When Is an Abortion Not an Abortion?

Said Defense Attorney William P. Homans, Jr.: "Although the indictment refers to the killing of a 'baby boy' no 'baby boy' ever existed." Assistant District Attorney Newman A. Flanagan remarked: "If it looks like a duck, walks like a duck, quacks like a duck...use your common sense."

Did Dr. Kenneth C. Edelin kill a person at Boston City Hospital? Can other doctors be convicted of manslaughter in the deaths of fetuses they abort, as Edelin was?

There are no commonly accepted medical or legal standards to define a human being. Edelin's manslaughter trial early this year hinged on that definition and on a cluster of related questions about the limits of human life and medical responsibility. They are questions that will grow in urgency as doctors become more skilled in sustaining life before an infant can function for itself, or after an old or sick person loses his capacity to function.

"A fetus is not a person and not the subject of an indictment for manslaughter," Boston's Superior Court Judge James P. McGuire told the jury.

Yet twelve men and women found Edelin guilty on February 15 of homicide in the death of a twenty- to twenty-four-week-old fetus during the course of a legal abortion.

Their verdict left doctors and lawyers debating over just what it was Edelin had killed. Under the judge's instructions it had to have been something more than a fetus. If so, at what point did the fetus become a person protected by law? To stay on the safe side of that question, a number of hospitals around the country have now cut back on abortions performed after the third month of pregnancy.

In reaching their decision, the jurors appear to have ignored many of the legal and medical points raised about the scope of an abortion, the moment of birth, and the ability of a fetus to survive on its own. And they left behind them questions about whether a jury of laymen can be asked to decide a case whose outcome rests on technical questions and disputes over definitions.

"I don't believe it's possible for a jury of people like those who were selected to really understand the issues, especially some of the scientific and medical problems encountered at the trial," Edelin said later. "We attempted to educate them, and I guess we failed. As a jury of my peers...it certainly was not."

The jurors themselves said they were most impressed by a photograph of the fetus, which they said "looked like a baby," and by the prosecutor's insistence that the aborted fetus was due all the attention a baby would receive.

"That baby should have had the chance to prove his own viability," said juror Paul A. Holland. "There is only one person that can make that decision, and that is the baby....We did not agree that [Edelin] took the proper precautions in checking the baby."

Although the verdict may have appeared to run counter to much of the testimony, it did make a statement that doctors and lawyers must now take into account. It made a statement about the attitudes of twelve ordinary people toward the potential person involved in an abortion, and about the duty a doctor owes it.

Edelin, thirty-six, is coordinator of ambulatory services in the obstetrical and gynecological ward of Boston City Hospital, where many of the patients are black and poor. At the time of the abortion, he was chief resident in the department, one of only two residents who routinely performed abortions. Although he does not like to perform them, he says, he believes strongly that he has an obligation to provide the best medical care to a woman, whether she wishes to give birth or terminate her pregnancy.

"I will continue to do abortions. They are a woman's right," he said after his conviction, "Women since they've been on this earth have been making that choice, whether they want to carry that baby or not....The only humane thing we can do is make sure that when they make that choice they have the opportunity to make it under the best conditions possible."

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