West Virginia Judge Throws Out 'Sensational' Anti-Abortion Lawsuit

By Anna Merlan | April 22, 2015 | 8:30pm

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A lawsuit against a West Virginia abortion clinic that was a huge talking point on anti-abortion websites has been dismissed by a judge “with prejudice,” which means it can never be refiled. The lawsuit, filed by a Charleston woman named Itai Gravely with the help of the Family Policy Council, claimed that a botched abortion procedure left Gravely with a fetus’s head stuck inside her body.

The Charleston Gazette reports that the lawsuit was dismissed Monday by Kanawha Circuit Judge Joanna Tabit. In a hearing last month, according to the Gazette, Tabit called Gravely’s claims “immaterial and, frankly, sensational.” She dismissed the lawsuit with prejudice so that it can’t be brought again.

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The suit was first filed in 2013, with the help of the Alliance Defending Freedom, a sort of socially conservative counterpart to the ACLU, and the anti-abortion Family Policy Council of West Virginia. In her complaint, which you can read here, Gravely, who was 26 when the lawsuit was filed, claimed she arrived at the Women’s Health Center of West Virginia in Charleston in April 2012, was told she was eleven weeks pregnant, and was prepped for a surgical abortion. She also said she experienced “severe pain” when Dr. Ron Stephens inserted a curette (a surgical tool used to scrape the uterus) into her body and “immediately and unequivocally” told them to stop the procedure. The lawsuit suggested that Stephens and the rest of the medical staff didn’t give her enough anesthesia, given that she had a history of painkiller abuse.

Gravely said she was “physically restrained” so that the doctor could finish the abortion procedure against her will. She said she was discharged from the facility thirty minutes later, in great pain and with parts of the fetus still inside her. She claimed she went to an area hospital soon after, where an ultrasound confirmed that “a baby’s skull had been left” inside her. Her lawsuit alleged that the abortion clinic staff were responsible for medical negligence, battery, “uninformed consent,” and false imprisonment, as well as “extreme and outrageous conduct” causing her emotional distress.

Gravely’s story immediately caused waves among pro-life groups: the Susan B. Anthony List called it “ a reminder that regardless of how carefully an abortion is committed, it involves the painful killing of a defenseless human being in his or her earliest stages of development.” The Alliance Defending Freedom’s senior counsel Michael J. Norton said in a press release that “abortionists” like Stephens “must be held accountable for such horrors.”

In her order, though, Judge Tabit concluded that Gravely’s complications may have been due to the fact that she was addicted to heroin, “which may have caused later complications when pain-relieving measures were employed during the procedure.”

During testimony, it also emerged that the person claiming a fetal skull had been left inside Gravely’s uterus was Dr. Bryan Calhoun, who besides his work at the Charleston Area Medical Center Women and Children’s Hospital is the medical advisor for the anti-abortion National Institute of Family and Life Advocates. (Slate notes that Calhoun once claimed to have seen “weekly” abortion-related injuries at the hospital. But RH Reality Check discovered that a hospital administrator at CAMC actually catalogued only two abortion-related complications in 2012, the year Calhoun claimed to have seen dozens. RH Reality Check also found that Calhoun hadn’t reported any complications to the West Virginia Medical Board, as he would have been legally required to do.) Calhoun also apparently didn’t contact Gravely for a full year to tell her he’d supposedly seen a skull in her uterus; the lawsuit implies he told her immediately.

The lawsuit also claimed that Gravely had suffered “physical impairment which may be permanent.” According to the Gazette, though, she testified that she, in the paper’s words, “sustained no gynecologic or physical injury as a result of the abortion, and she has since carried a healthy child to term.” She testified, too, that the only emotional distress she suffered was her own guilt for terminating a pregnancy. Neither the Alliance Defending Freedom nor the Family Policy Council has publicly commented on the suit being dismissed.

None of this means that West Virginia as a whole has gotten any less hostile towards abortion rights: according to the Guttmacher Institute, as of 2011 there were just four abortion providers in the state and only two clinics. This year, the West Virginia legislature has also passed and upheld a 20-week abortion ban, overriding the veto of Governor Earl Ray Tomblin.

Correction: An earlier version of this post mistakenly identified the Charleston Gazette as the West Virginia Gazette. I regret the error.

Screengrab via Netflix/Orange is the New Black