to leave psychologically.
Q Now, you testified earlier that you studied the theory
of learned helplessness in your study. Can you explain
that to the Court?
A Yes. If you can bear with me for a few moments, it’s
a complicated theory, but I found it to be one of the
most helpful ways of understanding what happens in a
battering relationship.
In the mid 1950’s and late 1950’s when I went to
school, I read of some research that was being done by a
psychologist named Martin Seligman who --
THE AUDIO OPERATOR: Would you spell that,
please?
THE WITNESS: S-e-l-i-g-m-a-n. He studied and
217
was trying to find a new way of understanding depression
and he wanted to create depression that comes from
external sources. At that time we believed there were
two different ways that you could become depressed:
one was from internal biochemical changes in your body,
the other was from stresses or external [25] kinds of
events. He wanted to see if you could create depression
in the laboratory and so he used animals and then he
went on to studying people. And I took his work one
step further to looking at battered women.
When he first started with his animal research, he
started with dogs, and he put them in, at that time it was
called a shuttlebox. One side had an electrical grid and
the other side did not, and there was a barrier between
the cage between the two sides, so the dogs sometimes
could escape and leave and sometimes it could not do so.
Today we could never do these kinds of experiments,
but in those days that was routine kind of work for
animal psychologists.
What he found was that if he gave the animals
random and variable electrical shocks so the animals
could never predict when they were going to be hurt or
when they would be safe, and if sometimes he let them
escape by taking out the barrier and sometimes he did
not, that at first the animals would try to escape and
then they just found a part of the cage and they lied in
the cage. Sometimes they would defecate and lie in their
own fecal matter in the cage and not even attempt to
escape when he would open up the barrier.
Now, the earliest reports suggested that these dogs
had been — that they had produced learned helplessness,
and hence they gave it that name. In fact, as he began
his later [26] experiments, that name is really an
erroneous one because they don’t learn to be helpless,
they learn to lose the ability to predict that what they do
will make a difference to what happens to them.
218
Now, these dogs, although they appeared to be very
passive, in fact found the part of the cage where the
electrical current was the weakest. Electricity just does
not go across all of those coils on an even level, and
fecal matter is a good insulator from electrical shock.
And so what appeared to be being helpless actually
was a coping strategy for these animals to minimize the
amount of pain that they received, once they believed
that it was inescapable pain. And they stopped trying to
escape, instead developing coping skills.
* * *
[27] In order to measure the thinking or cognitive
processes or the affect or feelings, Seligman went on to
work with college students.
* * *
[28] And it was, of course, time limited from just the
one experiment, but he demonstrated that indeed you
can change a normal, healthy person’s way of functioning
if you subject them to what they perceive as inescapable
random and [29] variable aversive or painful stimulation.
Now, I thought about that and thought about the
battered women that I was dealing with, who even
though I would sit with them and help them try and find
ways to leave the battering relationship, much like
Seligman’s dogs, they just were unable to follow through
with any of their measures that I would help them
devise. And I wondered if, indeed, in the natural
environment -- now not in the laboratory that Seligman
made -- but in the natural environment of a battering
relationship could there be the random and variableness
of the pain from a battering relationship that would
teach a battered woman that she did not or could not
219
predict that her actual responses would actually make a
difference in what happened to her and her safety, and
would that then cause her to not use her natural
judgment and would it make her appear - at that point
we were looking at both depression and anxiety, without
recognizing that there was a battered woman syndrome
that would incorporate all of that. And so the work that
I did and part of the research that I did was to measure
whether or not that would happen and, indeed, I found
that there were five factors in childhood experiences that
would indicate a higher risk of developing learned
helplessness and seven from a battering relationship. I
used some of the same tests that Seligman used before
and after with his college students, I used with the
battered [30] women so that I was able to make those
kinds of comparisons.
* * *
Q Did your research discover anything about the cycle
of violence that occurs?
A Yes. That was the second area that also needed to
be measured. In psychology when we talk about why the
people’s behavior is maintained, we look at learning
theory as one of the theories to help explain that to us.
And in my work, what I found was that battering did not
occur all of the time [31] in a battering relationship, but
neither did it occur in the random way that most
battered women and batterers perceived that it
happened, that there really was a cycle that occurred and
that that cycle had three phases to it. And my research
attempted to isolate the cycle, measure it, and today we
use it as one of the primary methods of teaching
battering - couples who are involved in battering to
recognize their own cycle so that we can attempt to try
and break the learned helplessness that may result from
220
the three, the experience of those three phases.
Q Can you quickly describe for the Court what those
three phases are?
A I can. I could also chart it, which might speed it up
a bit.
MS. KOLBERT: If that’s all right with your Honor?
THE COURT: Yes. You want to step down? Keep
your voice up, we are recording this. Perhaps a
microphone can be moved over near the chart. Counsel
may move around if they wish to see what is being done.
THE WITNESS: If you look at a graph with this
line being time and -- the horizontal line -- and the
vertical axis is being levels of tension and dangerousness
and this being zero, zero level of tension and
dangerousness and no time, the three phases include the
first phase, which I call the [32] tension building period.
Here are little battering incidents that occur and the
tension goes up a little bit, the dangerousness a little bit
and let’s say an early, a low level violence incident, and
then it comes down some, but it doesn’t go back to zero
in that first phrase, it stays around here and then goes up
a little bit more, comes down, goes up a bit more with
another incident, comes down, and maybe it stays for a
while and then might go up again. I usually use a zero
to ten scale just to help explain the relativity of the
violence, with about eight being the level of danger
where there’s a life-threatening incident that could occur.
And if you end about here, let’s say, in the
tension-building phase, there comes a period of
inevitability where if the couple is not separated at this
point, it’s going to go to phase two, which is the acute
battering incident or the explosion, and that will just -
perhaps, such as this.
The tension then comes down. Now, physiologically
it is reinforcing for there to be a lack of the tension
which has been discomforting up until this point, and so
221
that in and of itself, the ending of the incident, is a
reinforcement for the incident to get over with.
When we have police involvement, we often have it
after an acute battering incident. Rarely will the police
ever be involved at this level, even though these are [33]
battering incidents and there may well be some physical
damage that occurs at this time as well. So it’s usually
over here where women might notify somebody that
something has happened and in most research studies,
less than 50 percent of the women do do the notification.
At this point we enter the third phase, and this is the
most important phase in terms of why battered women
will often stay in the relationship. This is the period that
I called loving contrition. Here is where the man often
says he’s sorry. Sometimes he doesn’t use the words, but
he does something nicer for her. He may give her
presents, he may do something that she would like him
to do that he might not have done otherwise. In many
ways he shows her that he’s sorry and he promises that it
will never happen again. And most batterers that I have
worked with and people -- other people have worked
with really want to believe that they will not do it again,
that they understand that they have hurt her and have
gone too far. And during this time he shows his other
side of his personality, his charming side, and his loving
side.
Now, this phase works also because prior to the
battering or the tension building starting, there is a
period of time, often during the courtship of battering
relationships, where the man is very loving, very
nurturing, spends a lot of time with the woman and
really makes her feel [34] like he loves her more than
anyone or anything else in the world. It’s even more
than in most normal relationships during this period of
courtship time, and this helps the woman remember what
he was like when the mean, cruel part of him didn’t
222
exist. And so this is the reinforcer for staying in the
relationship and the two theories together, the theory of
learned helplessness and the cycle of violence that occurs
are important in trying to identify why women stay, how
the battering relationships hold together and then, of
course, in developing intervention plans to help break
the cycle of violence within these relationships.
BY MS. KOLBERT:
Q Thank you, Dr. Walker. Let me ask this: have you
studied or do you have any findings about the
communication patterns in partners in both dysfunctional
relationships and abusive dysfunctional relationships?
A Yes, we do. The communication patterns in
battering relationships are very different than
communication in both relationships where there is
marital dysfunction and in normal relationships.
In normal relationships we find that there are far
more positive than negative interactions when people
communicate with one another. In relationships where
there is marital dysfunction, we find the opposite, that
there is more negative than positive communication
patterns.
[35] Q Let me stop you there. When you say marital
dysfunction, are you talking about the abusive families
that we have just laid out for the Court or another kind
of family?
A No, I’m talking about families which are in distress
of some kind, but not abuse, where there is not abuse as
I would define it and as I defined it earlier for the Court
would take place. So in those relationships we know that
there are more negative communication patterns than
positive communication, but they’re evenly distributed
across the time of the relationship.
In abusive relationships there is also more negative
than positive communication, but they don’t occur evenly
distributed, they occur in -- in blasts, if you will, or in
223
chunks of time. A research named Gerald Patterson
calls it chaining and fogging. One even chains off and
follows the next event and it creates an inability to
communicate effectively in those relationships.
Q In the field of psychology is there a diagnostic system
that psychologists use?
A Yes, there is.
Q And what is that?
A The current diagnostic - there are a number of
diagnostic systems that are used, but the current one that
is most popular in this country in called "The Diagnostic
and Statistical Manual of Mental Disorders" and we are
now using [36] the third edition which has been revised.
And it’s abbreviated the DSM-3R.
Q Is there a category in the DSM-3R for women who
are battered or come from abusive dysfunctional
families?
A No, there is not.
Q Is there a category that you use in diagnosing
battered women?
A Yes, there is.
Q And what is that?
A The category that is used is called the post-traumatic
stress disorder category and battered women syndrome,
which is the collection of psychological symptoms that
occurs after exposure to battering is considered a
subclassification of that post-traumatic stress disorder
which is abbreviated as PTSD.
* *
[38] Q Can you describe for the Court the criteria for
establishing post-traumatic stress disorder?
A Yes. There are five specific criteria that must be
met before a post-traumatic stress disorder is diagnosed.
Two of them are called threshold criteria and three of
224
them are psychological symptomatology.
The two threshold criteria, the first one is Criteria A
on the chart, and that says that the trauma that is
experienced must meet certain kinds of stipulations that
are listed in the descriptions, that it has to be an event
that is outside the range of usual human experience and
that [39] it would be markedly distressing to almost
anyone, which basically means that you can take any
normal, healthy person, expose them to such a trauma
and that that trauma will cause, be expected to cause
psychological symptoms in that person.
Now, there is a psycho-social stressor rating scale,
hard to say, in the DSM-3R, that helps the clinician
make the diagnosis of that particular criteria, and that
rating scale ranges from a zero to a six.
Most people who work in the fields of post-traumatic
stress disorder believe that anything in the Level 5 and
Level 6 meet that threshold. Sometimes a trauma under
that could cause a PTSD or a post-traumatic stress
disorder, but it wouldn’t automatically be considered
relevant or part of that criteria.
Q What are the symptoms of post-traumatic stress
disorder once the diagnosis -- once the threshold
stressors have been identified?
A Then there are three major symptom categories that
you have to meet and they are very specifically listed.
The three of them include changes in the way people
think in their cognitive abilities, that are, in those
changes and those distortions, are enhanced by memory
problems.
The second group of symptoms are avoidance
symptoms or a depression kinds of symptoms and the
third group are anxiety symptoms or what we would call
higher arousal of the [40] organism kind of symptoms.
And if I may just give a quick example, in the first
group of memory kinds of distortions and distortions in
225
the way people think, one of the major difficulties in
working with somebody who has a post-traumatic stress
disorder is every time they have to talk about it, they not
only remember what they’re specifically talking about,
but they also remember all of the other battering
incidents that have occurred and they start to have not
just the memories of it in their head, but they begin to
re-feel all of the feelings that occurred at that time, so
that they are reinfecting themselves every time that they
have to talk or think about the kind of trauma, the
battered women the kind of battering that has occurred.
In the other symptoms, the pressure symptoms and
the anxiety symptoms, are unusual in that they occur
together, rather than separately as would be more
commonly found in those disorders.
Q Now, Dr. Walker, you’ve talked this morning about
why women don’t leave battering relationships. Is
everything that you’ve said about why they don’t leave
also true for why they do not tell other people about the
battering?
A Yes, it is.
Q And that would be true for women who are battered
as well as victims of marital rape?
[41] A That’s correct. There is also much denial and
minimization because of the need to avoid the pain that
every time they would talk about it and think about it
would occur again.
Q Are there any periods of time within a relationship
when the frequency of battering increases?
A Yes, there are.
Q And what are those times?
A The most natural time for an increase in severity and
frequency are during pregnancy when there is one infant
in the home and when there are teenagers in the home.
Those three periods have been found to have the
greatest increase. When I do my work in plotting out
226
the cycle of violence you can see the differences in the
patterns that occur over a long-term relationship at those
times.
Q Are you saying then that just the notice of a
pregnancy can well be a flash point for violence within a
relationship?
A It certainly can be. First pregnancies in fact tend to
be one of the most common times that men escalate
their violence, sometimes from psychological abuse to
physical abuse.
Q Are there any special populations of women that are
particularly unable to escape from abuse?
A Well, there are certain populations such as women
who live in small towns, rural areas, and certain small
groups of [42] people such as in Appalachian country or
on an Indian reservation that will have a greater
difficulty in seeking resources because everybody, there is
no confidentiality, everybody knows what’s happening to
them, and that does cause more difficulties in being able
to leave and escape from a battering relationship.
Q Dr. Walker, the notebook in front of you with the
manila tabs, at the very back has a tab entitled the
Abortion Control Act. Are you familiar with the
Abortion Control Act?
A Yes.
Q Now, I’d ask you to turn to Page 7 of that document
and look at Section 3205 which is the informed consent
provision of the act. Do you have an opinion about how
the 24-hour waiting period required by Section 3205,
from the time that a woman obtains -- I’m sorry, from
the time that the woman obtains information and gives
her informed consent until the abortion is performed will
affect battered women?
A Yes.
Q And what is that opinion?
A In my professional opinion it will be a detrimental
227
effect on battered women. One of the criteria for
post-traumatic stress disorder is even understanding
information that’s given to a battered woman is going to
be filtered through their knowledge and fear of
increasing their likelihood or risk of being battered
again. And so there is [43] a heightened hypervigilance
to any kind of cues of danger and for women during that
period of time, they can be predicted to be far more
anxious and have many more flashbacks to battering
incidents during that 24-hour waiting period which will,
like the experiments that I talked about for those people
who developed the learned helplessness, will cause
distortions in their judgment and in their affect, their
feelings and in their behavior during that period of time.
Q Now, earlier you testified about how women in
abusive relationships are closely monitored. Do you
have an opinion about whether or not the 24-hour
waiting period will affect battering relationships as a
result of that monitoring?
A Yes, I do.
Q And what is that opinion?
A In my opinion, battered women and batterers are so
closely attuned to one another that she will be frightened
that he will know what is happening and know that there
is this special period of time and be more scared, more
frightened, and that he will use that as an excuse to
batter her. And so the likelihood of her being able to
keep this information from the batterer is greatly
reduced. Most batterers are so sensitive to what the
women are behaving and thinking and feeling that he
will pick up something is different and harass and badger
her and batter her.
Q Now, Dr. Walker, I’d like you to turn to Page 20 of
the [44] act. Are you familiar with Section 3209 which
requires that a woman, prior to having an abortion,
notify her husband?
228
A Yes, I am.
Q Let’s hold up for a second in discussing the
exceptions to that notification, but do you have an
opinion about notification as to how it will affect
battered women?
A Well, battered women, if they increase -- the period
of pregnancy is a time when abuse is increased, the risk
of abuse is increased, notifying, just simple notification
will have a much higher predictability that a woman will
be physically, sexually and/or seriously psychologically
abused.
Q Now, some people have proffered a theory that
women ought to be forced to notify their husbands
because, especially in abusive relationships, the husbands
are going to find out about the abuse at some point in
the future and the abuse will be worse if the husband
finds out that the woman was trying to hide it from him.
Do you have an opinion about that theory?
A Yes.
Q And what is that opinion?
A Well, I think that notifying, forcing a battered
woman to notify her husband is like giving him a
hammer to just beat her with. The probability of her
being battered is much greater if she is forced to notify
him. In battering relationships you can force her to talk
to him and you cannot [45] force communication and if
you do, you will be fostering negative and abusive
communication in those particular kinds of relationships.
Q In my hypothetical there was an assumption that the
husband will find out anyway. Do you have an opinion
about whether or not that is true in most battering
relationships?
A It certainly is possible that he will find out, but it is
also possible that he will not find out if she is given the
ability to go forward with what she chooses to do without
being put under any kind of onerous procedures or
229
regulations.
Q Dr. Walker, if a woman believes that her husband
will harm her if she tells him of her pregnancy, is her
perception of her harm likely to be accurate?
A I’m sorry, would you repeat that?
Q If the woman believes that she’s going to be harmed,
if she tells her provider that she thinks that her husband
is likely to harm her, is that perception likely to be an
accurate one?
A Usually it is.
Q Will notification, forced notification guarantee
discussions between spouses?
A No. Forced notification will not that there can be
any kind of discussions. In battering relationships where
the man must have power and control, there are rarely
discussions [46] when she raises an issue. It’s usually
when he raises an issue and wants a discussion that it
might take place.
Q Will forced notification improve the communication
in any way between the batterer and the woman?
A No, it will not.
Q Now, Dr. Walker, within Section 3209, beginning on
Page 21 of the act, there are exceptions, beginning in
Subsection B. I would like to ask you to refer your
attention to Subsection B(2), which indicates that there is
an exception where her spouse, after diligent effort,
could not be located. Do you have an opinion about
whether or not that exception can be utilized by battered
women?
A No -- yes, I do have an opinion.
Q What is that opinion?
A Well, when I read it, I smiled to myself because most
batterers stalk the woman, whether or not they are living
together, and so it’s rare that you would not be able to
find a batterer. Most battered women would be
delighted if that were the case after they’ve terminated
230
the relationship, they would not want to find him.
Q I refer your attention to Subsection B(3) -- let me go
back a second, I’m sorry. Strike that question and let me
ask a followup to the diligent effort question. Would a
woman who made diligent — who has left her abusive
spouse, who is making a diligent effort to find him place
herself in [47] jeopardy in any way?
A Yes, she really does place herself in much greater
jeopardy of being killed. The risk of a battered woman
being killed in this country today has increased and the
time when she is most likely to be murdered by her
husband is at the point of separation and termination of
the relationship. The latest data suggests up to two years
she is in greater danger of being killed by this man.
Q I refer your attention to Subsection B(3) which
provides an exception where the pregnancy is a result of
spousal sexual assault as described in the Pennsylvania
statute which has been reported to a law enforcement
agency having the requisite jurisdiction. Do you have an
opinion about whether or not this section will be utilized
by women in abusive dysfunctional relationships?
A Yes, I do.
Q And what is that opinion?
A In my opinion this section will rarely, if ever, be used
by battered women because they will rarely report to a
law enforcement agency that they have been sexually
abused.
Q In your experience have many women within your
own client base reported spousal sexual abuse to law
enforcement personnel?
A In my experience they do not report sexual abuse to
law enforcement personnel. Even if they want to, many
of the law [48] enforcement personnel they are not
willing, able to hear what the women are saying.
Women have a great deal of difficulty talking about
sexual abuse and so the information simply is the most
231
difficult to get.
O Now, I direct your attention to Subsection B(4)
which permits an exception to the husband notification
where the woman has reason to believe that the
furnishing of notice to her spouse is likely to result in the
infliction of bodily injury upon her by her spouse or by
another individual. Do you have an opinion about
whether or not women within abusive dysfunctional
relationships are likely to avail themselves of this
exception?
A Yes, I do.
Q And what is that opinion?
A My opinion is that they’re not likely to avail
themselves of this exception.
Q And why not?
A Well, there are several reasons. The first reason is
that battered women do not trust professionals and they
do not trust that the information will be kept
confidential, and so that will limit their ability to report
or to use that particular section. In addition, another
reason is that many battered women believe that they
will be psychologically abused. And for most battered
women, when you ask them what is the most serious
thing that happens to them, the worst [49] thing that
happens to them, it’s the psychological coercion and the
harassment and degradation that occurs. And so if the
requirement that it has to be infliction of bodily injury at
that particular time would be something that a battered
woman would not likely or not necessarily believe what
would happen, although she would indeed believe that
she would be abused by the man should she have to
notify him.
Q Now, Dr. Walker, we’ve spent some time this
morning discussing the theories of learned helplessness
and the cycles of violence, as well as the diagnosis of
post-traumatic stress disorder. In your opinion, are these
232
three psychological phenomenon responsible for the
inability of women to report that they have been abused
and sign an affidavit that they are likely to -- let me get
the exact language of the statute -- that they are --
"Likely to result in the infliction of bodily injury upon
her by her spouse or another individual"?
A Yes, they certainly are very much responsible.
Q So you’re not just saying it by -- let me ask you this:
Are you saying that she is not likely to do it or that she
cannot do it?
A I’m saying that most battered women cannot do it.
They don’t self-identify very easily and they don’t have
the psychological ability to be able to avail themselves of
that exception.
[50] Q Do you have an opinion about whether all
battered women would be covered within the exception
as stated in Subsection B(4)?
A Yes.
Q And what is that opinion?
A Not all battered women would be covered by this
exception. Those who experienced serious psychological
abuse such as the psychological torture described under
the Amnesty International definition would not be
covered. Those women who are sexually abused in a
way that is not covered by the sexual assault statute
would not be covered. Those women who are unable to
report the sexual abuse that they experience would not
be covered and those battered women who do not define
themselves as battered women or who are not prepared
to terminate the battering relationship, psychologically
prepared to terminate it, would not be covered.
Q In your opinion will forced communication as
required by Section 3209 of the act, husband notification
of her abortion, improve marital integrity in any way?
A Absolutely not. It will not only not improve it, but it
will increase the probability and likelihood that a woman
233
will be seriously battered.
Q In your opinion will the forced notification provision
of Section 3209 of the act improve family communication
in any way?
[51] A No, it will not improve family communication in
any way. If anything, it will make family communication
much more difficult and much more dangerous in these
relationships.
Q Dr. Walker, have you ever heard of the term
"post-abortion stress syndrome"?
A Yes, I have.
Q Is this a recognized syndrome in the field of
psychology?
A No, it is not. It has been raised by some
psychologists as a possibility, as a trauma. It does not
raise, an unwanted pregnancy does not raise to the Level
5 or 6 in the threshold level for a PTSD diagnosis. In
addition, when I was on the Board of Directors at the
American Psychological Association, because the press
had reported that there was such a syndrome, the
Psychology Association decided to review all of the
scientific literature to see if there were any reports that
were based on rigorous scientific studies and there were
absolutely no studies that supported the existence of such
a syndrome.
* * *
CR OSS-EXAMIN A TION
BY MS. MERSHIMER:
[52] Q Dr. Walker, that study of 400 battered women,
how did you obtain that pool of women?
A We advertised in many different ways. We used
some battered women shelters, we used mental health
centers, we went into businesses and put signs up in the
ladies rooms in businesses to get some of our subjects,
234
we attempted to find as many self-referred, self-identified
battered women.
In addition, as the - we monitored, we did what’s
called the stratified random sample, it’s certainly not
random because we didn’t knock on everybody’s door.
We wanted to make certain we had enough people
across different demographic groups, so we monitored as
it came in. And when we saw we were not getting a
sufficient number in a particular group, we then went out
and looked specifically for that group.
The only two groups that we had such difficulties
with were native American population nd the older
women, nd so we had to make a concerted effort to find
some other of those people in those categories. No,
excuse me, the other group was rural women as well, and
so we hired interviewers to actually go out to rural areas
because they — we found that they couldn’t come into
the metropolitan Denver area.
Q Well, when you say you made a concerted effort to
get these women, but you didn’t knock door to door?
A That’s correct.
[53] Q Well, would you just go and focus again on the
shelters or agencies that treat or help battered women?
A No, in 1978 there were just very few agencies that
would treat battered women. Today it would probably
be easier to get such a sample pool. And so what we did
do was we went into communities where there would be
older people in some of the housing specifically for
senior citizens and actually conducted some of the
interviews there so that people didn’t have to come out.
We hired interviewers and trained them. We -- our
sample pool was drawn from a six-state, at that time it
was HEW region, today it would be Health and Human
Services region. And so we hired people to actually go
to rural areas and interview in the areas and, again, we
put notices up, we had newspaper and public service
235
announcements on television and on radio, so that we
got the broadest possible coverage in order to get the
word out that we were looking for subjects.
Q And then these women would come forward and
voluntarily give you interviews?
A That’s correct.
Q And do you know how many of the women in your
group of 400 were married?
A I don’t. I have some of the statistics here that are
published in the Battered Woman Syndrome book and I
don’t believe that we took those details of whether they
were [54] married or not married, although we may have
some of it somewhere, I just haven’t been able to find
that number.
Q So you don’t have an estimate even?
A I don’t. Most of them were, but certainly some were
not.
Q Well, I’m just kind of curious. How do you know
that most of them were if you don’t have the statistics?
A Well, I mean, the study, the analysis is now almost
ten years, well, 1981 we completed the analysis, so it’s
about nine years. At that time we were trying to find out
what the average length of time was for a battering
relationship and the one statistic that I do have is our
comparison with the NORC data, the -- and I forget
what those initials stand for, but they were sociological
data that came from the census that compared the length
of time of the average marriage and the length of time
of the average battering relationship that we studied.
And our statisticians told us that the percentage of
married women were high enough to be able to use
those kinds of comparisons.
Q Is sexual abuse a form of physical abuse?
A Well, as I testified to, it certainly could be but there
are certain distinctions to sexual abuse that make it no
longer considered. And you have to consider it
236
separately from physical abuse because it is different.
Q Well, I understand you have the two categories, but
sexual abuse is a type or a variation of physical abuse, is
[55] that correct?
A Again, most women would not define it that way and
so we just don’t use it as a form of physical abuse.
There are times when, particularly in a marriage, when a
man will sexually abuse a woman without physically
hurting her because she submits to the sexual abuse.
And so because of those differences, we don’t consider it
automatically a category of physical abuse.
Q In the vast majority of cases, sexual abuse involves
some sort of physical contact, is that correct?
A Yes, I would imagine so.
Q When you said that one out of two women will be
battered at some time in their life, where did you get
those numbers from?
A Those are the estimates that I have produced and
that comes from a combination of my clinical work and
my research work. It is an estimate and it is one now
that is standard in the field, most researchers and
practitioners, clinicians use that as the estimate.
Q And is this published somewhere?
A Well, it’s certainly published in my writings and it’s
published in a number of other people’s writings that I
have seen.
Q I want to understand. Were you testifying this
morning that battered women, that they don’t have the
ability to use [56] their natural judgment very well?
A On some things that is true.
Q Is a battered woman likely to make major decisions
without telling her husband?
A Yes.
Q When you were testifying about the 24-hour waiting
provision and you testified, am I correct, that the women
as they’re receiving the informed consent or options
237
counseling, whatever, in an abortion clinic, they’re
understanding that information through a filter of fear?
A That’s correct.
Q Are you saying that battered women then should be
given no time to consider informed consent information?
A No.
* * *
[57] Q You’ve testified that the men tend to be very
possessive and know the whereabouts of the women that
they batter, is that correct?
A Yes.
Q Are battered women then going to be less likely to
be able to get out of the house to get counseling for
abortion services?
A That’s correct, it will be more difficult.
[58] Q Is it going to be more difficult then for a
battered woman to even obtain an abortion in the first
place?
A That is correct.
Q Would you agree that battered women are in more
need of counseling than your average woman that seeks
abortion?
A No, not necessarily so.
Q Even though they are having information, they’re
filtering that information through this filter of fear, as
you said, they don’t need extra counseling?
A Not necessarily. They need the ability to be -- have
their own needs respected, so they need a counselor, as
most counselors that I’ve worked with who are trained to
do, to be able to listen to them and talk with them, but
not have any enforced periods of time or regulations on
the amount of time that it may or may not take for them.
Q Would you agree that most battered women who
deny that they’re battered, that the best thing for them is
238
to seek professional help?
A Sometimes that’s true. There are programs for
battered women that are very useful for them, but there
are also women that need to come to it at their own time
period, that many women or as most women believe that
they can somehow save a relationship and I believe that
each woman needs to have the dignity of being able to
use that period of time to come to whether or not she
needs counseling. Most men who batter [59] women are
in need of enforced treatment and, indeed, the criminal
justice system has now changed dramatically and has
moved to that kind of mandatory counseling for men
who batter women, to take responsibility for the abuse
and to stop their violence when assaults are reported to
the police. That tends to be the more effective
sentencing for many of these men who are convicted of
assaults.
Q At some point for a battered woman, if she’s going
to recover, she’s going to have to acknowledge that she is
indeed a battered woman, isn’t that correct?
A Well, no, not necessarily. She needs to become safe
from battering and that tends to be, once we can provide
safety for a woman from being battered, many women do
recover spontaneously. In fact, that’s the whole, one of
the major differences of a post-traumatic stress disorder
diagnosis from other kinds of mental health disorders
that are listed in the DSM-3R system is that we are
taking an essentially normal, healthy person and placing
them in an abnormal situation and when you remove the
fear of further trauma from the abnormal situation, but
simply time alone may be sufficient to reduce the
symptomatology and stop the disorder, which is a quite
important distinction between the PTSD and other kinds
of diagnoses.
Q And most women that break out of this cycle of
violence and learned helplessness then, would you agree
239
that for most [60] women that counseling is the best
thing for them?
A No, not necessarily. Many battered --
Q Just - just get out of the relationship and they’ll just
be better; they don’t have any psychological problems?
A Many women simply do not. Now, the problem is
that just getting out of the relationship does not
terminate abuse.
As I testified earlier, the probability of a woman
being more seriously hurt or actually killed increases
when she gets out of and terminates the battering
relationship, and so that is a real problem for keeping
battered women safe. Once they get past that two-year
period, if the man stops stalking, if the courts - and
generally we need the assistance of law enforcement and
the courts to stop his abusive behavior towards her and
the children -- then most battered women spontaneously
heal.
Now, some women go into a battering relationship
already having some psychological difficulties. Those
woman, those problems won’t go away and they may be
the ones who need counseling, and so I spend a good
deal of my time professionally trying to train
professionals as how to differentiate between those
women who are in need of counseling and those women
where the symptoms spontaneously disappear.
Q Are you aware of any spousal notices that are
currently in effect in the United States?
[61] A No, I do not.
Q Do you know of any that have been in effect in the
United States?
A I’m not personally aware of them, no.
Q So there is no hard data out there to know whether
a battered woman would avail herself of any exceptions
to the spousal notice provision, isn’t that correct?
A Not specifically about a spousal notification
240
provision-
* * *
Q Would you agree that there is some evidence out
there to demonstrate that some women who receive --
some women that have an abortion do suffer from
anxiety or depression afterwards as a result of having the
abortion?
A I’m aware that --
Q Can you answer yes or no?
A No, I can’t answer yes or no, it’s --
[62] Q You don’t agree that there are some women out
there that have an abortion, experience anxiety or
depression afterwards?
A There are some women where we know that they
have experienced anxiety or depression, there is a small
number of women, but there is no -- they are not in a
post-abortion syndrome.
* * *
RE-DIRECT EXAMINATION
BY MS. KOLBERT:
Q Now, Ms. Mershimer asked you whether or not there
are women who suffer from anxiety or depression as a
result of the abortion. You would agree, would you not,
that there are some women who suffer anxiety or
depression following an abortion?
MS. MERSHIMER: Objection; leading.
THE COURT: Overruled.
THE WITNESS: Yes, that is true.
BY MS. KOLBERT:
Q Do you have an opinion about whether or not those
women [63] are suffering from anxiety or depression as a
result of the abortion?
241
A Yes, I do have such an opinion.
Q What is that opinion?
A Well, based on my review of the literature and the
most, the latest, the most recent article that was
published in Science Magazine, which reviews all of the
empirical data, that small percentage does not have the
kind of syndrome that would be classified under a
post-traumatic stress disorder, that those women, that
there is a small number that do suffer from a depression,
that there is a small number that do suffer from an
increase in anxiety, but not in the syndrome, the way that
we would use the PTSD criteria.
* * *
DIRECT EXAMINA TION
BY MR. ZEMAITIS:
[65] Q Now, Ms. Roselle, would you describe the
process that a woman who comes to Women’s Health
Services for abortion goes through, the various steps of
that process?
A Her first contact with the clinic would be by
telephone where she would call in for information, and
she would either come in for a pregnancy test or she
would indicate that she had already had a positive
pregnancy test and she would make an appointment.
And during this telephone interview which lasts 20, 30
minutes, she would be given a lot of information [66]
about the clinic and how to prepare for her surgery.
Within a few days the appointment occurs, most
women can be scheduled within the week. She arrives at
the clinic, she signs in, she has a confidential interview
with the receptionist where her - the chart that she has
already started to complete is reviewed and her medical
history, as she has completed, is reviewed for accuracy.
If -- her next step is the laboratory where the
242
pregnancy test is repeated, at which -- after which if the
pregnancy test is indeed positive, she is either directed to
counseling or she is directed for a sizing and a sonar. If
she is directed for sizing and sonar, then she has
counseling afterwards.
Following the counseling, which includes the
informed consent process, the procedure is performed.
She proceeds to the recovery room where she undergoes
medical monitoring and she receives additional
counseling on her care after she goes home, her future
contraceptive plans, and then she is discharged.
Q You said that women sometimes come to Women’s
Health Services not yet having had a pregnancy test?
A That’s correct.
Q And they have a pregnancy test at Women’s Health?
A That’s correct.
Q In those instances would a woman have an abortion,
if she [67] chose to have an abortion on the same day as
her initial pregnancy test?
A That would be highly unusual for someone to have a
pregnancy test positive for the first time and have an
abortion the same day.
Q Under what circumstances might that occur?
A Probably the only time that it would occur is if she
were at such a point in her pregnancy that a delay of
even 24 hours meant that she would have to go - move
from a 12-week to a 13, 14-week procedure or from that
level to a second trimester procedure or perhaps not
have the procedure at Women’s Health Services at all,
but she would have to be referred out of state.
Q I’d like to ask you some questions about the
consequences of the Abortion Control Act on the
operations at Women’s Health Services, starting with the
husband notification provision. Ms. Roselle, married
women that come to Women’s Health Services for
abortions, are they accompanied by their husbands?
243
A Yes, they are.
Q What percentage, in your estimation, in Women’s
Health Services’ estimation are accompanied by their
husbands?
A 70 percent of the women are actually accompanied
by their husbands.
Q And that’s women that come to Women’s Health
Services?
[68] A That’s correct.
Q Have you attempted to determine for those women
who do not bring their husbands how many of them have
notified their husbands or how many of their husbands
know about the procedure?
A Another 25 percent of the husbands are aware that
the woman - of the pregnancy and her decision to have
an abortion, so 95 percent of the husbands are either
with their wives or are aware.
Q What are the reasons that the husbands don’t come,
even though they know about the abortion?
A Most often is that they have to work or that they
have to provide child care while their wife is having
surgery.
Q Now, for the five percent of the women who are not
accompanied by their husbands and who haven’t told
their husbands, does Women’s Health Services currently
require them to notify their husband before they can
have an abortion?
A No.
Q Why not?
A We feel that’s an invasion of their privacy, if they
make decisions, very sound decisions on their own and
we would not intrude upon their decisionmaking.
Q Do women that don’t tell their husbands tell
Women’s Health Services why they don’t tell their
husbands?
A Well, sometimes they do, yes.
244
[69] Q What kinds of reasons do patients at Women’s
Health Services give?
MS. MERSHIMER: Objection, your Honor, this is
hearsay.
MR. ZEMAITIS: Your Honor, it’s not introduced
for the truth of the matter, but that this is what women
report to Women’s Health Services as those reasons.
MS. MERSHIMER: Your Honor, it’s exactly
offered for the truth of the matter. If they want to say
that she’s had conversations with women, fine, but then
he’s asking what did they say, it’s for the very purpose of
the reasons why women don’t report or don’t tell their
husband.
THE COURT: Overruled.
BY MR. ZEMAITIS:
Q You may answer the question.
A If you could repeat the question?
Q The question is what reasons do women offer for not
telling their husbands?
A They give a variety of reasons. Their husband may
be ill and they don’t wish to burden them with the
additional stress of knowing that there has been a
pregnancy within their relationship that, for example, one
of our own counselors became pregnant while her
husband was dying of leukemia and she chose to have an
abortion and she chose not to tell him of the pregnancy.
We have had women who have or a woman who [70]
expressed her concern about her own health, that she
had had three prior pregnancies, a lot of trouble with
blood clots during those times. Her husband did not
believe in the use of contraception. When the fourth
pregnancy occurred, she knew that he absolutely was
opposed to abortion, she made the decision to have the
abortion without involving him because she knew that he
would feel that it would be more holy of her to die than
to sacrifice the fetus.
245
Q Any other categories of reasons that women give?
A That perhaps they -- that the pregnancy occurred
when the marriage was failing, that marriage was already
ending and there was a last attempt at reconciliation that
didn’t work and the decision not to have a child into - as
a single parent.
MS. MERSHIMER: Your Honor, may I have a
continuing objection on all this testimony about what
women have told her?
THE COURT: Yes.
* * *
Q The statute would require that a woman who - all
women who are married to fill out a form stating
whether they have told their husband or, if they haven’t,
why they haven’t. [71] Are you aware of that
requirement, Ms. Roselle?
A Yes.
Q Does that cause any concern for you in your
administration of Women’s Health Services?
A Well, we’ll now have to change our counseling to
require women to tell us about some of the bases of
their most intimate decisionmaking and that becomes a
barrier between the care we provide and the relationship
that we can establish with them because if they choose
not to, what we’re essentially saying to them is that if you
choose not to tell us this or you choose to falsify this
information, we’re making you a criminal.
Q Do you have any concerns about the form being put
in the files at Women’s Health Services?
A Well, medical records, as we all know, in
Pennsylvania are not immune from subpoena. And I had
spoken to this before, before I actually had the
experience when one of our records -- and I would like
to add that I am the medical records custodian for
246
Women’s Health Services -- one of our medical records
was subpoenaed by the former husband of one of our
patients. They were in a property settlement dispute,
there was a property award made to her which was not
followed through on, and he was subpoena her records
saying that she had had an abortion in an attempt to
discredit her and to prevent the property settlement, as
agreed upon, to be [72] carried through.
Q Is your concern that a form in the file at Women’s
Health Services would be subject to subpoena and abuse
as in that situation?
A It would become part of the medical record and
under those circumstances, it could be subpoenaed.
Q Was Women’s Health required to disclose the file in
the case you just mentioned?
A No, we were not; the woman settled before the case
went to court.
Q Ms. Roselle, I’d like to ask you some questions about
the reporting requirements under the statute. Now, an
individual induced termination of pregnancy form has
been collected for the past two years. Have you been
involved in the process of preparing those reports and
submitting them to the Commonwealth?
A Yes.
Q Have you made any attempt to determine how much
it costs Women’s Health Services to keep up with that
reporting obligation?
A Yes.
Q And what is the result of your estimate?
A It costs us $12,000 a year.
Q And how did you arrive at that figure?
A That is two-thirds of the clerical supervisor’s salary
[73] plus her benefits of 25 percent.
Q Do any other medical procedures that are performed
at Women’s Health Services require the submission of a
form for each individual procedure?
247
A No.
Q Are you aware of any procedures performed in
Pennsylvania generally that have the requirement of a
detailed report for each procedure?
A No.
Q Does Women’s Health Services receive any publicly
allocated funds?
A Yes.
Q Under what circumstances?
A We receive medical assistance reimbursement for
abortions provided for women who are victims of rape,
incest, and we have the ability also if we would perform
an abortion to avert the death of a woman.
Q You say you have the ability, is that your testimony
that that is not an instance, that you have not had
instances like that where you have sought
reimbursement?
A Not within the last year.
Q Have you sought reimbursement for rape or incest
victims within the past year?
A Yes.
Q How many have you sought in the past year?
[74] A 46.
Q Is that number lower or higher than it has been in
prior years?
A In 1988 it was 249.
Q What percentage of abortions performed at Women’s
Health Services are paid for by Medical Assistance
payments?
A Less than one percent.
Q Approximately how many abortions are performed at
women’s Health Services during the year?
A Between 6500 and 7,000.
* * *
248
[76] Q Now, Ms. Roselle, are abortions ever performed
at Women’s Health Services on an emergency basis?
A Yes.
Q Under what circumstances?
A We have had women who have presented for an
elective abortion who have been threatening to
spontaneously abort and we immediately see them. If
there is a physician available, we immediately see them
and terminate the pregnancy right then.
Q I would like to ask you some questions regarding the
[77] informed consent provisions and their effect on
Women’s Health Services. Dr. Allen testified yesterday
that Women’s Health Services does provide counseling to
its patients. I would like you just to make it clear for the
record what kinds of counseling are provided and when
for an abortion patient at Women’s Health Services.
A Okay. There are -- our counsel- we have three
types of counselors and the counselors are, we have
personal counselors. These counselors would have at
minimum a Master’s degree in psychology, in social
work. Our Director of Personal Counseling has a Ph.D.
in counseling and a Master’s in social work.
Personal counseling is specifically geared for the
woman or the couple who are experiencing problems
making decisions about a pregnancy. It may be that they
are ambivalent, that the woman is feeling coerced, that
the woman is under - very sad because she has decided
to terminate a planned pregnancy that is complicated by
fetal anomalies that are incompatible with life after
birth. These therapists, after they have completed their
higher degree, must have at least five years experience
before we will allow them to do problem pregnancy
counseling.
Q How do you determine - do all patients, abortion
patients, go through personal counseling?
A No.
249
[78] Q How do you determine which women or women
and their partners go into the personal counseling?
A There are two ways, and I can’t say that one
outweighs the other; they are equal. One is that by word
of mouth, Women’s Health Services has an excellent
reputation in the Pittsburgh community as providing
outstanding counseling services, and a lot of women
simply call and say "I would like to see a counselor."
The second way is if that the woman are identified
as having difficulties making decisions or difficulty,
unusual difficulty or unusual ambivalence or the coercion
factor has entered in by another type of counselor within
Women’s Health Services and then they are referred for
personal counseling.
Q What is that other type of counseling?
A Well, the other type of counseling, to distinguish,
their title is a paraprofessional counselor and these are
what Dr. Allen referred to as the pre-abortion counselor,
or the abortion counselor yesterday. And these women
are trained by Women’s Health Services to be health
educators and also to be able to assess someone’s
capabilities of making decisions and whether or not
they’re comfortable with their decisions and whether or
not what they are expressing is consistent with their, say
their body language, with their affect, with their general
demeanor within the counseling session.
[79] Q How are the paraprofessional counselors
selected?
A Paraprofessional counselors must go through a
rigorous selection process. They begin by completing an
application with us and we review the application for
some kind of exposure to counseling that they have
conducted, and then once they pass the paper screening,
then they are, between five to eight people are scheduled
simultaneously for what we call a group interview. The
group interview is essentially a two-hour problem solving
250
session where we give the applicant two problems that
they must solve. One is a problem around sexuality, the
other problem is a series of policies that if you were the
Board of Directors of Women’s Health Services, how
would you handle these. And then we have two
observers in the room while they are doing this problem
solving and we select them, that we score them based on
their attitudes towards contraception, towards sexuality,
their ability to be supportive of each other without being
competitive. We are looking for someone who has an
innate ability to relate to other people. Once they get
past that, then they go through an individual interview.
Q Is there any minimum age requirement, or excuse
me, any minimal educational requirement for
counselors?
A We require them to have a GED or a high school
education.
Q During the course of the counseling by the
paraprofessional counselors, does the counselor give [80]
information for informed consent?
A Yes.
Q So that’s not done by a physician?
A No.
Q Does the paraprofessional counseling occur for all
women who have abortions at Women’s Health Services?
A Yes.
Q And does it typically occur on the day the abortion is
performed?
A Yes.
Q If the 24-hour waiting period goes into effect as
required by the statute, what impact do you project it
will have on patients of Women’s Health Services?
A Well, they’ll certainly experience a delay and I also
feel that they’re going to have increased expenses. I’d
like to expand a bit and talk to you about where our
patients come from, we serve women from 34 counties
251
within Pennsylvania, from portions of Ohio, West
Virginia, Cumberland, Maryland, you know, as far east as
Cumberland, Maryland, and New York State, so we have
a very large service area. And it is not unusual for
women to travel three, four hours to get to the clinic.
Sometimes it’s much longer because they have to take
buses to get in.
Q So that 24-hour - typically the counseling and
abortion occur on the same day?
[81] A That’s correct.
Q So that if there were a 24-hour waiting period, there
would have to be two visits to accomplish those two
goals?
A That’s right.
Q The statute, as I think you know, Ms. Roselle, also
has a provision requiring parental consent and it requires
informed consent for parents. Some of the physicians
who testified yesterday said they did not think that
informed consent could occur by telephone or by a form.
Were you here for that testimony yesterday?
A Yes.
Q Do you agree with that testimony?
A Yes.
Q What effect would it have on minor women who
seek abortions at Women’s Health Services if both
parents had to come in for counseling and the 24-hour
waiting period were to go into effect?
A Well, what we get is layer of - layers of obstacles
that the teenager, the minor would have to experience
and it - and the more parts of the law that become - go
into effect,the deeper the layers and the greater the
obstacles. If you talk about a 24-hour period, we’re
talking about delay and additional costs. If we’re talking
about parental consent, we’re talking about additional
delay. If we talk about with a judicial bypass, it’s still
more delay, more expense, more [82] trips to the clinic.
252
And then if we talk about physician doing the --
conducting the informed consent portion of 24 hours in
advance, then it becomes even more difficult and even
more layered and that’s particularly true of a young
woman.
Q Would it be possible if the 24-hour waiting period
went into effect for Women’s Health Services to
guarantee that there would only be a 24-hour delay for
each woman seeking an abortion?
A No, we could not do so.
Q Why not?
A We don’t have physicians available to us every day of
the week, other - in the clinic, so therefore we would
not be able to conduct the informed consent interviews
every day.
* * *
[83] Q Do you believe it is consistent with the
counseling process at Women’s Health Services to insist
that all the information in the statute be given to all
patients?
A No.
Q Why is that?
A Not all the information that the statute requires is
relevant to all patients.
Q Could you look at -- go to the other binder and look
at the last tab, which is a copy of the act, and turn to
Page 8 which has the specific information required by
the informed consent provision?
At the bottom of that page there is a mention of [84]
Medical Assistance benefits may be available for
prenatal care; do you see that?
A Yes.
Q Is that information that is given to all women who
come to Women’s Health Services for an abortion?
A No.
253
Q Why not?
A Because it’s not relevant to all women who come to
Women’s Health Services for an abortion.
Q Ms. Roselle, do you have any personal experience in
counseling?
A Yes. I was a social worker in a family planning
clinic in the early 70’s in Norfolk, Virginia.
Q If you were required to give information as a
counselor that is not relevant to the person you are
counseling, what impact do you think that would have on
the counseling process?
A Well, it interferes with the counseling relationship
because people don’t under-- they don’t understand
where it’s coming from and they also think that you’re
not listening to them.
* * *
[85] Q On Page 9 there is a provision that requires that
the father of the unborn child is liable to assist in the
support of the child. Is that information that Women’s
Health requires to be given to all women at present?
A No.
Q Why not?
A Because it’s not relevant.
MS. MERSHIMER: Objection, your Honor; same
basis, lack of foundation. Ask that the witness’ answer
be stricken.
MR. ZEMAITIS: Your Honor, I don’t think this is
without foundation. Ms. Roselle knows the protocols at
Women’s Health Services and she knows the reason for
them.
THE COURT: Yes, I think there’s an adequate
foundation; overruled.
BY MR. ZEMAITIS:
Q Now, Ms. Roselle, are you also aware that the
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department will be required to make available to a clinic
such as Women’s Health Services certain printed
materials?
[86] A Yes.
Q Have you had an opportunity to review any of those
printed materials?
A Yes.
Q What was the first opportunity you had to do so?
A Yesterday afternoon.
Q I would direct you to the document that is behind
Tab 49.
MR. ZEMAITIS: In the defendant’s exhibits, your
Honor, I’m sorry. This is the document we added to this
morning. Defendant’s 49.
Your Honor, I will represent for the record that this
document was presented -- the first page of this
document was presented to us last Friday by counsel for
the defendants and the remaining pages were presented
to us yesterday at the beginning of the hearing and it’s
my understanding that this is a version of the printed
materials or part of the printed materials that will be
offered under Section 3208 of the act and will therefore
be required to be at clinics for distribution under Section
3205. And with that basis and representation, I would
like to ask Ms. Roselle some questions about it.
BY MR. ZEMAITIS:
Q Have you had an opportunity to review this list —
this directory of social services organizations, Ms.
Roselle?
A For Allegheny County.
[87] Q You paid particular attention to Allegheny
County because that’s where you’re located?
A That’s correct.
Q Do you have a general familiarity with the social
service organizations that are available in Allegheny
County to help women and children?
255
A Yes, I am a convener of a group called the Women’s
Service Providers, which is the executive directors of the
women’s service agencies in Allegheny County. I am
also Chair of the National Association of Social Workers
for Southwestern Pennsylvania, so I do have a great deal
of familiarity with social agencies.
Q Now, the listings for Allegheny County begin on
Page 3 of the page numbered 3 and continue to the page
numbered 6. In your review of that list, did you notice
any omissions of agencies that you think would be
appropriately included on that list?
A Yes. Family Health Council is not included on the
list. Family Health Council is the umbrella agency for
all the family planning clinics in Western Pennsylvania
and I believe they have about 40 counties. They also
provide adoption services and they provide prenatal care.
Another exclusion would be Women’s Health
Services, Planned Parenthood and Allegheny
Reproductive Health Center. The fourth abortion clinic
in Allegheny County is on this [88] list, so therefore I
would speak for the rest of us.
Q Would you tell us what that fourth clinic is?
A Yes, Allegheny Women’s Center.
Q And that appears on Page 4 of the document?
A That’s correct.
Q And to your knowledge Allegheny Women’s Center
provides abortions?
A I - -1 am certain they do.
Q Does it provide services for women that Women’s
Health Services does not provide, to your knowledge?
A No, they do not.
Q And the other clinics you mentioned that are not
listed are Planned Parenthood?
A Planned Parenthood.
Q And?
A Allegheny Reproductive Health Center. Another
256
very glaring omission in this is the Women’s Center and
Shelter. We only have one shelter for battered women
in Allegheny County and it’s not on this list.
Q Are there any institutions that are listed or
organizations that are listed for Allegheny County that
cause you any concern?
A Women’s Health Services is very careful about where
we refer. For example, we recently updated our referral
list for adoption agencies and how we did that is we went
and [89] visited every adoption agency in talked with
them and found out their philosophy and then we
established information to give to patients that we do
give to them. We wouldn’t -- this list has not -- some of
the agencies on the list would not meet our criteria for
an agency to which we would make referrals.
Q Can you give me any examples?
A Any of the Crisis Pregnancy Centers.
Q And why do the Crisis Pregnancy Centers, why are
they not organizations that you could comfortably refer
women to?
A Because we know from the literature that women
have brought to Women’s Health Services from the
Crisis Pregnancy Centers that they give misinformation
and disinformation with the sole purpose of dissuading
someone from having an abortion. They simply want a
woman to terminate a - or to continue a pregnancy.
Q So absent the requirement that that organization is
on the State’s list and you have to give it to women, you
wouldn’t use those as referral agencies from Women’s
Health Services?
A That’s correct.
Q Now, turning back to the other mandated provision
in the statute which are the — you don’t even have to
have it in front of you, but the availability of assistance,
Medical Assistance benefits and the fact that the father
is liable [90] for support of the child, do you have any
257
concerns as to the accuracy of that information when it is
appropriate for women?
A I’m trying to -
Q If Women’s Health Services were required to tell all
of its patients that the father is liable for the support of
the child, do you have any concerns about whether that
would be useful information for Women’s Health
Services patients?
A Well, first, half of our patients, our abortion patients
are married, so we certainly wouldn’t say that to half of
our patients. The other half of the patients, if there was
an indication that financial problems were the sole
reason that someone was having an abortion, the
paraprofessional counselor would refer the woman for
personal counseling. And during the personal counseling
session, support of the alleged father would be discussed.
And the women, if that was an area in which she chose
to explore, then a referral to perhaps Legal Aid or
Neighborhood Legal Services -- neither of which are on
this list either -- would be made.
But it’s so infrequent that someone would say that
the sole reason they’re having an abortion is economic
that it’s very rare that we would do that. So it’s just, it’s
simply not relevant for the vast majority of women and
to be required to do it holds out false hope to these
women.
Q In your experience as a counselor, Ms. Roselle, what
is [91] the purpose of counseling?
A The purpose of counseling is to help -- help anyone,
regardless of their age, make decisions, to discuss, to
identify what their options are, to discuss the pros and
cons of each option and to reach a decision and to utilize
all of the resources of themselves, their community and
their support system in making that decision.
Q Is it the obligation of the counselor to try to
persuade the person he’s counseling to one or another
258
position?
A It is their ethical obligation not to try to dissuade
someone.
Q Now, Dr. Allen yesterday discussed the fact that
pictures of fetal development are available at Women’s
Health Services if any patient wants to see them. Is it a
routine part of the counseling process to offer women
the opportunity to review those pictures?
A No.
Q Under what circumstances would a woman be
offered that opportunity?
A When she requests to see the level of fetal
development.
Q If a woman requests to see those pictures, how
would the pre-abortion counselor react or the
paraprofessional counselor?
A It’s usually posed by a woman who has been to a
Crisis Pregnancy Center and gotten some inflammatory
literature or [92] has been exposed to a movie called
"The Silent Scream" and then she wants some factual,
scientific information. It is also a very clear indication of
her ambivalence and she is not, she’s not immediately
given surgical services, she is offered and referred for
personal counseling.
Q Now, insofar as the parental consent provision of the
statute is concerned, are there instances today where
minors come to Women’s Health Services, ■ saying that
their parents know about the pregnancy but that they
refused to accompany them?
A Yes. In a case that I was personally involved in was
a 14 year old from a very rural area about 75 miles from
Pittsburgh. The physician made the referral directly to
me because we have mutual acquaintances and this
young woman, when she became - when her family
became cognizant of the pregnancy, she was shipped off
to live with the sister who was 19 and a single parent,
259
and the -- her 15 year old boyfriend was forbidden from
seeing her. After a couple of weeks of living in her
sister’s household, she decided that she needed to have
an abortion, that this at 14 was not the lift that she
wanted to look forward to, and so she convinced her
boyfriend to walk to a rural health center where she was
counseled by a physician. And the physician called me
and said, you know, "They’re 14, she’s 14 and he’s 15,
and we’ve got about a week left for a first trimester
abortion and they [93] don’t have any money," and I
immediately approved a grant from what we call our
Vivian Campbell Fund, so there would be no fee, no
charge to the patient, and then the problem was how do
we get them there, because neither of them was old
enough to drive but they were about to be parents. So
we convinced or she convinced her 16 year old brother
to make his first trip into the City of Pittsburgh, and if
you live in rural areas, you understand that sometimes
super highways are overwhelming for — for even adults.
So this 16, 15 and 14 year old came in and the young
woman had her abortion, and the 16 year old brought
the news that now that the pregnancy was terminated,
the young girl was allowed to return to her parents’
home. So that’s when she left the clinic, she was able to
return home.
Q Ms. Roselle, has Women’s Health Services been the
target of activities by opponents of abortion?
A Yes.
Q How long; for how long a period?
A For 17 years, since the day we opened.
Q Have the employees of women’s Health Services
been the target of activities by opponents of abortion?
A Yes.
Q And has that continued up to the present?
A Yes.
Q How about patients?
260
[94] A Yes.
Q And does that also continue up to the present time?
A Yes.
* * *
[95] Q In the past year has there been any change - I’m
sorry. The question I had asked you and you had not
had an opportunity to answer was to describe the kinds
of activity.
A Well, they - with — beginning with 1986 -
Q That’s when you came to Women’s Health Services?
A That’s when I — when I started. There are
leafletters almost every day, picketers on Saturday, some
what was referred to as sidewalk counseling. One of our
doctors’ home was picketed, my home was picketed with,
I came home on a beautiful Sunday afternoon after
having been to a horse show with my daughter where she
won her very first best of show, it was a wonderful family
day to coming home to "Sue Worsted" - which is my
married name - "is a murderer. [96] This home was
bought with blood money." Then - that was a very
difficult day, I’m sorry, I didn’t really mean to tell that
story. My daughter was subsequently a target of a
kidnapping threat where -- which was turned over to the
FBI. She was 16 at the time, which was a kind of a time
when she was feeling real independent, so we had guards
at the house for a period of time and she wasn’t allowed
to go home after school by herself, things like that.
We have seen a great escalation in the kinds of
harassment of all of the clinic employees of our patients
and really of the building owners, too, beginning in
September of 1988. Prior to that, Operation Rescue had
come to Pittsburgh, but in September of ’88 we were a
target, Women’s Health Services, targeted the Fulton
Building and there were over 600 people at a
261
demonstration and there were 370 arrests that day.
We have also in September of ’89 there were four
people who forced their way into the clinic with — behind
an employee who was coming to work, with buckets of
roofing tar, and they positioned themselves with their
feet in the roofing tar and during the subsequent arrests,
the tar was spilled in our main patient care area. The --
* * *
[98] Q Now, since this tarring episode, have there been
any major demonstrations?
A Well, we have become the target of a group called
"Project Multitude," and they have had three
demonstrations at Women’s Health Services. The first
one was in February that they had 1200 people there,
where they - they were [99] there for five hours and they
sang and had speakers and generally had a very peaceful
demonstration. People could get down the street,
women could get into the clinic and there was no
problem. In April there was about half that number,
there were about 600, they were much more aggressive,
they were much more taunting and abusive towards
anyone who was walking down the street. We had a
number of complaints afterwards, there were a number
of our patients gave written documentation about the
harassment that they encountered and for the first time
ever in the existence of Women’s Health Services did
women actually say I will not go through that mob and I
want to reschedule an appointment. And so that was the
first time.
In June the - they came back again and there were
450, according to the police, and the police cordoned off
part of the sidewalk for an entire block and put the
demonstrators on part of the sidewalk and part of the
street, and there was actually a clear pathway for people
262
to go down the street, which on first blush sounds fine,
and it really, people could actually get access to the
building. The problem was, was that the police also
refused to allow women to be escorted, so the whole
time that they were walking in this open space, their
photographs were being taken by both television
cameras, from the media, from the press, from the
anti-abortion demonstrators so that they had no privacy
[100] whatsoever. I mean, I have been wont to say that
after that situation, that women had more privacy when
they were having illegal abortions than when they’re
having legal ones now.
Q Now, just to step back for a moment, you said after
the tarring incident, were there repairs that needed to be
made at Women’s Health Services?
A Yes. The final tally on damages was in excess of
$27,000.
Q In between these major demonstrations that you’ve
mentioned, has regular picketing continued to go on at ~
A Yes.
Q -- Women’s Health Services?
A Yes.
Q You mentioned earlier, I think the term was
sidewalk counseling. Does that continue today?
A Well, the sidewalk counseling is what they call it, but
what the woman are -- they’re really shouted at. And
they’re shouted at: "Don’t go into that building, don’t
kill your baby, we love you, Jesus loves you and don’t do
these kinds of things." And they’re followed down the
street and they act- they - the demonstrators actually
hold open the door and shout into the lobby of the
building after the woman.
Q Has the character of the sidewalk counseling
changed in the past few years?
A Oh, yes, it’s become much more aggressive. It’s not
just [101] a matter of handing a leaflet and saying "We
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have services that can help you. This is very aggressive
and it’s not reaching out anymore.
Q Has Women’s Health Services or its staff been the
victim of threats in the past year?
A Yes. We ran an advertisement, it was not - it was
an educational piece, but because of the controversy
around abortion, we had to pay for space in a
newspaper. And when the educational piece came back
to us, to me one day, and in purple ink was written
across it: "I will personally kill one of your staff by June
-- one of your employees by June 15th."
* * *
[102] CROSS-EXAMINATION
BY MS. MERSHIMER:
Q Ms. Roselle, is a positive pregnancy test required
prior to a woman being able to schedule an abortion at
Women’s Health Services?
A Yes, it is.
Q So she can’t even come before she has had one?
A She can come for just a pregnancy test, but we don’t
make abortion appointments until she’s had a positive
pregnancy test.
Q And from what you’ve testified this morning, there
are some unusual circumstances where a woman will
have a pregnancy test on the same day that she’ll have
the abortion?
[103] A Yes.
Q But usually it’s she comes back another day then for
the abortion?
A Yes.
Q And she comes back another day for the counseling?
A No.
Q So there’s occasions when she’ll come in, have a
pregnancy test and have a counseling for an abortion and
264
then come back a different day for the abortion?
A I’m sorry.
Q Okay, yeah, I want to be clear.
A The - what - she would have the pregnancy test.
She would ask to see a counselor. She would, during the
face-to-face with the counselor, she would receive the
information- this is a paraprofessional counselor - that
she would normally receive over the telephone, had she
called to make an appointment, she would receive her
appointment. Then she would come back on another
day and receive the pre-abortion counseling, informed
consent and the surgical services.
Q And what is the information that the
paraprofessional counselor gives the woman?
A At what time?
Q Right, well, let’s back up. You said normally a
woman, if she comes in for a pregnancy test and the
counseling on the same day, the paraprofessional would
give -
[104] A I -
Q The paraprofessional would give the woman the
information that normally would be provided in a
telephone session, is that what you said?
A Yes.
Q Okay, what is the information that is provided in that
telephone session?
A To the best of my recollection, okay?
Q Right.
A The - the date of her last menstrual period, the --
her decisionmaking, what kind of support system she has,
what alternatives she’s investigated and then information
about the preparing for the abortion, what to wear, what
to eat prior to coming in, whether or not she is going to
have intravenous sedation, various things. Does she have
any known allergies, does she have any preexisting
medical conditions that would be contraindicated to the
265
service and her arrangements for financing.
Q If the woman, the patient would ask — is this a
telephone counselor, is that a fair name for her, or --
A Well, it’s the paraprofessional counselors and our
nurses rotate in the telephone room and in the clinic, so
Q Okay.
A - call them a counselor.
Q All right, well, at least during the telephone session?
[105] A Mm-hmm.
Q If the woman on the phone, the patient, would ask
for information about the risk of the procedure, would
that be provided to her then?
A Oh, yes.
Q And you said these sessions tend to last from 30 to
40 minutes when there’s a telephone counseling session?
A It varies. I would say 20. I’d say -- I think I testified
20 to 30.
Q Okay, 20 to 30. From what you’ve just said, it’s
either nurses or paraprofessional counselors that man the
phone, is that right?
A Mm-hmm.
Q How many people do you have manning the phones
on any given day?
A Five.
Q And what is the paraprofessional’s salary?
A I believe their beginning salary at this point in time
is $7.80 an your.
* * *
[109] Q Do you recall making a verification in this
case on April 18th, 1988?
A Yes.
Q Or thereabouts? And you recall making the
statement that "The great majority of our patients have
266
absolutely decided to have an abortion before seeking
medical care"?
A Yes.
Q Can you tell me the basis of that statement, how you
know that?
A Well, I know that most of the women who go
through pre-abortion counseling are not referred for
problem pregnancy counseling because they are not
ambivalent, they are not conflicted, they are not being
coerced, they have made this decision. They don’t
request problem pregnancy counseling.
* * *
[112] Q Now on July 20th, 1990, the Philadelphia
Inquirer quoted you as saying, quote, "We’ve certainly
found an increase in pre-abortion anxiety. There are
more questions that indicate people have heard the
propaganda, is it really murder, does it have little toes,
can it feel pain. We know if they’ve had a pregnancy
test at a Crisis Pregnancy Center that they will have a lot
of misinformation."
Is that an accurate quotation?
A I’ve never seen that article.
Q Is it --
A Could I see the article?
Q Certainly.
* * *
[113] Q Could you tell us, ma’am, is that an accurate
quotation?
A That’s part of a quotation.
Q Is that part that was quoted, is it accurate?
A As -- as I recall, yes.
Q Now, if a woman who is nine weeks pregnant and
267
asks a counselor whether the fetus has hands and fingers,
would she be told yes, that’s correct?
A No.
Q Why not?
A A counselor is not qualified to answer that kind of
question.
Q Well, would she be referred to photographs or any
sort of literature?
[114] A She’d be referred to the personal counselor.
Q And then would the personal counselor provide her
with photographs and literature?
A If that’s what she asked to receive. The other thing
that might occur is a physician would be called in.
Q If a woman asks about alternative facilities that
would help her carry a child to term, is she provided that
information?
A Yes.
Q And if she asks questions about assistance benefits, is
she referred to an agency that can address that?
A She’s referred to the Department of Public Welfare
in the county in which she resides.
Q And I think you testified that if a woman asks about
whether a father might be liable for a support payment,
she’s referred, given information about that?
A Uhm, yes.
Q What materials does Women’s Health Services
provide a woman considering options to abortion such as
adoption?
A Well, she receives -- she receives personal counseling
and then based on what her situation is and what her
desire is, she’s referred to a licensed abortion -- or
adoption agency within the county in which she resides.
That agency, for example, if she is Roman Catholic she
will probably be referred, at her request, to Catholic
Social Services or the [115] Roselia Home. If she has no
religious preference as to an adoption agency, she may
268
be referred to the Zoar Home or to the Children’s
Home. It depends on what her situation is.
Q And what materials do you provide a woman, if she
asks for it, about prenatal care?
A Well, the materials that we provide about prenatal
care depends on where she lives and whether or not she
has private insurance that will pay for prenatal care and
delivery.
Q I’m not sure if you fully answered my question, so -
A I’m sorry.
Q So what information do you give them about
prenatal care?
A Well, if they -- if they do not have private insurance,
if they’re going to be on medical assistance, there is no
private provider that will take care of medical assistance
patients in Allegheny County. And in fact, in some of
our counties, women can’t get prenatal care and be on
medical assistance at all. So therefore, we have a
problem.
And if they are on medical assistance, they have to
go to a clinic. And if they live in the wrong county, then
they go to -- sometimes the Family Health Council can
handle them and sometimes a physician, out of the
goodness of his heart will, you know, take a limited fee,
but will not accept medical assistance.
Q Now prior to performing an abortion at Women’s
Health Services, is the woman or patient told the
gestational age of [116] the fetus?
A Yes.
* * *
[117] Q I’m not sure if I asked you this question.
How many doctors perform abortions? I know you have
abortion services [118] provided three days a week. How
many doctors do you have working each day?
269
A Either two or three.
Q And how many doctors are contracted -- you contract
with the doctors; right?
A Yes.
Q All right, how many are contracted with Women’s
Health Services all together?
A Right now we have 13.
Q And those three days that abortions are provided, is
there a time frame that the abortions are provided, is it
like 8 to 5 or 12 to 8; do you know?
A Yes, there is a schedule. The first appointment is at
7:45.
Q Till when?
A 12:30.
Q P.M. or A.M.?
A P.M.
Q That’s for each day?
A Yes.
Q And that’s -- I mean, just so I’m clear, that’s the
period of time that the abortions are actually performed?
A I’m sorry. I apologize, those are the appointments.
Abortions, the clinic actually begins, as far as the surgical
procedures start, between 9 and 9:30 and depending on
the [119] number of appointments and the number of
physicians available, they end between 4 and 4:30.
* * *
Q I just want to see -- to have this straight. You had
said that the cost to keeping up with the reporting [120]
requirements for the Department of Health were about
$12,000 a year?
A That’s right.
Q And you said that was two-thirds of the clerical
employees salary?
A That’s correct.
270
Q And that’s because you took the clerical employee’s
salary and had her do some of the work of your medical
director so the medical director could fill out the forms
for the Department of Health?
A Yes.
* * *
[121] Q Now you said, am I correct, that acts of
harassment or protests against Women’s Health Services
have occurred since the day the clinic opened?
A Yes.
Q And that was 17 years ago?
A Yes.
Q And it has continued on periodically ever since then?
A And it escalated in September of ’88.
Q And it’s - and you’ve had these acts all the way
through the period of time that the 1988 and ’89
amendments have been enjoined; that’s correct?
A And they’ve continued to escalate.
Q Now we’ve talked a lot about Plaintiffs Exhibit 6,
Women’s Health Services’ medical form.
A Mm-hmm.
[122] Q And page 11, being the informed consent
form?
A Mm-hmm.
Q That’s the only form of consent form that there is;
right?
A Yes.
Q You don’t have a different in cases of rape, incest or
battered women?
A There are different forms for women who are rape
and incest victims to complete, but they aren’t part of --
informed consent.
* * *
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[124] Q When we were talking about Defendant’s
Exhibit 49 this morning, you said that there were some
agencies that were omitted from the list of providers?
A Yes.
Q Is there anything prohibiting you from telling the
Department of Health that some agencies have been
omitted and should be added to the list?
A No.
Q Is there anything to prevent Women’s Health
Services from supplementing the Department of Health’s
list?
A I don’t know.
Q Is there anything that prevents counsellors from
offering their opinion about additional providers other
than is on the list?
A I don’t know.
Q Now when you were talking about whether
information would be provided to a woman about a
father being liable for support payments, that that
information would be provided in cases where that was
the sole reason the woman was offer for the reason to
have an abortion?
A Yes.
Q Now if the woman would say that was just one of her
[125] reasons, not necessarily the sole reason, would she
still be provided that information about the father --
A Yes.
Q -- giving support?
And are you familiar - wait -- and you said that this
very rarely happens that a woman’s concern — sole
concern is that there’s not enough money?
A That’s right.
Q Is it more frequently that that’s a partial factor,
however?
A That’s correct.
Q And are you aware of any -- do you know what the
272
Family Planning pregnancies — I mean Perspectives is?
A Yes.
Q Could you tell me?
A Family Planning Perspectives is a journal that’s
published by the Alan Guttmacher Institute.
Q And are you aware of any recent studies by Family
Planning Perspectives that establishes that about 20 or 21
percent of the women who have abortions, that one of
the reasons they have an abortion is they don’t feel they
can afford the baby?
A I read Family Planning Perspectives every other
month cover to cover and I don’t know that direct quote.
If it’s from the article that I testified about in my
deposition [126] before, I just can’t remember that it was
21 percent. It sounds familiar.
Q Does that sound about right in your experience at
Women’s Health Services?
A I don’t know.
* * *
Q Ma’am, do you recall when I asked you if a woman
asked who had a nine week old - she was pregnant nine
weeks gestational age and if she asked the
paraprofessional counsellor if the fetus had hands and
fingers whether she would be advised yes, she was and
you said no, because she would be referred to the
personal counselor?
A That’s correct.
Q Would the personal counselor tell her yes to that
question?
A Possibly. I think that — and I’d like to qualify my
response just that I haven’t done problem pregnancy
counselling in a lot of years -- about 17. But the
protocol would be that she would explore the reason for
her question. And if the -- because questions like that
273
come out of [127] ambivalence about whether this
woman really wants an abortion or she wishes to
continue the pregnancy. And that may be the real issue.
But if the issue is truly that she wants to know that
piece of information and a drawing or a photograph
would be helpful to her, then she would be offered that
opportunity.
* * *
[128] Q Now we had a discussion about telephone
counselling at the beginning of your cross and I want to
make sure the record is clear on that. Women who have
pregnancy tests other than at Women’s Health Services,
when they first contact Women’s Health Services, it’s to
set up an appointment for an abortion; is that correct?
A Yes.
Q During that conversation, would they have telephone
counselling?
A Yes.
Q And that’s the telephone counselling where you
describe the series of information that would be asked or
obtained from the woman?
A Yes.
Q How long does that process typically take?
A 20 to 30 minutes.
Q And the woman who comes in to Women’s Health
Services for a pregnancy test and wants to set up an
abortion appointment at that time would get that same --
the same information as the telephone counselling?
A Yes.
[129] Q But that would occur on site?
A That’s correct.
Q Now that’s not a substitute, is it, for the pre-abortion
counselling that takes place on the day of the procedure?
A Oh, absolutely not.
274
* *
[143] MS. MERSHIMER: Your Honor, the
Commonwealth would call Dr. Vincent Rue.
VINCENT M. RUE, Defense Witness, Sworn.
MS. MERSHIMER: Your Honor, Dr. Rue’s
curriculum vitae is Defendant’s Exhibit 62. To
summarize, as the Court has requested, Dr. Rue has a
B.A. Cum Laude from St. John’s University, 1970, in
Sociology. He has a Masters in Social Work from St.
Louis University in 1972 in Clinical Social Work. He has
a PhD from the University of North Carolina at
Greensboro in 1975 with a major in Family Relations
and a minor in Sociology. In early 1990, he was
co-founder and co-director of the Institute for Abortion
Recovery and Research in New Hampshire. In 1975
through 1990, he was the Executive Director and also
Psychotherapist and an individual marriage and family
therapist at Sir Thomas Moore Clinic, Downey,
California. From 1975 to 1980, he was Associate
Professor of Family Relations in the School of Fine and
Applied Arts, California State University at Los Angeles.
He is also an adjunct Associate Professor at the School
of Professional Psychology, United States International
University, San [144] Diego.
He has numerous professional associations. He’s
provided consultation and written articles regarding
adolescent problem pregnancy decision making, problem
pregnancy decision making, spousal notice and informed
consent and the psychological effects following an
abortion. And he has presented a number of
presentations on these topics.
DIRECT EXAMINATION (VOIR DIRE)
BY MS. MERSHIMER:
Q Dr. Rue, you’re a licensed marriage and family
therapist and trained psychotherapist; is that correct?
275
A Yes.
Q Could you explain that?
A I am licensed in the State of California as a marriage
and family therapist. I work with individuals who present
with a variety of problems, from anxiety disorders to
depression, et cetera. I work with marital units,
husbands and wives who express difficulty in one way or
another with communication and sexual dysfunction, et
cetera.
And I also work with families who have experienced
distress and provide therapy for them. I have had
training in the area of psychotherapy, which is really
more advanced and more in depth work than general
counselling. And that is primarily what I have done in
the last 15 years in [145] California.
Q Do you clinically treat individuals with emotional
and/or mental problems?
A Yes, I do.
Q And how long have you been doing that?
A I’ve been doing that as a licensed therapist for 15
years in California. And prior to licensure, an additional
three years.
Q Okay, now while employed at Sir Thomas Moore
Clinic, what types of counselling services did you
provide?
A I provided personally individual counselling,
individual psychotherapy, psychological assessments, as
well as group therapy, conjoint marital therapy, conjoint
family therapy, crisis pregnancy counselling and
post-abortion counselling.
Q When you say post-abortion counselling, did you
begin to develop a specialty in that area?
A Yes, I did.
Q Could you explain that specialty?
A The area of post-abortion counselling and
post-abortion trauma in a relatively new area. It, in
276
essence, focuses on the painful aftermath that some
women and men feel after experiencing an abortion. It’s
characterized by the unwanted, undesired --
MS. KOLBERT: Your Honor, I would object as to
the substantive aspects of this in that counsel for
plaintiffs do [146] have some questions as to voir dire.
THE COURT: Yes, are you qualifying the witness
at this point?
MS. MERSHIMER: I was attempting to, your
Honor.
THE COURT: Well, we’re concerned with his
qualification, not with the substantive aspects of his
testimony. You may wish to limit it in that manner.
MS. MERSHIMER: I apologize, your Honor.
THE COURT: And then tell me the field of his
expertise.
BY MS. MERSHIMER:
Q Could you tell the Court how many women you’ve
provided psychological,counselling for in problems
occurring after abortions?
A I would say hundreds.
Q And have you counselled women before they’ve had
an abortion?
A Yes, I have.
Q And could you tell me the number of those?
A Again, in the area of hundreds.
Q And have you counselled men who have experienced
difficulties following abortion by their wife?
A Yes, I have.
Q And could you tell me the number of men in that
area?
A At least over 100.
[147] MS. MERSHIMER: Your Honor, I would offer
Dr. Rue as an expert in psychological effects following
abortions, problem pregnancy decision making with
abortions and marital family relationships.
277
* * *
CROSS-EXAMINATION (VOIR DIRE)
BY MS. KOLBERT:
Q Dr. Rue, it is true that you’re not a psychologist; is
that correct?
A That’s correct.
Q And it’s also true -- let me ask you to turn to your
curriculum vitae, which is in the notebook in front of you
under Defendant’s Exhibit 62 - no, I’m sorry, it’s the
manilla notebook.
Sir, it’s not - that’s the plaintiffs exhibits. It’s the
Defendant’s Exhibit Number 62.
A Okay.
Q Did you prepare your curriculum vitae?
A I did not type it, no.
Q But you did prepare it and examine it before sending
it to plaintiffs counsel?
A No, I did not.
Q Did you examine it before sending it to plaintiffs
counsel?
A No, I did not.
[148] Q Is this a vitae that you use in other instances
besides court appearances?
A This is my vitae, but it was sent from my Los
Angeles office and I am in New Hampshire at this point.
Q Now I direct your attention to underneath the -- it is
correct that you -- I’m just a little confused about your
PhD. Did you receive a PhD in family psychology as
your vitae reports?
A No, it should be listed as family relations, which is
what counsel just previously --
Q And that is, as I understand it, from the School of
Home Economics at the University of North Carolina?
A It’s from the School of Home Economics,
Department of Child Development and Family
278
Relations.
Q But the PhD is a home economics PhD with a major,
as you’ve described in your resume, in family relations?
A No, I don’t believe that that is accurate. It is not a
PhD in home economics, it is a PhD in family relations.
In the Department of Child Development and Family
Relations, there was a joint specialization or an
individual specialization.
Q Okay.
[149] A Mine is in the area of family relations.
Q But you would agree that the degree was granted by
the School of Home Economics?
A No, that is not correct. The degree was granted by
the Graduate School of the University of North Carolina.
Q I would like to -- so you’re saying that there’s no
home economics degree at all?
A There certainly are, yes.
Q But your’s was not a home economics degree?
A That’s correct.
Q I’d like to show you the commencement report from
the University of North Carolina at Greensboro in 1975.
MS. MERSHIMER: Your Honor, could I see this
exhibit?
(Pause in proceedings.)
BY MS. KOLBERT:
Q Can you read for me the - what is next to your
name under Candidates for Degrees?
A It says Home Economics. I’ve not seen this before
and I was not present at my graduation.
* * *
[151] Q Have you ever performed informed consent
counselling or offered informed consent counselling in
any way?
A With respect to what?
279
Q With respect to women seeking abortions?
A I have provided crisis pregnancy counselling.
Q No, my question is it’s true that you’ve never proved
informed consent counselling, that is, obtained a
woman’s informed consent prior to the performance of
abortion?
A Well, counsel, because I’m not a physician, I don’t
think I could do that.
Q And it’s also true that you’ve had no experience
counselling women in Pennsylvania who have obtained -
who [152] have given informed consent for abortions; is
that correct?
A That is correct.
Q And it’s also true that you’ve never conducted any
independent research about informed consent counselling
within Pennsylvania abortion clinics; is that correct?
A That’s correct.
MS. KOLBERT: Your Honor, plaintiffs would
object to any testimony by this witness as to informed
consent and informed consent counselling. We have no
problem with him being certified as a marriage and
family therapist and an expert in family relations, but
that that would not go to testimony as proffered by the
Commonwealth as to his expertise in informed consent in
that interchange.
THE COURT: All right, Ms. Mershimer, do you
wish to ask any further questions or make any comment
concerning the objection? To qualify your witness in the
area of informed consent.
MS. MERSHIMER: I would ask a few more
questions, your Honor.
THE COURT: AJ1 right, why don’t you proceed.
REDIRECT EXAMINATION (VOIR DIRE)
BY MS. MERSHIMER:
Q You say that - you had previously said that you have
provided psychological counselling for hundreds of
280
women [153] experiencing problems after having an
abortion?
A Yes, I have.
Q And what did that counselling involve, what were the
issues?
A The issues involved were an evaluation of the
stessors that were currently operating in that person’s
life, the relationship context in which the pregnancy
occurred, if it was a minor circumstances in that person’s
family, the psychological status of that person, her well
being, crisis decision making in the past, her methods for
utilizing, her methods in resolving those crises. It also
included spiritual areas of moral issues that might be
relevant to her decision with respect to the outcome of
her crisis pregnancy. The meaning of the pregnancy
itself for her. We also discussed stages of fetal
development, psychological risks to the procedure, et
cetera.
Q In that crisis making decision process of counselling,
did you discuss information that the woman had at the
time of the abortion or lack of it and the effect that had
on her in the psychological problems afterwards?
A I’m sorry, could you repeat that?
Q In that -- in doing the counselling in that crisis
making decision process, did the counselling include
infor -- counselling on the area of whether -- of the
information that had been provided to the woman before
having an abortion or [154] the lack of information that
had been provided to her and any effect that had on her
-- on after the abortion, psychologically?
A Yes, I did.
A And you said that you’ve counselled hundreds of
women - or I’m sorry, maybe 150 women before having
an abortion?
A At least.
Q And in that counselling process, does that - is there
281
areas of information that -- do you discuss infor — is part
of the counselling request for information that the
woman has or believes is beneficial in making the
decision?
A I’m sorry, can you...
Q Well, when you counsel the women before an
abortion, what are the issues or topics that are
discussed?
A We look at what the - as I mentioned earlier, what
the pregnancy means to her. Whether or not any of the
risk factors that have been identified in the psychological
literature are relevant to her circumstances.
Some risk factors, for example, are the existence of
prior children, any coercion, whether or not she has her
partner’s support. If she’s a minor, the issue of her
parents. Her information that she has with respect to
fetal stages of development, how she became pregnant.
Again, her psychological well being, prior decision
making in crises, et cetera.
[155] MS. MERSHIMER: Your Honor, in response
to Ms. Kolbert’s comments, I would say that Dr. Rue is
qualified to talk about pieces of information that are
required by the Pennsylvania’s act and whether it serves
a beneficial purpose or whether there could be
psychological effects after the abortion by information
not being provided.
THE COURT: All right, what -- outline again the
area of his expertise in which you wish him to state
opinions.
MS. MERSHIMER: The psychological effects
following abortions, problem pregnancy decision making
with abortions and marital family relationships.
THE COURT: All right, I will grant your motion
and let him testify in those areas. And in respect to the
objection, it’s overruled.
It’s a matter of weight, which I will accord to his
2 8 2
testimony determined by his background and his
qualifications, his answers and all the factors that go into
an evaluation of the weight that should be given to the
testimony of an expert witness. I will weigh and evaluate
all that in making a judgment as to his testimony. Your
motion is granted, shall we -- would you proceed then?
MS. KOLBERT: Yes, your Honor.
MS. MERSHIMER: Yes, your Honor.
[156] DIRECT EXAMINA TION
BY MS. MERSHIMER:
Q Now we had just started asking some questions. Did
you begin to develop a specialty in the area of
counselling women for emotional issues following
abortion?
A Yes, I did.
Q And can you explain that specialty?
A The specialty was in the area of helping women
recover from a painful abortion experience. What I
found was women and men described a repeated
involuntary grieving that was going on, an inability to put
this abortion behind them.
MS. KOLBERT: Objection, your Honor, as to not a
proper foundation yet laid about his findings.
THE COURT: Did you wish to lay a further
foundation for this?
BY MS. MERSHIMER:
Q You’ve said that you’ve had approximately seven --
I’m sorry -- hundreds of cases in your -- in the 15 years
of experience, treating -- counselling women in the
psychological problems following abortion?
A Yes, and in addition to the treatment of
post-abortion pain, I have reviewed some 239 studies in
psychological aftermath of abortion, as well as done
empirical research on problem pregnancy decision
making.
Q And what is involved in clinical treatment of such
283
women?
[157] A First of all is the assessment of whether or not
the aftermath that this woman is experiencing is related
to the abortion or if it is related to some traumatic
experience that was pre-existing to the abortion.
Any appropriate therapy must commence with the
development of a trusting relationship, so the beginning
phases of therapy basically entail an opportunity for this
person to begin checking out with me, the therapist,
whether or not I’m hearing what she is saying or he is
saying, whether or not I truly care about that and
whether or not I have any experience in an area that this
person is experiencing pain in.
It has been my experience with a number of patients
that they have sought out help after an abortion to other
mental health practitioners and the mental health
practitioner says I’ve never heard of anything called
post-abortion trauma and I don’t quite understand this.
In fact, maybe you should change your values. Given
that, these individuals then, in the early stages of
therapy, are seeking out an affirmation from me whether
or not their pain is legitimate. And indeed, I would say
to that person at the beginning stages of therapy, yes, I
have seen post-abortion trauma. I have seen this in
some women and men and I do not want you to feel
isolated.
So the beginning stages of treatment are [158]
establishing that important caring relationship. Beyond
that, treatment entails the opportunity to fully experience
the grief that is involved with the loss that an abortion
presents.
These women define their abortion experience this
way: They say that I did not, at the time, billy know or
understand what my pregnancy meant and what the
abortion would do to the pregnancy. Upon reviewing
information, seeing things in the media like Life
2 84
magazine this month, these individuals may begin feeling
the grief that is related to the loss that this abortion
caused. As that occurs, the stages of grief must be
talked about, must be felt and must be resolved. That’s
really the second phase of treatment.
And the third phase is stabilizing any of the
dimensions of post-traumatic stress that we see here in
the example from Dr. Walker. Because as I have written
and as I have see clinically, post-abortion trauma, as this
is a trauma, follows very closely the diagnostic criteria
post-traumatic stress. And these individuals need help in
realizing that when they re-experience the painful
aftermath of abortion that they’re not alone. That this is
a normal response to an abnormal situation and that this
can be resolved over time.
Post-abortion trauma does not resolve itself typically
spontaneously or naturally. Grief usually is best [159]
resolved with a caring other and post-traumatic stress, to
the extent it is related to the abortion, requires therapy,
requires times and requires therapeutic work on the part
of the patient to resolve.
Q And this therapy include multiple counselling
sessions with women?
A Indeed it does.
Q In the past five years, how many patients would you
say that you counselled in general a week?
A My caseload generally ran between 30 and 35
patients a week, and that’s over the last 15 years. And
approximately 40, sometimes 50 percent of that caseload
were in the area of post-abortion problems.
Q Now do you have any experience in the area of
problem pregnancy decision making?
A I do.
Q And could you explain that experience?
A In 1973 I was associate director of a problem
pregnancy research project in North Carolina where we
285
looked at the decision making process that women went
through in the consortium of agencies as far as making a
decision about a pregnancy outcome. And that report
was a technical report and written up as to problem
pregnancy decision making.
Q Do you have continued experience in counselling
women in that area?
[160] A Pardon me?
Q And did you have continued experience in
counselling women in that area?
A Yes, after that time, I commenced my practice in
Los Angels and during that time, I have worked with
hundreds of not only young women, but also older
women who found themselves in a crisis pregnancy
circumstance. And they sought out my therapy and my
assistance in resolving that.
Q Do you have any experience in the area of marital
family relationships?
A Yes, I do.
Q Could you explain that?
A I have worked with couples and families over the
years, both spouses together and spouses individually. I
have worked with married couples with respect to crisis
pregnancies. I’ve worked with couples who found
themselves involved in either psychological abuse or
sexual abuse, child abuse, battering, parent/child
conflicts, sexual dysfunction, communication disorders,
various things like that.
Q Now have you read Sections 3205, 3208 and 3209 of
Pennsylvania’s Abortion Control Act?
A Yes, I have.
Q And could you turn to Defendant’s Exhibit - it’s the
last book, it’s the manilla tabs -- it’s volume two and it’s
the last section, marked "The Act", page seven.
[161] A What was the exhibit number, counsel?
Q There’s - it’s after Exhibit 62.
2 86
A After 62. Okay.
Q Page seven, Section 3205. Now focusing on the
informed consent provisions under Section 3205 A1 ii, it
requires a physician to advise the women of the probable
gestational age of the fetus. And Section 3205 A2 i
requires a woman to be advised that the Department of
Health prints materials that describe the unborn child
and that she can review those materials if she chooses to.
Have you read those provisions and reviewed them?
A Yes, I have.
Q And then under Section 3208 A2 on page 19 of the
act, that requires the Department of Health to have
material available that describes the probably anatomical
and physiological characteristics of the unborn child at
two week increments, including pictures of the fetus at
two week increments. Have you reviewed this provision
before today?
A Yes, I have.
Q Now in your experience counselling women, do you
have an opinion whether information on fetal
development would be information that some women
would consider relevant in choosing whether or not to
have an abortion?
A Yes, I do.
Q What is that opinion?
[162] A My opinion is that the vast majority of the
patients that I have worked with that have obtained
abortions that have had negative reactions have said to
me that they either knew nothing about the fetal
development at the time of the preg — of the abortion or
if they did ask, they were misled in the abortion
counselling. That this is nothing but a clump of tissue.
It has no characteristics that could identify it as human.
And to the extent these individuals were misled or
had insufficient information, I believe that informed
consent was not possible and I believe that the
287
psychological traumatization was worsened because they
were misled into believing that this was not a human
fetus.
And so I think it’s terribly important that this
information be voluntarily provided and that an
individual avail herself of information so that she can
make a knowing, a voluntary and intelligent decision that
could effect her for the rest of her life.
Q In your clinical practice, have women sought therapy
or counselling before an abortion decision with you?
A Yes, they have.
Q And in your clinical practice, did you offer women
information about fetal development even if they did not
ask for it?
A I introduced the topic and strongly encouraged them
to [163] educate themselves in this area if they have not
done so before hand.
Q Now did you insist that they look at materials or just
make it available to them?
A I strongly encouraged them. I did not insist on it.
Q Now why was that?
A Well, I don’t insist on many things as a
psychotherapist and in this area, if a person believes that
she doesn’t want to look at pictures, doesn’t want to have
any information, I don’t feel it’s my role to force that
upon her.
On the other hand, it’s certainly, I believe, well
within my role as a counsellor to say to her, I have
worked with a number of people who have been
traumatized because they haven’t availed themselves of
sufficient information to make a knowledgeable decision
with respect to an abortion.
Q Is information regarding fetal development
something that should be disclosed to a woman -- or
saying that the information is available to be reviewed, is
that something that should be done or given to a woman
288
only if she asks for it?
A I think that it’s perfectly appropriate for her to
receive the information if she asks for it and that she not
be coerced into obtaining information.
Q From your clinical experience, do you have an
opinion whether merely advising a woman that materials
regarding just [164] fetal development are available and
that she can decided whether or not to review them is
unnecessarily traumatizing to the woman?
A I do have an opinion.
Q And what is that opinion?
A My opinion that offering her the opportunity to be
educated with respect to biological and scientific facts,
this opportunity which is voluntary is certainly not going
to provide the basis of any psychological trauma for a
person considering an abortion.
Q Now what —
A If anything, I would say, if I could add, this will help
her utilize her own personal values and that those values
be informed and based upon some facts.
If, after reviewing these materials, she were to
believe that this is, indeed, a human fetus, then she may
act and decide accordingly. If, on the other hand, after
reviewing these materials she makes the decision that
this is not a human fetus and proceeds, I think she is
preventing probable increased psychological damage
from being misled or receiving fetal -- information about
fetal stages of development after the abortion at some
later date or in the context of medical care in a wanted
pregnancy later on.
Q Now what other information, when you counsel
women before is they have an abortion, what other
information do you discuss [165] with the woman?
A Well, I think I’ve answered that question, but we
look at all options. We look at the meaning of that
pregnancy for her. We look at what stressors are in her
289
life. Her age certainly has a great deal to do with this.
If she is a minor, her decision making may well be
framed in fear, misinformation or impulsiveness. Very
often a crisis pregnancy unfolds very quickly. By
definition, it is a circumstance that demands an attention
-- an immediate attention with respect to thinking and
ultimately coming to a decision.
The last thing I want her to feel is that she is
pressured by anyone into making a decision that is
premature to a full understanding of the facts of her
circumstance and the facts surrounding any option that
she may elect.
Q Now Section 3205 of the act also requires that a
woman be advised that the Department of Health
publishes materials that list agencies that offer
alternatives to abortion, that medical assistance benefits
may be available for female care, child birth and
neonatal care and that the father of an unborn child is
liable to assist and support of her child or that
information does not need to be provided in cases of
rape. And if the woman chooses to receive these
materials, she must be provided them.
Are you familiar with these requirements?
[166] A Yes, I am.
Q And in your experience counselling women, is this
information that some women would want to know prior
to deciding whether or not to have an abortion?
A Yes, it is.
Q Why is that?
A I think this is information that many people don’t
know, that they have the right to know. Research by
Mary Cunningham Agee indicated -- she asked the
question of women that had obtained abortions, if you
had known that there were other options for you, would
you have elected an abortion? And 90 percent said they
would not have.
2 9 0
Many young people have no understanding that the
alleged father could be held liable and responsible for
financial payments. The whole area of options
counselling is terribly important, where the individual
recognizes that there are support services across a broad
spectrum that are available for her. Very often, in the
bureaucratic maze of life, people don’t know what
support services are available. And indeed, I believe
they have the right to know.
Q Now from your clinical experience, do you have an
opinion on whether making this information available to
the woman could be traumatic or burdensome?
A I do.
Q And what is that opinion?
[167] A I cannot foresee any circumstance where an
individual that is offered this information on a voluntary
basis could be psychologically traumatized.
Q Now the Commonwealth requires the information we
just discussed, in addition to the nature and risk of the
abortion method and the medical risks associated with
carrying a child to term to be given to a woman 24 hours
before an abortion is performed. Are you familiar with
that requirement?
A Yes, I am.
Q Do you have an opinion on whether the 24 hour
waiting period is beneficial?
A I do.
Q And what is it?
A I think time offers an opportunity to digest
information. It is one thing to obtain information. It is
another to personalize it. A 24 hour deliberation period
is the very minimum I would encourage a person to
evaluate the many complex factors involved in this
important decision that will, in one way or another, be
with her for the rest of her life.
Crisis pregnancy decision making, as I said earlier,
291
unfolds rapidly. There is also the stigma of shame
attached to this. I am a failure because I am victimized,
if you will, by my unwanted pregnancy. Very often there
is shock involved. There may be no prior experience
with this level [168] of crisis decision making. Hormonal
changes are operative once a woman is pregnant. This
only can compound and conflict the decision making
process. All of these factors mix together and create an
environment where deliberation can be extremely
beneficial.
And lastly, I would add, the opportunity to reflect
and draw upon the support of those that love that
person, that perhaps know that person better than any
social worker of counsellor or psychologist, that’s
exceedingly important. The 24 hour deliberation period
I think is a strong encouragement on the part of the state
to do that. And I think it’s essential for people when the
decision making stakes are high.
Q Now if a woman knows she’s pregnant for a week or
two, she’s had a pregnancy test, she knows she’s
pregnant, she believes she wants an abortion and she
goes to an abortion clinic for that procedure, is the 24
hour waiting provision still beneficial, in your opinion?
A Yes, I believe it is.
Q Why is that?
A We don’t know what information this individual has
based her decision on. And if it is a fully informed
decision, it will simply be a confirmation to her that her
decision is right for her. By insuring that she have, on an
voluntary basis, information of a biological, scientific
nature, I [169] believe it’s a way of assisting her in having
adequate information to make a decision and for her to
check out and affirm the rightness or the wrongness of a
decision that she may have made earlier.
I would also add that it has been my experience
clinically that women in the crisis pregnancy decision
2 9 2
making may well - their decision may well fluctuate.
That having started, at this point - this is often true with
respect to adoption, I can’t possibly give this child away
in an adoption and then over a period of time, that
decision changes. There is a consideration of an
abortion. That changes. I think it’s well documented in
the literature that across time unwantedness varies as a
function of the length of the pregnancy.
Q Of your clinical experience and the review of
literature, does time play a role in the crisis pregnancy
decision making?
A Time plays an important role in the crisis pregnancy
decision making. Very often, a decision is made
impulsively to be rid of this crisis and a person may even
simply rely on a previous crisis pregnancy experience.
We know today in the United States that probably 40
percent of all abortions are repeat abortions. This puts
women at risk, having had an abortion, to have a
subsequent abortion. Repeated multiple abortions carry
certain health risks, both medical as well as [170]
psychological.
The time period to evaluate is this really in my best
interests, what is involved here, are there other support
services available for me, all of that is terribly important
in a woman making a decision that is truly informed and
beneficial for her.
Q The example I gave you or asked you about if a
woman has already known she is pregnant and she goes
to the abortion clinic and I asked you about the 24 hour
waiting period still being beneficial, is it possible that she
will obtain new information or additional information
that the clinic that she didn’t have before that would aid
her in considering?
A Yes, it is. That’s what I meant by the state would be
insuring a certain standard of information -- scientific
information on a voluntary basis that would be very
293
helpful to her. We simply don’t know what information
she has utilized in making that decision.
Q Now could you turn to page 20 of the act, Section
3209? That’s a spousal notice provision.
A Yes.
Q And that requires that a woman give notice to her
spouse, but not consent, just notice, that she’s about to
have an abortion, except in four circumstances.
A Mm-hmm.
Q Have you reviewed that section previously?
[171] A Yes, I have.
Q And could you look at Defendant’s Exhibit 48?
A Yes.
Q Now there will be testimony that Defendant’s Exhibit
48 is the proposed certification regarding spousal notice
that the Department of Health will use if the spousal
notice provision goes in effect. Have you reviewed that
before?
A Yes, I have.
Q In your experience counselling married women and
men, do you have an opinion on whether spousal
notification is generally beneficial?
A I do.
Q And what is that opinion?
A My opinion is that spousal notification is beneficial.
People are not perfect, neither are marriages. Most are
neither so good that spousal notification is unnecessary
or so bad that it would be presumed harmful to the wife
to notify the husband with respect to the abortion.
In relationships in particular, people often misjudge
their spousal partner. For the majority of couples,
communication in very important in marriage. In fact, I
believe it’s the bedrock of healthy communication -- of
healthy marriages. It is advantageous for wives to draw
upon the support of their husbands in this crisis decision
making period. I believe it’s beneficial. The literature is
2 94
clear [172] that if there is a conflictual relationship, this
woman is at risk for psychologically later on experiencing
a painful aftermath from an abortion.
So clinically, I have seen this to be terribly
important. That even if the husband were to disagree
with her about obtaining an abortion, that this is not bad,
that this is not horrible. This is positive in that it
provides an open review of a decision with respect to a
member of a family -- potential member of the family.
And it’s extremely important for her to be able to
bounce her ideas off of his thinking and vice versa.
And in my opinion, it would be as equally unjust for
the wife to exclude him from any consideration as it
would be for him to exclude her from any consideration.
Q In your clinical experience, have you counselled
battered women?
A Yes, I have.
Q And you reviewed literature in this area?
A I’ve reviewed some of the literature, yes.
Q Were you here when Dr. Walker testified this
morning?
A Yes, I was.
Q Do you agree with her opinion -
MS. KOLBERT: Objection, your Honor, I don’t
believe that the witness has been certified as an expert of
battery.
THE COURT: I will receive the testimony and
weight [173] and evaluate it. Lets continue. Overruled.
BY MS. MERSHIMER:
Q Were you here when Dr. Walker -- I don’t know if
you answered that question. Were you here when Dr.
Walker testified this morning?
A Yes.
Q And do you agree with her that battered women
tend to deny that they are battered?
A Yes, I would agree with Dr. Walker’s perception of
295
Q Do you agree that battered women are not likely to
avail themselves of the exception in Section 3209, that
they do not have to notify their spouse?
A No, I would not agree.
Q Why is that?
A I believe that battered wives exist within a context of
denial, but that they are not happy deniers. That they
are not pleased, that they are not satisfied in their life
circumstances. I believe that they want help. That they
would seek that help out if help were there and if they
felt safe enough in obtaining that help.
Research by Richard Gelles and others indicate that
75 percent seek out help of battered wives. I believe
even Dr. Walker, in some of her written materials, has
indicated that most battered wives will report, for health
problems will deal with health issues. And I think that
this is [174] terribly important.
In fact, I see this step where she indicates that she is
at risk of being battered, I see this as the
commencement, an opportunity for her to commence a
path of recovery where she no longer needs exist in
denial. She doesn’t -- she’s not being coerced into
therapy somewhere, she’s not being coerced into an
abortion or not obtaining an abortion. But she is being
confronted with an open and honest expression that her
circumstances are indeed distressful and sad, that she is
battered and at risk of future battering.
And I think these women, with their circumstances,
demand a great deal of compassion on our part.
And it is my a hope that this would commence a path of
recovery for a person by acknowledging that she is at
risk.
Q From your clinical experience, do you believe that
counselling is necessary for battered women to recover?
A I believe that battered wives, similar to wives of
that.
2 96
alcoholics, similar to wives in dysfunctional marriages,
that these individuals are at great risk for reinventing the
relationship wheel if they don’t receive proper therapy
and counselling to understand what psychological factors
are involved, first of all, in her getting herself into that
circumstance, secondly staying and third, reconnecting
with a person very similar, say, to her first husband who
battered her. We see this constantly clinically.
[175] A person is married to an alcoholic and comes
right back after a divorce and finds an alcoholic who now
batters her. So she’s a great risk without counselling for
reinventing a relationship that’s dysfunctional and that
could be very painful for her.
Q From your experience and review of literature, do
you agree that the majority of battered women will
recover from the battered women’s syndrome
spontaneously when removed from the threatening
environment?
A No, I would strongly disagree with that and add that
if they are experiencing post-traumatic stress or whatever
the particular psychological manifestation of their
symptoms is, that these people need professional help to
resolve their crisis, to resolve their psychological
impairment and to better a future where they are not at
risk for further battering or further dysfunctional
lifestyle.
* » *
[176] Q Dr. Rue, you testified that in your
experience women who had not been sufficiently
informed prior to obtaining their abortion, that they had
- that that had some sort of impact on their lives; is that
correct?
A That’s correct.
Q Could you explain that impact in more detail?
2 97
A Well, it could be characterized as intense grieving,
distancing in relationships, a mourning, a deep loss, a
feeling of tremendous anger and resentment that she was
misled. I think generally when a woman feels she has
not provided informed consent and information has been
insufficient, I think there is generally a sense of regret
about what has occurred.
With respect to an individual who is married and she
has not notified her husband, had a secret abortion, did
not understand what the abortion really did to her
pregnancy, this can be a tremendously painful
remembering for her and can constitute the basis for a
diagnosis of post-traumatic stress which the husband
cannot understand. He sees his wife distancing. He sees
her emotionally numb and he asks what’s wrong. And
she says nothing. He says, well, you seem to be
different.
[177] And of course, she is different, but she hasn’t
made the connection herself between the manifestation
of these symptoms being tied to her abortion experience.
And because all of this interconnects and interweaves,
her opportunity to make a decision that is supported pre
abortion, that should necessarily be support post-abortion
has been truncated, not only by a lack of information,
but also because she doesn’t have a support system. S o
I see that these individuals can suffer tremendously in a
psychological way if they have not received sufficient
informed consent.
Q And do you know how long this suffering or the
psychological problems can last?
A Well, Speckhard’s study found eight to 10 years after
an abortion these individuals began ab-reacting, that is,
having negative experiences.
The one thing that is characteristic about
post-traumatic stress is that an acute reaction is not
typical. It’s rather that individual chronically attempts to
298
cope with something that is outside the range of normal
human experience. The attempt to process in some way,
which is what the re-experiencing phase is, part two here.
But more characteristic is the delayed aspect of
post-traumatic stress.
Here, an individual will say I feel relief after an
[178] abortion, but it is only months and/or years later
where she will begin feeling the painful aftermath in a
way that can be quite impairing of her relationship, of
her career, of her child bearing and child rearing. This
delayed aspect is particularly critical.
And I might add that in Science magazine of 1990,
Dr. Adler and others reviewed some of the literature on
abortions aftermath and Dr. Walker referred to this
today. They by no means did a conclusive analysis, a
systematic or meta analysis of the literature. And
certainly not one that we provided to Surgeon General
Koop.
But I might add that Dr. Adler and her colleagues
state very clearly in that Science magazine article that
the long term effects of abortion are unknown. And you
see, that presents a public health risk in terms of a
person experiencing this syndrome or depressive
disorders or anxiety disorders. It presents a health risk
and it’s something we should certainly be aware of.
* * *
BY MS. KOLBERT:
* * *
[180] Q Let me ask you this, Dr. Rue. Is it fair to
say that in your view, life begins at conception?
A That’s a fair characterization of my professional
opinion, yes.
Q Is it your professional view that abortion is the
2 99
unnecessary taking of human life and is morally wrong?
A No.
Q Is it fair to say that you have a strong personal belief
that abortion is the unnecessary taking of human life and
is morally wrong?
A I have strong beliefs, but I don’t -
Q Is that one of them?
A I don’t --
MS. MERSHIMER: Your Honor, I object. I don’t
see what the relevancy of anybody’s personal views are,
including counsel or the witness.
MS. KOLBERT: Well, your Honor --
MS. MERSHIMER: It’s the testimony as a
professional.
MS. KOLBERT: Your Honor, I think it is very
[181] relevant in this particular instance, because I think
it shows not only the bias of the witness, but how he uses
that belief in his particular practice.
THE COURT: Yes, objection overruled, it does go
to bias.
* *
Q Dr. Rue, is it fair to say that you have a strong
personal belief that abortion is the unnecessary taking of
human life and is morally wrong?
A I believe it is -- abortion is a failure. I believe it is a
simple solution to a complex problem. I think it’s a poor
solution to this complex problem and I am personally not
in favor of abortion.
I will add to that that in forming that opinion, I have
reviewed the literature from those that espouse a belief
in the benefits of abortion, as well as those that espouse
beliefs in the harm of abortion.
Q But it’s your personal belief, that’s all I’m asking.
All right -
3 0 0
A My personal belief.
Q Is it also your view that you personally oppose the
use of IUD’s or other kinds of birth control methods to
operate after the -- an egg is fertilized?
[182] A To the extent that an IUD is an abortive
fashioned, if we’re talking about my personal opinion,
yes, I would not be in favor of the utilization of an
abortive fashion.
Q So I would also take it to believe that although
you’re personnally opposed to abortion, that you would
favor legal abortion as a public policy matter or not?
A As I said earlier, and I would really reiterate the
testimony of Dr. Jacquelyn Forrest, who’s director of
research at Alan Guttmacher, abortion represents a
failure, both on the part of the individual and society.
* * *
Q Let me just see if I understand. As a matter of
social policy, you oppose abortion?
A As a matter of social policy, professionally, I think
abortion is a poor solution to the complex issues
surrounding an unwanted pregnancy.
Q Now Dr. Rue, I’d like to read a quote from you from
one of your writings and see if you would continue to
agree with this statement. I’m reading a quote from the
chapter five that was entitled, "The Familial Context of
Induced Abortion" and it was in a book that was edited
by James Bopp and which you wrote that article. And
let me just read it to you and see if you agree at this
moment with this statement:
"That abortion shreds the soul of humanity and the
[183] fabric of relationships. It exists for women and yet
it is against women, men and children. Like an
anesthesia, abortion comfortably numbs all from
experiencing the burden of pregnancy. Abortion has
301
become a social eraser, individually, quickly and secretly
eliminating all traces of a problem that is pregnancy, and
yet traces always remain within the depths of human
kind, the indelible marks of violation appear." Do you
agree with that statement?
A Yes, I do.
Q Is it your view that family problems can never be —
or it is your view, is it not, that family problems can
never be a justification nor a basis for abortion?
A I don’t think abortion ever resolves a family
problem.
Q So in your view a woman is never justified in having
an abortion because of a family problem?
A Well, I don’t know what justified means. Women
make the decision to have an abortion basically for what
are known as elective social reasons. Wrong sex, wrong
timing, career decisions, et cetera.
Q Now wait, that’s not responsive to my question, sir. I
asked you whether or not it was your view that a family
problem can be a justification or a basis that a woman
gives for having an abortion?
A It can be a justification.
[184] Q Do you agree with that justification, do you
think it’s permissible in your value structure for a woman
to use that justification for having an abortion?
A Any professional opinion, an abortion will do
nothing to solve a family problem.
Q Is it fair to say that you never believe that mental,
psychological or emotional problems of any kind would
be a justification for having an abortion?
A My opinion is basically based upon the review of Dr.
Philip Ney and he has reviewed all mental health
indications for an abortion and my -
Q No, I’m asking you -
A My decision is --
Q -- for your opinion.
30 2
A My opinion is that an abortion does not ever solve
mental or emotional problems and in fact, the research is
very clear, that it worsens it.
Q Would it also be fair to say that in your view, incest
would never be a justification or a basis for abortion?
A Again, women elect abortion for a varied number of
reasons, one of which may be incest, rape, domestic
violence, et cetera. I do not believe that an abortion
resolves the familial context or nature of the problem.
Q What about rape?
A Nor do I believe abortion resolves the trauma of
rape. [185] In fact --
Q Okay, I’m not asking you whether it resolves the
trauma. I’m asking you whether that’s a permissible — in
your value, permissible justification for abortion?
A I don’t think that capital punishment for a human
fetus is warranted because of the irresponsible actions of
the male.
THE COURT: May I say to the witness you are
required to be responsive under our procedures. In
other words, you should focus on the question and
answer the question and not state some gratuitous
information that is not responsive to the question.
I detect you have not been responsive in the last few
answers. Would you ask another question. You are
required to be responsive.
THE WITNESS: Yes, your Honor.
THE COURT: And I so inform you. Would you --
shall we continue?
MS. KOLBERT: Yes.
BY MS. KOLBERT:
Q Dr. Rue, it is true, is it not, that of pregnancy that is
a result of - in a situation where there’s a pregnancy
that’s a result of marital rape, it would be your view that
the marital rape is not a justification or a basis for an
abortion?
303
[186] A It is -- it is my view that marital rape can be a
justification, but that it is not in the best interests of the
woman to obtain an abortion based upon a marital rape.
Q Now is it — it’s true, is it not, that you’ve never
conducted any independent research on women seeking
abortion - scientific research?
A That’s incorrect.
Q You’ve never - have you - it’s true, is it not, you’ve
never conducted any independent scientific studies on
women seeking abortion? I’m not talking about a review
of the literature, I’m talking about conducting studies.
A That’s incorrect.
Q Okay and what are those studies?
A I referred to that earlier, in 1973, I was the associate
project director of problem pregnancy decision making in
North Carolina.
Q Other than that 1973 study, since that time period,
have you ever conducted any scientific research?
A I assisted in the project for Dr. Koop --
Q No, I’m talking about not a review of the literature.
I’m talking about independent, scientific research.
A Well, I’m trying to answer that, counsel.
Q Okay.
A A meta analysis and a systematic analysis of some
239 studies would be considered original research. And I
have [187] conducted that in conjunction with Dr. Tim
Rogers, Dr. Wanda Franz and Dr. Anne Speckhard in
1987 for the Office of the Surgeon General in his report
to the President.
Q So this meta analysis is the only independent
research that you’ve conducted; is that correct?
A That’s correct.
Q It is correct, is it not, that other than the meta
analysis of other people’s studies, you’ve never conducted
a scientific study about women seeking abortions?
A Well, that’s not precisely correct.
3 04
* * *
Q All right, I want to differentiate between the
situation where you’re reviewing and doing a meta
analysis or a statistical analysis of other people’s work
from conducting your own research. It’s true that you
are not a clinical researcher; is that correct?
A That’s correct. I’m -- I have been in the process of
writing a text on post-abortion syndrome for the last
seven years. I have been amassing clinical data and as
you know, counsel, in the area of mental health
formulation of diagnoses or mental disorders, there is a
phase called the discovery phase. Sigmund Freud
commenced a whole field of analytical literature -
Q Let me ask you to be responsive. I don’t want to get
into Sigmund Freud here. Let me ask you this. If --
other than amassing information from your own clinical
practice, [188] have you ever conducted any surveys on a
random basis of any women seeking abortion?
A No, I have not.
Q And how about conducting any surveys on a variable
basis where you’re bringing people together who have
perhaps experienced a problem, other than from your
clinical practice, and done tests - psychological tests on
those particular individuals?
A Yes, we’re in the process of doing that at this very
moment.
Q But you have not -
A I have not published on that.
Q Okay -
A Yet.
Q And it’s also correct, is it not, that the testimony
today, your expert opinion today is based solely on your
experience within your clinic practice?
A No, that’s not correct.
Q Well, would it be correct to say that it’s based within
305
your experience from the patients you’ve seen within
your clinical practice and the meta analysis that you did
for Dr. Koop?
A No, that would not be correct.
Q Would it be correct to say that it is based on your
clinical practice primarily?
[189] A No, that would not be correct.
Q Would it be correct to say that it is primarily based
from the study of Dr. Koop?
A No, that would not be correct.
Q Okay, what is it primarily based on?
A It’s primarily based upon three areas, basically my
clinical practice, my research experience and my review
of the literature.
[191] Q Okay, now I also wanted -- didn’t you also
tell me that you were conducting a scientific research
study with a random sample of people for your book?
A No, I did not say I am conducting a random sample.
You asked me whether or not we were amassing
information with respect to individuals other than my
clinical practice and the answer is yes.
Q I’m just having a little hard time understanding it.
My understanding of your testimony was that you had
three bases. The first base was your clinical study. The
second base was the 1973 research ~
A Right.
Q -- as well as research for your book —
A Well --
Q -- that you are currently collecting?
A No, my testimony today has been based upon the
following: [192] One, my clinical experience. Two, my
review of the literature.
Q Okay.
306
A And three, my research experience.
Q Now I’m trying to understand the research
experience.
A All right.
Q The first part of the research experience, the 1973
study I fully understand.
A All right.
Q The second study, what is that?
* *
Q That’s fine. Dr. Rue, it’s correct, is it not, that you
were the director at Sir Thomas Moore Clinic in
California?
[193] A I have been the executive director since 1978 of
the Sir Thomas Moore Clinics in Southern California.
Q There are two offices to that clinic; is that correct?
A Yes.
Q Would it be safe to say that the Sir Thomas Moore
Clinic has a reputation in the community for helping
families and couples to stay together?
A I think it would be safe to say that the clinic has a
reputation for providing counselling for couples and
families who are in distress, with the hope of reconciling
those problems and keeping those families together.
* * *
[197] Q Now, you also testified that you saw a
number of different kinds of patients. You saw patients
in couples therapy and you saw patients in family therapy
and you saw patients individually; is that correct?
A That’s correct.
Q Would the couples that you were seeing -- let me
just look at the population of couples -- would it be fair
to say that you saw half of your practice were couples or
3 0 7
is it more than that?
A I would say slight under half would be couples.
Q And then the remainder was divided between
families and individuals?
A Yes.
* * *
[198] Q Would it be fair to say that the percentage
of unmarried [199] is about 25 percent?
A 25 percent of all couples?
Q Yes.
A Okay.
Q Is it correct that the couples are coming to you for
counselling because they’re having an emotional problem
and they want to solve that problem?
A An emotional problem or a problem with their
spouse, that he or she is to blame.
Q And in the vast majority of these cases, they come to
you because they want to stay together in the
relationship?
A Some may, some may not. Some want to come to be
vindicated that they are not the problem and that their
partner is.
Q But the assumption is that they are coming to work
on their relationship, that they would like to stay
together, otherwise they wouldn’t come to you, they
would just separate; in that correct?
A Well, some come and say fix her, she’s the problem.
But yes, I think generally it’s a reasonable assumption
that when couples continue in therapy, they are seeking
the remediation of their problems.
* * *
[204] Q Now, among the patients that you see as
308
couples, it would be true that some of the people you see
are women who become pregnant during the time of the
couple’s counselling and that they’re not there because of
the pregnancy, but because they happen to have other
problems; is that correct?
A That would be correct.
* * *
[205] Q No, what percentage come to you because
she’s pregnant, that is, that the problem that they’re
seeking help for is her pregnancy?
A I don’t know that I could respond to that.
Q It’s a small number?
A It’s certainly not the majority.
Q Is it less than a quarter?
A I don’t know. I don’t know that I could characterize
precisely for you. It’s -
Q Is it less than 10 percent? Is it, you know, I want to
know, is it a small amount or is it, you know, more than
that?
A It’s not the majority and it’s certainly greater than
two percent.
Q Is it less than 25 percent?
A I don’t know. I mean, I haven’t really done an
assessment for you quantitatively of that. I simply can
respond as honestly as I can, I don’t know what that
figure would be.
* * *
[209] Q What percentage of individuals come to you
because of a problem pregnancy, that they say I’m
pregnant, I need help with my pregnancy, I’m going to
see Dr. Rue.
A It would be a minority of individuals that I see.
3 09
Q So that the majority in the individual population
would be people who you are seeing on an ongoing basis
for other things?
A Correct.
* * *
Q Now it was your testimony, I believe, that you had
prepared a white paper for Dr. Koop; is that correct?
A That’s correct.
Q And that was called The Psychological Aftermaths of
Abortion?
A That is correct.
Q Are you aware that that white paper was submitted
to researchers at the Center for Disease Control for peer
review?
[210] A I was not aware of that.
Q Are you aware today that that occurred?
A I am.
Q Are you aware or would it be fair to say that the
researchers at the Center for Disease Control did not
come back with favorable reviews of your study?
A I am aware of that. These were blind reviews.
Q Blind reviews, that’s right.
A Yeah.
* * *
Q I’d like you to turn to Exhibit 67 and turn to page 11
of that study.
A Okay.
Q And in the fifth paragraph there’s a statement by the
Congressional Committee, when reviewing the peer
review of your white paper, they said -- or in discussing
your white paper, they said "in contrast, the right to life
white paper misrepresented the study, quoting statistics
3 1 0
for divorce, separated and widowed women having
abortions as if they applied to all women having
abortions". And they were referring to the David study,
as I recall.
Now, let me ask you this. The David study, which
[211] was the study by Dr. Henry David, involving a
review of psychological aftermaths of abortion; is that
correct?
A No, that’s not correct.
Q Well, can you describe for the Court what the David
study was?
A It’s the David, Rasmussen and Holst study and it’s
1981 and it is a study that was done in Denmark, looked
at 71,000 women who went to term delivery and 27,000
women who elected abortion.
Q Now in your white paper you had relied very heavily
on the David study; is that correct?
A We found it to be methodologically the best study
that has been done to date an it exhibited sufficient
statistical power to predict that real differences were
present between groups.
* * *
Q And you cited that study and relied on that study as
the best study within your review of the literature; is that
correct?
[212] A We did.
Q But when your peer reviewers looked at your study,
they said but you misrepresented the best study that was
conducted; is that correct?
A That’s not correct.
Q Well, it’s correct that they said that — that’s that
what it says in this report here?
A No, that’s not correct at all, counsellor. First of all,
we’re blurring two things here. The white paper was
311
submitted to a peer review within the Federal
Government. And generally when these things are done,
as is true in any publication, that is resubmitted back to
the original authors for a dialogue for discussion. In this
case, the authors of the white paper were never treated
with the courtesy of having the opportunity to respond to
the complaints, if you will, of the peer reviewers. What
you’re citing here is material from this Congressional
hearing, which is not the same thing.
Q Okay, well let me ask this.
A Yeah.
Q Let me go to the peer review. And would it be
correct to say that Dr. Dever, who prepared an analysis
for Dr. Koop from the Center for — he’s an associate
professor, director of clinical epidemiology from the
Department of Community Medicine at Macon, Georgia.
And he reviewed your work as a [213] result of a request
from Dr. Koop; is that correct?
A Yeah, I later found that out, yes.
Q And it would be correct, would it not, that he has
said in his review that "the long term psychosocial
consequences of abortion are difficult to study and at the
outset a defined outcome -- that is difficult to study and
require at the outset a defined outcome that is replicable
and capable of study. The conclusions presented in the
report on the psychological aftermath of abortion are
based on an undefined outcome in a meta analysis with
major flaws and a best study with major limitations.
They should be viewed with "caution."
Is that correct?
A I recall reading that that was his opinion, yes.
Q And was it also an opinion of some of the other peer
reviewers — and I — have been summarized in the
Congressional report; is that correct?
A Generally, the reviews were skeptical of a meta
analytic approach, which we found curious, because a
3 1 2
survey of the current scientific literature found some 458
applications of meta analysis in the psychological health
sciences field, just within the last two years.
So why we were taking the brunt of criticism for
applying standard statistical analysis techniques, we don’t
know, but...
Q But the criticism was focused on the fact that the
way [214] you did the standard statistical comparisons
was that they combined outcomes that were not well
defined and probably not comparable. That’s what the
reviewer said; is that correct?
A Well, for example, that’s what the reviewers implied,
but that’s not accurate.
* * *
[215] Q Okay, what were the findings of Mr. David?
A Dr. David’s findings were twofold. One, that women
who elected abortion as opposed to carried to term were
at greater risk to be admitted to psychiatric
hospitalization three months post event.
Two, that those women who were void of
relationship support, either husbands not involved,
divorced, widowed, separated, lacking a support system,
they carried a four times higher rate of being admitted to
a psychiatric hospital than women who delivered.
These findings are remarkable. They are suggesting
that in the worst case scenario we can see public health
[216] differences between women who elect two different
outcomes. This is the worst case scenario as opposed to
those women who seek out counselling. Those women
who walk about wounded, who are depressed, suffering
PTSD, et cetera. This outcome measure is one of the
most defined that one could have. Admission to a
psychiatric hospital
Q But it is true that the results of Dr. David’s study
313
only went that the only significant difference that he
found in that study went to the rates of admission among
women who were separated, divorced or widowed and
that this group of women accounted for only 5.5 percent
of the entire population; is that correct?
A Dr. David found statistically significant differences in
the second category that I responded to, but his findings
were the two, that the rates were higher and he did not
find statistical differences approaching a .01 or .05 level.
But he did find that the rates were higher at all parodies,
at all age levels for women who elect an abortion versus
those who deliver.
* * *
[217] Q Well, is it accurate to say that the right to
life white paper misrepresented the study, quoting
statistics for divorced, separated, widowed women having
abortions as if they applied to all women having
abortions?
A Well, I don’t think we ever intended, implied or
otherwise suggested that all women throughout the world
are going to be equivalent with Dr. Henry David found.
It just so happens he has the largest population --
Q But he -
A ~ of any groups that have ever been studied in
history, to my knowledge, with respect to abortion.
Q Okay and are you --
A The largest.
Q And you also mentioned in your direct examination
the study by Nancy Adler, entitled "The Psychological
Responses After Abortion"; is that correct?
A That’s correct, published --
Q And you consider this to be a valid and review of the
[218] literature in this area?
A No, I do not.
3 14
Q But you would agree, would you not, that the review
of the literature by these scientists, including Dr. David,
disagree with your view that abortion is a post-traumatic
stress disorder; is that correct?
A They would not only disagree with that, they would
disagree that it causes any psychological lasting negative
sequelae.
Q And they would -- it is their view "after a review of
the psychological literature, that although there may be
sensations of regret, sadness or guilt, the weight of the
evidence from scientific studies indicates that legal
abortion of an unwanted pregnancy does not pose a
psychological hazard for most women"; is that correct?
A Well, they say that, but they also say that the long
term health risks of an abortion in the psychological area
are unknown. They further say, and we quite agree, that
the literature is flawed. It is flawed methodologically.
95 percent of the 239 studies we reviewed had
inadequate sample size, suffer from sample attrition,
where the sample just drops out in the study.
Even Dr. Koop testified on March 16th himself and
he said, if you studied women the way the literature has,
you can be very badly misled. And that means anywhere
from three [219] hours to three weeks to three months
post event.
* * *
315
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PLANNED PARENTHOOD
OF SOUTHEASTERN
PENNSYLVANIA, et al.
CIVIL ACTION
NO. 88-3228
v.
ROBERT P. CASEY,
N. MARK RICHARDS,
et al.
Reading, Pennsylvania
August 1, 1990
9:30 o’clock a.m.
NON-JURY TRIAL - DAY 3
* * *
BY MS. KOLBERT:
[6] Q . . . Dr. Rue, is it your experience - let me ask
you this- that a woman who decides not to tell her
husband of an abortion decision does so on the basis of
her best thinking that telling her husband would be in
her best interest or would be harmful to her?
A I believe my testimony characterizes spousal
notification as beneficial for the woman, that is the wife.
Q No, let me just ask you this.
A I’m sorry.
Q Is it your experience that a woman who decides not
to [7] tell her husband about an abortion decision does
so because she believes that telling him would be
harmful to her?
A Uhm, in some way it would be detrimental, I believe,
would be her understanding.
Q But~
A Yes.
Q And she is trying to protect both herself and her
316
husband from the resulting trauma, is that correct, when
she decides not to tell him?
A Not necessarily. She may be trying to protect
herself.
Q Okay. And you would also agree that sometimes in
a violent marriage forced notification of an abortion
could trigger another violent episode?
A It is possible.
Q Would you also agree that if a -- well, let me see if I
can characterize your testimony yesterday -- that a
woman who checks off the box that says I’m a battered
woman and therefore I’m exempted from the provision
of the act commences on the path of recovery. Now,
you’d agree, would you not, that there are some women
who can’t check that box and decide that they will not
commence on the path of recovery?
A There are women who would choose not to do that,
yes.
Q And you would also agree that sometimes the
resulting physical injury that would occur when she
notifies her [8] husband could include serious injury or
death?
A Well, anything is possible.
Q And that sometimes it’s true that husbands could use
physical or economic coercion to stop an abortion from
taking place?
A They can exert great or grave physical violence
against her to stop an abortion or to insist on one.
Q And it’s your view that — let me ask this -- it’s the
primary benefit of forced husband notice that the wife
doesn’t have to shoulder the burden alone, that she has
the benefit of discussion with her husband about the
abortion?
A I wouldn’t say that that’s all that I said; that’s part of
what I said.
Q Would you agree -- let’s just take the first part of
3 17
that-- that the benefit is that she wouldn’t have to
shoulder the burden alone. Would you also agree that
that woman could shoulder the burden, that is share the
experience, with someone other than her husband and
that would meet that criteria?
A No, I would not.
Q It’s only her husband that she can shoulder it with?
A Well, presumably he’s the one that she loves and has
the most intimate relationship with and relies upon his
knowledge, his values, his affections, his understandings
in a primary way; that’s why we call marriages primary
[9] relationships.
Q So it would not be your view that that woman could
share it with somebody else and shoulder the burden?
A Well, I’m not saying she couldn’t and that it never
could be. I’m saying that she is married to him, he is the
primary love-giver in her life and it would seem
reasonable because her life is dedicated in marriage as
an institution to be in communication with him and that
that would be to her advantage. She certainly could
share with a friend, a counselor, whomever, and have
support for her decision.
Q And you would acknowledge, would you not, that
discussion with the husband is not necessarily an
outcome of the statute, that the statute, even though
that’s perhaps its purpose, could not guarantee that
discussion would occur?
A Yes, I think guarantees in life are very limited.
Q And you would agree, would you not, that in some
marriages wives don’t communicate with their husbands?
A Well, even when they don’t communicate, they’re
communicating.
Q But there wouldn’t be a discussion between them,
you’d agree about that?
A Well, in terms of an open discussion based upon
honesty, the issues at hand, that does not necessarily
3 18
follow, but it is certainly the - the intent of the statute.
Q But you would agree, would you not, that discussion
[10] between marital partners is good for both the
husband and the wife?
A Indeed I would.
Q And you would agree that it’s unjust for a wife to
exclude her husband from an important decision, as well
as it’s unjust for the husband to exclude his wife?
A I agree.
Q In your practice have you ever had an opportunity to
counsel a man who has decided to have prostate surgery
or perhaps sterilization?
A Yes, I have.
Q And in any of those counseling experiences has the
man refused to tell his wife about the experience?
A Well, I can think of a couple of cases where he, for
various reasons, did not want her to know.
Q Okay. Now let’s think about those situations. Did
you encourage the husband to involve his wife?
A You bet.
Q Did he ultimately do so?
A Yes, he did.
Q Assume that he hadn’t, assume that he refused to
involve his wife. If he refused to do so, would you have
told his wife?
A No, I would not have breached the confidentiality of
the patient-doctor relationship.
[11] Q And you would agree that in that instance the
State should not force the husband to tell his wife?
A I would not agree. I think that the State should
require something on that level.
Q But you wouldn’t do it as part of your professional
relationship?
A Well, I couldn’t do it as a psychotherapist. It’s
beyond the scope of my practice.
Q And that comes from your ethical obligation to your
319
client?
A And legal responsibility.
Q And you would agree that all the practitioners in the
field would have the same ethical obligation?
A I believe so.
Q Psychiatrists would have the same obligation?
A Yes.
Q Psychologists would have the same obligation?
A Yes.
Q Counselors would have the same obligation?
A Yes.
Q Now, you testified yesterday that you also counsel
women having abortions, is that correct?
A I counsel women who are confronted with an
unwanted pregnancy which may eventually end in an
abortion.
Q And you encourage these women to notify their
husbands [12] about the abortion, is that correct?
A I encourage these women to participate in the
dialogue with their husband about the options that they
are looking at.
Q And if she doesn’t - let me ask you this -- if for
some reason she does not care if the husband’s notified
but doesn’t want to do it herself, would you do it for
her?
A No, I would not.
Q And you would not do that because of your
professional obligations as a therapist, is that correct?
A That is correct.
Q And what if the wife refused to notify her husband
without, even though you strongly encouraged her to do
so, would you do it?
A Absolutely not.
Q And you wouldn’t notify her husband about the
abortion because of your professional obligations as her
therapist?
3 2 0
A That’s correct.
Q But nevertheless you believe that the States ought to
force notification, is that correct?
A Well, there are times as a professional that I am
forced to violate confidentiality. One of those is a duty
to report intentional harm that is reported to me --
Q No, all right, my question -
A -- child abuse, et cetera.
* * *
[16] Q Let me give you an example here. Assume that
a woman comes to you before she has an abortion and
she gets [17] counseling from you and you have provided
her personally with information about fetal development,
and you’ve given her all of the information which you
think is likely to reduce her stress on the other end.
A Mm-hmm.
Q You’ve strongly encouraged her to look at pictures
and she’s looked at those pictures and she’s got
information about fetal development that you’ve given
her. Then she goes to the abortion clinic, she decides
she’s still going to have the abortion, she goes to the
abortion clinic and she gets information for informed
consent, she requests pictures, she sees them, she sees
them all again, she gives her informed consent. You’d
agree, would you not, that there is no benefit at that
point for her to wait an additional 24 hours?
A No, I would not agree with that.
Q Would you agree that there is no benefit that her
choice is more likely to be informed?
A I would not agree with that characterization either.
Q You’ve given her all the information that you think is
satisfactory, the clinic has given it to her again, you
would not agree that there’s an additional - you would
not agree that there is no benefit at that point for her to
321
go ahead and have the procedure?
A I would not agree. As I testified yesterday, it’s one
thing to obtain information and it’s quite another to [18]
assimilate that, to make the experience real and
personal. Some people --
Q Well, assume --
A -- function cognitively.
Q -- let’s go this far. Let’s go this far, let’s say that she
has had the information from you, she waits a week
before going to the abortion clinic. It’s at the abortion
clinic she gives the legal informed consent.
A Correct.
Q She’s had an opportunity to assimilate the
information that you’ve given her. At that point would
you agree that there’s no benefit in waiting an additional
24 hours?
A No, I would not.
* * *
BY MS. KOLBERT:
[21] Q Dr. Rue, it’s correct, is it not, that you’ve never
counseled any women who have had abortions here in
Pennsylvania?
A That’s correct.
Q And is it also true that you’ve -- now, you stated
earlier that women may suffer physical harm if they
notify their husbands in some instances. Would you also
agree that women would suffer economic coercion if they
notify their husbands or may suffer some psychological
coercion, in some instances?
A I don’t understand your characterization of economic
harm.
Q For example, if a woman was making, with her
husband their standard of living was, say, $200,000 a year
and she suffered some -- say he threatened to leave and
3 2 2
remove that source of income from her?
A Because she were to have an abortion?
Q Because she notified him that she was pregnant and
[22] intended to have an abortion?
A Mm-hmm.
Q You would agree that that’s a possible outcome?
A It’s certainly possible.
Q You would also agree, would you not, that
psychological harm is a possible outcome?
A Anything is possible.
* *
REDIRECT EXAMINATION
BY MS. MERSHIMER:
Q Dr. Rue, Ms. Kolbert gave you an example of a
situation where a woman came to you for counseling and
you provided her information concerning fetal
development, perhaps Medical Assistance benefits,
whatever like that, and then a woman has a week to
think about it, she goes to an abortion clinic, she’s
provided additional information at the abortion clinic
and then she asked you whether you still felt there was a
benefit to wait 24 hours and you said yes. Now, you’re
not a medical physician, are you?
A No, I am not.
Q So you don’t provide information to the woman in
counseling session regarding the medical risks and nature
of the abortion procedure and alternatives, do you?
[23] A No.
Q And that would be the additional information that
would be provided at the abortion clinic?
A Well, that could be part of it. The additional part of
it could be misinformation erroneously provided by an
abortion counselor.
323
* *
[24] Q Have you ever had occasion to have additional
counseling sessions with patients you counseled prior to
having an abortion?
A Yes, that’s frequently the case.
Q And why would that be?
A This area is subject to tremendous pressure,
tremendous [25] anxiety, tremendous shock. There may
be relationship conflict, there may be familial conflict,
there may be moral conflict. To expect a woman to
resolve these weighty matters in the course of a
50-minute session, one 50-minute session, would be
completely irresponsible and impossible, in my opinion.
* *
THE WITNESS: My name -- excuse me - my name
is Watson A. Bowes, Jr., and that’s spelled W-a-t-s-o-n,
middle initial A, last name is spelled B-o-w-e-s.
MS. MERSHIMER: Your Honor, Dr. Bowes’
curriculum [26] vitae is attached as Plaintiffs Exhibit No.
61. To summarize, Dr. Bowes received his Bachelor of
Science from Washington and Lee University in 1955.
He received his Medical Degree from the University of
Colorado School of Medicine in 1959. He was a resident
in general practice at the University of Colorado from
1960 to ’61 and was a Fellow in obstetrics and
Gynecology, Reproductive Physiology Lab at the
University of Colorado from ’61 to ’62 and then a
resident in Obstetrics and gynecology at the University of
Colorado from 1960 to ’65.
He is presently a Professor in the Department of
Obstetrics and Gynecology at the University of North
Carolina. From 1965 through 1982 he taught obstetrics
and gynecology at the University of Colorado as an
324
Assistant Professor, then Associate Professor and then as
a full Professor.
He is Board Certified by the American Board of
Obstetrics and Gynecology since 1967. He is Board
Certified with the American Board of Obstetrics and
Gynecology Division of Internal Fetal Medicine since
1981.
He is licensed to practice medicine in North
Carolina and Colorado. He is a member of various
professional societies, he has written extensively in
medical journals on the topics of fetal maternal medicine
and high risk obstetric issues. He has approximately 80
articles published, a vast [27] majority of which are peer
review articles. He has a special interest in high risk
obstetrics and has written a number of chapters in
medical texts on high risk obstetrics and obstetrical
emergencies.
DIRECT EXAMINATION
BY MS. MERSHIMER:
Q Dr. Bowes, what does your present practice at the
University of North Carolina entail?
A Excuse me, my current practice entails the care of
patients, the education, teaching and education of
medical students and residents and postgraduate fellows
in obstetrics and gynecology and in research in topics in
fetal and maternal medicine and high risk obstetrics.
Q Could you explain your teaching responsibilities?
A My teaching responsibilities involve the teaching in
all, in all four years of our medical school, there’s
approximately 160 students per class. Teaching is more
intense in the third year when students are in the clinical
years of their education. We also have 20 residents in
obstetrics and gynecology which are with us for four
years and we are primarily responsible for their
education and we also have fellows, post-residency
fellows who spend two years with us in education in
325
maternal and fetal medicine and we’re also involved in
the education of our graduate -- graduated physicians
who are in practice and are continuing educational [28]
courses.
Q Could you describe your clinical practice, the
number of patients, type of surgery being performed?
A My practice is - I’m a member of a multi group - of
multi-member practice, all of whom are faculty members
at the University of North Carolina in the Department of
Obstetrics and Gynecology. And my practice at the
present time is confined primarily to obstetrical patients,
about half of which are considered to be high risk
obstetrical patients.
Q And could you describe the research that you’ve
done, briefly?
A The research I do is both supervisory in the sense of
supervising our residents and fellows in their research
and in conducting my own research in areas of high risk
obstetrics and maternal fetal medicine.
Q Now, how does Board Certification in Maternal
Fetal Medicine differ from general Board Certification in
Obstetrics and Gynecology?
A The subspecialty of maternal fetal medicine involves
more intense training and education and expected
experience in such things an fetal therapeutic procedures,
fetal diagnostic procedures, genetics and ultrasound
examinations, a more extensive experience than would be
expected of a practicing obstetrician-gynecologist.
Q And could you describe the practice of maternal
fetal [29] medicine?
A Well, the practice of maternal fetal medicine
involves providing consultation to obstetricians and
gynecologists about high risk pregnancies, it involves the
care of patients who’ve been referred for high risk
obstetrical problems, fetal abnormalities and often
involving fetal therapeutic procedures.
3 26
Q Does your practice involve emergency obstetrical
procedures?
A Yes, it does. It involves operative obstetrics,
including cesarean deliveries, forcep deliveries,
procedures to prevent pre-term birth such as cerclage of
the cervix, to be specific about one procedure.
THE AUDIO OPERATOR: Would you spell that
for me?
THE WITNESS: That’s c-e-r-c-l-a-g-e.
MS. MERSHIMER: Your Honor, I would offer Dr.
Bowes as an expert in maternal fetal medicine and high
risk obstetrics.
THE COURT: Any questions or objections?
MR. ZEMAITIS: I have a few questions on
clarifications, your Honor.
THE COURT: Very well.
VOIR DIRE EXAMINATION
BY MR. ZEMAITIS:
Q Dr. Bowes, do you perform abortions?
[30] A I have, yes.
Q Under what circumstances would you perform an
abortion on one of your patients?
A If the — if the pregnancy involved a complication, an
obstetrical or a medical complication that has threatened
the life of the mother.
Q When was the last time you performed an abortion
A In that context, approximately a month ago.
Q And the time before that?
A I would be involved in those once or twice a year.
Q Now, would you perform an abortion for a victim of
rape who became pregnant and chose to end her
pregnancy?
A No.
Q Would you perform an abortion for a victim of incest
who became pregnant and chose to terminate her
3 27
pregnancy?
A No.
Q Are you licensed to practice medicine in
Pennsylvania?
A No.
Q You’ve never been licensed in Pennsylvania, have
you?
A No, I have not.
Q And you’ve never practiced medicine in
Pennsylvania?
A I have not.
Q And you are not certified as a specialist in
emergency medicine, are you?
A No, I am not.
[31]Q Now, I notice in your curriculum, Dr. Bowes,
that you are a member of the American Association of
Pro-Life Obstetricians. Could you tell us what that
organization is?
A That organization is a nationwide organization of
obstetricians, gynecologists who are, in their general
approach to obstetrics and gynecology, defined as
interested in the fetus, primarily in the well-being of the
fetus and mother as two individuals.
Q Are members of that association, generally speaking,
philosophically opposed to abortion, except where
necessary to save the life of the mother?
A Yes, there are.
Q How long has that organization existed?
A I can’t tell you exactly how long that organization has
existed.
Q How long have you been a member of that
organization?
A Well, I’ve been a member of that organization
probably for eight years or nine years.
* * *
328
[32] MR. ZEMAITIS: I have no further questions on
qualifications, your Honor. We have no objection to Dr.
Bowes testifying as an expert in the subjects mentioned
by Ms. Mershimer.
THE COURT: Very well, shall we proceed then?
DIRECT EXAMINATION (Continued)
BY MS. MERSHIMER:
Q Dr. Bowes, are you also a member of ACOG?
A The American College of Obstetricians and
Gynecologists, yes, I am.
Q Dr. Bowes, in front of you in a manila tabbed binder
is Defendant’s Exhibits. On Defendant’s Exhibit No. 62
is the tab marked "The Act," do you see that? You can
shut that other book, if you want to. Behind Defendant’s
Exhibit 62 is a document marked "The Act," do you see
that?
A Yes.
Q Could you turn to Page 5 of the act? And do you see
the definition of "medical emergency"?
A Yes.
Q Have you reviewed that definition before?
A Yes, I have.
Q Now, there has been testimony previously that this
definition in vague and confusing. In your practice of
[33] maternal fetal medicine and high risk obstetrics, do
you agree with that opinion?
A No.
Q Why?
A This seems to me to be a definition of medical
emergency that allows, because of its statements about
clinical judgment being allowed in which the physician is
allowed to assess risk of impairment of bodily functions,
to be a definition which would allow practice consistent
with the good standards of care.
Q Now, in this case Dr. Bolognese testified that the
3 29
term "Serious" in the phrase "Serious risk" is vague and
not a medical term; do you agree with that statement?
A No, I don’t.
Q Why is that?
A In the practice of medicine we are always called on
to judge risk in almost every situation we encounter and
it’s, it varies from very mild risk to very serious risk,
based upon the estimate of the physician about the
consequences of the condition, consequences of the
treatment. And that’s a well known, that’s a well known
quality of a good physician, to be able to judge those
risks and it’s not vague. There is also testimony
regarding the phrase "substantial and irreversible
impairment of a major bodily function." Do you have a
problem understanding that phrase?
[34] A No.
Q Within the context of performing abortions?
A No.
Q Why not?
A The risk of substantial and irreversible impairment
in any medical or obstetrical condition as it might relate
to abortion is the -- what is being judged all the time in
the evaluation of a patient with those problems, that is to
say, what might happen if these conditions went
untreated what bodily organs might be impaired, what
functions of those organs might be impaired. That’s a
very straightforward medical assessment.
Q Do you know what the term "substantial impairment"
means?
A Yes, I do. Substantial impairment implies that that
impairment will either be to conditions that are
irreparable, which organs actually die in which the
patient is placed at serious risk of death or where this
patient is placed at significant risk of being - of having
some irremedial organ damage.
Q And do you know what the term "irreversible
3 30
impairment" means?
A Irreversible means that it is not reversible; that is
very straightforward.
Q How about "major bodily function"?
A Well, the major bodily functions are, I think, those
[35] which involve the vascular systems of the body, the
nutritional systems of the body, the excretory systems of
the body, the cardiovascular systems and the central
nervous system. All of those are -- function in a way to
maintain a person’s life and well-being.
Q Do you have an opinion whether the phrase "serious
risk" is an important component of the act’s definition of
"medical emergency"?
A That’s a very important component of this definition
because it is risk that is always being assessed in a
medical context, the risk of a condition progressing to
serious injury or to irreparable, a state where it’s
irreparable.
Q And do you have an opinion on whether the "good
safe clinical judgment" phrase is an important component
of the act’s definition?
A This is also a very important phrase because it allows
the physician to use what he or she has been trained to
use, which is the collection of data, assessment of data
and the extraction from those assessments of the
possibility of problems occurring that must be prevented
by treatment, et cetera. This is the daily behavior of a
physician, that this in what a physician is involved in
doing.
Q Do you have any trouble understanding or applying
the phrase "good faith clinical judgment" in the act?
A No.
[36] Q Why is that?
A Well, good faith clinical judgment simply means that
the physician is using the education that’s been provided,
the data that is provided and the clinical experience
331
which has been accumulated and using it to the best of
her or his ability to provide care for a patient.
Q In the performance of abortions can you think of any
medical situation where a woman would need an
immediate abortion that would not fall within the act’s
definition of medical emergency?
A No.
Q Now, there’s testimony by Dr. Davidson regarding
inevitable abortions which he characterized as vaginal
bleeding, some lower abdominal cramping and the
dilation of the cervix. Do you agree that pregnancies
such as these ultimately must be terminated?
A Yes.
Q Now, he also said there was a variation of inevitable
abortions that depends upon the urgency of the
procedure and that the urgency depends upon the extent
and amount of bleeding that the patient is suffering.
Would you agree with that?
A I would agree with that.
Q Now, he said that such a situation required
immediate attention within a few minutes to a few hours;
would you [37] agree?
A It would depend upon the extent Of the bleeding
and the, especially the extent of the bleeding and
hemorrhage, as to how quickly one would have to
respond to that situation.
Q Would you be able to wait 24 hours to perform an
abortion in the case of inevitable abortion?
A The very fact that it is inevitable means that it is
going to occur sometime within the next few hours or
possibly even day or two, but in the standard medical
practice, when an abortion is recognized as being
inevitable, the termination of the pregnancy is
recommended. Now, that doesn’t mean it has to be done
in the next ten minutes, but because it will be inevitable
and there are risks to allowing the pregnancy to proceed
3 32
to the point where there is major hemorrhage occurring,
those pregnancies are usually terminated.
Q Would inevitable abortion fa ll within the act’s
definition of a medical emergency?
A It certainly would when there is hemorrhage, serious
hemorrhage occurring to the patient.
Q And if an abortion was not performed, what would
be the outcome?
A Well, in most cases there might be extensive
hemorrhage and blood loss and shock, if the -- if the
spontaneous abortion at that point proceeded to those
stages. If the [38] pregnancy was not terminated and
products of conception remained, an infection could
occur, the patient could become septic. There are
consequences of infection that would have to be taken
into consideration.
Q Now, there’s testimony regarding preeclampsia in
this case. Could you tell the Court what that is?
A Preeclampsia is a condition which occurs in pregnant
women and is defined by really three manifestations:
high blood pressure, protein being excreted by the
kidneys in abnormal amounts and often swelling or
edema or fluid retention.
Q And when does preeclampsia normally occur?
A Well, it can occur throughout pregnancy. It is more
commonly found in the third trimester or the last third of
pregnancy, but it can occur as early as 18, 19 or 20
weeks.
Q And is termination of the pregnancy required in such
cases?
A Termination of pregnancy is the treatment, is the
ultimate treatment for preeclampsia, yes.
Q And would preeclampsia fall within the act’s
definition of a medical emergency?
A Yes; it would.
Q Why is that?
33 3
A Well, in the cases in which it becomes severe, that is
to say that the patient’s blood pressure is very high and
other [39] complications of the preeclampsia are
occurring, such as liver involvement, central nervous
system involvement, this would clearly fall within the
definitions of emergency, a medical emergency because it
has the significant risk of impairing bodily functions in a
permanent way or leading to the patient’s death.
Eclampsia and preeclampsia are still recognized as
among the leading causes of maternal mortality.
Q Now, there is prior testimony at a preliminary
injunction hearing by Dr. Dratman and she gave the
following example and statement, and I quote: "Let’s say
a 16 year old woman comes into the emergency room,
she’s pregnant, she is about 18 weeks pregnant, she is
swollen, her blood pressure is 210 over 160, normal
being between 100 and 120 over 60 to 80 in that age
range and her urinalysis shows a considerable amount of
protein in the urine and her reflexes are very brisk. This
is a clinical syndrome known as preeclampsia or toxemia
of pregnancy. This is in obstetrical terms a medical
emergency." Do you agree with that statement?
A I would agree with that.
Q And then she went on to say "However, under this
statute, before I could operate as if this were a medical
emergency, I would have to prove that irreversible major
bodily harm would come to this patient if I were not to
wait for a judicial bypass to go through." Now, do you
agree with that statement?
[40] A I do not agree with that statement.
Q And why is that?
A Well, given the case that’s been described, there is
serious risk present of major bodily injury, there’s even
serious risk of death, and that’s all that’s required to
allow this to be interpreted as one of those cases that
would clearly be covered by medical emergency and the
3 34
pregnancy could be and should be terminated promptly.
Q Do you have an opinion of the consequences of if a
physician in such a circumstance would fail to terminate
the pregnancy?
A I think that could be considered negligent care.
Q Now, there’s also testimony about HELLP
Syndrome. Could you describe that?
A HELLP Syndrome is an acronym which describes
some of the consequences of very severe preeclampsia.
It involves abnormalities in the coagulation system,
abnormalities of the liver function primarily and severe
anemia because red blood cells are being broken down
rapidly. This is a state of very severe preeclampsia.
Q And when does HELLP usually occur?
A Again it can occur throughout pregnancy at any time
preeclampsia can occur, being one of the, if you will,
serious complications of preeclampsia.
Q Does it usually occur when a person wants the child?
[41] A Well, to the extent that preeclampsia is usually
occurring when pregnancies are wanted, if you will, the
pregnancies are well into the latter part of pregnancy,
most cases of HELLP Syndrome in fact do occur in
women who want their pregnancies.
Q And what is the treatment when a woman has
HELLP?
A It’s delivery of the pregnancy.
Q And how quickly?
A It needs to be terminated within a few hours. By
that I don’t mean within ten minutes or within an hour,
there is certainly time for - to be sure that the diagnosis
is correct, there is certainly time to provide those - that
type of intensive care that would be necessary in a
patient such as this and that could be done within a few
hours.
Q Does HELLP fall within the act’s definition of
medical emergency?
335
A It clearly falls within the definition of emergency.
Q Now, there was also testimony about spontaneous
ruptured membranes. Now, if that -- do you know when
that typically occurs in a pregnancy?
A Again, a spontaneous rupture of the membranes can
occur literally at any time in pregnancy. It is most
frequent near term, at the end of pregnancy, but it can
occur to a patient any time throughout pregnancy.
Q Now, if a membrane has just broken but there’s no
fever, [42] what’s the course of treatment?
A In - late in pregnancy, very near term, often the
patient would be delivered simply to avoid any
complications. Earlier in pregnancy, let me say around
24, 25, 26 weeks gestation, the usual treatment of that is
expectant management, meaning that you simply allow
the patient to remain generally in the hospital under
close observation, to allow the fetus to gain more
gestational age and grow.
Now, if it’s even prior to the time when the fetus
might be viable if delivered, the treatment of premature
ruptured membranes is open to a lot of debate and
certainly involves a discussion with the patient at that
time of the risks of proceeding in an expectant manner,
that is to say not delivering the baby, or having the
pregnancy terminated at that time and those decisions
are based on the patient’s evaluation with her physician
of the risks involved in each of those courses of action.
Q Is there discussion of the risks with the patient
regardless of whatever the gestational age of the fetus is?
A Yes, there is.
Q And would such a situation fall within the act’s
definition of medical emergency, where there’s no fever?
A Well, if we’re talking about just ruptured membranes
without evidence of other complications such as
infection, fever, infection, it would not be an emergency.
If on the [43] other hand the patient has developed a
3 36
fever and there are other -- and there are signs of
infection, the infection in, within the uterus involving the
fetus, the fetal membranes, the placenta, that becomes
an emergency and would certainly be included within the
definition of medical emergency in this act.
Q If there is a fever involved or an infection with a
ruptured membrane, how promptly should one perform
an abortion or a termination of pregnancy?
A Within several hours this patient should be delivered.
Q Now, do you know what an ectopic pregnancy is?
A Yes.
Q And could you tell the Court what that is?
A An ectopic pregnancy is a pregnancy which has
occurred outside in which the embryo is really outside of
the uterus, intrauterine cavity. The most common
ectopic pregnancies occur in the fallopian tube and are
often called tubal pregnancies.
Q Now, when an ectopic pregnancy is discovered, what
is the usual course of treatment?
A The usual course of treatment is to terminate the
pregnancy.
Q Does that fall within the act’s definition of medical
emergency?
A Yes, it does.
[44] Q Now, in your experience are physicians called on
daily to make decisions where medical conditions are
life-threatening with great serious risk to the patient’s
health?
A Physicians are called on to make those decisions, yes.
Q Now, do you find it burdensome or confusing to
apply Pennsylvania’s definition of medical emergency in
the context of abortions and in your medical practice of
obstetrics and gynecology?
A I do not.
Q An why is that?
A It seems to me the definition of medical emergency
3 3 7
allows two very important things for the physician, first
of all, to exercise a good faith clinical judgment and to
do that in assessing risk of any condition leading to
serious injury or to death. And those are complements
of a physician’s practice in almost any area of emergency
medicine.
Q Now, have you reviewed Pennsylvania’s act prior to
today?
A Yes.
Q Are you aware that there are various sections that
require certain procedures to be done unless there’s a
medical emergency present?
A I am.
Q Now, could you please turn to the act again, Page 6,
and focus on Section 3204 regarding medical
consultation?
A All right.
[45] Q Now, Section 3204(B) requires that except in a
medical emergency, a physician is to refrain from
performing an abortion upon a woman until he or she or
a referring a physician is consulted with the woman to
determine whether the abortion is necessary, based on all
factors relevant to her well-being. Is that correct?
A That’s correct.
Q Is it standard medical practice for a physician, a
referring physician to consult with the patient prior to
performance of the surgical procedure upon the patient
to determine whether the procedure is desired and
necessary?
A Yes.
Q Absent a medical emergency as defined in the act,
would you terminate a pregnancy without first consulting
with the woman to determine whether she wished to
have her pregnancy terminated and whether the
termination is medically indicated?
A No.
3 38
Q Why is that?
A Because, like any medical procedure, it involves
certain risks and the patient should be apprised of those
risks and the alternative procedures which can be
performed or are available. That’s simply part of normal
informed consent to which every patient is entitled.
Now, would you turn to Page 7 and look at Section 3205
[46] regarding informed consent. Have you reviewed
Section 3205 before today?
A Yes, I have.
* * *
Q Now, absent medical emergency as defined in the
act, is it standard medical practice to assure that the
patient is informed of the risks and alternatives involved
in a surgical procedure prior to its performance?
A Yes.
Q Now, does the act require a physician’s delay in
abortion by 24 hours when a medical emergency exists?
A No, it does not.
Q Can you conceive of an obstetrical situation in which
a delay of 24 hours would increase the risk of the patient
yet not qualify an a medical emergency within the act’s
definition?
A I cannot conceive of such a situation.
Q Now, do you have an opinion on whether the act’s
reliance-- excuse me, strike that.
Would you focus on Section 3206 on Page 10 of the
[47] act? And that’s a provision concerning parental
consent?
A Yes.
Q Have you reviewed that section before today?
A Yes, I have.
Q Now, absent a medical emergency, is it standard
medical practice to notify and obtain the consent of a
3 3 9
parent prior to performing a surgical procedure other
than an abortion on a minor?
A Yes, it is.
Q Do you know of any conditions that would require
an immediate abortion without a parental consent that
would not fall within the act’s definition of medical
emergency?
A No, I do not.
Q Now, please turn to Page 20, focusing on Section
3209, spousal notice? Have you reviewed that section
before today?
A Yes, I have.
Q Is the act’s definition of medical emergency
sufficiently clear and flexible enough, given the reliance
upon the physician’s good faith judgment, to allow a
physician to determine whether or not an abortion must
be performed immediately prior to notifying the spouse?
A Yes, it does.
Q Now, why do you say that?
A It seems to me that the physician’s judgment about
medical emergency involves an assessment of the time
that is [48] involved in responding to and correcting the
situation and if it’s pregnancy termination of abortion
that’s necessary, and it must be done prior to the
notification of the spouse to prevent serious injury to the
patient or to prevent death, it’s within that patient’s -
that physician’s good faith judgement to make that
assessment and carry out the abortion, it’s very
straightforward.
Q Now, on Page 22 of the act, there’s Section 3210
regarding determination of gestational age. Have you
reviewed that section before today?
A Yes, I have.
Q Is it standard medical practice to determine
gestationallage prior to performing an abortion?
A Yes, it is.
3 4 0
Q Why is that?
A Well, there are at least two reasons, one is that the
type of procedure which is performed in abortions may
change with the gestational age of the pregnancy and so
it’s important to know the gestational age for that
reason.
Secondly, particularly in late abortions, it’s important
to know whether the pregnancy has reached the state
where the fetus, if born, would be viable, so that’s
another important reason for making that determination.
Q In the context of a medical emergency does the
physician have the flexibility to determine whether
delaying an [49] abortion to determine gestational age
will result in the woman’s death or will create a serious
risk of causing substantial and irreversible impairment of
a major bodily function in determining gestational age?
A I’m sorry, I didn’t quite understand that question.
Could you repeat it?
Q Certainly.
Let me put it this way: Where an abortion must be
performed so quickly that a physician does not have
adequate time to make a determination of gestational
age of the fetus, will the woman’s condition fall within
the act’s definition of medical emergency?
A Yes, it would, although that would be a very rare
situation, but it would certainly fall within that definition.
Q And could you give us examples of that?
A Well, it would be possible that a woman would enter
an emergency room bleeding from what we previously
stated would be an inevitable abortion and it might,
under those circumstances, she might not know precisely
how far along she was in her pregnancy. But the
treatment for that patient who is hemorrhaging is to
terminate the pregnancy and it wouldn’t matter whether
she was four weeks or nine weeks or twelve weeks and it
wouldn’t necessarily — and it wouldn’t be necessary to
341
postpone the procedure to terminate the [50] pregnancy
to do such things as ultrasound, if it wasn’t immediately
available, or such, because the determination of
gestational age within those ranges in that patient would
make no difference about the treatment. So in that
situation, clearly, the physician would be advised to
proceed directly to terminating the pregnancy.
Q Now, turning to Page 23 of the act regarding Section
3211, that prohibits abortions of fetuses of 24 weeks
gestational age or more unless a physician reasonably
believes that the abortion is necessary to prevent the
death of the woman or substantial or irreversible loss of
a major bodily function will occur. Are you familiar with
that section?
A I am.
Q Now, in such situations is it standard medical
practice to perform the pregnancy termination in a
hospital if at all possible?
A Yes.
Q And is it standard medical practice in those
situations of abortions, 24 weeks or more gestational age,
to have a second physician in attendance to resuscitate
the infant?
A It is and if I could just interject here, I think the
term "abortion" used for terminating a pregnancy after 24
weeks gestation is -- is problematic because although
we’re terminating the pregnancy, clearly after 24 weeks
gestation [51] there is a high probability, with proper
care, that the fetus will survive, once born, and those are
then not by definition abortions. They’re pregnancy
terminations, but not abortions, as I understand it.
But the point about the second physician is that the
care of that infant, when it’s born, requires a substantial
amount of intensive care and would require another
physician.
Q Are obstetricians faced with liability concerns these
3 4 2
days?
A Yes.
Q Can you tell us a little bit about that?
A Well, obstetrics and gynecology and obstetrics in
particular has been among those specialties where some
of the highest instances of litigation and some studies
show that 50 to 75 percent of obstetricians will at one
time or another be involved in some liability issue.
Q Now, in light of liability concerns, is it common to
have a second physician occur in the need for immediate
pregnancy termination, is that practical?
A If - a second consultation is - is advisable in any
situation where there is potential liability risk where
another opinion is not only helpful in determining the
appropriate medical care, but it’s helpful in providing
good evidence that the physician was acting in the best,
you know, in providing good standard care, if I
understand your [52] question.
Q And that would apply with pregnancy terminations of
fetuses 24 weeks or more gestational age?
A Especially in those cases because this is an area
where there can be a lot of controversy about the --
about the degree of viability, et cetera, et cetera.
Q And is it also common in such situations for the
physician to record the basis of his medical judgment to
perform the procedure in the patient’s medical chart?
A Absolutely, that’s simply good medical - that’s
simply good documentation of the medical care.
Q Now, in your opinion does the act’s definition of
medical emergency permit a physician to rely on his or
her good faith clinical judgment and provide sufficient
flexibility to determine whether there’s sufficient time to
perform any of the requirements set forth in Section
3211(C)?
A I believe it does that, yes.
Q Now, Dr. Bowes, if a physician could determine that
343
a pregnancy termination of a 24-week or more
gestational age fetus is necessary to prevent the death of
a pregnant woman or substantial and irreversible
impairment of a major bodily function making its
performance permissible under Section 3211(A) and (B),
should that physician similarly be able to determine
whether medical emergency exists?
A Yes.
[53] Q Why is that?
A Because these conditions, be they a medical
complication to pregnancy or an obstetrical complication,
fall within that range of expertise of an obstetrician
gynecologist to determine whether the patient is at
substantial risk of bodily injury. That’s what high risk
obstetrics in particular deals with all the time and those
judgments are made frequently and commonly.
Q Now, there’s been testimony in this case that the
definition of medical emergency contained in the act is
different from other definitions of medical emergency.
Do you agree with that?
A Yes, because I suspect that there’s many different
definitions of medical emergency.
Q Now, in the context of performing abortions, do you
find that difference to be burdensome, confusing?
A No, I don’t find this definition confusing.
Q Now, why is that?
A It seems to me that the definition is straightforward
because it contains two very important elements, and
that is that the physician is allowed to use judgment,
good faith judgment, and to assess risks, and those are
really the essence of a physician practicing, especially in
an emergency situation those kinds of decisions have to
be made using both the judgment and the assessment of
risks, and that, both [54] those things are contained in
this definition. That’s very important.
Q Does the act’s definition of medical emergency
3 4 4
permit a physician to act consistent with good medical
practice in your opinion?
A It certainly does.
Q Now, Dr. Bowes, there’s been testimony in this case
concerning the mortality risks of performing an abortion
for each week after eight weeks gestation and the
testimony was that mortality increases by 50 percent each
week. Do you agree with that testimony?
A I think the data would show that there is a gradual
increase of -- of abortion risk -- of mortality risk with
abortions at each gestational age, but the way the data is
collected, it is collected by groups of weeks of gestation.
For example, under seven weeks, eight to ten weeks and
so forth, and there is an increase between those blocks of
gestational age that would amount to about 50 percent of
a very tiny risk of mortality increasing by 50 percent to
another very tiny risk of mortality. So that statement
with - I’m not sure it’s absolutely true week by week,
because I know of no one that’s actually done the data
that way, but it does increase as gestation increases.
Q But you’re saying that it doesn’t increase necessarily
50 percent every single week?
[55] A I don’t think it increases 50 percent each week,
at least I know no data that shows that. I know the data
that shows, collected by the CDC, that shows that it
increases by blocks of weeks, by periods of gestation, but
those are not necessarily individual weeks.
But let me expand on that. Even if I were to find
that if that data showed week by week increments, we’re
talking about very, very small, absolute mortality risks.
Even though the risk may increase by 50 percent, it’s
increasing by a very small absolute number.
Q And do you know what that number is?
A Could I refer to the CDC data?
Q Certainly.
A Okay. This is the report issued in November of 1985
345
by the Centers for Disease Control and Abortion
Surveillance from the U.S. Department of Health and
Human Services, and in that data on Page 40 it shows
that the risk of mortality per 100,000 procedures
performed under eight weeks of gestation is 0.5, 0.5
deaths for 100,000 procedure performed.
Now, the next block of data is the nine to ten-week
gestational age range and at that point the risk of
maternal mortality is 0.8 per 100,000 abortions
performed. To illustrate my point that these are
increases but we’re talking about absolute numbers of
deaths that are very, very small.
[56] Q Could you provide the rest of the risks by
gestational weeks in that report?
A All right. At 11 to 12 weeks of gestation, the risk of
maternal death per 100,000 procedures is 1.1. At 13 to
15 weeks it’s 1.5 and at 16 to 20 weeks, well, you now
see a fairly significant jump in the risk, it’s 7.8 per
100,000 and that’s where we’re well into the second
trimester of pregnancy.
Q Is that a four-week block of time?
A That’s a four-week block of time and then over 21
weeks gestation it’s 3.6 deaths per 100,000 procedures.
Q And could you tell us what years of data were used
in that study?
A These, the years included in this particular data set
was 1977 to 1981, and that’s the most recent data.
Q And do you have any data concerning the risk of
complications?
A Yes, the risk of complications I have of abortions
comes actually again from the CDC and I am reporting
from a publication entitled "Abortion Practice" by Dr.
Warren Hern, which was published in 1984, and in that
on the chapter of - that regards complications of
abortion, he has a table summarizing the data from the
Centers for Disease Control from 1975 to 1978. Now,
3 48
section before?
A Yes I have.
Q Now, one provision of Section 3205(A) requires a
physician to tell a woman the gestational age, probable
gestational age of the fetus and it also provides that the
woman be told that the Department of Health has
materials describing fetal development and that those
materials are [61] available for the woman to see, if she
chooses to; is that correct?
A That’s correct.
Q Now, in your experience or practice, do you have an
opinion whether this requirement is beneficial to the
woman?
A I think providing them the option of reviewing this
material is beneficial and is part of a reasonable
informed consent.
Q Now, why do you believe that?
A The period of gestation, the duration of gestation is
important because it may affect how the patient views
the, not only the risks which should be provided by the
physician, but the development of the fetus. She may
not be aware of the nature of fetal development and I
think that’s part of her having a fully - being able to
make a fully informed decision about pregnancy
termination.
Q Now, when you counsel women regarding informed
consent, do you offer them the opportunity to see
pictures regarding fetal development?
A Yes.
Q And in your experience have women wanted to see
those pictures?
A Yes, it often is helpful in really making more clear
than just a simple description of fetal development. If I
can give you an example, we recently had a young
woman with a [62] fairly far advanced tumor, it’s called a
neuroectodermal tumor, which is a highly malignant
3 4 9
tumor, was referred to us because she became pregnant
- during her course of therapy. And the oncologist, the
physicians who were caring for the patient and treating
her, recommended that an abortion be done. And in
counseling this patient, she in fact wanted to see this
material and elected to review it and, after doing so, was
inclined and in fact chose to continue her pregnancy, in
spite of considerable risks to her. But all of the options
were provided to her and she was very grateful for
having that opportunity. So there are occasions when it
can make a very big difference.
Q Now you said that you offer women the opportunity
to see pictures. Do you offer the opportunity to see
pictures of fetal development regardless of whether they
ask for it or not?
A Yes, I tell them that it’s available and we have fetal,
actual pictures of fetal development. In many cases we
even offer them the option of seeing an ultrasound, if
they want to see that.
Q And some women accept the offer and some women
don’t?
A Yes, that’s true.
Q And do you ever force them to look at those
materials?
A No.
Q Now, why is that?
[63] A Well, I -- you don’t - it would be unreasonable to
force a patient, you can’t force a patient to do anything.
I think you advise patients, you offer them information,
You provide them the opportunity, but you don’t force
the patient to review this material, nor would I under
other circumstances providing informed consent for other
-- other procedures.
Q Do you try to force a woman to make a choice
whether to have an abortion or not, either way?
A No.
3 5 0
Q And why is that?
A Well, it’s the patient’s prerogative and option to
make a decision about abortion pregnancy termination,
but I believe she needs to make that decision after being
fully informed about the alternatives, about the risks and
about what is involved in the procedure.
Now, there’s a provision in the act that requires a
woman to be advised of the risks of treatment of the
nature of the procedure and alternatives. Do you do
that in an informed consent procedure?
A I do.
Q And do you consider that a standard part of
informed consent?
A I think that’s a standard part of informed consent in
this situation and in all others.
Q Now, another section of the act requires to advise
the [64] woman of the risk of carrying the child to term.
Do you do that in your practice of an informed consent?
A I do.
Q Now, why is that?
A Well, one of the alternatives to pregnancy
termination having an abortion and the obvious
alternative is to not have abortion, which involves the
patient continuing the pregnancy on throughout the
natural period of gestation. And a woman needs to be
advised of the risks of doing so before she can make an
informed decision about whether the pregnancy should
be terminated.
Q Now, there’s been testimony that advising a woman
of the risks of treatment or the risks of carrying the child
to term or the availability of fetal development
information could increase a woman’s anguish in the
decisionmaking process; do you agree with that?
A No. A qualified no. It might increase in some cases,
but I think it’s been fairly well established that the
decision about abortion itself is a anxiety-provoking
351
situation. The woman is already in a period of
considerable concern and anxiety and anguish over the
decision about terminating pregnancy and I know of no
way of quantitating whether the - that additional
information increases anxiety, but it’s certainly necessary
for her to make an informed choice.
[65] Q Now, an argument has been made that when
they’re advised of this information and it increases their
anxiety, that that will also increase their risk of
complications, the performance of abortion. Do you
agree with that?
A Well, I know of no evidence to prove that statement.
I just -- no.
Q Now, the act requires that a woman be advised that
material exists, that she may be entitled to Medical
Assistance benefits, that there are optional organizations
that offer alternatives to abortion and that the father
may be liable for support payments and that if the
woman wants to review those materials, she may, but she
does not have to.
Do you believe information that I just described like
that should be part of informed consent procedure?
A I think it’s part of the information a woman is
entitled to.
Q Why is that?
A Well, it simply is involved in the assessment and in
the -- of the alternatives to abortion, which is carrying
the pregnancy on, which would require her to evaluate
her means, her - her resources or financial and other
support.
Q Do you believe it is traumatic to tell a woman that
such materials exist and give her the option of choosing
to review them?
A Not to tell her that those information - that that [66]
information is available; I don’t see that that’s traumatic
at all.
3 5 2
Q Now, there’s been an argument made that by having
either the physician or counselor advise the woman that
this information exists, particularly in the context of
alternative organizations that offer an option -- an
alternative to abortions, that this would create an
impression that the physician approves of the list of
facilities and interferes with the doctor-patient
relationship. Do you agree with that?
A No, I don’t think it means that the physician
necessarily approves of it and the physician can qualify
the information in any way he or she chooses in the
provision of that information.
Q Does your reading of the act prohibit a physician or
abortion clinic from disagreeing with the Department of
Health’s information?
A No, it doesn’t.
Q Does it prohibit an abortion clinic or a physician
from offering additional information?
A It does not.
Q There’s also been an argument made that Section
3205 of the act discourages physicians or counselors from
giving additional information beyond what is required in
that section; do you agree with that?
[67] A I do not.
Q Why is that?
A Well, it seems to me the act simply provides the
minimal things that must be offered to the patient. It
does not exclude other counseling, it does not inhibit or
exclude other information being given to the patient at
the discretion of the counseling physician or health
provider.
Q If a physician or counselor believed that additional
information should be provided to a woman, other than
what’s contained in the act to obtain her informed
consent, would it be ethically proper to not provide that
information?
353
A No, it would be ethically proper to provide it, if I
understand the question. That information should be
provided if the counselor or physician feels that’s
important information for the patient.
Q And do you feel it’s ethically improper if that
information then wouldn’t be provided?
A I do.
Q The pieces of information we’ve discussed such as
the risk of procedure, telling the woman that information
about fetal development exists, medical system, benefits
may be available, there are organizations that offer
alternatives to abortion and the father may be liable.
Now, in your experience counseling women, have you
had some women that have found any of those pieces of
information important?
[68] A Yes.
Q Have some women found each - each one of those
or all of them important?
A Uhm, I’ll have to be - being precise about it, I can’t
tell you in each specific type of information, but most
commonly, the knowledge that there are organizations
which will provide support for them and assist in carrying
the pregnancy to term, both financially and with
counseling support and so forth, have often been
important to patients. The specific notification of a --
the husband, not the husband or the father of the child’s
requiring support, I simply have not been in a situation
where I have counseled about that, I have not been
aware of that, but that doesn’t mean it wouldn’t be
important information.
Q There’s been an argument suggested that if you give
a woman too much information in the informed consent
procedure that this disempowers the woman. Do you
agree with that?
A I do not.
Q Why?
3 54
A Well, it seems to me information and especially
information about risks, about alternative procedures,
about what’s involved is essential to an adequate decision
about an important event such as termination of
pregnancy, and it doesn’t disempower but it empowers a
patient to make that appropriate decision, so I cannot
agree with that statement.
[69] Q Now, you’re aware that the act requires
physicians to provide certain information 24 hours before
an abortion procedure?
A Yes.
Q And you generally agree that informed consent is
best face to face?
A In - yes, whenever possible I think it is.
Q Now, if a Court would hold that the act does not
require the initial provision of information under Section
3205(A)(1) to be face to face, but there is -- but is
provided by telephone and then the woman would come
to the abortion clinic and see either a counselor or
doctor the following day and then meet face to face to
review informed consent materials, do you believe that
would satisfy the informed consent preference to have a
face-to-face meeting?
A I think it would probably suffice -- it would - it
would fulfill that qualification. Let me qualify that by
saying as long as the patient had been provided with the
facts and the information ahead of time and that the
face-to-face presentation eventually occurs, which it
should, in some setting and if it’s with the physician or
health care provider in the second situation, I think that
would be appropriate.
Q With an informed consent do you consider a 24-hour
waiting period to be beneficial?
[70] A Yes.
Q Why is that?
A I think that there is a very serious decision having to
355
be made and the time to assimilate and digest, if you
will, and consider the information that’s been provided is
beneficial to making that, to making an appropriate
decision. One example of a similar type of situation
when the - the Medicaid provisions require that women
having sterilization procedures must wait 30 days from
the time they have initially made a decision and been
informed about it until they make a final decision before
they can have a sterilization procedure. Now, that’s a
30-day waiting period because it’s felt to be an important
-- a decision of such importance. And that’s regarded as
being very straightforward now, we do that all the time.
Q So do you consider time to be an important part of
informed consent?
A Yes, time to consider the facts.
Q Now, if you performed abortions in non-life-
threatening situations, if a woman arrived at — before
you and she made up her mind to have an abortion,
would you still go to informed consent materials?
A Yes.
Q And why is that?
A Well, if I were performing the procedure, as in the
case [71] of performing any procedure, I would want to
be confident myself that the patient understood the facts
and had had access to the information. An exam-- if a
patient came in for a — I’m not talking about abortion
now, but a procedure in which she had made up her
mind, let’s say a mammoplasty or a procedure which she
felt certain that she wanted, I still think she’s entitled to
know all of the facts and risks and alternatives to that
procedure before it’s performed. And it’s incumbent on
a physician to perform - to provide informed consent in
that way.
Q You said mammoplasty, could you tell us what that
is?
A Well, this is -- I used that procedure only because it’s
3 56
a procedure which a patient may have decided, it’s a
cosmetic procedure, a breast augmentation, but a patient
may be very much convinced in their own mind that they
want that done, but they’re entitled to knowing before
it’s done what the risks are of having it performed.
Q Now, does Pennsylvania’s informed consent
requirements in its Abortion Control Act a departure
from the usual practice, the informed consent?
A Yes, it is. It involves things which are not required
in other informed consent.
Q Do you consider that departure to be unnecessary or
burdensome?
A No.
[72] Q Why is that?
A It seems to me by the - by virtue of what is stated
very early on in the act, that the State of Pennsylvania
has an interest in the health of the mother and the
unborn child, that this decision by the patient is of such
importance that these additional requirements are
certainly reasonable and not burdensome in providing
medical care to that patient.
Q Now, Monday Dr. Grodin testified regarding
therapeutic privilege where it is proper in some cases to
withhold certain information in informed consent process
where a patient might have a serious reaction to that
information. Are you familiar with that doctrine or
privilege?
A I think I understand what -- what you’re referring to.
Q What is you understanding of when the therapeutic
privilege is applied?
A Well, I think it’s -- a physician must make a
judgement in some cases about whether informed
consent to its fullest extent would really be beneficial to
the patient. Let me give you an example. If a patient
is -- has, let’s say, serious preeclampsia, which we have
described before in this testimony, and had it so seriously
3 5 7
that the alternatives of allowing the pregnancy to
continue to term would be almost certainly, meant the
death of the mother, it seems to me at that point that it
is the physician’s prerogative to modify the informed
consent and not go into all of the risks of [73] continuing
pregnancy, which are death. See, he doesn’t have to --
that’s a very limited informed consent, but it’s sufficient,
it seems to me. And that I would see as therapeutic
privilege in modifying the informed consent, based on
the risks involved in providing it.
Q Now, in the context of abortion, do you have an
opinion whether therapeutic privilege should apply in
non-life-threatening situations?
A Well, in non-life-threatening situations I believe that
the patient’s entitled to all the information to make an
informed consent. I don’t see that it would necessarily
apply there.
Q Could I have you look at Page 10 of the act, Section
3205(C)? The last line of Section C and it reads: "No
physician shall be guilty of violating this section for
failure to furnish the information required by Subsection
(A) if he or she can demonstrate by a preponderance of
the evidence that he or she reasonably believed that
furnishing the information would have resulted in a
severely adverse effect on the physical or mental health
of the patient."
Does that provision offer the therapeutic privilege in
those cases which would apply in abortions?
A It certainly does.
Q And could you explain that?
A Well, I think again it’s providing the physician the
[74] option of exercising good judgment in the care of a
patient and to assess the patient’s - the effect of this
information upon the patient’s physical and mental
health. That seems to me a perfectly reasonable
exception which provides the physician the opportunity in
3 58
some case to not provide all the information, and that
certainly is a very reasonable exception here. Now,
physicians might disagree about what is or is not to be
included, but it allows the physician, under good faith, to
use his judgment to do so or her judgment.
Q And just briefly going back to the issue of fetal
development and informed consent, does a fetus at nine
weeks gestation, LMP, measured from the last menstrual
period, have hands and fingers?
A Yes.
Q Could you say when there’s the beginning of
development of organs in a fetus?
A Well, the development of a fetus is a continuum, if
you will, and organ development is occurring really from
quite an early stage after the -- after conception, but
virtually all of the organ systems have developed to the
point that they cannot be altered in a major way by
chemicals, by radiation and so forth, by the 56th day of
embryonic life, that’s eight weeks.
And up to that point they are in various stages of
development to the point, but even by five to six weeks
of [75] life, fetal heart motion can be detected. At six to
seven weeks we can see with an ultrasound scanner a
great deal of detail of fetal development, fetal motion,
fetal movement, fetal heartbeat, the gastrointestinal
system is intact. The central nervous system is
developing, it is not completely developed, it isn’t even
completely developed at the time of birth. But all of
these things are in various stages of their development.
Q And would there be a time when the feet and toes
are also developed?
A Well, they are developing in this continuum. The
limb buds by four weeks are evident and by six weeks the
definite fingers and feet and arms and legs are quite
distinguishable as separate entities.
Q Now, regarding informed consent regarding a minor
3 59
and a parent, there has been testimony it is best to have
that parental consent face to face; do you agree with
that?
A I would agree with that.
Q Now, if a parent can’t come, however, and the law
permits consent by telephone or unsworn declaration,
would that be acceptable?
A I think it’s acceptable in circumstances, yes.
Q Why is that?
A Well, there may be situations where the parents are
not immediately available in person, just as there are
when we [76] care for children in other settings and we
have to proceed with medical care, an accident in which
a child is seen and the parents may be away, a child at
camp, let’s say, has to be treated.
We often are in situations where information must
be gained from the parents or their consent by phone.
It’s simply a situation where the parent is not
immediately available and can’t be available for a face-
to-face presentation of the facts.
Q There has been testimony that if the act goes into
effect that there will be stress upon physicians. Do you
agree with that statement?
A It’s how the act is perceived by physicians, but it
seems to me that physicians work under stress all the
time. Their very daily care of patients, particularly in
obstetrics and gynecology, is fraught with stress.
The decisions about — are all subject to peer review,
they’re subject to liability concerns and that’s a stressful
situation. It’s my opinion that this act would not
substantively increase that, unless it is how a person
individually would interpret them, which I think is a
misinterpretation.
* * *
3 6 0
[78] Q Now would a pertinent physician always perform
a sonogram in determining gestational age?
A No.
Q Dr. Bowes, is the practice of obstetrics and
gynecology, maternal fetal medicine any different, to
your knowledge, in Pennsylvania as it is in North
Carolina?
A No.
Q Anywhere in the United States?
A No, the standard of care prevails throughout the
United States.
Q There was questioning by Mr. Zemaitis about
whether you belong to the Association of -- Pro Life
Association of Obstetricians and Gynecologists?
A Yes.
[79] Q Would your personal views regarding the issue of
pro life ever effect your professional judgment for the
provision of medical care?
A No.
Q Would it ever effect how you testify?
A No.
Q Would it ever effect how you teach medical
students?
A No.
Q Have you been able to publish medical articles and
peer review journals?
A Yes.
Q And your personal views have never interfered with
those publications?
A It never interfered with the -- no, the publications of
journals, no.
* *
[80] BY MR. ZEMAITIS:
Q Dr. Bowes, you do practice currently in North
361
Carolina?
A Yes, I do.
Q North Carolina doesn’t have a law making it a crime
to fail to give specific pieces of information for informed
consent to abortion patients; does it?
A No.
Q North Carolina doesn’t have a law making it a crime
to fail to delay 24 hours between the time of giving
information and performing an abortion; does it?
A No.
Q North Carolina doesn’t have a law making it a crime
if a counsellor and not a physician gives information for
informed consent; does it?
A No.
Q North Carolina doesn’t have a law mandating the
suspension of a physician’s license if he or she fails to get
a written statement from a woman stating that she
notified her husband of her intent to get an abortion?
A No.
Q North Carolina doesn’t have a law mandating the
suspension of a physician’s license if the physician fails to
get the informed consent of both the parent and the
minor woman before the minor woman could obtain an
abortion; does it?
[81] A No.
Q North Carolina doesn’t have a law requiring
suspension of the license if the physician doesn’t make
an accurate determination of gestational age or fails to
report the basis for that determination to the State of
North Carolina; does it?
A No.
Q North Carolina doesn’t have a law making it a felony
for a physician to fail to take the specific steps outlined
in the Pennsylvania statute when abortion occurs after 24
weeks of gestation; does it?
A No.
3 62
Q Now Dr. Bowes, North Carolina doesn’t have a law
making it the criminal liability of the physician depend
upon whether or not medical emergency exists; does it?
A No.
Q You would agree that the definition of medical
emergency — in fact, you did in direct examination agree
that the definition of medical emergency in the
Pennsylvania statute differs from other definitions
commonly used in the medical profession?
A Yes.
Q Have you ever seen a definition that makes a set of
circumstances an emergency when a major bodily
function is involved, but not a minor bodily
function?
[82] A I don’t know.
Q Are you aware of any situation where the criminal
liability of a physician depends on the major bodily
function and minor bodily function?
A No.
Q Have you ever seen a definition that makes a set of
circumstances an emergency when it threatens an
irreversible impairment, but not a reversible impairment?
A No.
Q Are you aware of any situation where the criminal
liability of the physician depends on the determination of
whether an impairment will be irreversible?
A No.
Q Have you ever seen a definition that makes a set of
circumstances a medical emergency when it threatens a
substantial impairment but not an insubstantial
impairment?
A No.
Q How do you distinguish between a substantial
impairment and insubstantial impairment?
A I think that’s a matter of a physician’s judgment and
experience.
363
Q Are you aware of any situation where the criminal
liability of a physician depends on the physician’s
determination of whether impairment will be substantial?
A No.
[83] Q Have you ever seen a definition that makes a set
of circumstances a medical emergency when it threatens
a serious risk of substantial impairment, but not a less
than serious risk?
A Well, the -- I can’t tell you the specific example, but
certainly a medical emergency does involve the
assessment of the degree of risk. By it’s very nature,
emergency involves how quickly and to what degree care
must be provided. And that is based on the seriousness
of the condition or the seriousness of the potential
complications of the condition.
Q So you would agree, Dr. Bowes, that determining the
seriousness of the risk is a judgment call for the
physician?
A Yes, by all means.
Q Now I think you testified in your direct examination
that doctors have gotten concerned and somewhat more
cautious in the practice of medicine as a result of liability
for malpractice -
A Yes.
Q -- is that a fair characterization?
A That’s a fair characterization.
Q Wouldn’t you agree, Dr. Bowes, that the imposition
of criminal liability for practice of medicine in certain
situations would make doctors even more cautious?
A It might make them more cautious, yes.
Q And wouldn’t you agree that the additional
imposition of [84] criminal liability would increase stress
on the practice of medicine which you agree is already a
stressful profession?
A It might increase stress, yes.
Q Now you talked about the benefits that you see for a
3 64
24 hour waiting period. Is there any medical reason to
delay a procedure -- any medical procedure -- for 24
hours once the patient has given informed consent?
A There might be medical reasons to delay based on
availability of operating rooms, the availability of care,
but apart from that, no.
Q Are you aware of any procedure other than
sterilization, which you mentioned, where patient should
be forced to delay the procedure once the patient’s
informed consent is given?
A No.
Q What about a caesarian section?
A The situation -- let me be more specific. The
situation where a patient has a choice, there are risks of
a vaginal delivery and there are risks in the caesarian
section, it’s not a situation where you must do a
caesarian section. But the patient has a choice. Would
you agree that the patient should be required to wait 24
hours if the patient elects to have a caesarian section?
A No, under those circumstances, I wouldn’t.
Q would you agree that in a counselling situation, the
information provided to a patient should be balanced?
[85] A Yes.
Q Would you agree that the physician or counsellor
should not try to persuade the patient toward one
decision or another?
A Yes.
Q Would you agree that the physician or counsellor
should not give the patient irrelevant information?
A Yes.
Q So for example, if you had a patient with
preeclampsia, you would agree that it’s not relevant to
tell that patient that she might be entitled to medical
assistance benefits if she chooses to carry the pregnancy
to term?
A I would agree with that.
365
Q And you would agree that it’s irrelevant for that
patient to tell her that the father might be liable to
support the child?
A Yes.
Q Dr. Bowes, I believe it’s your testimony that parents
should be involved in the abortion decision with their
child; is that correct?
A Yes.
Q Would you agree that parents should be involved in
the decision if the child is about to choose a caesarian
section?
A Yes.
Q Are you aware that under Pennsylvania law that a
pregnant [86] minor can consent to any medical
treatment connected with her pregnancy?
A No.
Q Are you aware that under Pennsylvania law a minor
who has already had a child can consent to any medical
treatment for herself and for her child?
A I wasn’t aware of that.
Q Do you believe, Dr. Bowes, that there are any
circumstances in which a woman should be forced to
have a caesarian section against her will?
A No, although I will tell you, I don’t believe she
should be forced by the medical doctor. She may be
forced by the courts to have a caesarian section.
Q Under what circumstances should a woman be
forced by the courts to have a caesarian section against
her will?
A I think if it’s decided by the courts that the woman is
choosing to not have a caesarian section and that it
would seriously impair or eventually result in the death
of the fetus and the consequences of the decision would
result in that sort of impairment to the fetus, the court
might find in behalf of the baby that the woman should
have a caesarian delivery.
3 66
Q So you believe that there are situations where the
life of the fetus should control what medical risks a
woman has to expose herself to?
[87] A Yes.
* * *
PATRICIA POTRZEBOWSKJ, Defense Witness,
Sworn.
DIRECT EXAMINATION
BY MS. MERSHIMER:
Q Dr. Potrzebowski, can you tell us who you are
employed [88] by?
A Yes, I’m employed by the Pennsylvania Department
of Health.
Q And what’s your position?
A I’m the Director of the Division of Health Statistics
and Research.
Q And how long have you held that position?
A Since 1976.
Q And can you generally tell us your duties?
A Yes, I supervise the activities of the Division of
Health Statistics and Research. Those activities include
operating several major data collection systems for the
Department of Health, producing statistical reports and
responding to data requests and providing statistical
support services to other programs within the
Department of Health.
Q And before we proceed any further, could you just
briefly tell us about your educational background?
[89] A Yes, I have a Bachelors Degree of Science in
Biology from Shimer College in Illinois. I received that
in 1867. I also have a PhD in Human Genetics from the
3 67
Graduate School of Public Health at the University of
Pittsburgh and I received that degree in 1974.
Q Now as division director, are you responsible for two
sections?
A Yes, the division is organized into two sections.
Those are the Statistical Registry Section and the
Statistical Support Services Section.
Q Now what’s the role of those two sections as they
relate [90] to the Abortion Control Act?
A The Statistical Registry Section is responsible for
collecting data under the Abortion Control Act and the
processing of that data. The Statistical Support Services
Section is responsible for analyzing that data and
preparing the annual statistical report.
[91] Q Now can you tell how the individual form is
presently maintained and processed physically within the
Department of Health?
A Yes, the individual form, when they are received
from the facilities, they’re opened by a secretary in the
division. She date stamps the cover sheet of the form
and puts them back in the envelope. They are then
taken to the desk of the person in the division who is
responsible for processing those forms. Do you need her
name?
Q No, it’s not relevant.
A Okay, anyway, this person keeps the -- she will
review the forms upon arrival. She will check them off
on her master list to make sure that each facility has
reported -- has submitted their forms that are required
on a monthly basis. She will review the forms for
3 68
completeness.
She will then enter the forms on a personal
computer at her desk, and while she’s entering that data,
if any questions or problems arise, she may call the
facility back to do what we call a query, to obtain
additional or clarifying information.
[92] After she is finished entering the data into the
personal computer, she would put the forms in a locked
cabinet. And anytime that she is not working on those
forms, those are kept in a locked cabinet.
Q As to the personal computer, is that password
protected?
A Yes, no one may log onto the computer unless they
know the password.
Q And how many people know that password?
A In my division, there are currently four people who
know that password.
Q And who would that include?
A The person who is doing this work, her supervisor,
myself and one other person in the division who is
responsible for maintaining a list of all passwords in the
division.
Q And am I correct that she uses diskettes with the
personal computer?
A That’s correct. When she enters the information into
the personal computer, that information is put on to
diskettes and those diskettes then are also kept in the
locked cabinet.
* * *
[93] Q Now what about -- are there any security
precautions in preparing the statistical reports so that
individual data is not released?
A We would never release any identifiable data on the
statistical reports.
3 69
Q Well, when it is prepared in the department - I
mean, in the division, I mean, who actually does the
statistical report?
A The statistical reports are prepared by the support
services section and the people who are involved in
doing those preparations would have access to the
diskette. As the data were entered onto their computer,
again, their computers are password protected so that the
information would not be available to anyone other than
those -- I believe it would be three people who would be
involved in preparing those statistical reports.
Q Now how are the quarterly facility reports physically
maintained in the division?
A The quarterly facility reports, again, the envelopes
are opened and stamped in by the secretary, put back in
the envelopes. The forms are put back in the envelopes.
And the envelopes are given to the same person that we
discussed before, who processes the individual forms.
She, again, checks off that information to make sure
[94] that each facility that is required to file has filed the
forms on a quarterly basis. She then keeps those forms -
- she checks over the forms to make sure that they are
filled out completely and she might contact a facility if
the information — if there is blank information or
missing information.
But at that point, then she would put those forms in
a locked cabinet and they would not be processed then
or analyzed until the end of the year.
Q And how are the complications reports physically
maintained?
A The complications reports, again, the envelopes are
opened, the forms are date stamped by the secretary, put
back in the envelopes, taken to the same person’s desk.
She again opens them.
In this case, since we don’t -- there is no specific —
we do not have a specific number of forms that we
3 7 0
would expect on a regular basis, she doesn’t check them
off of a list. But she does review the forms for
completeness. She conducts any kind of telephone query
if the information appears to be incomplete. She keeps
the forms in a locked cabinet.
* * *
[95] Q Does the Department of Health have any
procedures or guidelines regarding confidentiality in
revealing information?
A Yes, the department has general policies and
procedures [96] for confidentiality and data release. And
in addition, our division has a specific staff manual.
Q Now I’d like to ask you to look at Defendant’s
Exhibits 41 and 42. Have you seen Defendant’s Exhibit
41 before?
A Yes, I have.
Q And could you identify what that is?
A Yes, that is the department’s policies and procedures
for confidentiality and data release.
Q And could you look at Defendant’s Exhibit 42?
A Yes, that is the -- those are selection -- selected
pages that relate to confidentiality from our division’s
staff manual.
Q And are these materials or documents that are used
by division personnel in maintaining the confidentiality of
information regarding abortion reporting?
A Yes, they are.
* * *
Q Now is your division responsible for maintaining the
[97] confidentiality of data in other areas?
A Yes, we are. We are responsible for maintaining
confidential information under the Cancer Control Act,
371
Vital Statistics Act and the Disease Prevention and
Control Act.
Q Are you aware of any division employee ever
releasing the identity of the attending or referring
physician where the woman who had an abortion or
facility to the public?
A No, I am not aware of that ever occurring.
Q Now the division releases annual statistical reports;
is that correct?
A Yes.
Q Will the division release or reveal the name of the
referring or attending physician, a woman who’s had an
abortion or the facility that’s reporting on the individual
form in its annual reports?
A No, we would not.
Q Would you ever release that information to anybody
else?
A I believe we would not except as the act requires, I
believe, under certain circumstances we might release
certain information to law enforcement agencies or to
the State Medical Board. But I don’t believe that
information is from the individual form.
* *
[109] Q Would it be correct to say that Defendant’s
Exhibit 45 and 46 are the forms that will be available for
public [110] inspection if the facility receives
Commonwealth appropriated moneys if the injunction is
lifted?
A Yes, that’s my understanding.
* *
[111] Q Defendant’s Exhibit 49, can you identify that
document?
3 7 2
A Yes, this is the directory of social services
organizations that was prepared by the department as
required by the act.
Q Is this a proposed document if the injunction is
lifted?
A It is my understanding that this is the document that
would be used, yes.
Q Do you know whether if the department finds out
that information was omitted, that it can add to that list?
A I believe that the department would probably update
this list and revise it if incorrect -- if there is incorrect
information or incomplete information.
* * *
[112] Q Now those additional materials I gave you,
Dr. Potrzebowski, can you identify what Defendant’s
Exhibit 50 is?
A Yes, this is the medical assistance benefits notice
that’s required under the act.
Q Is this what - is this a proposed document that will
go in effect if the injunction is lifted?
A Yes, this is what would be utilized if the injunction is
lifted.
Q And would you turn to Defendant’s Exhibit 51?
Could you identify that document?
[113] A Yes, these are the other notices that are
required by the Abortion Control Act that were prepared
by the Department of Health and that the department
would plan to use if the injunction is lifted.
Q Is that required by Section 3208 Al?
A I would have to the -
Q Do you know?
A - act to check the section number, but I know that
it’s required by the act.
Q So Defendant’s Exhibits 48 through 51 are forms that
37 3
the Department of Health will use if the injunction is
lifted against the act?
A Yes, that is correct.
* * *
BY MS. MERSHIMER:
[124] Q I’d like to ask you a few questions about
those. I’d like to ask you, first of all, Ms. Potrzebowski,
does the CDC recommend collection of the information
that appears on the right hand block of number 13,
which is determination of gestational age, type of
inquiries, examination, tests utilzed and basis for
diagnosis?
A No, I don’t believe that the CDC recommends that
item. I believe that that was an item that’s required by
the act.
Q Does the CDC recommend item 14 regarding a
medical emergency in its suggested report?
A No, again, that information is required by the act.
Q Now the CDC does recommend that you collect
information as to whether or not the patient is married?
A That’s correct.
Q But the CDC doesn’t recommend information
regarding [125] husband notification; does it?
A No, the CDC’s information is primarily statistical and
so it does not. This, again, is an item that is required by
the act.
Q And the second page of that exhibit has three items,
18, 19, 20 - actually four items - and 21. None of those
items are recommended for collection by the CDC, are
they?
A No, all of these items would be required only by --
would be required by the act, but are not recommended
by CDC.
Q So the reasons that CDC collects data wouldn’t apply
3 74
to these items; would they?
A No, well, the CDC doesn’t collect data, but the CDC
recommendations for collecting data are for statistical
purposes and they would not apply to these items.
Q But you referred to the — I think it’s Exhibit 43 --
A The CDC recommended.
Q So to the extent the CDC doesn’t recommend these
items, the reasons that the CDC offers for its
recommendations wouldn’t apply to these items; would
it?
A That is correct.
Q And you don’t intend at this point to make any
statistical compilations of determinations of gestational
age or the methodology for the determination of
gestational age?
A We would plan to make some statiscal compilations
relating to gestational age. We do now and we would
continue [126] those.
Q And that --
A Though not for the methodology of determining
gestational age.
Q And you don’t plan to make any statistical studies
with respect to the methodology or the bases for the
judgment, for example in number 18, the basis for the
judgment that abortion was necessary to prevent the
patient’s death or substantial and irreversible impairment
of a major bodily function?
A Well, given that we don’t even ask these questions
now, I must answer that no, we do not currently have
plans. But that does not mean that we would not, in the
future, ask - have plans for statistical compilations for
any of these items.
Q But you don’t have any at present?
A But we do not have them at present because we are
not collecting the information at present.
375
* * *
Q . . . What have you done now with the 1989 -- the
physical reports that were collected for 1989, the
individual abortion report?
A The physical forms are currently being kept in - they
have been moved out of the locked cabinets. There
were too [127] many of them. They are currently being
kept in a secure area, a locked room in -- within the
Commonwealth.
Q Within the Department of Health?
A Yes, within the Department of Health but in a
different building.
Q Why are they being kept at this point in time?
A They are on our records retention schedule and
under our records retention schedule, we are required to
keep the hard copy documents for two years.
Q Two years. Do you -
A And then we would -- then we would give them to
the records center - the State records center.
Q Do you know how long the State records center
maintains them under the retention schedule?
A I don’t recall.
Q Is it - do they retain them for a number of years
beyond the two years?
A Oh, yes, yes.
Q What about the quarterly reports, what happens to
those after you draw the information off of them?
A Well, the ’89 reports we still have in our office
because we’re still using them. But they would follow
the same records retention schedule. We would
maintain them in another locked area for two years and
then they would go to the records center.
[128] Q You realize, of course, that the CDC doesn’t
recommend retaining those documents; don’t you?
A I am not aware that the CDC makes that
3 7 6
recommendation.
Q Well, why don’t you turn to the page number three.
It’s the fifth page of Exhibit 43. Do you see at
confidentiality?
A Yes, I see it under confidentiality. However, my only
concern about that would be that under the act, I believe
that we have to make the hard copy documents available
to the State Medical Board. And if we would destroy
the documents, we could no longer make the hard copy
documents available to them.
Q I understand that, I’m just saying though, you would
agree, wouldn’t you, that that’s inconsistent with the
CDC recommendation?
A In so far as that the CDC only deals with statistical
uses of the records and not any other uses, that is
inconsistent.
Q What are the other uses, besides statistical?
A Well, I assume that the medical board would use
them. I mean, I cannot tell you for certain what the
intent was in putting that provision in the act, but there
must have been a reason for requiring them to be
released to the medical board upon their request.
* * *
[131] Q You testified that you need information
from three reports to get the total number of
pregnancies that are occurring. Even that information,
though, doesn’t help give you the total number; does it?
A You’re correct, that does not include the fetal deaths
that occurred prior to 16 weeks of gestation.
Q So if a woman has a spontaneous abortion prior to
16 weeks -
A In the first trimester, yes. Or -
Q Your statistical compilation wouldn’t gather that
information?
3 77
A That’s correct.
* *
[132] Q You testified about the process of a query
when a report is filed with the Department of Health
and that the person who receives the report would
contact the facility for additional information.
[133] Isn’t it true that each facility has a contact
person that the Department of Health deals with for that
information?
A Yes, that is correct.
Q Arid isn’t it true that the Department of Health
doesn’t deal directly with physicians at those facilities for
that information?
A We have had to contact physicians directly upon
occasion. In general, we generally deal with the contact
person in each facility.
Q Have you ever had to contact a physician at a facility
where you had a contact person?
A Yes, we have.
* *
[134] Q Can you tell me why the Department of
Health feels it’s necessary to state above the signature
line, "I understand that any false statement made herein
is punishable by law" and then below the signature line,
in all capitals "notice, any false statement made herein is
punishable by law"?
A My understanding of that is that the law requires
that that specific quotation be on the form, but that it
was felt that it should also be above the signature.
Q And this Exhibit 48, this is the form that a woman
has to sign with respect to husband notification; isn’t it?
A That is correct.
3 78
Q So the Department of Health thought it was
necessary to [135] state twice to a woman in filling out
that form that if she provides false information it’s
punishable by law?
A I don’t believe that the Department of Health felt
that it had to be stated twice, just that the Department
of Health felt that the statement should be made above
the signature line, but that the law also required that the
specific, exact words "notice" and the rest of that
statement be included.
Q And that would have to go below the signature line?
A I don’t know where it would have to go.
* * *
[143] JEAN A. DILLON, Plaintiffs Witness, Sworn.
DIRECT EXAMINATION
BY MS. KOLBERT:
Q Ms. Dillon, have you ever been married?
A Yes, I have.
Q And when were you married?
[144] A I was married from 1973 till 1989.
Q Have you ever been a victim of domestic violence?
A Yes, I have.
Q And can you tell the Court when that domestic
violence began?
A The domestic violence began in -- around 1976.
Q And how are you - how did the domestic violence
begin, can you explain?
A Yeah, I was -- well, I had been married in ’73. I had
a child prior to my marriage that my husband adopted.
We had a baby together that we both wanted and in
1976 I became pregnant with what would be our second
biological son. And-
Q Let me just make sure I understand, that would be
your third child; is that correct?
37 9
A My third child, yeah. And my husband didn’t want
me to have the baby. He -- when he found out I was
pregnant, he told -- he said it wasn’t his baby and I
tricked him and he didn’t want another child. And I
eventually decided that I was going to have the baby.
And his way of dealing with that was to not to speak to
me for about three and a half weeks.
Q Let me go back a second, Ms. Dillon.
A Mm-hmm.
Q Prior to the time that you were pregnant with your
third child, have there ever been any psychological
abuse?
A No, I thought we had a pretty good marriage and
were [145] really pretty together and happy.
Q Had there ever been any verbal abuse prior to that
time?
A No.
Q So to your best recollection, the abuse within your
marriage began when you were pregnant with your third
child?
A Yes.
Q And what form did it take from then on?
A Well, at that time, like I said, it became — this
silence thing that he developed became pretty - a way of
dealing with me.
Q Now when you say silence, what do you mean?
A Well, lots of times he would come in on a Friday
evening from work and we would have a good time
together, talk and laugh and share and make love and
Saturday morning we would wake up and he wouldn’t be
speaking to me and wouldn’t speak to me for as long as
a week. And that was really hard for me, because I
didn’t understand what that was all about.
Q Now these periods of silence, would they go on and
off for periods of time?
A Yeah, he did that a lot to me.
3 8 0
Q And when they -- when you say he did that a lot,
about how frequently?
A Uh...
Q Would it occur about once a month, once a year?
A Well, originally about once a month. He really got --
[146] towards the -- of course, towards the end of the
marriage it became more intense.
Q Now were you employed at the time?
A My husband and I had our own business together.
Q And what kind of business was it?
A Contracting, paint contracting.
Q And did you go to work together every day?
A Yes.
Q During the periods of silence when you say your
husband didn’t talk to you, did he talk to you at work?
A He didn’t talk to me at work. He would talk to the
secretaries, but he wouldn’t talk to me at all. I mean, he
just didn’t talk to me at all. It was no talking.
Q Would you know why the periods of lack of
communication began?
A Would I know why, no.
Q And would you know why they would end?
A No.
Q And they could last sporadically for period of time
and it was up to him about how they long they lasted?
A Yes.
* *
[147] Q Now you stated that the abuse began when
you were pregnant with your third child. What forms
other than the silence did the abuse take?
A Well, the abuse escalated when I became pregnant
with my fourth child. And at that time the abuse
became physical and verbal. For instance, I can
remember being pregnant and being quite large in the
381
belly and being thrown against the kitchen sink and
being afraid of losing my baby.
Q Now were there any injuries sustained when he
threw you against the sink at that point in pregnancy?
A I didn’t go to the hospital, I was just very sore from
that.
Q Did you start to miscarry in any way at that point?
A I had spotting.
Q Did you have cramping at that point? Were you
[148] fearful --
A I remember the spotting and I was -- yeah, and I laid
down and I was afraid for a few days that I might lose
the baby. He didn’t want that baby either.
Q At any point was there physical abuse to you by your
husband?
A Well, after - at that time, that’s when it started
getting very physical, until I - from that period, which
was - I had that baby in 1980 at Christmas - from that
period until the end of the marriage, it became very
physical.
Q When you say physical, what do you mean?
A I can remember being thrown on the floor in the
kitchen and being kicked around with his feet. I can
remember being drug from the back room of the office
and thrown down the cellar steps while the secretaries
were there. I can remember being thrown against the
cellar door and smashing my face on the cellar door.
Usually when he hit me it was -- it was either he
threw me or he hit me a lot. I remember being, you
know, hit with his fists in my chest a lot.
Q And when you say he hit you a lot, where would he
hit you?
A Mostly in my chest or if he would throw me on the
floor, he would kick me in my legs.
Q Did you ever -- were you ever required to seek
medical [149] attention as the result of the abuse?
3 8 2
A Yeah, I went to the hospital several -- on several
occasions.
Q Do you recall how many times you went to the
hospital?
A I went to the hospital at least five times.
Q Now when you would go to the hospital, what would
you tell the hospital about how the injuries were
sustained?
A Well, four times that I went to the hospital I would
tell them that I walked into a door.
Q Now where do you live, what county?
A I live in Monroe County.
Q And is — can you describe for the Court what kind of
area Monroe County is?
A It’s a small town. It’s a small town, it’s rural.
Q And the hospital that you went to, was it the same
hospital every time?
A Yes.
Q And did they know you at the hospital?
A People -- I knew lots of people at the hospital, lots
of people knew me and my husband.
Q And the people that you saw in the emergency room
each of the times that you went were the same?
A Not always the same people, but people from the
town.
Q And each occasion you told them that you had what?
A Walked into a door.
[150] Q At any point that you went to the hospital to
seek medical attention, did you ever tell them that you
had been hurt by your husband?
A The last time that I went, when he threw me into the
door and I thought my nose was broken. I waited about
three days and I went to the hospital, I went to the
emergency room.
And I decided I’m going to tell the doctor what
happened. And the doctor said what happened and I
383
said my husband threw me into the door in the kitchen
and I think my nose is broken. And he looked at me
and he said you’re not going to get a free nose job out of
this and he left the room.
Q And that was his full and complete response?
A They x-rayed me and a nurse came in later and said
it’s not broken, you can go home.
Q Now, let me ask you this. Prior to the time -- on the
fifth time that you had gone to the hospital, had you ever
asked for help for the abuse within your family?
A No.
Q Aiid why not?
A Because I was embarrassed, it was kind of
embarrassing to me and degrading to me and also I was
afraid of how he would react if he found out that I was
telling people about our secret, about what he was doing
to me.
Q Ajid what were you afraid of?
[151] A I was afraid of more abuse.
Q At the time that you told the doctor the first time,
what was your reaction after he reacted in the way
you’ve testified?
A My reaction was that what I suspected was true, that
nobody would believe me or that if they did, they would
feel it was my fault anyway.
Q When was the next time that you asked for help
after this fifth trip to the hospital?
A Well, I left my husband in 1984, October, and I
didn’t go -- I didn’t seek any help until 1987.
Q So would it be fair to say that it was approximately
three years after -
A Yes.
Q — this trip to the hospital that you sought additional
help?
A Yes.
Q Now let me ask you this. Was there ever an
38 4
occasion when your husband would abuse your children?
A My husband beat my children. He would -- he
would kind of -- he and I would get into a fight -- a
verbal disagreement and sometimes he would divert it
away from me onto them and the next thing I would hear
him down in the basement where they had their room
hitting them with whatever he hit them with, usually an
object.
[152] Q Now I didn’t ask you this before, but at the
height of the abuse, about how frequently did it occur, to
you?
A At the height?
Q Yes.
A Oh, about once a week.
Q And how about to your children, how frequently did
it occur at the height of the abuse?
A Probably about once every two or three weeks.
Q Now I’m interested about your husband’s responses
to the pregnancy. Now you stated at the first pregnancy
he wanted you to have an abortion; is that correct?
A Well, my first -- no, my first pregnancy with him he
wanted the baby. My second pregnancy with him, he
insisted that I have an abortion.
Q And how about your third pregnancy with him?
A The same thing, he wanted me to have an abortion.
He did not want another baby.
Q And the instances of silence that you described, did
that occur with your third child - or with your -- I’m
sorry, your fourth pregnancy also?
A Yes.
Q And how long did they last after notifying him of the
fourth pregnancy?
A The silence?
Q Mm-hmm.
[153] A With the second one it wasn’t as bad as with the
third, but probably about 10 days. But that -- what kind
385
of happened later was he just kind of ignored the child
when it came and didn’t help a bit or participate.
Q Now was there ever a time besides telling the doctor
at the hospital that you call the police for assistance?
A Yes, after I -- well, after I left my husband, I got a
protection from abuse order and I called the police on
several occasions. One time I called and they said that
they had lost the order and we would have to wait till
Monday. Another time I called and they said the order
had expired and we would have to wait until my lawyer
called them Monday. They were pretty non-responsive.
One time I -- my husband and I were talking on the
phone and he said I’m coming to your house with a gun
and I got really scared and really nervous and I thought
he would really do it and I called them and I had a PFA
and I talked to the State Police and told them what was
happening and they said - the gentleman said to me, call
me when you’re dead, honey.
Q Was there ever an occasion that your husband beat
your children or abused your children after you had left
him?
A Yeah, one occasion in particular that was really bad
was after I had left, my one - my first son, who my
husband had adopted, was staying with his father and he
was beaten with a [154] vacuum cleaner and he was -- I
describe it as not black and blue but purple from here to
his feet.
Q And when you say here, can you explain to the Court
A From under his neck, from his whole chest, his back,
his here, his legs and to his feet.
Q Now you stated for the Court that you were in the
contracting business with your husband. About how
much money, approximately, per year did the two of you
earn?
A We were making a lot of money. On our last year
3 86
together we netted close to 200,000.
Q At the point that you left, did you take any money
with you?
A I took $25,000.
Q And did you keep that $25,000?
A No, my attorney advised me to return it, that I would
be getting support and that I should return it and I did.
Q From the time that you left until you obtained child
support, how long a period of time was that?
A From the time I filed for child support until I
obtained it was 18 months.
Q Did you receive any child support from your husband
during that period?
A No, not during those 18 months, no.
Q And once you got child support -- let me just ask this
first, to your knowledge, did your husband’s income
remain [155] approximately the same?
A Yes.
Q And about how much child support did you get after
you obtained an order of support?
A The final order that I got after the 18 months I
received $125 a week.
Q And that was for all four children?
A That was for all four children.
Q Now are you employed?
A I’m employed now, yes.
Q And where are you employed?
A I am employed by Women’s Resource of Monroe
County, Incorporated.
Q And what is that?
A It’s a non-profit organization that provides services
to battered women and children in domestic violence
situations and sexual assault victims.
Q Before I get into your job duties, I do have one
futher question about the abuse.
A Mm-hmm.
38 7
Q At any point during your marriage, did your husband
force you to have sex?
A Yes, he did.
THE COURT: Would you speak a little louder?
THE WITNESS: I’m sorry, yes, he did.
[156] BY MS. KOLBERT:
Q And when was the first time that you told any person
about that?
A The first time I told any person about that was last
week.
Q Okay and was that in response to my questions to
you?
A Yeah, I told you.
Q Now in your job as a — with Monroe County
Women’s Services, what are your responsibilities?
A I’m a counsellor, so I counsel the women and
children in domestic violence and sexual assault, such as
-- such as rape, incest, marital rape and under domestic
violence we work with women that are physically,
mentally, emotionally battered and abused.
I also do -- I also do PF -- protection from abuse
accompaniment to the courthouse and I shelter women
that need safe housing and I do crisis intervention also.
Q And approximately how many people do you speak
with per year in this capacity?
A Well, I also -- I work in the office and I work
hotline, on the hotline, last year I personally did over 600
hours with women. The year before I did over 600
hours.
This year - this past year in the office, I probably up
to about 1300 hours.
Q Now to the best of your recollection, are some of the
[157] stories that you hear on a daily basis in that job
similar to those of your own?
A Yeah, a lot of times it hits very close to home.
Q And as a general rule, would it be fair to say that the
3 88
women that you speak with have difficulty consulting you
about their abuse?
A A lot of women call for appointments and can’t get
in. A lot of women that finally do get in talk about their
fear of being found out for having come to us. A lot of
women that I talk with are not allowed out of the house
unless their husband is with them, so ...
Q Now when you say they’re not allowed out of the
house, what do you mean?
A I have talked to many, many, many women that can’t
even go to Wawa without their husband along with them.
So they call on the phone and they don’t know how
they’re ever going to get in to see me. Sometimes I do
phone appointments with those women.
* * *
[158] Q Is Monroe County Women’s Center where
you are working a member of the Pennsylvania Coalition
Against Domestic Violence?
A Yes, we are.
Q And can you tell the Court what that organization
is?
A That’s an organization - that’s a coalition of
organizations that provide services to battered women
and children.
Q And do you have knowledge about the numbers of
women that the full coalition provides services to each
year?
A In our most recent fiscal year, which ended in June,
the coalition provided services -- 400,000 service hours to
70,000 people, both women and children.
MS. KOLBERT: If I may have a minute?
(Pause in proceedings.)
BY MS. KOLBERT:
[159] Q Now Ms. Dillon, you testified that you
3 89
stayed with your husband for a period of almost five
years after the abuse began. Can you tell the Court why
you didn’t leave?
A Well, one reason why I didn’t leave was because I
had four small children and I had put a lot of effort into
the business that we had together. We were finally, after
eating beans for a long time, making some money. It
was real hard for me to face leaving that and having no
job skills, no education.
MS. KOLBERT: Your Honor, may I approach the
witness?
THE COURT: Yes.
(Pause in proceedings.)
BY MS. KOLBERT:
Q Ms. Dillon, I’ve just opened the notebook in front of
you to document 49, page 44, which is a listing of social
service agencies within Monroe County that is included
within information that the Department of Health has
prepared that provides social services to pregnant
women. Can you look over that list for me?
A I can look over it, there’s only four listed here.
Q And are there other services within Monroe County
that would be appropriate to help women who may be
pregnant?
A One of these listed here isn’t in Monroe County, it’s
in Scranton. And there are many more social service
agencies in [160] our area.
Q Okay.
A That should be listed or could be listed.
Q And what would some of those include?
A Catholic Services, Lutheran Services, Women in
Crisis, Women’s Resources -
THE COURT: You must speak louder, please.
THE WITNESS: Okay, should I repeat them?
THE COURT: Yes.
THE WITNESS: Okay, Catholic Services, Lutheran
39 2
* * *
MS. KOLBERT: Your Honor, we will stipulate to
the number if it is helpful to counsel.
THE COURT: Will that -
MS. KOLBERT: Would that be helpful?
THE COURT: -- take care of the matter?
MS. MERSHIMER: I’d just like to know the
number.
MS. KOLBERT: The number is 59,912 battering
victims, 8,078 children and 4,042 significant others.
BY MS. MERSHIMER:
Q Now Ms. Dillon, do you know of those 59,900 -
were any [165] of those 59,912 battering victims, does
that include women, is that what it’s focusing on?
A Yes, that’s what it’s focusing on.
Q I mean, there’s just no men involved in that number?
A I personally haven’t worked with any men. I’m not
saying that there’s not one or two men in that number,
but --
Q Fine. Do you know how many of those battering
victims that were married?
A No, we don’t -- I don’t have that statistic.
Q And do you know -- so then you wouldn’t know how
many were married and pregnant?
A No, I don’t know that.
Q And you wouldn’t know how many were married,
pregnant and wanted to have an abortion?
A No.
* * *
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