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."

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?

Flanagan capitalized on their uncertainty, asking each one whether the determination of viability should not be left up to the fetus itself, no matter how statistically tiny its chance. The doctor's role, he said, is simply to give it the best medical care as it struggles for life.

Roe and Doe also did not specifically define abortion, leaving another open question whose answer could affect Edelin's fate. If abortions presuppose the death of the fetus, as Edelin claimed, then his entire procedure was legal and immune from prosecution. But Flanagan's medical experts insisted that an abortion was nothing more than the termination of pregnancy, which could sometimes result in a live birth.

The definition of birth itself became pivotal as witnesses raised questions of fact about the procedure Edelin used and the exact moment the fetus died, Doctors testifying against him agreed that birth means the separation of the placenta from the wall of the womb, the moment at which the fetus "goes on its own systems" for nourishment and oxygen. Defense witnesses repeated the more commonly understood definition of the word as involving expulsion or removal from the mother's body. And Judge McGuire supported that understanding of the word in his charge to the jury.

The distinction was crucial, for Edelin was accused of killing the aborted fetus before removing it from inside its mother. Flanagan charged that he held it motionless inside the womb and watched a wall clock for three minutes as it struggled for air and died. Edelin, supported by testimony from two nurses and a medical student, denied the three-minute wait, and claimed that in fact there was no working wall clock for him to watch. But he did not deny that he had no intention of delivering a live baby: "It would have been contrary to the wishes of the mother."

Although Flanagan's only eyewitness had testified emphatically that "the baby was dead" when Edelin finally removed it, the prosecutor brought other witnesses who claimed it had breathed outside its mother. On the basis of their examination of its lungs, a medical examiner and a pathologist testified that the fetus could have drawn breath outside its mother.

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.