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."

On October 3, 1973, Edelin performed a legal abortion at the request of a pregnant seventeen year-old, completing the operation by hysterotomy or mini-Cesarean, after three attempts at saline infusion failed. In the hysterotomy, he removed the fetus through an incision in its mother's abdomen peeling it from the wall of the womb and scooping it out along with the afterbirth.

Two months later, investigators from the Suffolk County district attorney's office found the fetus in the hospital's morgue as they gathered evidence for another indictment against four physicians performing research on the tissues of aborted fetuses. That prosecution, based on an 1814 grave-robbing statute, is next on Assistant District Attorney Flanagan's docket.

When Edelin's case came to trial in January, Flanagan argued that although the abortion was legal, the death of the fetus was not; that the abortion was completed the moment the fetus was separated from the wall of the womb, and that at that moment a baby was born "with all the rights that you have under the Constitution of the United States."

Defense Attorney Homans called this reasoning "metaphysical." He argued that the entire operation, including the death of the fetus, was protected by the U.S. Supreme Court's decision legalizing most abortions. In any event, he said, the fetus never was born and never legally became a person.

The conviction of Dr. Edelin, despite that defense, opens the possibility that any doctor maybe convicted of homicide in the death of a legally aborted fetus—particularly in late abortions and those performed by hysterotomy, which run the risk of producing a fetus that shows at least fleeting signs of life.

The trial raised sensitive questions skirted by the companion Supreme Court rulings of January 1973, known as "Roe and Doe." In those rulings, the court barred states from interfering with a woman's right to an abortion before a fetus became viable—but left the moment and definition of viability unclear. And the trial reopened debate about the status of persons on the fringes of life, either side of the moment of birth or death.

"If the obstetrician has the right to destroy the live-born infant in an abortion procedure, would he not have the same right to extinguish the life of a newborn infant with a congenital defect whose mother may not want him?" asked Dr. Matthew J. Bulfin of Fort Lauderdale, Florida, president of the American Association of Pro-Life Obstetricians and Gynecologists "The acceptance of this principle surely would in fact be providing legal endorsement for euthanasia.

As this debate was brought into the courtroom, with separate sets of medical experts testifying for the prosecution and defense, the jurors found themselves confronted with at least two conflicting opinions on almost every point raised.

In Roe and Doe, the court said a fetus is generally considered viable at about twenty-eight weeks' gestational age, but that viability sometimes comes as early as twenty-four weeks. It drew its estimates from generally accepted medical practice. But the authors of two basic obstetrical textbooks, on which much of this practice is based, testified at the trial to their own uncertainty about the age at which a fetus can survive. They and other doctors also pointed out that "survival" itself is a disputed concept: does it mean life for a minute, for twenty-eight days, or for a lifetime of contribution to society?

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