Investigations Science

Is Anti-Choice Ideology Driving Malpractice Lawsuits? Byron Calhoun and the Phantom Fetal Skull

Imani Gandy

Now it looks like we can add “phantom fetal skulls” to the list of things Calhoun claims to see despite evidence to the contrary.

Read more of our articles on False Witness Dr. Byron Calhoun here.

To view the full False Witnesses gallery, click here.

In spring of 2013, Itai Gravely received what must have been an alarming phone call from a man named Dr. Byron Calhoun. A year earlier, Gravely had obtained an abortion at the Women’s Health Center of West Virginia to terminate a nine-week pregnancy. Calhoun was the physician who treated her at the Charleston Area Medical Center Women and Children’s Hospital (CAMC) the next day, for severe pain and bleeding, suffering what appeared to be complications from the abortion.

During that phone call, Calhoun told Gravely for the first time that when he had examined her at CAMC a year prior, he had found a 13-week old fetal skull in her uterus. In addition to giving Gravely this new information, Calhoun gave her the name and number of well-known anti-choice lawyer Jeremy Dys—a move that a West Virginia judge would later call “remarkable.”

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Calhoun kept one crucial detail from Gravely during that phone call, a detail that might have made her think twice before calling a lawyer: The pathology report which was conducted after her treatment at CAMC established that there was no fetal skull present in Gravely’s uterus, and contradicted Calhoun’s claims to the contrary. Calhoun had been presented with that pathology report long before he decided to pick up the phone and dial Gravely’s number.

Based on the evidence, it’s hard to avoid a conclusion that Calhoun—who did not reply to our emails seeking comment for this report—lied to Gravely, dragging the young woman and her most personal information into a bitter public fight over abortion care, using her as a prop in his own ideological campaign.

But why would Calhoun do such a thing? For an answer to that question, we must recall what was going on with the abortion debate in West Virginia in the spring of 2013.

At the time Calhoun made that questionable phone call, anti-choice forces were doing all they could to capitalize on the Gosnell trial, and in particular, to find evidence of more “Gosnells” around the United States. Calhoun was a part of this effort. He is among the nation’s most prominent anti-choice OB-GYNs and is a member of multiple organizations that work to strip away the constitutional right to legal abortion.

It’s not a stretch, then, to surmise that by giving Gravely the name and contact information of an anti-choice lawyer, Calhoun was hoping to spur a lawsuit that would cast abortion in a negative light.

Within months, it seemed that Calhoun’s efforts had succeeded. On June 7, 2013, Gravely filed a lawsuit against the abortion clinic and Dr. Rodney Stephens, the physician who performed the abortion. West Virginia’s anti-choice attorney general, Patrick Morrisey, jumped on the bandwagon less than two weeks later; he sent letters to the state’s abortion providers seeking “information” about their policies and procedures. All of this was part of Morrisey’s public case to “review” West Virginia’s regulation of abortion.

If it’s hard to believe that a doctor would take advantage of a patient in this manner to further his ideological goals, consider what we already know about Byron Calhoun.

Calhoun, a professor and a vice chair at West Virginia University’s Department of Obstetrics and Gynecology, is a member of Rewire’s gallery of False Witnesses, a group of anti-choice doctors and scientists known for promoting junk science and using false statements to undermine access to abortion.

We know that Calhoun wrote a letter to attorney general Patrick Morrisey in June 2013 claiming an extraordinarily high number of cases involving abortion complications in West Virginia.

“We commonly (I personally probably at least weekly) see patients at Women and Children’s Hospital with complications from abortions at these centers in Charleston,” he wrote.

And finally, we know that claim turned out to be a lie. As Rewire reported in 2013, months after Calhoun made his claims public, S. Andrew Weber, the vice president and administrator of the hospital, found the charges to be false. Weber found five documented complications from abortion in 2012, not the weekly complications that Calhoun claimed to have seen.

Now it looks like we can add “phantom fetal skulls” to the list of things Calhoun claims to see despite evidence to the contrary.

The question now is whether the new administrator at West Virginia University will continue to allow this ideologue with a track record for mistakes, at best, and dishonesty at worst, to continue teaching students and attending to women in West Virginia.

The facts of Gravely’s lawsuit are sad and will hopefully impel the administrator to terminate Calhoun in order to protect the health and safety of pregnant people in West Virginia.

The lawsuit told the story of a young woman persuaded to undergo an abortion by overzealous doctors who ignored her demands to stop the procedure, and physically restrained her so they could finish the abortion against her will.

The lawsuit described the “near tortuous pain” that Gravely endured because the clinic allegedly didn’t sedate her properly.

The lawsuit also described the desperation Gravely felt when, after experiencing bleeding and pain for more than 24 hours, she called the clinic to explain her symptoms. Although clinic personnel encouraged her to return to the clinic for a follow-up, Gravely said she could not afford the cost of transporting herself back to the clinic, so instead she called an ambulance to take her to the local emergency room. That’s where she encountered Calhoun.

Gravely declined to speak to Rewire for this story.

Calhoun performed an ultrasound on Gravely, and what he saw—or didn’t see—on that ultrasound image would become a crucial element of the case, going directly to Calhoun’s competence and credibility.

According to the lawsuit, Calhoun claimed that he saw a 13-week fetal skull in Gravely’s uterus when he reviewed the ultrasound, after which he ordered Gravely to undergo emergency dilation and curettage (D and C) surgery to evacuate “the remaining, degenerating, ‘products of conception’” from her uterus.

At the time, there was no mention to Gravely about a skull remaining in her uterus.

Perhaps that is because, according to the pathology report that was done after Gravely’s emergency D and C, there was no fetal skull present in her uterus.

Despite being presented with this pathology report—which clearly contradicted his claims about finding a fetal skull—Calhoun nevertheless called Gravely a year later and told her that surgeons had removed a fetal skull from her uterus.

It is important to highlight the effect that this phone call, and the subsequent lawsuit, had in undermining reproductive rights in West Virginia, and to make it clear that that was exactly what this lawsuit was intended to accomplish.

The day after Dys filed the lawsuit on Gravely’s behalf (in partnership with well-known anti-choice group Alliance Defending Freedom), he held a dramatic press conference across the street from the Women’s Health Center. Notably, Gravely did not attend the press conference.

As expected, the anti-choice media seized on the story.

“Botched Abortion Leaves Baby’s Head Inside Mother’s Womb!” screamed one headline on Life News at the time the lawsuit was filed.

“Abortionist forced young woman into procedure, left ‘parts’ in her womb,” read another headline at Live Action News.

Not two weeks after the lawsuit was filed, the attorney general himself weighed in, using Gravely’s case to leverage political capital in his campaign to roll back access to safe and legal abortion care in West Virginia.

“Ms. Gravely’s lawsuit has revealed potential gaps in West Virginia’s regulation of abortion clinics,” Morrisey wrote in a letter to Dr. Rodney Stephens demanding answers about the operations of Women’s Health Center of West Virginia, the clinic where Stephens worked. “What exactly happened to Ms. Gravely must still be investigated and resolved in court, but it is clear that larger questions about abortion regulation may also need to be addressed.”

“No one wants crimes similar to Gosnell’s to be committed in West Virginia,” he added.

Since the filing of the lawsuit and Morrisey’s ensuing inquisition, anti-choice legislators in West Virginia have stepped up their efforts by introducing more than 30 regressive laws, even overriding Gov. Tomblin’s veto to pass a 20-week abortion ban that is flatly unconstitutional.

It’s all the more egregious then to learn that Kanawha Circuit Judge Joanna Tabit tossed all of Gravely’s claims out of court, and in doing so, cast grave doubt about whether Calhoun had given a truthful account of what had happened in the emergency room that day—both in his call to Gravely, and in his sworn testimony.

Judge Tabit deftly swatted away every claim Calhoun made in service of Gravely’s lawsuit.

Calhoun claimed that because Gravely had revoked her consent to the procedure, Stephens should have stopped the abortion, and not physically restrained her. Tabit demolished this claim, pointing out that Gravely heard suctioning while she was lying on the operating table, and that “it is undisputed that once the procedure is initiated such that the surgeon has used suction, it must be completed.”

Calhoun also claimed that Stephens gave Gravely insufficient anesthetic, thus exposing her to severe pain. Tabit smacked down that claim too, noting that Gravely’s undisclosed heroin habit “may have caused later complications when pain-relieving measures were employed during the procedure.”

Calhoun testified that Stephens fell short of national standards requiring that a physician secure a patient’s informed consent when a pregnancy is terminated. Another swing and a miss. Under West Virginia law, physicians are not required to personally secure consent; they may delegate that duty to a licensed health-care professional or an agent of the physician, which is exactly what Stephens did. The court therefore found that Gravely had consented to the procedure after being properly informed of the risks.

Judge Tabit dismissed every single claim, even calling some of them “immaterial, and frankly, sensational.”

Her incredulity regarding Calhoun’s claims practically drips from the pages of her order, although she does stop short of stating that Calhoun made false statements about the fetal skull.

Still, the mystery remains as to how Calhoun’s statements that he saw a fetal skull can be reconciled with the pathology reports that indicated there was no fetal skull. How could Calhoun have gotten these facts so badly wrong?

That’s a question that his employers are now asking as they assess whether or not to retain him, according to the Charleston Gazette.

Rewire spoke with several abortion providers to try to understand these questions ourselves.

Calhoun could have misread an ultrasound of Gravely’s uterus, thinking that he was seeing a 13-week fetal skull when he was in fact seeing either microscopic air bubbles or what are known as “retained products of conception” from Gravely’s first procedure, abortion providers told Rewire.

“Retained products of conception” is a catch-all phrase that refers to anything remaining in a woman’s uterus from the pregnancy, including both maternal and fetal tissue such as small parts of the placenta or blood clots. It is possible, though very unlikely, that these tiny air bubbles could form a bright line on an ultrasound, resembling the cartilage of a fetal skull, and that’s what Calhoun saw.

That, however, is a particularly generous interpretation, according to Dr. Cheryl Chastine, a physician who provides abortion care.

“That’s very much a stretch,” she told Rewire. “A practicing gynecologist should know the difference.”

And a practicing gynecologist, such as Calhoun, who is also the vice chair of an obstetrics and gynecology department at a major state university, should definitely know the difference. The best reading of this scenario is that Calhoun made an honest but embarrassing mistake, one that was ultimately disproven by the pathology report, which indicated that no identifiable fetal parts were present in Gravely’s uterus.

Another possibility is that Calhoun did find a 13-week fetal skull when he examined Gravely, but that by the time of Gravely’s emergency D and C, her body had naturally passed it.

But the timing makes this very difficult to believe, since Gravely underwent the D and C just four hours after she was admitted to the emergency room, meaning there was likely even less time between the ultrasound and the procedure. Because many of the court documents remain under seal, however, Rewire does not know whether there is any documentation that could support or rule out this possibility.

Even so, there is something deeply suspicious about Calhoun’s fixation on the fetal skull. Experts told Rewire that even if there were fetal parts in Gravely’s uterus, once they were removed, she was not in physical danger.

In addition, abortion providers said that they would have informed a patient that they had found retained products of conception at the time of the examination, but that naming the specific body parts smacks of an ideologically motivated attempt to be provocative.

Given the timing of this lawsuit—coming so quickly on the heels of the Gosnell verdict—and given that Calhoun is active in anti-choice circles, one wonders whether telling Gravely that he had found a fetal skull in her uterus was borne of his anti-choice ideology rather than true concern for his patient.

This brings us to that mysterious phone call.

None of the experts with whom we spoke could understand why Calhoun would wait a year before calling Gravely to tell her about the fetal skull.

“I’ve never heard of that, ever,” said Kim Chiz, the director of nursing at Allentown Women’s Center. “I’ve not heard of a circumstance where a physician waited a year and called a patient out of the blue. I wonder what his motives might be.”

Dr. Willie Parker, an independent abortion provider in Alabama and Mississippi who holds a faculty appointment at Northwestern School of Medicine, agrees. “If there was indeed a fetal skull, there should have been a pathology report, and that information would not and should not have been withheld from the patient,” he said. “That’s problematic,” he added.

Also, given Calhoun’s well-known anti-choice bias, it makes it difficult to believe that he would have found the fetal skull and said nothing at the time.

And as for connecting a former patient with a lawyer, experts told us that was unfathomable.

“I can’t think of any situation where I would tell a patient they should sue,” Parker told Rewire. “And certainly I have never had the capacity to provide a patient with the name of an attorney who would take the case.”

“It would be appropriate to tell a patient that the care was substandard and to have her records reviewed, but seldom would a physician conclude that they had enough facts to recommend a suit, or would feel comfortable facilitating one,” Parker continued.

“It’s unethical,” he added.

Even the judge found it odd.

“Approximately one year after he performed the D&C, Dr. Calhoun phoned the plaintiff and advised her that there had been a 13-week fetal skull in her uterus retained from the procedure at the clinic,” Judge Tabit wrote in her order. “Remarkably, he encouraged her to call a lawyer and provided the name and number of counsel in this case, Mr. Dys.”

Dys did not reply to our requests for comment for this report.

What if Calhoun invented a story about a fetal skull in an effort to push for increased regulation of abortion in West Virginia? What if he called up an emergency room patient that he had not seen for a year in order to feed her a lie about a fetal skull and manipulate her into filing a lawsuit, and then swore under oath, both in a deposition and in the screening certificate of merit, a key piece of evidence without which Gravely’s lawsuit could not have been filed, that he had seen a fetal skull?

Of course, lying to a patient is very bad, but knowingly presenting false evidence in a courtroom is another thing altogether.

To this extent, Calhoun joins Dr. John Thorp, another member of the False Witnesses Gallery, in a disturbing trend of walking a fine line between “mistakes” and perjury.

Margaret Chapman Pomponio, the executive director of WV Free, West Virginia’s largest reproductive rights advocacy group is demanding accountability for Calhoun’s behavior. Last week, Pomponio wrote an open letter to Dr. Clay Marsh, vice president and executive dean of West Virginia University’s Health Sciences Center, in which she called for Calhoun’s termination, describing Calhoun as “ruthless.”

Pomponio, who is pregnant with twins, wrote that she has been forced to seek care outside of Charleston at Marshall University’s Division of Obstetrics and Gynecology, and that she is aware that Calhoun has prevented other women from seeking care in their hometown as well, according to the Charleston Gazette.

“After discussion with my husband, we decided that I cannot take the chance that I might need specialized care by this man, as it is abundantly clear that he is unable to provide unbiased treatment or consultation,” Pomponio said.

Sharona Coutts contributed to this report.

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