Editorial: When Reproductive Rights Meant Criminal Prosecution

The Connecticut Law Tribune

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Just before the end of 2013, Dr. Kenneth C. Edelin died. Although his name draws little attention today, he became the subject of a criminal prosecution for performing an abortion in a municipal hospital in Boston more than 40 years ago. Occurring not long after the U.S. Supreme Court's landmark decision in Roe v. Wade, this is a sordid tale of a young physician and an even younger female patient caught in the cross hairs of a politically motivated prosecution. It is a reminder of the passion then and now over the issue of abortion.

In September 1973, a pregnant 17-year-old black woman went with her mother to the outpatient clinic at the Boston City Hospital and requested an abortion. Edelin, the first African-American to become chief resident for obstetrics and gynecology at the hospital, was scheduled to perform it. At the time, Boston City Hospital was the medical facility of last resort for the people of Boston or, put another way, the only hospital of choice for the poor. Indeed, many of the women who sought health-care services at Boston City Hospital were poor, black women.

Around the same time, prompted by a letter from then-state Representative (and later mayor of Boston) Raymond Flynn expressing concern about Boston City Hospital performing "abortions on demand," the Boston City Council held hearings, culminating in a request to have the Suffolk County District Attorney's Office investigate the hospital.

On Oct. 3, 1973, because of complications with the procedure initially, an abortion by hysterotomy had to be performed, requiring an incision of the uterus to reach and remove the fetus. Upon removal of the fetus, Edelin checked and found no heartbeat or other sign of life. After the procedure, the young woman patient remained at Boston City Hospital a couple of days and recovered without incident.

In January 1974, a sheriff came to Boston City Hospital and served Edelin with a subpoena to appear before a grand jury convened by the Suffolk County District Attorney's Office. During the grand jury proceedings, Edelin was asked whether the fetus was alive at the time he performed the hysterotomy. He said no. More than three months later, Edelin received a call from Newman Flanagan, then an assistant district attorney (and later the district attorney), informing him that the grand jury had indicted him for manslaughter.

As the Supreme Judicial Court of Massachusetts later described it, "the Commonwealth's theory was that, upon the detachment of the placenta, the fetus became a 'person' within the manslaughter statute, and was then killed by a wanton and reckless act of Dr. Edelin, all before the birth of the fetus through its complete delivery clear of the mother's body." In particular, according to the court, Edelin had waited "3 to 5 minutes after he manually separated the placenta from the uterine wall and before he removed the person from the abdominal cavity of his mother." Even more specifically, in the words of the indictment, Edelin "did assault and beat a certain person, to wit: a male child described to the said [jurors] as Baby Boy Gilbert and by such assault and beating did kill the said person."

Essentially, the prosecution sought to circumvent the Supreme Court's ruling in Roe by claiming that this particular procedure resulted in the delivery of a viable fetus and that the Commonwealth of Massachusetts had a right to protect the fetus using its homicide statutes.

The trial began on Jan. 6, 1975, lasted six weeks and featured dueling experts on the viability of the fetus. At the end of deliberations, an all-white jury—the prosecution struck the only two potential black jurors by using peremptory challenges—convicted Edelin of manslaughter. The trial judge sentenced Edelin to one year's probation, but stayed the sentence pending the appeal.

Massachusetts' highest court reversed the judgment and set aside the verdict. The court held that there was "no case for the jury on the question of recklessness," thereby undermining the manslaughter charge. As the court noted, "prosecution and defense experts divided on whether the fetus was viable, but a trier's belief in one set of experts would not begin to show that Dr. Edelin's judgment the other way was reckless." The court called for "caution and circumspection in the interpretation and application of a criminal statute which, as employed here, must necessarily trench on professional practice and constitutional freedoms."

In the end, the court did "not seek an answer to the question when abortions are morally justifiable and when not," recognizing that such a question is "wholly beyond [its] province." It did, however, end a terrible ordeal for a physician who did nothing more than follow the law and sound medical practice. •

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    The taking of human life, at any stage from conception to old age, will always be a criminal act no matter what a court may say.

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