Edelin: Toss the Case Out

IN LATE September of 1973, a 17-year-old woman came to Boston City Hospital requesting an abortion, and within five days a resident in obstetrics and gynecology at the hospital performed the operation using a technique called hysterotomy. Sixteen months later--probably this Friday--a jury of that doctor's ostensible peers will almost certainly be instructed so decide whether that act was manslaughter.

The state's case against Dr. Kenneth C. Edelin appears to rest on the premise that the hysterotomy operation was a birth and not as abortion, in spite of either the patient's of the doctor's intention. A hysterotomy involves incision into the womb and detachment of the placenta from the uterine wall, and the prosecution says that when the placents was detached cutting off the fetus's dependence on the mother, that fetus was born. It alleges that Edelin, by allowing the fetus to die in the course of the operation, is guilty of manslaughter.

This much of the prosecution's case--without considering its shabby presentation--is ugly in its apparent attempt to limit the right of gather and a doctor to determine the proper course of treatment. It does this by defining as a birth an operation that was intended as an abortion and that was carried out under accepted medical procedure as an abortion. And it does this with a restrictive definition of birth that does not ever requires that the in involved fetus must have breathed.

Why is the prosecution straining medical and legal ethics in such a severe manager to get a manslaughter conviction on a small time Boston obstetrician? The answer is, simply, that as much insists that this operation was not an abortion, the prosecution is out to limit the practice of abortions--and not just those by hysterotomy. Assistant District Attorney and Prosecutor Newman A. Flanagan has to argue his case on this limited terrain because he knows that an abortion in October 1973 was legal, and that if he tried Edelin for abortion, the doctor could go free.

Still Flanagan's vague description of the alleged manslaughter act is sufficiently linked with abortion-related issues that a conviction would inevitably intimidate those who perform abortion operations and could place severe legal restrictions on the practice. Such an extreme definition of birth could possibly lead to other, equally-contrived definitions that would turn other legitimate methods of abortion into manslaughters.

Flanagan's case also depends on the allegation that if Edelin had allowed the fetus to survive the operation, it would have survived at least long enough to leave the hospital. This assumption depends on a proof that the fetus was viable, and if Flanagan gains a conviction, he will have defined viability in an extremely conservative way: at a gestational age as low as 20 weeks, Since the supreme Court has conceded to states the right to protect the "potentiality" for life by forbidding abortion after the point of viability regardless of the wishes of the mother, this case could ultimately set a drastic limit on al abortions, is its definition of this critical stage.

The defense has met the prosecution on its own grounds, and has argued convincingly that even if this were a birth, the fetus could not have survived anyway. For its own case, it has shown that this never was a birth, that it was an abortion protected by law.

Judge James P. McGuire has failed to dismiss the case repeatedly, most notably when the defense documented the sexually-discriminatory nature of jury selection as grounds for such action. However, having heard the twisted contentions of the prosecution. McGuire should recognize its malignant Indictment as just a crudely-veiled effort to circumvent the law and limit the practice of abortions. Before dignifying the prosecution by reading the law to the jury or hazarding what is much more than just one doctor's license by allowing the jury to decide. McGuire should end the charade now and throw this case out.