Abortion foes paid for court testimony
Texas AG rehired witnesses despite a string of losses
The Texas Attorney General has drawn on a network of anti-abortion advocates to defend the state’s abortion restrictions in federal court, spending half a million in taxpayer dollars for testimony that has done little or nothing to help the state make its case.
The attorney general’s office has paid 21 expert witnesses to testify in legal challenges to a string of abortion laws and regulations enacted since 2013. Judges disregarded the testimony of six of the state’s experts and gave little or no weight to the others, according to their rulings and comments in court.
In all five cases, judges temporarily blocked the laws from going into effect, pending full trials.
In dismissing the testimony of some of the state’s experts, judges said they lacked medical or scientific credentials, were unfamiliar with the challenged laws, or were simply expressing personal opinions. In one case, a judge said a state expert had “no substantive knowledge at all” about the matters in dispute.
Nevertheless, Attorney General Ken Paxton, an anti-abortion Republican, has hired some of the same witnesses to testify in new cases, and many of them serve as experts for other states, including Kentucky and Alabama, defending similar abortion restrictions in court.
One of the experts is a law professor who runs a boot camp for anti-abortion activists and is paid $650 an hour by the state. Another is a marriage therapist whose testimony about the psychological effect of abortions was thrown out by a judge in 1990 because the witness lacked “academic qualifications and scientific credentials.”
“An expert witness is not an advocate. An expert witness is bound by the obligation to tell the truth.” Charles Fried, law professor at Harvard University
Another expert is a philosophy professor who testified that health providers should pay to bury or cremate aborted fetuses because it’s beneficial to society. Still another is a physician who believes all abortions are unethical unless they’re necessary to prevent grave injury to the mother.
Three of the state’s witnesses remain under contract as Texas heads to court to defend another law restricting abortion later this month.
No law regulates who the state can hire as a witness, and parties in lawsuits typically engage experts they expect to testify favorably for their side. Judicial opinions and precedents, however, say expert testimony should rely on scientific, technical or specialized knowledge and conform to reliable research methods.
Expert witnesses for the abortion-rights side have included doctors who currently perform abortions in Texas. In their testimony, they have explained the procedures and how the new laws would affect their practice. Judges did not disregard their testimony or question their credentials in rulings reviewed by the Houston Chronicle.
The Texas Attorney General’s Office has typically called on doctors who do not perform abortions, along with antiabortion lawyers and ethicists who argue that the regulations are necessary to protect the unborn.
“An expert witness is not an advocate. An expert witness is bound by the obligation to tell the truth,” said Charles Fried, a law professor at Harvard University who argued the 1993 Supreme Court case that established the standards for using experts and scientific evidence in federal courts. Fried, a former U.S. solicitor general, defended anti-abortion policies in the Ronald Reagan and George H.W. Bush administrations.
“That’s the basic difference, and it is so often ignored. Expert witnesses often view themselves, and are often chosen, simply as additional advocates,” Fried said. “That’s the original sin.”
Marc Rylander, a spokesman for Paxton, said the attorney general’s office picks “an array of highly qualified and esteemed experts — some with pro-choice views — with multiple Ivy League degrees, numerous published articles, and years of hands-on practice in clinical and academic settings.”
Rylander did not provide the names of state witnesses who support abortion rights, and none of the state’s experts has voiced such views in court.
‘No credibility’
In 2013, Texas banned abortions after 20 weeks and limited the use of an abortion drug. The same year, lawmakers also required doctors who perform abortions to have admitting privileges at a nearby hospital and required abortion clinics to meet the standards of ambulatory surgical centers. The new laws forced about half of the 41 clinics in Texas to close.
The 2017 legislative session brought more restrictions, including a law requiring health care facilities to bury or cremate fetal remains from abortions or miscarriages. Proponents said the law would ensure a dignified resting place for fetuses; opponents said it was designed to punish women and add to the cost of abortions.
Planned Parenthood and Whole Woman’s Health, Texas’ largest abortion providers, have sued the state five times to challenge the restrictions.
The state has appealed all of the rulings that temporarily blocked its laws. Four appeals are pending; the fifth ended at the U.S. Supreme Court, where the laws blamed for closing half of Texas abortion clinics were struck down in 2016.
Jeffrey Bishop, a philosophy professor at Saint Louis University, testified in support of the rule that became the basis for the new burial law.
“The state has the responsibility to uphold the dignity of human beings,” Bishop said in court in 2017. “It seems to me that grinding and washing tissue down the drain that was at one time part of human life is not a dignified way of disposing of those materials.”
Bishop acknowledged that he had not read the state’s rule regulating the cremation or burial of fetuses because it was “very complicated to read.”
U.S. District Judge Sam Sparks temporarily blocked the law and lambasted the state for calling Bishop as a witness.
“He has no credibility with me whatsoever. He didn’t have any substantive knowledge at all about this case,” Sparks told the attorney general’s office during the trial. “He’s just giving an opinion.”
Bishop was paid $4,300 for his work on the case.
Discredited, rehired
In 2015, Texas moved to strip Medicaid funding from Planned Parenthood after a nationwide furor sparked by the release of videos made by an antiabortion activist who secretly recorded conversations with Planned Parenthood staff members.
The activist contended that the videos showed the abortion provider was selling fetal tissue for medical research.
Planned Parenthood denied the allegation and challenged Texas’ funding cut in court, saying the video did not accurately depict its practices.
Paxton’s office hired Carter Snead, a law professor at the University of Notre Dame, and Dr. Mikeal Love, an obstetriciangynecologist in Austin, as experts. The two have been called on numerous times to testify on the state’s behalf.
In the Planned Parenthood case, Snead spent half an hour explaining in federal court why, in his expert opinion, the video showed that Planned Parenthood employees were willing to violate ethical standards to provide fetal tissue for research.
“There is conversation in that video that one of the competitive advantages of Planned Parenthood Gulf Coast for the supply of fetal tissue is that they have a great deal of experience changing and altering the abortion procedure solely to fit the needs of the researcher,” Snead said.
Snead was still on the witness stand when Sparks said the testimony wasn’t relevant because Snead had no evidence Planned Parenthood had done anything illegal or unethical.
“I don’t think this gentleman is going to help me make a determination. … I am interested in what was done, not what was willing to be done,” Sparks said.
The judge temporarily blocked the state from cutting the funding; the state has appealed.
Six months later, Paxton hired Snead again to defend other abortion restrictions. Since 2016, the state has paid him more than $92,000 at a rate of $650 an hour.
Snead runs the Vita Institute, which bills itself as an “intellectual boot camp” for anti-abortion advocates. The weeklong camp features faculty from Notre Dame and other universities. The institute has trained “the senior leaders of the most high profile and important pro-life organizations from around the world,” as well as “grassroots activists” and “concerned citizens,” according to Vita’s website.
Love, the state’s most frequent witness, has collected $46,000 for his testimony in four of the cases.
In the Planned Parenthood case, Love testified that the Planned Parenthood medical director captured on the undercover video had expressed a willingness to alter an abortion procedure to collect fetal tissue for research.
Sparks indicated he would not give much weight to Love’s testimony, for the same reason he disregarded Snead’s — Love had no evidence of wrongdoing.
“Expert witnesses often view themselves, and are often chosen, simply as additional advocates. That’s the original sin.” Charles Fried, a professor of law at Harvard
“But he’s entitled to give his opinion one way or the other,” Sparks said.
Love did not respond to a request for comment.
In 2017 when Texas went to court to defend its law banning the most common procedure used in second-trimester abortions, it hired eight expert witnesses. Three were recruited by Snead and under cross-examination, they acknowledged participating in his anti-abortion boot camp. Rylander, the attorney general’s spokesman, said it’s not uncommon to “pay for services to locate appropriate experts.”
In the second-trimester abortion case, Snead was asked to compare Texas’ abortion laws to those of other countries. Snead said he reviewed the abortion laws of 194 countries and determined that the vast majority were more restrictive than those in Texas.
During cross-examination, lawyers for the abortion providers asked why Snead did not mention that other nations’ laws include exceptions that permit abortions if a woman’s mental health is at risk, if a husband dies during the pregnancy or if a couple decides to get divorced. Texas’ abortion restrictions do not allow such exemptions.
Snead acknowledged that there were exceptions in other countries’ laws, but said “that was beyond the scope of my analysis.”
Snead did not respond to requests for comment.
U.S. District Judge Lee Yeakel ruled against the state’s restrictions on the second-trimester procedure, calling them an “inappropriate use of the state’s regulatory power over the medical profession.”
Influence on testimony
In 2013, the attorney general’s office — then led by Greg Abbott, who is now governor — hired Vincent Rue as a “consulting expert” to find expert witnesses for two trials on abortion restrictions.
Rue is a marriage counselor with a doctorate in human development and family studies. He coined the term “post-abortion syndrome,” a mental health disorder that he said develops in men and women who “have been traumatized by their abortion experience.” The American Psychological Association and the American Psychiatric Association do not recognize post-abortion syndrome as a real condition. Rue has testified that he does not believe in abortions, even in cases of rape or incest.
Rue testified about post abortion syndrome in a Pennsylvania case in 1990. A judge dismissed the testimony, saying it was “devoid of analytic force and scientific rigor” and “not credible.” Rue has seldom testified in abortion cases since then.
Nevertheless, Abbott’s office hired Rue to recruit witnesses to testify in defense of Texas’ requirement that doctors must hold hospital admitting privileges in order to perform abortions.
Lawyers for Planned Parenthood and other providers obtained emails showing Rue had influenced the testimony of the people he recruited.
Deborah Kitz, a Pennsylvania health care consultant, was hired as an expert in managing medical facilities, collecting about $32,000. Under oath, she said no one helped her write her reports, but an email that she sent to Rue before the trial showed otherwise.
James Anderson, a family physician from Virginia, was paid $24,000 for his testimony. In court, he admitted that Rue helped craft his report by providing “wordsmithing” and some source materials.
A few months after Anderson took the stand in Texas, a judge in Alabama tossed out his testimony in another abortion case “due to concerns about his judgment or honesty.”
In the Texas case, Yeakel eventually threw out the testimony of all four experts recruited by Rue.
“The court is dismayed by the considerable efforts the State took to obscure Rue’s involvement with the experts’ contribution,” Yeakel wrote in his ruling.
Yeakel temporarily blocked the admitting privileges requirement in an opinion that was affirmed by the U.S. Supreme Court.
Rue and the four experts were paid a combined $172,700.