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."

But witnesses for the defense looked at the same slides of lung tissue and insisted that no air had been breathed, that the lungs showed signs of gasps within the uterus but not outside it. One of these witnesses even suggested that the gasps had come during the earlier attempts at saline infusion, and that the fetus had died at that time—before the hysterotomy began.

In the face of the series of contradictory testimony throughout the trial, the jury's verdict appeared to fall short of the "moral certainty beyond a reasonable doubt" that Judge McGuire said was called for. The verdict appeared to be based on a series of possibilities: that the fetus might have been a person, might have been viable, might have been born, might have breathed outside its mother.

But it did appear to reflect a certainty that neither the legal rights of the surgeon nor the wishes of the mother were enough to deny the fetus a chance for life. The jury's decision, based on a photograph that "looked like a baby," appeared to state that as long as there was a reasonable doubt that this was not a person, it must be treated with every care a person would receive.

Edelin talked later about the hard decisions every doctor must make, the balancing he must do between the needs of the mother and the aborted fetus, between those of the fetus and a premature infant who may need attention.

There is likely to be an increasing number of these hard decisions as artificial placentas, or test tube babies, are developed, and as doctors learn to keep alive the old and sick.

The decisions are currently being made in a legal vacuum, and the trial of Kenneth Edelin served to point out some of the questions that need to be answered.

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