About the Edelin case. Late term abortion.

From:    Susan Garvin
To:      All                                    Jan-16-94 11:03PM
Subject: About the Edelin case

Organization: School of Computer Science, Carnegie Mellon
Subject: About the Edelin case
life entails no "significant risk" to the mother)
From: garvin+@cs.cmu.edu (Susan Garvin)
Newsgroups: talk.abortion

Reverend Holtsinger posted a somewhat garbled version of the Edelin
case.  (Okay, in some parts he posted lies about the Edelin case,
but it was clearly the case that he meant.)

Dr. Kenneth Edelin was the chief resident in obstetrics at Boston
City Hospital in 1973.  He had been doing abortions there since
1971, stating that, "I believe in quality medical care for *all*
people, and this is a small part of it.  It is not the ideal
method of birth control and should not be used as such.  But
women have been making a choice about pregnancies they didn't
want for as long as they've been on earth.  When birth control
fails, a woman has a right to have her pregnancy terminated
in a safe and professional manner."[1]  A 17 year old woman
entered the outpatient clinic in September requesting an
abortion.  Her LMP date indicated that she was about 17 weeks
pregnant.  Physical examination (by Dr. H. R. Holtrop, the
clinic's chief of OB/GYN) suggested a gestational period
of 20 weeks.  The young woman was admitted on September 30.
Dr. Edelin was scheduled to perform the abortion.

     After her admission, the young woman was examined by a
third year medical student who estimated the gestational
period as 24 weeks.  (The medical student, Alan Silberman,
stated that he had no previous experience estimating
gestational age and his note said "looks about 24 weeks."
[3]) Next, a junior resident at the hospital, Dr. Enrique
Gimenez-Jimeno, also estimated the gestational age as
24 weeks.  Finally, Dr. Holtrop re-examined the patient
and revised his estimate to 21 to 22 weeks.  ("There is
reason to think that Dr. Holtrop's method of measuring
the distance from the symphysis pubis to the fundus of
the uterus, by tape measure, was likely to be more accurate
than fingers' breadth measurement from the umbilicus to
the fundus.  It was noted, also, that Dr. Gimenez had not
taken the precaution of having the patient void her
bladder before he made his estimate:  a failure of
evacuation could distort the estimate upwards." [2])

     On October 2, 1973, Dr. Edelin estimated the gestational
age as 20 to 22 weeks.  The doctor attempted to perform
a saline abortion on the woman, but each try failed to
show that the needle had penetrated into the amniotic
sac.  Suspecting an anterior placenta, Dr. Edelin
consulted with his supervisor, Dr. James Penza.  Dr.
Penza attempted saline induction and failed on
October 3.  On Dr. Penza's advice, Dr. Edelin then
began a hysterotomy on the patient.

     "The abortion by hysterotomy involved incision of the
uterus to reach and remove the products of conception.
In about ten minutes after the patient received general
anesthesia, Dr. Edelin commenced incising through the
abdominal wall to reach the uterus.  As he had diagnosed
an anterior placenta, he made a low transverse cut
just above the pubic hairline.  The process of incising,
retracting, and so forth was laborious and took perhaps
thirty minutes.  Reaching the uterus, Dr. Edelin made
a transverse incision of about six to seven centimeters,
a relatively small cut:  the lower part of the uterus
is thick at twenty to twenty-two weeks and excessive
bleeding was to be avoided.  Dr. Edelin reached into
the incision with the index and middle fingers of his
left hand, steadying the uterus with his right hand.
He swept the uterine cavity with his fingers to
detach the placenta from the uterine wall;  then he
began to peel the amniotic sac, intending to recover
the sac intact through the incision, the rest to
follow.  As he brought his fingers behind the sac
and began to ease the sac through the incision, the
sac ruptured.  Dr. Edelin then sought to take hold
of a lower extremity of the fetus in order to draw
the fetus through the uterine incision.  This was
difficult because of the size and location of that
     Upon removal of the fetus, Dr. Edelin put his
hand on its chest wall for a few seconds;  finding
no heartbeat or other sign of life {11}, he placed
the fetus in a stainless steel basin held for the
purpose by an attending nurse.  He turned his attention
promptly to the patient with the open uterine
incision.  After removing any remaining material in
the cavity, and swabbing the cavity and taking
other indicated steps, he undertook the suturing
process and concluded the procedure.  The patient
recovered without incident.
     The fetus and placenta were transfered to the
pathology laboratory according to usual practice
on the morning of the operation.  The resident
pathologist weighed the fetus twice and recorded
600 grams (one pound, five ounces).  For preservation,
the fetus and cord were placed in formalin, a
ten per cent solution of formaldehyde.

{11}  See the confirming testimony on this point by
Dr. Gimenez, pp 9, 11 *infra* (Mass.Adv.Sh.[1976]
at 2804, 2809-2810." [4]

The fetus was discovered in the hospital by a group
of investigators from the D.A's office who were
there, two months later, to investigate a group
of doctors doing fetal experimentation (the investigation
of these doctors resulted from pressure from an
anti-abortion group.)  Assistant D.A. Newman A. Flanagan
decided to prosecute Dr. Edelin for "manslaughter" and
an indictment was returned by the grand jury on
April 11, 1974.  He was suspended from his duties
at the hospital, but the suspension was reversed on
April 18.

     "Why is Kenneth Edelin being prosecuted for
manslaughter?  Many Boston doctors and lawyers are
convinced it is for political reasons.  They
pont out that this is an election year, that long-
time district attorney Garrett H. Byrne was in a
tough primary race and needed publicity.  The
Edelin case, they speculated, would win him support
in this heavily Roman Catholic city." [5]

     There were also rumors that racism played a
role in the prosecution.  Dr. Edelin is African-
American, and Boston was experiencing severe racial
problems at this time.

     The state based its case on Dr. Gimenez's
claim that Dr. Edelin waited 3-5 minutes after separating
the placenta before removing the fetus.  They argued
that the fetus became a person when the placenta was
detached.  Under Massachusetts law, the fetus had
to be alive when removed from the uterus to be considered
a person under the manslaughter statute.

    An all white jury heard the case.  The prosecution
called noted anti-abortion leaders such as Dr. Mildred
Jefferson as "witnesses."  A photograph of the fetus
was introduced.  There was conflicting testimony
regarding the weight of the fetus (the medical examiner
recorded a weight of 693 grams at an autopsy on February
12, 1974 - some argued that the added weight was from
the formalin solution), the gestational age of the fetus,
the possible viability of the fetus, the question of
whether or not the fetus breathed outside the uterus,
and Dr. Edelin's actions.

     Dr. Edelin was convicted of manslaughter on
February 15, 1975.  (Some jurors commented that they
had been unable to hold out against the majority.
An alternate juror reported that one of the jurors
said, "The nigger is guilty as sin" during the trial. [6])
Dr. Edelin was sentenced to one year's probation,
stayed until after the appeal.  Dr. Edelin returned
to work the next day, where he was greeted with a
banner welcoming him back.

     On December 17, 1976, the Supreme Judicial Court
of Massachusetts overturned Dr. Edelin's conviction
in a 5-1 decision.  (The dissenting justice only
dissented against the judgment of acquittal - he
concurred that the original verdict must be set aside,
but would have ordered a new trial.)  The court held
that there was insufficient evidence to go to the jury
of wanton or reckless conduct or of live birth, and
that the difference between the accusation and the
judge's charge to the jury was prejudicial to Dr. Edelin.

     "...It is to be borne in mind, also, that no witness
was prepared to state that this fetus had more than the
remotest possibility of survival.
     If we accept, as we think we must, that there was
nothing to show Dr. Edelin believed the fetus to be
viable, or was flagrantly mistaken in believing it
to be nonviable, then even a three to five minute
wait after detachment of the placenta would not count
as recklessness because Dr. Edelin would think it
indifferent to the possibility of meaningful survival.
     ...Dr. Gimenez's testimony is fairly reconcilable
with Dr. Edelin's:  the pause Dr. Gimenez spoke of
may well have been the interval of the delay in delivering
the fetus that was due to the rupture of the amniotic
sac.  {31}  However that may be, criminal recklessness
is not in the picture if one starts with an understanding
of Dr. Edelin's belief and judgment as to viability.

{31}  It is unnecessary to comment on the reliability of
Dr. Gimenez as a witness (i.e., his opportunity and
capacity to observe) which was attacked by the defense." [7]

Dr. Edelin remains an outspoken advocate of legal abortion.

[1]  _Newsweek_, 3-3-75, p. 23

[2]  Mass.,359 N.E.2nd 4 at 7

[3]  _Science_, 1-31-75, p. 335

[4]  Mass.,359 N.E.2nd 4 at 7

[5]  _Science_, 10-25-74, p. 328

[6]  _Newsweek_, 3-3-75, p. 23

[7]  Mass.,359 N.E.2nd 4 at 14