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Late Abortion and The Edelin Case

Reproduced from Abortion is a Blessing by Anne Nicol Gaylor.

WHEN DR. KENNETH EDELIN was found guilty of manslaughter by a Boston jury in February, 1975, in the alleged death of a fetus following a legal abortion, the story broke on a Saturday afternoon, and we in Madison braced ourselves for the interpretive reporting of the Wisconsin State Journal, Madison's conservative morning newspaper. Sure enough! There in a type size appropriate for the announcement of World War III was the antiabortion version of what had happened. "ABORTION RULED A KILLING" exulted Sunday morning's banner headline.

That gentle Dr. Edelin ever should have found himself a defendant against a charge of manslaughter beggars belief. Reared in a black district of Washington D.C., he attended segregated schools there. One of four children, three of whom went to college, he graduated from Columbia University in New York in 196 1, taught math and science for awhile, and then decided to take up medicine, graduating from Meharry Medical College in Nashville.

He became the first black chief resident of obstetricsgynecology in the history of Boston City Hospital, a hospital which serves a largely black clientele. After the historic Supreme Court decision legalizing abortion in 1973, he performed abortions at the hospital for the women who requested them.

In October, 1973, a black woman brought her seventeen-year-old unmarried daughter to Dr. Edelin for an abortion. Estimating her pregnancy at approximately twenty-one to twenty-two weeks, Dr. Edelin proceeded with the saline-injection method of abortion, which usually causes uterine contractions and expulsion of the fetus. When attempts at repeated saline injections were unsuccessful, he performed the abortion surgically by a procedure called hysterotomy, a miniature Caesarean section. His patient had a normal recovery.

Prior to this time in Boston, four scientists, all medical doctors, were trying to find alternate drugs to prescribe for pregnant women allergic to penicillin. They had studied, with the consent of the patients involved, thirty-three women who were having abortions. Two antibiotic drugs, clindamycin and erythromycin, were given the women prior to their abortions, and the aborted fetuses were then studied, to see which drug more readily passed the placental barrier. Their findings, that clindamycin passes through more easily than erythromycin, and that either drug is a reasonable alternative to penicillin in the treatment of intrauterine infections, were published in the New England Journal of Medicine. (Agneta Philipson, M.D., L.D. Sabath, M.D., and David Charles, M.D., "Transplacental Passage of Erythromycin and Clindamycin," New England Journal of Medicine, June 7, 1973). Antiabortionists, to whom fetal research is anathema even though it is conducted to help women retain pregnancies, called this article to the attention of Massachusetts State Representative Raymond Flynn, who took the issue to a Boston City Council member, Albert O'Neill, who in turn called it to the attention of Boston District Attorney Garrett Byrne. (Boston Globe, Jan. 5, 1975. Subsequent direct quotations in this chapter, unless otherwise attributed, come from the Boston Globe, Jan. 5,12,19, Feb. 16,17,1975.) In Byrne's ensuing investigation, the twenty-one to twenty-two week fetus Dr. Edelin had aborted was discovered at the mortuary by the antiabortionists. Grand jury proceedings followed. Eventually, unbelievably, the four doctors engaged in fetal experimentation were charged under a nineteenth century "grave-robbing" statute (case pending), and Dr. Edelin was charged with manslaughter. Alice- in-Wonderland never knew what she missed by not visiting Boston.

The six-weeks trial of Dr. Edelin, a trial that never should have taken place, attracted nationwide attention. The prosecutor, forty-four-year-old Assistant District Attorney Newman A. Flanagan, was described repeatedly by the Boston Globe in flattering terms. "His reputation for wit and flair matches his record as a tough prosecutor," trilled the Globe. Examples of his wit were recorded: he explained his gray hair as a result of "early piety" and "he might pick up a dead phone and say for the amusement of his fellow prosecutors 'Tell Cronkite I'm too busy ... No, no, I haven't got time to be interviewed by Newsweek."'

That he was the father of seven children was duly reported by the Boston paper, along with his eldest son's athletic prowess. The full roster of prosecutors' names--Flanagan, Mulligan, Brennan and Dunn-- sounded like roll call at an Irish wake.

Judge for the trial in Suffolk's Superior Court was James McGuire, a graduate of Catholic University and Boston University School of Law. The Boston Globe cited his "reputation for competency" and for "keeping lawyers from straying off the central issue."

This "reputation for competency" was put to an early test. William Homans, the attorney for Dr. Edelin, asked to have the case thrown out of court on the basis of the jury pool. In Boston, a "sexist" computer chooses names of prospective jurors; it is programmed to put out two men's names for every one woman's name. In addition, the registrar is instructed to mail out the summons for jury duty on a two- to-one, male-preferred basis. This blatant discrimination against women did not move Judge McGuire, who denied Homans' request. The all-white jury that was selected was predominantly male; only three women were chosen. Ten of the twelve persons finally deciding Dr. Edelin's fate were Catholic.

That card-carrying, dues-paying Catholics ever should have been allowed to serve on a jury deciding a charge of abortion-related manslaughter is a travesty of justice. They support the institution that is the major enemy of abortion in the world--yet they were allowed to bring their religious bias to this legal setting.

Examination of jurors is extremely restrictive in Massachusetts. It is all done by the judge alone. Although the defense attorneys and the prosecution may submit questions for the judge to ask, there is no delving permitted and a very limited number of challenges allowed. In a case as serious as Edelin's, lawyers for the defendant are understandably reluctant to use up all their challenges early in the jury screening, since far more biased potential jurors could be expected to be coming down the pike.

The prosecution stumbled early in its case, when one of its major witnesses against Dr. Edelin testified that she had not been in the operating room at all at the time the hysterotomy took place. In essence, the only witness against Dr. Edelin turned out to be Dr. Enrique Gimenez-Jimeno, who testified that Dr. Edelin, after detaching the placenta from the uterine wall, held the fetus within the woman's uterus for three minutes while looking at a clock on the operating room wall. Such an action would deprive a fetus of oxygen. Gimenez-Jimeno's testimony was refuted by all other eye-witnesses, who stated that the hysterotomy took place with no unusual delays and that the clock Dr. Gimenez referred to was not there at all, as it had been taken out for repairs.

"Experts," whose qualifications included leadership positions in the antiabortion movement, told the jurors that in their opinion the fetus was viable despite its early gestational age. Other witnesses testified that in their judgment the fetus was nonviable, that it not only never breathed, but was incapable of breathing. Dr. Edelin told the jury that he would not perform an abortion if he believed the fetus might live independently from the woman.

"I have never performed an abortion on a woman who was carrying a fetus I considered to be viable," Dr. Edelin testified. "In fact, I have refused to perform such abortions."

At the close of the trial the names of the sixteen jurors were placed in a small metal drum and four slips were removed. These four, who became the alternate jurors and did not participate in the verdict, ironically turned out to be the two youngest and the two most educated members of the panel.

"We polled ourselves," said Michael Ciano, one of the four, "and three of us voted for Dr. Edelin's acquittal."

The other twelve jurors retired to discuss the case, and did not reach a verdict for seven hours. The defense had been hopeful when Judge McGuire charged the jury, because he instructed them that manslaughter required the death of a person, which was defined as an infant born alive and able to exist outside the uterus. Dr. Edelin said later his own optimism dimmed as the first day of deliberation passed and no verdict was reached. When the jury recessed for the night on Friday, he was worried. Shortly after one o'clock on Saturday afternoon, Feb. 15, 1975, the jury brought in its verdict. Foreman Vincent Shea forcefully called out their finding: "Guilty."

Dr. Edelin said he saw the guilty verdict on the faces of the jurors even before the foreman shouted it.

"When the jury came in not one of them would look me in the eye," he said. "I became very apprehensive. As it turned out the die was cast when we picked the jurors.... It was a witch-hunt. I don't think the jury was fair. I don't think it would have been possible to get a fair jury in Suffolk County, no matter how many challenges we might have had."

Later certain jury members were to say that a photograph of the fetus shown to them by Prosecutor Flanagan decided them in their finding of Dr. Edelin's guilt, because "it looked like a baby." Since there was no question of the legality of the abortion procedure, the jurors had to be convinced beyond a reasonable doubt that Dr. Edelin had been guilty of negligence following the abortion. A photograph of a preserved fetus scarcely gives credence to a charge of negligence. It is probably the first time in courtroom history that a defendant was found guilty because his alleged victim looked like a person!

Racial bias may have abetted religious bias, according to alternate juror Michael Ciano, who charged that racial slurs against Dr. Edelin had been made more than once before closing arguments. Although other jurors were to deny this, Ciano quoted one juror as saying, "That black nigger is as guilty as sin."

Dr. Edelin remained outwardly composed after the verdict, but others in the courtroom did not. There were sobs and cries of disbelief as spectators said to each other, "How could they find him guilty?" Several women left the courtroom looking dazed and stunned; some were crying openly. Those who had followed the testimony day after day were especially disbelieving.

"Edelin's attorneys countered the philosophical arguments and they countered the factual arguments," one feminist told me. "The overwhelming weight of evidence was on our side. When the mainstay of the testimony against Dr. Edelin is the word of one man, who reportedly held personal animosity toward him and who based his testimony on a clock that wasn't even there--well, that jury was just dumb."

That Judge McGuire may have shared her opinion seems a likely speculation. According to a report in the Globe, he, too, seemed "stunned" by the verdict, and did not thank the jury as is customary after a long trial. Three days later he sentenced Dr. Edelin to one year's probation.

The Edelin case is being appealed to the Supreme Judicial Court of Massachusetts, with oral arguments probably being heard in the fall of 1975. Although there can be little question that the conviction will be overturned, and that the final fallout from the trial will be favorable, its immediate effect was that many of the doctors and hospitals across the country that had been doing second trimester abortions cut back.

Once again, the victims are women.

* * * *

And who are these women who seek late abortions?

Almost all of them are very young. They are minors who are afraid to tell their parents they are pregnant, until that pregnancy starts to show. Frequently they are children--thirteen, fourteen or fifteen--who refuse to accept the fact that they are pregnant until that fact is obvious to others. They are young people outside the information system, who live in communities where there is no one to turn to for information on early abortion.

If an older woman seeks a late abortion, and this is rare, she is apt to be someone in her forties, who thinks she is in menopause and discovers it is pregnancy. Or she may be someone who does not have regular monthly periods, and does not experience other early symptoms of pregnancy. Or she may be someone whose periods have continued after conception.

She may be a woman with mongolism in her family, or the woman who already has produced an abnormal child and wants to be sure the fetus she carries will result in a normal person. Tests for chromosomal abnormalities can be done, but not until about the fourth month of pregnancy. Then, after the test, a culture must be grown which may take another three to six weeks, and this woman may not know until her fifth month of pregnancy that she is carrying a retarded, deformed fetus.

Not long ago I was contacted for help for a sixteen-year-old girl who was near the end of her second trimester of pregnancy. Her father had a construction business, and a relative, a young man in his twenties, had come to work for her father and had stayed in their home until he found an apartment. He had raped the sixteen-year-old and she became pregnant as a result. She was afraid to tell anyone--she was afraid of the young man and afraid of her father. Finally, she told a teacher, who helped her tell her mother. These are the tragic stories behind the requests for late abortions.

In January, 1975, I spent many hours arranging a late abortion in New York City for a mentally retarded black girl from the Milwaukee ghetto. She was fourteen years old and had no idea of what had happened to her. Some man had taken advantage of her mental deficiency to impregnate her. Despite her tragic circumstances no help was available for her in Wisconsin, where the few hospitals that do a limited number of late abortions cut off at eighteen or twenty weeks.

No woman ever gets pregnant in order to have an abortion. No woman ever says to herself, "Well, I'm six weeks pregnant, but I'm going to wait and have my abortion at six months because it will be so much more fun." Women ask for late abortions for serious and compelling reasons, and the option of late abortion must be kept open for all these tragic cases.

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