The relationship between medicine and law is complex and contentious. Rulings that have a finality in the public imagination are often put to the test in the real world, their consequences and exceptions worked out in a fashion far from ideal. The closing words of Supreme Court opinions – It is so ordered – suggest a solidity these rulings rarely have. Roe vs. Wade is no different. Just months after the Court released its opinion on the case, it was already under threat right here in Boston, Massachusetts.
On October 3, 1973, nine months after the Roe decision, Dr. Kenneth Edelin performed an abortion for a seventeen-year-old woman at Boston City Hospital. The woman and her mother had visited the outpatient OBGYN clinic at the hospital a few days earlier to request the procedure. They were introduced to Edelin, who at the time was the chief resident of the obstetrical and gynecological ward at BCH and one of only two doctors there who performed abortions regularly. He determined that the woman was 20 to 22 weeks pregnant and scheduled the abortion for October 2.
Edelin initially attempted to perform an “instillation abortion,” a method common in the 70s for mid-to-late-term pregnancies. In these procedures a saline solution is injected into the amniotic sac to induce fetal death. Edelin was unable to insert a needle into the amniotic sac, however, and diagnosed his patient as having an anterior placenta (the placenta is typically attached to the back wall of the uterus, but in this case it was attached to the front). The procedure was halted until the next day.
After consulting with other doctors, Edelin settled on performing an abortion by hysterotomy. This method of abortion is rare because it is invasive and dangerous, but Edelin’s options were limited given his patient’s condition. He had to make an incision in the woman’s uterus and draw the fetus out by hand, in a procedure similar to a caesarean section. Upon removing the fetus, Edelin checked for a heartbeat or other signs of life. Finding none, he placed the fetus in a stainless-steel basin and returned his attention to the patient.
Two months later, investigators from the Suffolk County district attorney’s office visited the Boston City Hospital morgue to search for evidence in a case against four doctors who had been accused of using tissue from aborted fetuses in their research. They found the preserved fetus from the abortion Edelin had performed and, upon determining its origin, brought charges against Edelin. A year and a half later, Edelin was found guilty of manslaughter. The all-Catholic, all-white jury (both Edelin and his patient were black) found that Edelin had killed a person – his patient’s baby – during the abortion. It would take another year and a half for the Massachusetts Supreme Judicial Court to hear Edelin’s appeal, after which he was unanimously acquitted.
Anyone who knows something about Roe vs. Wade may wonder how Edelin was charged in the first place. Roe was supposed to have clarified a woman’s right to an abortion, but the generality of the opinion’s language allowed for uncertainty. The Assistant District Attorney at the time, Newman Flanagan (himself a staunch Catholic), argued that the abortion was legal but that the death of the fetus was not. Because Roe did not specifically define abortion nor “viability”, Flanagan was able to argue that abortion was merely the termination of a pregnancy, which could result in a live birth. Central to his case was the definition of “birth” as the separation of the placenta from the womb, as well as the claim that Edelin had held the fetus inside the womb for three minutes as it struggled to breathe before dying. Edelin denied the three-minute wait, with two nurses supporting his testimony, as well as the idea that the fetus could have survived outside the womb. His defense attorneys argued that whatever had specifically transpired, the operation, including the death of the fetus, was protected by Roe.
Edelin’s case was not helped by photographs of the aborted fetus, which jurors remarked “looked like a baby.” Nor was it ideal for Edelin that all the jurors were Roman Catholics and that the Catholic Church held a great deal of power in Massachusetts at the time. Nonetheless, Edelin was able to appeal the case to the Massachusetts Supreme Judicial Court the following year. In their ruling overturning Edelin’s conviction, the Court held that “there was insufficient evidence to permit a jury to find that there was a live birth, an indispensable element for conviction of manslaughter.” Edelin was able to return to the practice of medicine upon his acquittal.
This case is important for a number of reasons. It raised questions over the definition of life, personhood, and viability. It exposed the uncertainties doctors and patients faced with respect to abortion procedures. But it also clarified aspects of Roe under consideration – the State still could not place limits on abortion before the time of viability of the fetus, even if that time could be disputed. Now even these rights are likely to be restricted. The U.S. Supreme Court is poised to claim that in fact the right to abortion never existed in the first place, that the arguments made in Roe and other cases were invalid. We are being told that the rights people have been exercising for fifty years were a figment of a prior court’s imagination. Everything solid melts into air. The Kenneth Edelins of the world – and especially their patients – are in danger once again.
Edelin, who died in 2013, said after his conviction that he would continue to perform abortions because “they are a woman’s right…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.” He was an advocate for abortion rights for the rest of his career, serving as Chairman of the Board of Planned Parenthood from 1989 to 1992. He never stopped thinking about the case that made him a national figure. “Angry? Sure, I’m still angry,” he told the Boston Globe in 1991. Edelin put his anger to good use. Let us hope that abortion advocates do the same as the date of the next Supreme Court decision’s release looms.
