Remember February 15

SATURDAY'S VERDICT in the trial of Dr. Kenneth C. Edelin will never stand as a conviction of the Boston City Hospital obstetrician, but as a condemnation of a legal process that brought this case into a courtroom and that allowed a jury to consider it. The shocking forcefulness of the jurors in convicting Edelin and the racist and prejudiced nature of their judgment only adds a final virulent touch to a prosecution that was from the beginning ugly.

Judge James P. McGurre surprised many in his Suffolk County Superior Court Friday when he delivered a charge to the jury that appeared to destroy the prospect for conviction, but these instructions were only a reflection of the tremendous preponderance of evidence that supported the doctor's in nocence. The defense had shown sternly that no human being ever existed as a result of the abortion operation Edelin undertook, October 3, 1973 and had argued compelling that a doctor should not be prosecuted retroactively lot an action he regarded as medically and legally legitimate.

The district attorney's staff had backed up its indictment through the six-week trial with merely an emotional invitation to the jurors to use their "common sense," to imagine that the letus Kenneth Edelin removed from the woman's womb had been a "baby boy," gasping for breath Still. If was clear what Flanagan was charging Edelin with, when in his bellicose closing to the jury, he employed the language of the anti abortion movement.

One of the saddest aspects of this case is that the jurors responded in kind. Perhaps perplexed by the weights and cerebral evidence in Edelin's defense, this collection of white, mostly Catholic Bostonians accepted Flanagan's graphic if inaccurate portrait of the "victim," statements from the jurors have indicated. Not even the three days of jury selection that preceded this trial could eliminate anti-abortion sentiment from the panel. Another parochial sensibility was apparently active in their considerations. Even if Edelin is no killer, he is black. One juror quoted another as saying. "That nigger is guilty as sin." Apparently, some of the jurors viewed Edelin's race as a crime in itself. Furthermore the jury dealt with the judge's instructions haphazardly, substituting, for his stipulation that it must find Edelin guilty of "wanton and reckless" conduct in order to convict, its own speculation that he might have been remiss in checking to see if the fetus were alive upon removal, and was hence guilty.

'The jury's failure in the Edelin decision is not grounds for an argument against the jury system. Clearly, this case never should have made it to that stage at all. This was a case where both sides argued over uncertain points of law that should have been defined from the outset; at what age is a prematurely delivered fetus considered capable of life apart from the mother? What degree of separation from the mother constitutes birth? What is manslaughter? And even, what is abortion? The attorneys spent most of the six-week trial arguing not about the circumstances of the involved operation, but about which of the possible legal answers to these questions would make Edelin guilty or innocent.

For five minutes Friday morning, during a one and a half hour discussion of the duties of a jury, the judge addressed these questions finally. What McGuire should have done then was to conclude that Edelin was innocent--in light of his definition of birth as the separation of the fetus from the mother and in light of the overwhelming evidence from both prosecution and defense that the fetus was dead when it was removed from the womb. McGuire did not acquit Edelin, unfortunately, but gave those definitions to the jury. Inevitably, the recollection of those five minutes from the judge was blocked out by the memory of the 70 minutes from the shouting prosecutor who talked about the "right to live."

The jury's verdict--on the surface the conviction of a particular doctor for a particular operation--will have the effect the prosecution desired when it brought the indictment last April, of intimidating those who perform legal abortions. Still, as a thousand supporters demonstrated Monday, there is much to be hoped after all this: That a higher court will reverse the decision on the grounds that no state statute warned Edelin that the operation he undertook was culpable. Or that the state Board of Registration in Medicine will uphold Edelin's actions by refusing to revoke his license. Or that a higher court will issue a ruling that defines abortion and the age of viability in such a manner that doctors, at least in Massachusetts, will not be afraid to perform the service which it is every woman's right to request and have. Or that this grim decision will prompt advocates of legalized abortion to protest and arrest what many doctors say is the recent progress of the right-to-life movement. For the past six weeks one doctor has borne the weight of that struggle in a Boston trial, but the February 15 decision against him should not keep others from supporting him in the important legal battles that he ahead.