Abortion: The Edelin Shock Wave

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary ... is not in a position to speculate as to the answer.

--U.S. Supreme Court, Jan. 22, 1973

Though a seven-man majority of the learned Justices of the Supreme Court of the U.S. shrank with becoming modesty from this speculation, the jury of laymen that convicted Dr. Kenneth Edelin in a Boston criminal court (TIME, Feb. 24) showed no such restraint. Its verdict--guilty of manslaughter--was reached after the jury decided that a fetus aborted by the obstetrician more than a year earlier had been, in fact, a living baby. Last week Judge James P. McGuire, who in his charge to the jury had declared that "a fetus is not a person and therefore not a subject for an indictment for manslaughter," took some of the edge off the conviction. Although he could have imprisoned Edelin for as long as 20 years, he gave the doctor a suspended one-year sentence and placed him on probation.

Edelin, confident that his conviction would be overturned, promptly returned to work as chief resident in obstetrics and gynecology (OBG) at Boston City

Hospital--where the obstetrics nursing staff had hung a banner reading: WELCOME HOME, DR. EDELIN. Nonetheless, the verdict had already sent a shock wave through hospital OBG services across the country and heated the simmering abortion controversy back to a full boil.

Edelin's conviction, which resulted from the abortion of a 20-or 22-week-old fetus, should have no direct effect on a woman's right to elect an abortion in the first trimester (three months) of pregnancy--within 14 weeks after the last menstrual period. Abortions at this stage are relatively simple, virtually bloodless procedures; they account for about 800,000 of the 900,000 legal abortions now performed annually in the U.S. Under the 1973 Supreme Court ruling, first-trimester abortions are essentially free of regulation but must be performed by a licensed physician.

Ample Margin. The same ruling, however, empowered the states to set safety standards for the more difficult and dangerous abortions during the second trimester. Of the 31 states that have already imposed standards, most permit abortion by choice only through the 20th week; after that, there must be clear medical evidence that the mother's life or health is endangered or that the baby will be irreparably defective.

That limit would seem to provide obstetricians with an ample safety margin. Although an 18-week fetus (see cut) looks like a baby and can suck its thumb, the chance of survival for any fetus less than 24 weeks old and weighing an average 630 gm. (about 1% Ibs.) is slim. (Edelin's abortion produced a fetus of 600 gm. after a gestation that he had estimated at about 20 weeks.) Between 24 and 28 weeks is a gray zone in which few fetuses attain the weight or organ development needed to survive outside the womb. It is only at 28 weeks or later --when a fetus usually weighs at least 2 Ibs.--that it has a fair chance of survival and should not be aborted except for the most extreme circumstances. Despite the clearly established medical facts, the legal status of second-trimester abortions--at least in the view of some hospital administrators--has become clouded. Largely as a result of the Edelin verdict, Vanderbilt University Hospital in Nashville, Hutzel Hospital in Detroit and Western Pennsylvania Hospital in Pittsburgh, among others, have imposed twelve-to 16-week limits on abortions.

Others, particularly Boston's famed medical community, have staunchly stood their ground. Boston City Hospital issued a "statement of support" and called Edelin "an outstanding physician whose professional performance has been and continues to be at the highest level... consistent with the highest prevailing standards of medical care, and we strongly reaffirm his continuing staff appointment." The hospital does not intend to change its abortion regulations. At Boston's Beth Israel Hospital, Dr. Louis Burke, head of OBG, declared: "I think it's a travesty of justice. This man was working in the context of the Supreme Court guidelines."

Dr. Kenneth J. Ryan, chief of staff at the Boston Hospital for Women, pointed out that the hospital's approach to 20-to 24-week abortions would remain the same: careful, requiring more medical consultations than usual, and often using religious counseling. At the New Orleans meeting of the Association of Professors of Gynecology and Obstetrics last week, Ryan drafted a resolution, approved by 225 members, that declared: "The adversary system of the criminal courts is not the place to define abortion, to define viability or to define the moral issues of abortion. We must guard against local jurisdictions or vocal minorities imposing their ethical positions for medical care in family planning and abortion on patients or doctors who do not hold those positions." This was obviously a reference to the composition of the Boston jury that convicted Dr. Edelin: ten of the twelve jurors were Roman Catholics, and the Catholic Church, though far from being alone in its opposition to abortion, is certainly the most vocal foe of the practice.

Grave Necessity. New York City's nonsectarian hospitals almost unanimously reported that they would continue to perform abortions for women up to 20 weeks pregnant, or later if there is grave medical necessity, subject to the safeguards established by the state. At Washington's Freedmen's Hospital, Baltimore's Johns Hopkins Hospital and Grady Memorial Hospital in Atlanta, the reaction was the same. In Chicago, leading OBG services conceded that they would take more care to establish the length of gestation--but otherwise, no change. In California, where a 20-week law is in effect, there was no problem.

Any reduction in the availability of legal abortions resulting from the Edelin verdict will affect principally--in the words of the New York Times--"the poor, badly educated younger women for whom the prospect of giving birth is a particularly great personal disaster." Many of the women who do not seek abortions until the second trimester are teen-agers who have concealed their condition from their parents as long as possible. Others are simply ignorant of the dangers of a late abortion, which, even under the best hospital conditions, are far greater than for a first-trimester procedure.

Great Odds. In many states, the Boston conviction could result in an increase in the cost of abortions. To avoid malpractice suits, hospitals may well have extra personnel and life-support equipment standing by during second-trimester abortions (a practice already required in New York State). If the aborted fetus shows even the faintest signs of life, more obstetricians will use the equipment to try to keep it alive--despite the great odds against success.

A predictable reaction to the Edelin verdict came from the organized, active and highly articulate anti-abortion forces. Dr. William Lynch, a Boston obstetrician who helped organize the anti-abortion National Commission for Human Life, expressed sympathy for Dr. Edelin but was pleased with the verdict. He was critical of the reaction of other doctors because "the only thing that will deter them from performing abortions is not the threat to human life, but the threat of a malpractice suit."

In Philadelphia, John Cardinal Krol reacted happily to the news (see Fo-RUM). This week in Los Angeles a group called Mobilization for the Unnamed was to rally in support of the Edelin conviction outside the California Medical Association Center. In general, the jubilation was a softer echo of the emotional outpouring that occurred in January on the second anniversary of the Supreme Court's ruling, when a crowd estimated at 25,000 massed on the Capitol steps in Washington to protest what they called "a day of infamy." On that occasion, many carried placards reading: ABORTION IS MURDER or ABORTION IS CHILD ABUSE. The protesters, some of whom came from as far away as St. Paul, heard speeches from Senators and Congressmen who support a constitutional amendment that would reverse the Supreme Court's ruling.

Right-to-lifers are moving against abortion on other legal fronts. In Boston, for example, the anti-abortion movement has obtained indictments against three Boston researchers who used tissue from dead fetuses for research. The chief prosecutor in the Edelin trial, Newman Flanagan, now plans to turn his full attention to the case pending against the three. Activists in Long Island's Nassau County have prompted inquiries by both local and federal prosecutors into allegations that aborted live fetuses were allowed to die in the county medical center. Last week the center turned over to the district attorney all of its medical records for 89 fetuses aborted during January.

National Debate. Dr. Ryan of the Boston Hospital for Women hopes that the Edelin case will have an effect similar to that of the 1925 Scopes trial, at which the teaching of evolution was debated. Although Scopes was found guilty, the resulting public outcry led to a national debate that in turn eventually produced an enlightened consensus on evolution. Perhaps, says Ryan, the uproar over the Edelin verdict will help eventually to bring a reasonable accommodation among those who back abortion and those who oppose it. In the light of the strong passions that the issue arouses today, however, that would seem to be a forlorn hope.

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