Judge Asks Doctor if Fetus Can Feel Pain
Thu Apr 1, 8:02 AM ET
By LARRY NEUMEISTER, Associated Press Writer

NEW YORK - A doctor who performs abortions found himself quizzed by a federal judge about whether a fetus feels pain during a controversial abortion procedure and if the physician worries about that possibility.

The inquiry, at times graphic, came in U.S. District Court on Wednesday after lawyers on both sides had finished questioning Dr. Timothy Johnson, a plaintiff in one of three lawsuits brought to try to stop enforcement of the Partial-Birth Abortion Ban Act.

"Does the fetus feel pain?" Judge Richard C. Casey asked Johnson, saying he had been told that studies of a type of abortion usually performed in the second trimester had concluded they do.

Johnson said he did not know, adding he knew of no scientific research on the subject.

The judge then pressed Johnson on whether he ever thought about fetal pain while he performs the abortion procedure that involves dismemberment. Another doctor a day earlier had testified that a fetus sometimes does not immediately die after limbs are pulled off.

"I guess whenever I..." Johnson began before the judge interrupted.

"Simple question, doctor. Does it cross your mind?" Casey pressed.

Johnson said it did not.

"Never crossed your mind?" the judge asked again.

"No," Johnson answered.

Abortion-rights supporters are challenging the federal ban, the first substantial limitation on abortion since the Supreme Court's landmark Roe v. Wade decision.

The law has not been enforced because judges in New York, Lincoln, Neb., and San Francisco agreed to hear evidence in three separate trials without juries before deciding whether it violates the Constitution.

The simultaneous litigation centers on the ban of what lawmakers defined as "partial-birth" abortion and what doctors call "intact dilation and extraction" — or D&X.

In the procedure, a fetus is partially delivered and its skull is punctured. An estimated 2,200 to 5,000 such abortions are performed annually in the United States, out of 1.3 million total abortions.

Government lawyers say the law protects fetuses from pain during the abortion procedures that usually involve crushing the soft skull or draining brain tissue to shrink the fetus to a size in which it can be pulled from the body.

Doctors say the procedures decrease the frequency of surgical instrument insertions into a woman, eliminate the dangers that parts of a broken fetus might be left behind and give couples an intact fetus to grieve over.

In the Lincoln court, Dr. Joel Howell, a medical historian at the University of Michigan, testified that the federal ban targets procedures intertwined with the most common methods of terminating pregnancies.

Lawyers from the Center for Reproductive Rights contend that the ban is vague and could be interpreted as covering more common, less controversial procedures, including "dilatation and evacuation." An estimated 140,000 such procedures take place every year in the United States.

The San Francisco case was in recess Wednesday and resumes Thursday.

In the Manhattan courtroom, Casey also questioned Johnson about whether physicians warn women that a fetus is dismembered during an abortion.

"So you tell her the arms and legs are pulled off? I mean, that's what I want to know. Do you tell her?" Casey asked.

"We tell her the baby, the fetus, is dismembered as part of the procedure, yes," answered Johnson, a University of Michigan professor and research scientist at the school's Center for Human Growth and Development.

Casey asked Johnson if doctors tell a woman that the abortion procedure they might use includes "sucking the brain out of the skull."

"I don't think we would use those terms," Johnson said. "I think we would probably use a term like 'decompression of the skull' or 'reducing the contents of the skull.'"

The judge responded, "Make it nice and palatable so that they wouldn't understand what it's all about?"

Johnson, though, said doctors merely want to be sensitive.

"We try to do it in a way that's not offensive or gruesome or overly graphic for patients," Johnson said.