DC Judge: ‘Truth’ About Aborted Baby Remains Not ‘Relevant’ to DOJ Case Against Pro-Lifers

By Mary Margaret Olohan Published on September 10, 2023

A Washington, D.C., judge has refused to allow pro-life activists to show photos of aborted, preemie-sized babies as evidence in court, as well as a video wherein a D.C. abortionist allegedly describes how he would allow babies to die if they survived his abortions.

Her refusal pertains to the case of Lauren Handy and four other pro-life activists, who were convicted by a D.C. jury last month of violating the Freedom of Access to Clinic Entrances (FACE) Act when they sought to prevent the abortions of unborn babies by blocking women from a D.C. abortion clinic, the Washington Surgi-Clinic, in 2020.

In the Aug. 3 order, Judge Colleen Kollar-Kotelly struck down Handy’s defense counsel’s request to enter the aborted baby pictures as evidence. The judge reasoned that “the truth” about how the babies were aborted is irrelevant to Handy’s case.

“Such photos are particularly incendiary and entirely distracting from the events at issue,” Kollar-Kotelly said. “The truth of the procedures related to the fetal remains are not, as Defendant concedes, relevant to this case.”

(Read judge’s order here.)

Handy and her fellow pro-life activists believe that the babies were illegally aborted by Cesare Santangelo using brutal partial-birth abortion techniques, which are illegal under the Partial-Birth Abortion Ban Act of 2003.

That legislation describes a partial-birth abortion as follows: “An abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child’s body until either the entire baby’s head is outside the body of the mother, or any part of the baby’s trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child’s skull and removing the baby’s brains) that the person knows will kill the partially delivered infant.”

This type of abortion is “a gruesome and inhumane procedure that is never medically necessary and should be prohibited,” the text of the law says.

Handy has said that she was motivated to stop abortions from occurring inside Washington Surgi-Clinic, located in downtown Washington, D.C., after she viewed an undercover video published by the pro-life group Live Action that allegedly showed Santangelo discussing how he would allow babies to die if they were accidentally delivered during abortions.

Santangelo has previously not responded to numerous requests for comment from The Daily Signal.

The pro-life activist’s defense counsel had petitioned to enter the pictures of the babies as evidence through an exhibit list dated July 7, Townhall’s Mia Cathell reports.

Kollar-Kotelly acknowledged that Handy believed that Santangelo and Washington Surgi-Clinic were aborting babies born alive. But the judge described aborted babies born alive through botched abortions as “undoubtedly unlawful under state and federal law.”

“Defendant claims that, at the time of the charged conduct, she subjectively believed that the clinic in question was conducting, evidently in addition to reproductive health services, what the Court will term ‘post-birth abortions,’ which are undoubtedly unlawful under state and federal law,” the judge said. “Based on this subjective belief, Defendant proffers that her sole intent in undertaking the charged conduct was to obstruct post-birth abortions, and not a reproductive health service.”

But the government argued that Handy couldn’t possibly have “held such a mental state,” Kollar-Kotelly said.

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The judge goes on to state that the court will not allow Handy to show photos of “expired fetuses” — ”or, in their telling, dead babies,” Kollar-Kotelly adds, suggesting she does not agree with this characterization of the deceased unborn.

And since the pictures of the aborted babies are from after the incident that the Justice Department is charging her with (the Oct. 22, 2020, incident), Kollar-Kotelly said the “unsupported allegations of post-birth abortion in these materials substantially outweigh any modicum of probative value.”

Similarly, the judge denied Handy’s request to show the Live Action video of Santangelo.

The video footage depicts the Live Action investigator asking Santangelo whether the baby might “move” if “it” were born alive, to which the abortionist allegedly told her, “That’s why I try and sever the umbilical cord first, and we wait for that to stop pulsing, and this way the fetus is expired first, so it doesn’t.”

“Has it ever survived?” the Live Action investigator asked. Santangelo allegedly responded, “No, not here,” adding, “usually at this point in your pregnancy, it is too early to survive. Usually, it will expire shortly after birth.”

“But if it did, what would happen?” the investigator asked him. “Would I have to take it home, or like—”

“I mean, technically, legally, we would be obligated to help it, you know, to survive,” he told her, according to the video. “But you know, it probably wouldn’t. It’s all in how vigorously you do things to help a fetus survive at this point.”

“When you have a pregnancy that is 23, 24 weeks … if you do everything possible to help it survive, there’s a maybe a 20%-30% chance that it would survive,” he said. “If you don’t do anything then, you know, the chances are much, much less.”

He added that “there are things you can do” to make sure the baby does not survive.

“Obviously, you’re here for a certain procedure, and if your pregnancy were — let’s say you went into labor, the membranes ruptured, and you delivered before we got to the termination of the procedure here,” he continued. “Then we would do things. We would not help it.”

“We wouldn’t intubate, let’s say,” Santangelo explained, adding that he “wouldn’t do any extra” to help the dying baby and comparing letting the baby die to letting a terminally ill person die. “Like a ‘do not resuscitate’ order.”

If the mother were in a Virginia hospital and went into labor, medical professionals would do everything possible to help her baby survive, Santangelo said — but “we wouldn’t here.”

“That’s happened before,” Santangelo added, according to the video. “We’ve had patients that, you know, on the second day of the laminaria, they got some contractions, and they panicked, and they were in Virginia at the hospital. They went to the hospital, because they had some pain, instead of calling me.”

“And the hospital helped them to deliver,” he added. “Which was the stupidest thing they could have done … and they did everything they [inaudible] have done, which was help them to deliver.”

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Mary Margaret Olohan is a senior reporter for The Daily Signal. She previously reported for The Daily Caller and The Daily Wire, where she covered national politics as well as social and cultural issues. Email her at [email protected].


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