Boston Judge Hears Arguments On 'Life' of an Aborted Fetus

The judge in a Boston abortion case yesterday took under advisement a motion by the defense to dismiss the manslaughter charge against a Boston City Hospital obstetrician.

A hearing on the dismissal motion lasted two-and-a-half hours in the Suffolk County Superior Court as lawyers for both sides argued the defense's contention that the alleged victim never lived.

Newman A. Flanagan, assistant district attorney, told Judge James A. McGuire that he should deny the motion because it was based on an affidavit from a doctor whose authority, Flanagan said, should be tested under cross-examination during a trial.

William P. Homans Jr. '41, attorney for defendant Dr. Kenneth Edelin of Boston City Hospital, argued that the affidavit clearly demonstrated that the aborted fetus never breathed.

Homans said that there was no need for a trial on the issue, because the prosecution did not dispute this "ultimate fact." He explained that the prosecution did not dispute it because it had offered no medical evidence in rebuttal and because its declarative statement that the fetus had breathed did not amount to a valid dispute.

At one point, prosecutor Flanagan apologized to the judge for not submitting a more evidentiary counter-affadavit, but during the hearing he did not note any medical evidence to support his claim that the fetus had breathed.

The defense motion included an affidavit from Dr. Kurt Benirschke, a professor at the University of California at Berkeley, attesting that lung cells taken in an autopsy of the fetus show no evidence of respiration.

Not an Abortion

The prosecutor said that the hysterotomy operation Edelin performed on the mother was not by definition an abortion and could have been a delivery. "In the course of terminating a pregnancy," Flanagan said, Edelin allowed "a human being to come into effect," then killed it.

A hysterotomy is a method of abortion similar in technique to Caesarean section. In the hysterotomy, however, the fetus is separated from the placenta while in the womb and soon dies deprived of oxygen. Flanagan had defined life in his prosecution as the state when the fetus breathes and maintains a heartbeat independent of the mother. Late in the hearing, though, he suggested that Edelin could be convicted for manslaughter even if the alleged victim had only a "potential" for life.

However, an aide motioned to the lawyer and he quickly dropped that tack of the argument.

Judge McGuire is considering another motion which he heard two weeks ago to dismiss on constitutional grounds, and a motion by the defense for clarification of the indictment's particulars.