New Attack on Abortion

The jury for the Commonwealth of Massachusetts on their oath present that Kenneth Edelin ... did assault and beat a certain person, to wit: a male child described to the said jurors as baby boy (blank) and by such assault and beating did kill the said person.

The indictment against Kenneth Edelin, 35, the first black chief resident in obstetrics and gynecology at Boston City Hospital, is more dramatic than accurate. No one seriously believes that the popular physician beat a baby to death. Nor does anyone take literally the charges that four of Edelin's colleagues exhumed human bodies to get tissues for a series of studies conducted at the hospital. Yet in a brace of cases that could have far-reaching implications for research as well as women's rights, all stand indicted. Edelin, who performed a demonstrably legal abortion, is accused of manslaughter; his fellow physicians are charged with violating an 1814 law against grave robbing.

Ever since the Supreme Court struck down restrictive state abortion laws in 1973, antiabortionists have been seeking ways to attack the decision. Last June they found an opportunity. Three Boston City Hospital researchers -- Drs. Agneta Philipson, L.D. Sabath and David Charles -- described in the New England Journal of Medicine their experiments to determine how effectively two antibiotics designed to treat congenital syphilis passed through the placenta from mother to fetus. To get their results, they had administered the drugs to women who had come to the hospital for abortions and then measured the levels of the medicines in the aborted fetuses.

The article aroused the Boston-based Value of Life Committee, which protested to both the hospital and the Boston city council. Sensitive to the political pressures in the heavily Roman Catholic city, the council scheduled hearings on the B.C.H. research. The meetings produced an outpouring of anti-abortion sentiment, and the council responded by calling for a criminal investigation.

District Attorney Garrett Byrne, a 22-year incumbent facing a tough primary fight, was happy to provide it. His office conducted an eight-month study of abortions at the hospital and then charged the researchers and Dr. Leonard Berman, a pathologist who supplied them with fetal tissue, with the unauthorized use of a body. The investigators also came upon the records of Edelin, one of only two doctors at B.C.H. willing to perform abortions. In October 1973, Edelin used a saline injection to abort a woman believed to be 20 weeks pregnant. When the procedure failed to end the pregnancy, he performed a hysterotomy, a form of caesarean section, delivering a fetus that pathologists estimated to be between 22 and 24 weeks old. Despite Edelin's insistence that the fetus was dead on delivery, the D.A. charged the doctor with manslaughter.

The indictments shocked doctors. "I just can't believe that I've been arrested, fingerprinted and mug shot for trying to find a way to prevent congenital syphilis," says Dr. Sabath. Hospital personnel were equally upset. Staff protests forced B.C.H. trustees to reverse their decision to suspend Edelin.

The doctors probably will not be convicted of the charges. Neil Chayet, one of their attorneys, insists that the D.A. must prove that the aborted fetuses were human bodies as defined by law rather than fetuses with the potential of human life; he contends that such proof is impossible under Supreme Court rulings. In Edelin's case, the D.A. must show that the fetus he removed was alive upon delivery and could have been maintained by reasonable efforts.

Nonetheless, the impact of the indictments is enormous. Scientists routinely use fetal tissues in essential studies of diseases ranging from chicken pox to cancer. Some--at least in Massachusetts--may now be reluctant to do any further work with fetal tissue.

The indictments have increased support for bills before the Massachusetts legislature that would require physicians to try to extend the lives of even unviable fetuses and forbid experiments like the ones for which the doctors were indicted. The case has also worked a hardship on Boston's poor. Despite its limitations, overworked B.C.H. has been one of the few places in the city where those who could not afford to pay could end unwanted pregnancies. As a result of the indictments, the hospital has forbidden abortions except in medical and psychiatric emergencies.

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