Defense and prosecution rest in FACE Act trial, as judge appears ignorant of federal abortion law

The defense and prosecution in the ongoing FACE Act trial rested their cases on Wednesday, teeing up closing arguments for the following morning. 

Rehumanize International Executive Director Herb Geraghty took the stand for a second day as federal prosecutor Sanjay Patel peppered the defendant with questions about any advance knowledge of the rescue that took place at Washington Surgi-Center in October 2022. In addition to FACE Act violations, Geraghty and other defendants have been charged with conspiracy against civil rights. Defendants face up to 11 years in prison. 

Video evidence showed Geraghty and others waiting outside of Dr. Cesare Santangelo’s abortion facility, as well as what happened when the group entered the waiting room. Geraghty claimed to have been pushed into the facility’s waiting area by others walking inside, and stepped out after allegedly being jabbed by someone with a broomstick.

Video footage showed an individual carrying a broomstick and apparently lunging it at individuals who were trying to enter the waiting room. 

New footage, brought by the prosecution, also showed defendants and others waiting outside of the door to enter the Surgi-Clinic’s waiting area. At least one woman seemed to be visibly pregnant with a large baby bump.

Much of Patel’s questioning focused on whether Geraghty knew in advance that individuals partaking in the rescue would use locks or try to block doorways. Geraghty dismissed the idea there was a clear plan going into the rescue and said the intent was to offer people resources. Geraghty testified to re-entering the waiting area to check on a fellow rescuer, Paulette Harlow, after she dropped to the ground.

At one point, Patel implied Geraghty wasn’t being honest about the desire to check on Harlow. After Patel noted that the defendant had walked over Harlow, Geraghty testified to asking her if she was okay. 

The jury left after Geraghty’s testimony and prior to attorneys discussing jury instructions with the judge. Defense counsel requested information be included about the Born Alive Infants Protection Act (BAIPA), which mandates that infants born alive during botched abortions receive appropriate medical care. 

Lauren Handy, one of Geraghty’s co-defendants who helped lead the rescue, has stated that she targeted Santangelo’s facility after seeing a Live Action video in which the abortionist states that he wouldn’t help a baby who survived an abortion attempt. Judge Colleen Kollar-Kotelly refused, stating that Live Action’s full video shows Santangelo indicating that the facility hadn’t seen a baby born alive. 

As Live Action News previously noted, Kollar-Kotelly derided the video as “gossip from propagandists” and stated that Santangelo had clearly indicated earlier in the video that he hadn’t seen infants born alive.  

Inhuman: Undercover in America's Late-Term Abortion Industry - Washington, D.C.

At one point, he told the undercover investigator that he cuts the baby’s umbilical cord, adding that “hopefully” the baby will “expire first” before he “terminate[s] the pregnancy.” The investigator later asks him if a baby has ever survived after exiting the uterus. Santangelo responds: “Not here, no. It could if some people go into labor.” As he noted to the investigator, abortions involve dilating a woman’s cervix potentially to the point that a preborn child leaves the womb alive.

The video shows Live Action’s undercover investigator speaking with Santangelo and him telling her that he wouldn’t perform “extra procedures” like intubation to help a baby survive.

“We would do things – we would – we would not help it,” he told the undercover investigator in 2013. 

“Let’s say. We wouldn’t – we wouldn’t uh, intubate, let’s say. Ok? Yeah, we wouldn’t do any extra – you know? … It would be, you know, uh – a person that would be – a terminal person in the hospital, let’s say – that had cancer. You know? You wouldn’t do any extra procedures to help that person survive.”

He similarly said that “in your pregnancy, it’s too early to survive, usually. It will expire shortly after birth.” That particular pregnancy was identified by him to be “24-25 weeks along.” He does say that if the baby survives, the clinic would be “legally” “obligated” to help him or her survive “but it probably wouldn’t” survive. 

“It’s all in how vigorously you do things to help a fetus survive at this point,” he added.

Judge Kollar-Kotelly also admonished Geraghty for claiming that Santangelo had a history of botched abortions, indicating that wasn’t something the jury should hear. 

Live Action’s video was also from 2013, years before Handy’s rescue in 2020. It seems possible that, based on his statement, Santangelo could have allowed a baby to die in the intervening period. Doubly so after Handy and PAAU founder Terrisa Bukovinac obtained the remains of babies outside of Santangelo’s facility last year. It’s unclear what happened to the babies but experts have speculated some were later in gestational age. At least one was still in its amniotic sac, and Dr. Kathi Aultman, a former abortionist, told Live Action News that the child may have been born alive. Experts also said that one of the baby girls seemed like she might have died from a partial birth (D&X) abortion, which is illegal under federal statute.

Kollar-Kotelly incorrectly stated that Geraghty was wrong about federal laws governing abortion, accusing the defendant of acting like a legal scholar when providing commentary about legality in D.C., though asked about that very subject. On Wednesday, the defense requested modification to the jury instructions, while suggesting that the judge’s comments wrongly diminished Geraghty’s credibility. Kollar-Kotelly defended herself by saying that she sought to clarify something about D.C. law.  

An excerpt from the proceedings shows the interaction:

Patel: You know that abortions are legal in the District of Columbia?

Herb: I know that some abortions are, but partial birth abortion and abortion that a fetus survives outside the womb– 

Patel: Sir– 

The Court: Sir, as a practical matter, that’s not correct. There are no statutes in the District of Columbia that say anything about limitations on abortion. 

Herb: There’s federal laws, Your Honor. 

The Court: You are going to be the legal expert here? I suggest that you not get into that.

Prosecution attorney Patel similarly mocked Geraghty for suggesting that refusing to leave the facility when asked could be grounds to be arrested for trespassing. “You’re a legal scholar, aren’t you?” Patel said.

Overall, Kollar-Kotelly seemed determined not to allow the reality of abortion or Santangelo’s abortion practices to reach the jurors. She suggested at one point that the defense was trying to make the case about the morality of abortion. At another, she refused including information on BAIPA because it would, in her telling, inject information about whether Santangelo performed abortions properly.

The defense had argued that Handy would have received the benefit of BAIPA if her mere belief was that Santangelo was allowing babies to die after abortions. It also raises questions about her intention in entering the facility and how that relates to so-called “rights” to abortion access. Nonetheless, Kollar-Kotelly refused to allow Live Action’s footage to be played in her courtroom. 

In a statement Wednesday, Live Action CEO Lila Rose denounced the judge’s decision to block footage of Santangelo, calling it…

… scandalous that this judge has refused to admit as evidence into the trial the Live Action video which inspired Lauren Handy’s pro-life activism regarding this specific abortion facility. Live Action reporting holds itself to the highest standards of journalistic integrity and excellence. Live Action reported the facts, straight from the mouth of the notorious late-term abortionist Cesare Santangelo, and our organization always releases and posts the full, unedited raw footage of every investigation.

When Santangelo told our reporter that he would ‘not help’ a child born alive during a failed abortion attempt, we should take him at his word. We have inspired thousands to take action to defend innocent human lives and end the ongoing tragedy of abortion in America.