Friday, February 3, 2012

Changes in medicine should prompt new limits on abortion

By Mark Osler

Editor's note: Mark Osler, a professor of law at the University of St. Thomas Law School in Minnesota, is a former federal prosecutor and the author of "Jesus on Death Row," a book about capital punishment.

(CNN) -- Thirty-nine years ago, Roe v. Wade was decided. With the passage of nearly four decades, the landscape of abortion has changed in a way that should trouble even those who consider themselves pro-choice.

Right now, 10 states and the District of Columbia have no statutory time limit on when abortions can be performed, while five more states allow abortion up to the end of the second trimester (about 27 or 28 weeks). Yet, we know that by 28 weeks, the great majority of fetuses would survive birth. In other words, we allow the killing of viable infants in our country. This is a fact that progressives (including me) would rather not address.

As two Maryland abortion doctors face murder charges for allegedly performing late-term abortions, the issue now has a pair of human faces.

Drs. Steven Brigham and Nicola Riley were arrested after the discovery of what are alleged to be several viable fetuses in a freezer chest. The story only got stranger on New Year's Day, when a clinic apparently owned by Brigham burned to the ground in Florida. Important facts are still unknown, and the doctors have asserted their innocence regarding any late-term abortions.

There has been relatively little discussion of this case in progressive circles. It's no wonder that we would rather look away. The abortion debate has largely devolved into professional activists screaming at each other on television and at street protests. We don't want to be like those people.

We are also haunted by the ragged remains of the Supreme Court opinion in Roe v. Wade. Despite being disavowed by subsequent opinions and some of the individual justices, one part of that precedent lives on in the statutes of some states and the practices of several doctors: The assertion in Roe's majority opinion that "viability is usually placed at about seven months (28 weeks)."

The scientific claim that viability (the ability of a fetus to live outside the womb) "usually" occurs at 28 weeks has been undermined by medical advances over the past 38 years.

Children who would have died if born late in the second trimester in 1973 would more than likely live if they were born now. A Swedish study in 2009 found that preterm babies born late in the second trimester who are given intensive care survive at surprising rates: 53% of those born at 23 weeks live, 67% at 24 weeks, and by 25 weeks, 82% of the babies survive. (Sweden's health care system makes it possible to reliably track survival rates, but the type of care provided there is similar to that available in the United States).

In the same way that the law had to change to accommodate advances in DNA evidence that can exonerate those on death row, state laws must change to accommodate that with modern medical care, a child born at 27 weeks is very likely not only going to live, but live a fairly normal life.

We progressives tend to revere science, and there are few scientific proofs more convincing than those former preterm infants who live and thrive all around us. Though late-term abortions are only a small fraction of the total number of terminated pregnancies, it remains a defining issue for our society.
As someone who works against the death penalty, trying to save the lives of people who have committed murder, I have a moral obligation to set my feet, breathe in deeply and honestly admit that prosecutors are morally in the right to pursue cases where they believe viable fetuses are being aborted in violation of the law. A life is ended, and that is murder, if the facts so prove.

Some will see any accommodation on abortion as "appeasement" of conservatives, but this attitude is nothing less than the adoption of hard-line evidence-ignoring tactics that progressives so often (and properly) decry in groups such as the National Rifle Association. We may disagree about whether life begins at conception, but it is now irrefutable that life is viable at 27 weeks. To deny this plainly observable fact is akin to denying the existence of evolution or global warming.

Much as Troy Davis (who was executed in Georgia last year despite troubling exculpatory evidence) and Hank Skinner (who received a stay of his execution in Texas to allow DNA testing to be pursued) personified the problems with the death penalty, there are those who do so just as starkly when we ponder late-term abortion.

For me, that person is named Rees. On a hot summer day in Waco, Texas, his proud grandfather carried him across the street for me to meet, months after his birth at about 24 weeks. His eyes were clear in the Texas sun, he was wrapped in a blue-and-white blanket, and he was surrounded by love.

He was, and is, a person, and that matters as much as Troy Davis and Hank Skinner.

Thursday, February 2, 2012

Abortion doc charged in 10 deaths

By Jim Walsh

A Voorhees doctor faces multiple murder charges in connection with late-term abortions that were performed at his Elkton, Md., clinic.

Dr. Steven Chase Brigham was being held Friday in Camden County Jail, pending extradition to Maryland. He is accused of 10 counts of first- and second-degree murder and one count of conspiracy to commit murder. The unborn babies of Brigham's patients are considered to be the murder victims, according to Elkton, Md., police.

Brigham already faced legal challenges from medical regulators over his practice of starting late-term abortions for women in New Jersey and then completing the procedures after the patients had traveled to the Maryland clinic. His medical license has been suspended in New Jersey and revoked in Maryland.

Maryland authorities said they began a criminal investigation after an 18-year-old woman suffered a life-threatening injury during a procedure at the Elkton clinic on Aug. 13, 2010. A doctor who worked at the clinic — Nicola Riley, 46, of Salt Lake City — drove the patient to a local hospital. The woman later underwent emergency surgery for a perforated uterus at Johns Hopkins Hospital in Baltimore.

Investigators learned the woman had been driven from Voorhees to the American Women’s Services clinic in Elkton, where Brigham and Riley were present when she was injured. A police search of the clinic four days later found about 35 fetuses in a freezer chest, authorities said.

Authorities provided no additional information about the case on Friday.

“We are not commenting at all on the charges,” said Kerwin Miller, a deputy state’s attorney in Cecil County, Md. “I don’t want to be in the position where we create any problems. This is too serious a case.”

Miller said an indictment in the case is expected to be available to the public next week.

The indictment charges Brigham with five counts each of first- and second-degree murder and one count of conspiring to commit murder. First-degree murder is charged in cases that involve premeditation, said Miller.

Riley, the other doctor at the clinic, also faces two charges of murder and one count of conspiring to murder. She was being held in a jail in Salt Lake City.

Both doctors were arrested on Wednesday night, Maryland officials said.

New Jersey authorities suspended Brigham’s medical license in November 2010, when the state Board of Medical Examiners said in part he had “provided grossly negligent care” to five women who sought late-term abortions. The state board also alleged Brigham had performed about 50 abortions in Elkton between January and August 2010 “without holding a license to practice in Maryland.”

An attorney for Brigham could not be reached for comment.

Abortion foes welcomed the arrest of Brigham, 55, who has been a target of their criticism for decades.

“We have called for the revocation of his license for all these years,” said Marie Tasy, executive director of New Jersey Right to Life. “We’re obviously thankful, and we can only hope that Brigham will never be able to hurt, maim or kill another human being.”

At the same time, Tasy said, “We’re troubled that he continues to own and operate (abortion) clinics throughout New Jersey.”

Tasy also noted Philadelphia authorities brought murder charges against an abortion provider, Dr. Kermit B. Gosnell, and several staffers at his West Philadelphia clinic. Gosnell allegedly performed abortions beyond the 24-week legal limit in a “decrepit and unsanitary clinic” and killed babies that were born alive by plunging scissors into their spinal cords, said a grand jury report.

“I think these two cases shine a bright light on what goes on inside the abortion industry,” asserted Tasy. “I don’t think they’re that isolated.”

But Vicky Saporta, president of the National Abortion Federation in Washington, D.C., has said Brigham’s activities “are not representative of abortion care…throughout the country.”

In a September 2010 blog post that addressed an investigation into Brigham’s practices by the Maryland Board of Physicians, Saporta said Brigham “has come under fire from state licensing boards and health departments throughout his career and has had his medical license temporarily suspended, relinquished or revoked in five states.”

“These repeated disciplinary actions make it evident that Dr. Brigham operates outside recognized standards for quality abortion care,” she said.

Voorhees abortion doctor free on $300K bond

By Jim Walsh

A Voorhees doctor, arrested last week on murder charges in connection with late-term abortions in Maryland, was released on bail Friday.

Steven C. Brigham posted bond of about $300,000 after an arraignment hearing in Cecil County, Md. A judge also unsealed an indictment that detailed Brigham’s alleged crimes — five counts each of first- and second-degree murder and one charge of conspiring to murder.

Authorities have accused Brigham and a second doctor at his Elkton, Md., clinic under a 2005 state law that allows a murder charge for the death of a viable fetus.

“To our knowledge, this is the first time a physician has been charged under this statute,” said Brigham’s lawyer, C. Thomas Brown of Elkton, Md. The attorney asserted Brigham, 55, “has not violated any laws,” but said he needs more information from the state “to determine the specifics of these charges.”

Prosecutors, who have drawn fierce criticism from defense attorneys, refused to comment. A copy of the indictment could not be obtained Friday.

Brigham already faced legal challenges for a controversial two-state abortion procedure at his American Women’s Services clinics. Authorities said he tried to skirt regulatory restrictions by starting late-term abortions at clinics in Voorhees and other sites in New Jersey, then completing the procedures after his patients had traveled to the Elkton site.

A criminal investigation began after an 18-year-old woman suffered a life-threatening injury during a procedure in Elkton in August 2010. A doctor at the clinic — Nicola Riley, 46, of Salt Lake City — drove the teenager to a local hospital, and the patient later underwent emergency surgery at Johns Hopkins Hospital in Baltimore.

A police search four days later found 35 fetuses in a freezer chest at the clinic, authorities said.

Brigham and Riley were arrested in their home states on Dec. 28.

Riley remains in custody in Utah, where her lawyer said she’s being held in “a Kafka-esque limbo.”

The attorney, Daniel Goldstein, said the charges against Riley remain under seal, leaving her unable to prepare a defense. Riley’s attorneys have asked a judge to find a Maryland prosecutor and Elkton’s police chief in contempt because they discussed the case with reporters while the indictment was under seal.

“She cannot reasonably respond to the bald and false allegations in the media without knowing the details of the acts charged,” her attorneys said in a court brief. They contended the prosecutor’s actions were “a ploy to gain traction on a hot-button political issue in the media and with public opinion.”

New Jersey authorities suspended Brigham's medical license in November 2010 for allegedly providing “grossly negligent care” to five women who wanted late-term abortions. The state Board of Medical Examiners also asserted Brigham had performed about 50 abortions at the Elkton clinic between January and August 2010 “without holding a license to practice in Maryland.”

Earlier this week, another abortion clinic owned by Brigham in Pensacola, Fla., was heavily damaged in an arson fire. A 41-year-old man was arrested and charged in that case.

Reach Jim Walsh at (856) 486-2646 or jwalsh@gannett.com

Abortion doctor's lawyers seek dismissal of murder charges

By Ben Nuckols

WASHINGTON — Lawyers for a South Jersey abortion doctor charged with murder in Maryland for the deaths of five fetuses have asked a judge to dismiss the charges, arguing that prosecutors lack jurisdiction because the deaths occurred in New Jersey.

Dr. Steven Brigham, 55, of Voorhees, lost his New Jersey medical license in 2010 after regulators discovered an arrangement under which he would begin second- and third-trimester abortions in New Jersey, and then have the patients drive themselves to Maryland the next day to complete the procedures.

His attorneys argued in a motion filed last week that the arrangement protects him from criminal prosecution in Maryland because Brigham administered drugs that killed the fetuses while the patients were in New Jersey. He then extracted the fetuses at his clinic in Elkton, Md., a small town in the northeast corner of the state.

Brigham’s lawyers also argue that he is immune from prosecution under Maryland’s fetal homicide law, which was intended to apply to people who kill or do physical harm to pregnant women, causing fetal death. The law includes exemptions for physicians administering lawful medical care, and Brigham’s attorneys say using it against an abortion doctor interferes with a woman’s constitutional right to terminate a pregnancy.

“By bringing these charges, the state has placed a chilling effect on doctors who perform abortions and thus will inhibit women from finding doctors who perform abortions even if the procedure is necessary to protect the life or health of the woman,” attorneys Nancy Forster and C. Thomas Brown argue in their motion.

Cecil County State’s Attorney Ellis Rollins declined to comment Monday.

Prosecutors have made few public statements about their rationale for the charges, although Rollins has acknowledged they are in uncharted territory. Experts on both sides of the abortion debate say it is highly unusual, if not unprecedented, to charge an abortion doctor with murder under a fetal homicide law. Thirty-eight states have such statutes.

At a bail review hearing earlier this month in Cecil County Circuit Court for Brigham’s co-defendant, Dr. Nicola Riley, Deputy State’s Attorney Kerwin Miller suggested that prosecutors believe any death of a viable fetus to be homicide, regardless of the circumstances.

“The law is clear that it is unlawful, as a matter of fact it is homicide, when you kill a viable fetus,” Miller said, according to a transcript of the proceeding. “So an abortion on a viable fetus is not a lawful procedure, is not lawful medical care.”

In their motion, Brigham’s attorneys also take issue with prosecutors’ characterization of the fetuses as viable, arguing that the state has no right to interfere with a doctor’s judgment about the need for an abortion.

Maryland’s fetal homicide law, the attorneys argue, “leaves the determination of viability to the ‘best medical judgment of the attending physician.’ If a doctor determines that the fetus is not viable, for whatever reason, and the state disagrees with that determination, under their theory, the doctor can be charged with fetal homicide.”

Doctors generally consider fetuses to be viable outside the womb starting around 23 weeks. Prosecutors have not detailed how they determined the viability of the five fetuses Brigham is accused of killing. One of them was known to have been aborted at 21 weeks.

Riley, Brigham’s former colleague, also has been charged with murder in the death of that 21-week-old fetus. Her attorneys also have argued that she is immune from prosecution under the fetal homicide law. Both Brigham and Riley, of Salt Lake City, Utah, are free on bond.

In the case that led to charges against both Brigham and Riley, the patient suffered serious injuries, and Riley drove her to a nearby hospital rather than call 911. That case alerted medical regulators to Brigham’s unusual arrangement, which authorities described as an effort to take advantage of Maryland’s more permissive abortion laws. Brigham was not licensed to perform abortions after the first trimester in New Jersey.

In Maryland, licensed physicians can perform abortions before the fetus is deemed capable of surviving outside the womb, and abortions of viable fetuses are permitted to protect the life or health of the mother or if the fetus has serious genetic abnormalities.

Friday, July 8, 2011

Problems with N.J. late-term abortion business similar to Pa.'s

By Marie McCullough

Inquirer Staff Writer

The arrest of West Philadelphia abortion doctor Kermit Gosnell on charges of murdering a patient and seven newborn infants has thrown an unusual spotlight on Pennsylvania regulators who, a Philadelphia grand jury concluded, "should have shut him down long ago."

But Pennsylvania's system of oversight - or lack of it, in the grand jury's view - may not be unusual.

For five months last year, New Jersey regulators received complaints that abortion doctor Steven Brigham, 54, was running a secret, cash-only, late-term abortion business using a risky interstate scheme - one for which he was disciplined in the 1990s.

Just as in the Gosnell case, regulators took no public action against Brigham - until a police raid forced them to.

New Jersey officials declined to comment for this article, as did the law firm representing Brigham.

Prosecutors, public health experts, and others say these cases illustrate a host of problems, including a feeble complaint system, spotty clinic inspections, poor communication among oversight agencies - and the reluctance of doctors to punish their own.

"In general, the discipline of doctors in this country is a disaster," said physician Sidney Wolfe, director of health research for Public Citizen, a consumer-advocacy group.

In Public Citizen's annual look at rates of serious disciplinary actions by state medical boards, New Jersey and Pennsylvania rank among the least aggressive, having acted against fewer than three in every 1,000 physicians between 2007 and 2009.

Beyond patient safety, abortion regulation is tangled in moral, political, and commercial issues.

Consider that Brigham's latest travails - license suspension in New Jersey and a criminal probe in Maryland - have not halted his abortion enterprise, called American Women's Services. The toll-free phone lines are taking calls for its clinics in New Jersey, Pennsylvania, Maryland, Virginia - and a recent addition, Pensacola, Fla.

"Businesses aren't regulated that well, but they should be, especially businesses that affect the public health and well-being," said Leonard Glantz, a health law professor at Boston University.

More dangerous

Abortion goes from being brief and low-risk for the mother during the first three months, when the fetus is tiny, to being increasingly dangerous as the fetus grows.

At about 15 weeks - long before the full-term point of 38 weeks - abortion is a protracted process. The first day, the fetal heart is given a lethal injection, and the woman's cervix is slowly dilated using absorbent rods. The next day, the woman receives labor-inducing drugs, then undergoes surgery to remove the fetus, intact or in pieces.

Recognizing the incremental complexity, the New Jersey Department of Health and Senior Services has a two-tiered system. Abortions through 14 weeks can be done in the equivalent of a doctor's office, no license necessary. Beyond 14 weeks, the facility must be licensed as an outpatient surgical center, complete with an ambulance service, biennial inspections, and a highly trained doctor.

None of Brigham's six New Jersey clinics is licensed to do surgery, so, rather than lose business, he evaded the rules, prosecutors say. He initiated late-term abortions in Voorhees; the next day, he led car caravans of patients, in labor, to Elkton, Md., for surgery.

In Pennsylvania, the jury found, outpatient-surgery centers are covered by 50 pages of safety rules, including regular inspections. However, regulators have chosen to interpret the law as not applying to abortion facilities.

Regulators, the jury report says, "have tied their own hands and now complain that they are powerless."

A year ago, after the raid that revealed awful conditions at Gosnell's clinic, Gov. Ed Rendell ordered a resumption of annual inspections, which had not been done for 15 years. Of the state's 20 freestanding clinics, 14 have been ordered to fix problems, none egregious.

Viable fetus

Pennsylvania - like 40 other states, but not New Jersey - outlaws abortion after 24 weeks, the point when the fetus usually becomes "viable," able to survive outside the womb. The U.S. Supreme Court ruled that abortion of a viable fetus may be banned unless it is necessary to save the woman's life or health.

Understandably, there is confusion about what is and isn't legal. Gosnell's patients testified that they did not realize their post-viability abortions were prohibited.

They also testified that because they were anesthetized, they didn't know he delivered their fetuses alive, then killed them by severing their spinal cords with scissors.

Why this gruesome deviation from the standard practice of giving the fetus a lethal injection in the womb?

Gosnell's employees said that he tried giving injections, but that his shots missed the target, so he gave up.

Relying on complaints

Regulators say that to protect the public, they rely on complaints from patients, employees, even reporters.

"We're all pretty much complaint-driven" in the United States, said William L. Harp, executive director of the Virginia Board of Medicine. "When a complaint comes in, then we have ability to investigate."

In Brigham's case, just as in Gosnell's, complaints were not enough.

Elizabeth Barnes, director of Cherry Hill Women's Center, a South Jersey abortion clinic, said she wrote to New Jersey's medical licensing board in June 2009 detailing her suspicions that Brigham was starting third-trimester abortions in Voorhees and finishing them in a clandestine clinic, probably in Maryland.

In response, Barnes said, an investigator talked to her, off and on, for months. Yet no official action was taken against Brigham.

Barnes' suspicions should have rung bells. In the 1990s, Brigham did late-term abortions that straddled Voorhees and New York City.

In 1994, New York authorities took his license in that state for botching two abortions, one begun in Voorhees. They called him "undertrained," with "submarginal abilities" and "not the slightest recognition of his deficiencies." New Jersey prosecuted Brigham for those same cases, plus four more. But Brigham's appeals ultimately reached an administrative judge who found him "sincere" and "credible," and reinstated his license.

Brigham's latest contrivance became news in August after a New Jersey woman, 18, went to Elkton police.

She told them of her unexpected Aug. 13 odyssey from Voorhees to Elkton, of an abortion that left her so critically injured that she had to be airlifted to a Baltimore hospital for emergency surgery.

On Aug. 17, police raided the Elkton clinic - a storefront operation with no sign, that had opened about a year earlier - but could not find her medical records. They did, however, find 35 late-term fetal bodies and parts, none with records.

New Jersey subsequently suspended Brigham's license pending a revocation hearing in April. In Maryland, where he has never been licensed, authorities say a criminal investigation into possible felony charges is ongoing.

Abortion businesses

In most states, a doctor who is barred from performing abortions can still have an abortion business.

Brigham is an example. Although Elkton is closed, three American Women's Services clinics are open in Maryland. So are six in New Jersey, two in Virginia (where he has never had a license), and two in Pennsylvania.

People on both sides of the abortion debate say this shows the need for better interdepartmental and interstate communication, as well as ways to flag dubious corporate practices.

Jennifer Boulanger, executive director of the Allentown Women's Center, who has helped patients and others file complaints about care at American Women's Services clinics, said, "If a person owns lots of corporations at the same address for the same business, that should be a red flag for possible deceptive practices that warrant further investigation."

Corporate records connect Brigham to dozens of entities, including the Caring Corp. and the Peaceful Corp. Many use the Voorhees address, 1 Alpha Ave.

Last March, a new company that uses the Voorhees mailing address opened an abortion clinic in Pensacola, Fla., records show. The owner of the building is another new company that lists Brigham's wife, Krishni Dethabrew, as an authorized representative.

Florida revoked Brigham's license in 1995 after learning of New York's action.

"There is nothing in Florida law that would prevent Dr. Brigham from having part ownership in these entities," e-mailed Shelisha Durden, spokeswoman for the agency that oversees health facilities. "Unless there are specific allegations (such as practicing medicine in Florida without a license), there is nothing for the agency to investigate."

The Pennsylvania Health Department tried to get tough after repeatedly sanctioning Brigham for employing unlicensed caregivers.

In July, the department ordered him not to have an "equity interest" in abortion clinics or to "directly or indirectly" register any in the state. (He is appealing the order.)

But then the department proceeded to approve the new owner of his Allentown and Pittsburgh facilities: a new company headed by his mother, Judith Fitch, 71, of Toledo, Ohio. She hung up twice when called for comment.

Does the family tie defy the order?

Spokeswoman Holli Senior checked with agency lawyers, then e-mailed: "The department's decision does not apply" to Fitch's company.

Md. weighs abortion restriction

By BEN NUCKOLS • Associated Press • January 16, 2011

BALTIMORE — Maryland lawmakers will consider
legislation to ban the sort of interstate abortions
performed last year by a Voorhees doctor whose
license has since been suspended.

Dr. Steven Brigham operated an abortion clinic in
Elkton. New Jersey regulators suspended his license
after finding that he was starting late-term abortions
at his Voorhees clinic, then ferrying patients to
Maryland to complete the procedures in an apparent
bid to skirt New Jersey's more restrictive abortion
laws.

Delegate Michael Smigiel, R-Cecil, has introduced
three bills intended to prevent anything similar from
happening in the future. One would mandate that an
abortion begun in Maryland must be concluded in
the state except during an emergency.

Smigiel's law office is half a block away from
Brigham's clinic, and he said he was shocked to
learn what was going on there.

Brigham's practices first caught the attention of
Maryland regulators after a patient was hospitalized
with a ruptured uterus and small intestine. Brigham
was ordered to stop practicing without a license in
the state.

Smigiel's other bills would require that abortions be
reported to the Department of Health and Mental
Hygiene and mandate that patients who suffer
complications be transported by ambulance.

Another bill, sponsored by Delegates Adelaide
Eckardt, R-Dorchester, and Pamela Beidle, D-Anne
Arundel, would reclassify abortion clinics as free-
standing surgical facilities, subjecting them to
increased regulation. Current Maryland law allows
for abortions to be performed at ordinary doctor's
offices.

Abortion doctor's license temporarily suspended

By JIM WALSH • Courier-Post Staff • October 14, 2010

TRENTON — State regulators on Wednesday night
temporarily suspended the medical license of a
Voorhees abortion doctor.

The Board of Medical Examiners in its decision
called Dr. Steven Brigham a "clear and imminent
danger to the public's health, safety and welfare,"
according to an account from the state Attorney
General's Office.

Brigham's attorney, Joseph Gorrell, could not be
reached for comment.

The case now is to go before an administrative law
judge, who will hear arguments and review
evidence. The board will review the judge's initial
decision before making a final ruling, said Paul
Loriquet, a spokesman for the Attorney General's
Office.

The Attorney General's Office contends Brigham
improperly performed late-term abortions at his
Voorhees clinic. State rules limit abortions there to
women who are no more than 14 weeks pregnant.

Authorities said Brigham terminated pregnancies as
far along as 33 weeks by starting the procedure in
Voorhees. His patients then would travel a day or
two later to complete the process in Elkton, Md.

Brigham, who has run the American Women's Center
on Alpha Avenue since 1992, denied any
wrongdoing. He argued the abortion did not occur
until the fetus was removed in Maryland, and so
New Jersey's rules were not broken.

Officials moved against Brigham after one of his
patients, an 18-year-old woman, needed emergency
surgery in Maryland. A doctor working for Brigham
perforated the woman's uterus during an abortion
attempt in August, officials said.

The woman was one of five patients, each more than
14 weeks pregnant, cited by authorities in the case
against Brigham.

Brigham had a similar dispute with the state in
1996. Brigham prevailed at that time, Gorrell said.