Commentary Abortion

Planned Parenthood Files Motion Questioning Medical Relevancy of Anti-Choice Witnesses

Kari Ann Rinker

In the motion, Planned Parenthood is attempting to force the prosecution to take into consideration standard care and best practice as viewed through the modern, professional lens of abortion care.  This motion stands as a direct challenge to the anti-choice practice of habitually and flagrantly calling medical ideologues “experts” and pointing to two-bit, outdated, non-peer reviewed studies as “science”.

It may seem as though Phill Kline’s name should only be resurrected within the context of  anti-choice history.  Phill should be allotted his earned chapter in the book recounting the fear and terror endured by providers and patients through the years, at the hands of politicians and terrorists… often one and the same. Phill may even be allotted multiple chapters, as his legacy shows how far down the rabbit hole one man can spiral, ultimately ruined by his fetal obsession. Unfortunately, Phill’s obsession not only ruined his career as a Kansas politician, but also contributed to the assassination of Dr. George Tiller.

Today, Mr. Kline’s zealotry is still playing out in a Kansas courtroom. The charges he brought in 2007 against Planned Parenthood of Kansas and Mid-Missouri stand as a prime example of how lengthy state court battles over abortion can become. This lawsuit is the first of its kind against Planned Parenthood, as it weighs criminal charges upon a health care provider.

Then Johnson County District Attorney, Phill Kline accused Planned Parenthood of performing post-viability abortions. Phill Kline is no longer DA, but the charges linger under the acting DA’s custody. The majority of the charges had previously been dismissed and this week, Planned Parenthood has requested that the remaining charges meet the same fate.  From the Kansas City Star:

Planned Parenthood is asking that the remaining charges be dismissed, contending that the witnesses’ testimony is irrelevant and that some of the charges are based on nothing more than a “reasonable medical disagreement.”

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

In court papers, Planned Parenthood pits its own witness, Maureen Paul, against the prosecutors’ witnesses. Paul is the editor of “Management of Unintended and Abnormal Pregnancy: Comprehensive Abortion Care.” Court papers describe the publication as the “standard medical text” on abortion practice.

The court papers detail what the physicians at Planned Parenthood did to calculate the gestational age of the fetus to determine viability. Planned Parenthood uses Paul to help make its case that it took the appropriate steps, arguing that prosecutors are relying on opinions that do not reflect what is “common, accepted or necessary practice” for physicians performing an abortion.

Planned Parenthood’s lawyers further contend that Goodwin and Gillett are not dealing with abortions so their circumstances are completely different from what happens at an abortion clinic.

In this motion, Planned Parenthood is attempting to force the prosecution to take into consideration standard care and best practice as viewed through the modern, professional lens of abortion care. This motion stands as a direct challenge to the anti-choice practice of habitually and flagrantly calling medical ideologues “experts” and pointing to two-bit, outdated, non-peer reviewed studies as “science”. 

Whether it be “fetal pain or the abortion/breast cancer “link,” or providing fetal viability testimony, anti-choicers are creative in finding their witnesses under whatever rock they lurk.  If they have any medical credentials whatsoever, they are deemed “experts in the field,” regardless whether their specialty has anything to do with women’s health, or whether their evidence is truly evidence or just anti-choice hyperbole wrapped in creative  medical terminology. 

The willingness of predominately anti-choice state legislatures to embrace such “evidence” as fact lies in the fact that elected officials are generally not physicians, nor are they lawyers… so the medical and legal basis with which such legislation is presented, no matter how dubious, is swallowed whole by a body that is just looking for cover so that they may pass their political football one more yard down the field. 

It is refreshing to see some examples of citizens with medical credentials stepping forward in many state legislatures to present factual counter to the claims of anti-choice medical zealots, but we need more of them. In Kansas, it remains difficult to find individuals to present factual medical testimony to counter the crazy talk. This isn’t due to lack of belief in the need for abortion care by the medical community. It is due to fear. Kansas is the land where physicians are shot for treating women in need of abortions and the mere mention of providing care brings death threats.  Abortion care is a field in which clinic landlords are stalked and harassed, which doesn’t bode well for any pro-choice physicians brave enough to provide testimony. 

Here’s to hoping that Planned Parenthood’s request for witness scrutiny is honored and that anti-choice ideologues are not allowed to be colored experts in a proceeding that should be put to rest as yet another chapter in the hateful saga of Phill Kline. 

News Law and Policy

Texas District Attorney Drops Felony Charges Against David Daleiden and Sandra Merritt

Jessica Mason Pieklo

The grand jury returned indictments against Daleiden and Merritt on felony charges of tampering with an official government document for purportedly using a fraudulent driver's license to gain access to a Planned Parenthood center in Houston.

UPDATE, July 26, 2:47 p.m.: This piece has been updated to include a statement from Planned Parenthood.

On Tuesday, the Harris County District Attorney’s office in Texas dismissed the remaining criminal charges against anti-choice activists David Daleiden and Sandra Merritt related to their production of widely discredited, heavily edited videos alleging Planned Parenthood was illegally profiting from fetal tissue donations.

The criminal charges against the pair originally stemmed from Republican Texas lawmakers’ responses to the videos’ release. Attorney General Ken Paxton, Gov. Greg Abbott, and Lt. Gov. Dan Patrick all called for the Harris County District attorney’s Office to begin a criminal investigation into Planned Parenthood Gulf Coast last August, after the release of one video that featured clinic staff in Houston talking about the methods and costs of preserving fetal tissue for life-saving scientific research.

A Texas grand jury found no evidence of wrongdoing by Planned Parenthood staff and declined to bring any criminal charges against the health-care provider. More than a dozen state and federal investigations have similarly turned up no evidence of lawbreaking by the reproductive health-care provider.

Instead, in January, the grand jury returned indictments against Daleiden and Merritt on felony charges of tampering with an official government document for purportedly using a fraudulent driver’s license to gain access to a Planned Parenthood center in Houston. Daleiden was also indicted on a misdemeanor charge related to trying to entice a third party to unlawfully purchase human organs.

A Texas judge in June dismissed the misdemeanor charge against Daleiden on procedural grounds.

“This meritless and retaliatory prosecution should never have been brought,” said Daleiden’s attorney, Peter Breen of the Thomas More Society, in a statement following the announcement that the district attorneys office was dismissing the indictment. “Planned Parenthood did wrong here, not David Daleiden.”

“Planned Parenthood provides high-quality, compassionate health care and has been cleared of any wrongdoing time and again. [Daleiden] and other anti-abortion extremists, on the other hand, spent three years creating a fake company, creating fake identities, and lying. When they couldn’t find any improper or illegal activity, they made it up. They spread malicious lies about Planned Parenthood in order to advance their anti-abortion agenda. The decision to drop the prosecution on a technicality does not negate the fact that the only people who engaged in wrongdoing are the extremists behind this fraud,” Melaney A. Linton, President and CEO of Planned Parenthood Gulf Coast, said in a statement emailed to Rewire after publication.

The district attorney’s dismissal of the felony charges against Daleiden and Merritt happened just before a scheduled court hearing requested by their attorneys to argue the felony indictment should be dismissed.

Daleiden still faces three civil lawsuits elsewhere in the country related to the creation and release of the Planned Parenthood videos.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.