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The Edelin Appeal And Women's Rights

NO WRITER ATTRIBUTED

MORE THAN for the legal definition of birth which it offers as a precedent, the recent decision of the Massachusetts Supreme Judicial Court to acquit Kenneth C. Edelin is important for the support it gives to a woman's constitutional right to an abortion. The conviction of Dr. Edelin for manslaughter following an abortion he performed on October 3, 1973 was the triumph of a prosecutor anxious to limit the right to an abortion in this country. In finding insufficient evidence to prove any "wanton" or "reckless" conduct to a viable human being, the Court has reasserted its faith in doctors' good medical judgments in performing abortions and in the rights of patients.

According to the original trial judge, James P. Maguire, only proof that the fetus ever lived outside the mother's body would have legally constituted birth and subjected Edelin to a possible manslaughter conviction. But from the beginning the prosecution's case to prove a live birth rested on a confusing and contradictory welter of evidence. Both at the trial and at the appeal last April, Assistant District Attorney Newman A. Flanagan drowned his argument in emotionalism. Flanagan could not refute the overwhelming evidence that the fetus never lived outside the mother's womb, but he could shout, as he did at the appeal, that "this is the case of a child that was born." And even given his contention that a child had been born, Flanagan could not prove that the alleged human life was viable or that Edelin had intentionally harmed it. All Flanagan could do was argue against making patients and their doctors "the absolute judge of what the law is in this country." What Flanagan himself hoped to do with the abortion law for the sake of his own political mileage was clear.

In rejecting Flanagan's plea, the majority opinion has thwarted an ugly attempt to limit the definition of a legal abortion. But in writing in an additional majority statement arguing that Edelin, as long as he did not cause its death, could not be held liable even had the fetus lived and then died, three of the justices have gone a step further: they have offered protection to doctors who perform abortions in the future. Justices Kaplan, Braucher and Wilkins recognized that when a 17-year-old woman entered Boston City Hospital in late September 1973 requesting an abortion, Edelin observed the law regarding his practice--as far as the law went.

Had the uncertain points of law been defined at the outset--had lawyers known what degree of separation from the mother constitutes birth or even what constitutes abortion--the Edelin case might never have come to court. The new majority opinion takes the first steps in forming some of these definitions. Even more importantly, the State Supreme Judicial Court must be commended for symbolically telling doctors that they needn't be frightened to perform abortions and women that they needn't be scared to ask for them.

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