The Abortion Trial Everyone Will Be Watching In Trump’s America

Jamie Lee Morales bled to death on the night of July 9.

Earlier that day, just after 1 p.m., she had an abortion at a women’s clinic in Queens, New York. During that procedure, the Queens district attorney’s office said, the clinic’s owner, Dr. Robert Rho, tore Morales’s cervix, pierced her uterine wall, and cut her uterine artery — all things that are not supposed to happen during a surgical abortion.

The DA said that after her abortion, Morales bled “profusely” in the recovery room, requiring a second procedure. Afterward, she was allowed to leave the clinic, “despite having collapsed and appearing disoriented.” In her sister’s car, Morales “allegedly fell off the backseat and became unresponsive.” At the hospital, on that unusually cool summer night, six units of blood could not save her. She was 30.

Decades after Roe v. Wade, it’s rare to die from a legal abortion in the United States. The CDC’s most recent abortion mortality count comes from 2012, when there were four deaths out of 699,202 reported abortions. More than 600 women in the United States die each year in childbirth or from pregnancy complications, according to the CDC.

Dr. Robert Rho and Jamie Lee Morales

@DrRobertRho1 / Twitter; Jamie Lee / Facebook / Via Twitter: @drrobertrho1 /

It’s even more rare today that a doctor involved in an abortion-related death faces criminal charges — medical malpractice lawsuits are more likely. But in October, four months after Morales’s death, a grand jury indicted Rho on a charge of second-degree manslaughter. If convicted, he could face 15 years in prison.

Rho’s prosecution would be considered highly unusual if it happened at any other point in the last decade. Consider the venue alone: New York, a state historically friendly (or friendlier than most) to abortion and abortion doctors. But Rho’s case carries a new weight now, as Donald Trump and Mike Pence’s ascension to the White House draws an enormous question mark over the future of abortion access, thrusting the abortion debate from its on-and-off dormancy in state legislatures back onto the national stage.

Rho faces trial at the same time many speculate whether Trump’s eventual Supreme Court appointees will, as promised, overturn Roe v. Wade and Make Abortion Illegal Again, returning Americans to an era when many more women died from abortions and many more of their doctors were prosecuted. The coming Trump administration means Rho’s case may not be an anomaly. It could be an accidental harbinger.

“Everybody knows about Kermit Gosnell,” said Carol Sanger, a Columbia University professor specializing in abortion law who’s been honored by the pro–abortion rights Center for Reproductive Rights. Sanger was referring to the Philadelphia doctor who ran a largely unregulated and unsanitary clinic staffed with unqualified employees, who routinely performed illegal late-term abortions, and who left patients dead or injured after procedures. Gosnell was prosecuted, convicted, and, in 2013, sentenced to life in prison without parole.

Dr. Gosnell's shuttered clinic, the Women's Medical Society.

Mark Makela / Getty Images

“But I think the Gosnell case is being milked for everything it could be milked on,” Sanger continued. The reality is that despite Gosnell’s name appearing in nearly every media story since October about Dr. Robert Rho, what we know so far of Rho and his Queens clinic, Liberty Women’s Health Care, hardly aligns with the gruesome tabloid fodder of Gosnell’s “House of Horrors.”

The history of abortion doctors who face prosecution tends to follow this pattern; there have always been doctors who egregiously cross the line into criminal behavior. But other cases are less clear.

“Some abortionists were truly terrible,” Leslie J. Reagan wrote in her book When Abortion Was a Crime, pointing to Dr. Lucy Hagenow of Chicago. Hagenow, Reagan wrote, “caused the deaths of (at least) six women due to abortion in 1896, 1899, 1905, 1906, and 1907 and, after being imprisoned for a number of years, operated on another woman who died in 1926.”

University of California Press

But then there were “long-time, respected, small-town doctors” like Dr. John W. Aiken, “the eminent and only physician for over thirty years in Tennessee, Illinois,” according to Reagan’s book. Aiken was prosecuted for murder by abortion in 1899 after one of his patients died. “Small towns could lose their only physician in cases like these,” Reagan wrote.

Even though getting an abortion was in itself a crime during this time, prosecutors largely enforced the law by going after medical professionals in death cases. Between 1870 and 1940, 43 abortion cases made it to the Supreme Court of Illinois, 37 of which involved a woman’s death, according to Reagan’s book. Reagan did not detail the outcomes of these cases, but she did add that prosecutors weren’t often successful in convicting doctors. That wasn’t necessarily the point — officials hoped arrests and inquests and the scandalous press attention that followed a trial would deter future abortion-seekers.

This strategy took a turn in the 1940s and ’50s. Instead of targeting individual doctors with deaths on their records, prosecutors sought to take down established networks of “trusted and skilled abortionists … that the medical community had essentially endorsed through its widespread referral system,” according to Reagan. In other words, nearly legitimized spaces in which women received safe, albeit illegal, abortions.

After the Roe v. Wade decision in 1973, prosecutions of abortion providers became rarer. In Queens in 1995 — under the same district attorney now pursuing Rho’s manslaughter charge — Dr. David Benjamin became the first doctor in New York ever found guilty of murdering of a patient during a medical procedure, after his 33-year-old patient bled to death following a late-term abortion. Today, it’s more common for an abortion-related death to result in a civil lawsuit, like the one Tonya Reaves’ family settled for $2 million against Planned Parenthood of Illinois after Reaves bled to death in 2012 following an abortion.

Dr. Robert Rho speaks to his attorney in the Queens Supreme Court on Oct. 11, 2016.

New York Daily News Archive / Getty Images

In a court document filed the day of Rho’s October arrest, prosecutors said they’ll present at trial a statement the doctor gave to an investigator from the New York State Department of Health four days after Morales’s death. It includes the only description of Rho’s version of the story available to date.

According to the document, Rho told the investigator that Morales’s second-trimester “fetus was smaller than he expected,” but that no complications were identified by the end of her abortion. In the recovery room, though, “vaginal bleeding was observed.” Back in the operating room, Rho repaired a cervical tear, according to the document.

“[After] this intervention, the patient was again monitored in the recovery room where the vital signs were noted to be stable and no further bleeding was observed,” the document said, adding that Morales “was standing by herself and able to walk.” Rho told her and her sister to “seek care at a hospital if any further bleeding was noted.”

“Usually when a doctor injures or even kills a patient, we consider it to be accidental or malpractice.”

Rho also told the investigator that he knew Morales used her sister’s name to register at the clinic and “that there was an issue with payment for the procedure which was handled by the receptionist.”

At a pretrial court hearing in mid-November, Rho’s attorney, Jeffrey Lichtman, told BuzzFeed News he believed Rho’s case “absolutely should have been a civil matter.”

“This isn't somebody who's known as some kind of miscreant doctor who becomes a butcher,” Lichtman said. “He's well respected and credentialed.”

Looking at Rho’s case, Carol Sanger said she thought “the criminal part is really the unusual part.”

“Usually when a doctor injures or even kills a patient, we consider it to be accidental or malpractice,” she said.

Essentially, there are three types of mistakes that doctors can make. Michael Krauss, a George Mason University law professor specializing in malpractice cases, breaks it down like this: “There’s medical error, and that’s nothing. There’s no liability for an error. Then there’s negligence, or an error that is more than just a technical mistake. It’s something a reasonable person wouldn’t have done. Then there’s the point at which negligence becomes criminal. That point is where carelessness is much more than carelessness.”

A doctor who heads from the pub to the operating room and makes a fatal mistake, for example, calls for an involuntary manslaughter charge, Krauss said. But a doctor who accidentally takes too many of his meds and finds himself doped up during an operation would not likely face criminal charges.

Though he couldn’t speak to abortion doctors specifically, Krauss said obstetricians are uniquely vulnerable to civil lawsuits. As Rho’s lawyer said, abortion is “high-risk, and doctors don't want anything to do with it because they don't want to get sued.”

And Rho, an obstetrician, has been sued: three times for medical reasons, and twice for sexual harassment.

“It is true that a majority of obstetricians do get sued sometime in their career,” Krauss said. “Three times is incontrovertibly more than average.”

“All of a sudden he’s public enemy number one,” said Rho's lawyer. “I don't want him to get caught in the maelstrom of this political football.”

In one lawsuit that was settled for $2 million, a woman claimed that Rho performed a failed second-trimester abortion on her in 2008, causing her to give birth to a premature baby with brain damage. A medical assessment of the baby included in the court documents said the child would never be “educated in a conventional classroom without support,” “employed in the competitive job market,” or “able to live independently, and will require lifelong supervision either at home or in a residential setting.” Lichtman, Rho’s attorney, told BuzzFeed News that Rho settled to avoid trial publicity on the advice of his then-lawyer, and that Rho “claims he did absolutely nothing wrong as the patient did not follow his instructions.”

Two other surgery-related lawsuits against Rho were dismissed. In 2009, he was sued for allegedly lacerating and disfiguring a woman’s labia during a cosmetic labiaplasty. (Rho also ran a labia reduction surgery business out of his clinic.) In 2005, he was sued after a woman’s medical abortion was complicated by a left tubal pregnancy that required surgery. In a series of procedures, the woman’s abdominal cavity was cut, causing “extensive internal bleeding” as well as “severe scarring, need for exploratory surgery and the need for a blood transfusion,” according to her complaint.

Twice Rho was sued for sexual harassment. In 2010, a medical assistant alleged in a lawsuit that Rho backed her against the wall of the clinic’s consultation room to “hug and kiss her against her will” on several occasions, including once pressing his erection against her body. He was accused of giving her a free cosmetic procedure so she would accept his sexual advances. In this case, a preliminary conference was ordered, where settlement discussions were conducted. There’s no record of how the case concluded.

In a separate case — which made it in front of a jury, and into the press — a receptionist at the clinic said Rho pressured her for sexual favors after he gave her free liposuction in 2008. He also allegedly told her, “You should be nice to me,” after asking her out for drinks. When she accepted, fearing losing her job, he tried to kiss her “on numerous occasions,” the woman alleged. She rejected his requests to go to Atlantic City or Broadway shows with him, the lawsuit said. Rho was cleared.

Lichtman emphasized that these cases were “unfounded and dismissed,” and that Rho “has no pattern of malpractice or negligence in over 20 years of performing abortions, many of which were high-risk.”

Beyond the allegations, only a single line in one document from these five lawsuits reveals anything about Rho’s personality. It’s in a deposition of the woman in the tubal pregnancy case, who said when Rho visited her after her surgery, “Dr. Rho didn’t say much. He’s not a person that talks a lot.”

When the New York Times reported on David Benjamin’s 1995 murder conviction, the paper acknowledged that such cases typically “are played out in malpractice civil suits, but the Queens District Attorney, Richard A. Brown, said that Dr. Benjamin's incompetence and disregard for the patient were so reprehensible that he decided to pursue a murder charge.” No such statement has been released in Rho’s case to explain motivation for the prosecution. When asked why he thinks his client has been criminally charged rather than left to face civil action, Lichtman only shrugged and complimented the case’s lead prosecutor, Assistant District Attorney Brad Leventhal, on his fairness.

“I would never impugn his integrity regarding the decision, in terms of making this a criminal case,” Lichtman said.

“Forget the fact that everybody’s looking for a reason to sue doctors. Now we’re going to start criminalizing one mistake in 40,000?”

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