Medicine: Setback for Abortion

As a doctor, Kenneth Edelin, 36, has spent his career at Boston City Hospital attempting to preserve and prolong lives. Last week he was convicted of taking one. After seven hours of deliberation, a superior court jury of nine men and three women in Boston found him guilty of manslaughter in the death of a fetus that he had aborted. As a result of the verdict, the popular obstetrician faces a prison sentence of up to 20 years. If the decision is upheld on appeal and if it is accepted as valid precedent by other courts, many women around the country will be unable to obtain late-term abortions.

No one questioned the legality of the abortion, which Edelin (TIME, May 27) performed in October 1973. The operation took place after the U.S. Supreme Court had struck down most state abortion laws and well before the Massachusetts legislature enacted a new set of regulations that outlaw abortions after the 24th week. At issue were Edelin’s actions during and immediately after the operation. The prosecution charged that the male fetus, which Edelin had estimated to be 20 to 22 weeks along, was in fact older and thus capable of survival outside the womb. Once the abortion had been completed, said the district attorney’s office, Edelin had an obligation to keep the fetus alive. By failing to do so, it maintained, he had caused a baby’s death and was guilty of manslaughter.

The six weeks of the trial brought out widely differing views about when a fetus becomes viable (capable of independent life outside the womb), as well as conflicting answers to the question of whether—and if so, when—a fetus becomes a person. The defense argued that the death of the fetus is implicit in any abortion; the prosecution charged that abortion means only the termination of pregnancy and does not necessarily imply the death of the fetus as well. Conflicting evidence was presented on whether the fetus involved in the specific abortion was viable. Dr. John B. Ward, a Pittsburgh pathologist, testified for the prosecution that his postmortem examination had revealed that the fetus had breathed and that the unborn infant, which weighed 700 grams (1 lb. 8 oz.), could have survived. Defense witnesses said that the fetus had not in fact breathed; on Edelin’s behalf, some medical experts testified that fetuses weighing less than 1,000 grams (2 lbs. 3 oz.) rarely, if ever survive.

A former Boston City Hospital resident, Dr. Enrique Gimenez-Jimeno, testified for the prosecution that he had watched as Edelin held the aborted fetus inside the patient’s uterus and counted off three minutes by the operating-room clock. His credibility—and that of the prosecution— was not helped when Defense Attorney William Homans Jr. showed, first, that Edelin would have had to turn away from the operating table to see the clock and, second, that even if he had turned, he could not have seen the clock on the day of the abortion. It had been removed for repairs.

Enormous Implications. Because of such conflicts, many observers expected the trial to end in Edelin’s acquittal. The verdict, which stunned the courtroom and which Edelin will appeal, thus breaks new ground in the continuing debate concerning abortion. By finding him guilty of manslaughter, the jury decided, in effect, that a fetus approaching viability is a person and, as such, is entitled to the full protection of the law.

The implications of this ruling are enormous. Doctors will probably continue to perform early abortions when there is no question about a fetus’ inability to survive outside the womb. But, fearful of sharing Edelin’s fate, they may be less likely to take a chance on late-term abortions. The Boston decision is likely to please antiabortionists, who have been trying for nearly two years to overturn or circumvent the Supreme Court’s decision. But it may well work untold hardship for thousands of unhappily pregnant women, who may now find that although late abortions are technically legal in most states, few doctors are willing to perform them.