Book Review
Broken Justice: A True Story of Race, Sex and Revenge in a Boston Courtroom
N Engl J Med 2008; 358:861-862February 21, 2008
- Article
Broken Justice: A True Story of Race, Sex and Revenge in a Boston Courtroom
By Kenneth C. Edelin. 362 pp., illustrated. Boston, PondViewPress, 2007. $17.95. ISBN: 978-0-9792060-0-9There were overtones of the Salem witch trials and the convictions of Sacco and Vanzetti when, in 1975, a jury found Dr. Kenneth C. Edelin guilty of manslaughter for having performed an abortion by hysterotomy on an unmarried 17-year-old girl. In 1973, when he performed the abortion, Edelin was the chief resident in obstetrics and gynecology at Boston City Hospital (now known as Boston Medical Center).
The resemblance of Edelin's trial to those other infamous trials is that belief systems, prejudices, emotions, and political winds played a large role. Racial tensions in Boston at the time of the trial added to the poisonous atmosphere — Edelin is black, and the jurors who found him guilty were white. The critical difference is that the defendants in the earlier cases were executed, and Edelin's ordeal had a better outcome. On appeal, the Massachusetts Supreme Judicial Court ordered entry of a judgment of acquittal. In light of that happy ending, is it quite fair that Edelin has now written a distinctly angry book and that it is titled Broken Justice? It is a paradox of his deeply engrossing and alarming story that what Edelin and the medical profession properly regard with outrage, the legal profession may consider an example of how an independent judiciary — not subject to political winds — can repair the system of justice.
At the beginning of 1973, it was a crime for a physician “to procure the miscarriage of a woman,” except to preserve her life and health. On January 22, 1973, the Supreme Court of the United States decided Roe v. Wade and the companion case of Doe v. Bolton. Those two decisions, which are the subject of doctrinal religious rage to this day, had the effect of nullifying the antiabortion statutes that were on the books in Massachusetts and in other states.
Now, 35 years after the Roe v. Wade decision, it may pay to review what it held: first, that during the first trimester of a pregnancy, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's” physician; second, that “for the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health”; and third, that “for the stage subsequent to viability,” the State may regulate and even proscribe abortion.
When the 17-year-old girl and her mother arrived at Boston City Hospital in September 1973 to request an abortion, Massachusetts had not yet adopted any regulations concerning abortions. Performing an abortion was therefore lawful. The patient was examined by H.R. Holtrop, chief of the outpatient obstetrics and gynecology service, who determined that she was 20 weeks pregnant. He advised abortion by amniocentesis with saline infusion and designated Edelin to perform the procedure. Edelin attempted to use this method several times, but the needle repeatedly recovered a bloody tap, suggesting an anterior placenta. Edelin consulted with the associate director of obstetrics and gynecology, James F. Penza, and the two agreed that Penza would attempt amniocentesis the next morning. If that were not successful, Edelin would perform a hysterotomy.
With full institutional vetting, Edelin performed the hysterotomy. He removed the fetus and detected no heartbeat or other signs of life. The fetus and the placenta, in accordance with hospital protocol, were sent to the pathology laboratory. The resident pathologist weighed the fetus twice and recorded a weight of 600 g.
Between the date of the Roe v. Wade decision and the date of the abortion — October 3, 1973 — the foes of abortion had begun a campaign to undo the consequences of the Roe v. Wade and Doe v. Bolton decisions. Raymond L. Flynn, who would later be elected mayor of Boston but in 1973 was a member of the Massachusetts House of Representatives, wrote to Albert “Dapper” O'Neil, Boston City Councillor, about “certain inhumane procedures . . . being practiced at Boston City Hospital and other city medical institutions, both public and private, following the Supreme Court decision permitting abortions on demand.” O'Neil had his cue and ready means to ferret about at Boston City Hospital through the office of the District Attorney for Suffolk County. The job fell to Newman Flanagan, a politically ambitious assistant district attorney who saw the subject of abortion as providing a stage on which he could strut and play to advantage before a predominantly Irish Catholic electorate.
Flanagan brought Edelin before a grand jury that he had convened to investigate “questionable criminal activities” at Boston City Hospital. He procured an indictment of Edelin for manslaughter — a charge that is defined as wanton or reckless conduct, indifferent to or disregarding predictable consequences, that results in death.
Edelin has a gift for narrative that gives his book the flavor and pace of a good novel. He demonizes his nemesis, Flanagan, to the point of caricature — although this is hardly to be wondered at in light of what Flanagan did to Edelin. The story is full of other villains. There is Enrique Gimenez-Jimeno, a junior resident with whom Edelin had clashed frequently and who, probably settling scores, testified against Edelin at trial. Ironically, Gimenez-Jimeno's unequivocal testimony that the fetus was dead upon removal from the mother was decisive in the judgment of acquittal that was ordered on appeal. Also in the cast of villains are Mildred Jefferson, Fred Mecklenburg, Denis Cavanagh, Norman Vernig, William O'Connell, and John Ward. These physicians were all involved with the antiabortion movement and testified for the prosecution.
There is a nicely balanced portrait of William P. Homans, the chain-smoking, hard-drinking (after the day's work), and highly skilled lawyer who represented Edelin at trial and was cocounsel with Charles Nesson on the appeal. Edelin's appraisal of the trial judge, James McGuire, however, is off the mark; he writes him off as another cog in the Irish Catholic antiabortion machinery of Massachusetts. Justice Benjamin Kaplan, who wrote the opinion of the Supreme Judicial Court that reversed the judgment of conviction, observed that “the judge tried the case with skill and careful attention to detail, but faced unprecedented problems which he had to resolve on the spot.”
The coda of Justice Kaplan's opinion is instructive for doctors and lawyers: “In the comparative calm of appellate review, the essential proposition emerges that the defendant on this record had no evil frame of mind, was actuated by no criminal purpose, and committed no wanton or reckless acts in carrying out the medical procedures on October 3, 1973. A larger teaching of this case may be that, whereas a physician is accountable to the criminal law even when performing professional tasks, any assessment of his responsibility should pay due regard to the unavoidable difficulties and dubieties of many professional judgments.”
Rudolph Kass, LL.B.
Associate Justice (Ret.), Massachusetts Appeals Court, Boston, MA 02108
rkass@socialaw.com
