Dr. Kenneth Edelin, a Boston gynecologist who was convicted of manslaughter after performing a legal abortion in 1973, died December 30 in Florida. He was 74.
Dr. Edelin’s prosecution and conviction, which was later overturned on appeal, was among the first indications that anti-choice activists would not let the Supreme Court’s decision in Roe v. Wade end their efforts to criminalize abortion and punish those who seek and provide them. At the time of his prosecution, Dr. Edelin was a prominent young doctor who had become the first African American to serve as chief resident in obstetrics and gynecology at Boston City Hospital.
In October 1973, nine months after Roe v. Wade decriminalized abortion nationwide, Dr. Edelin performed an abortion on a teenage patient who was at most, in Dr. Edelin’s estimation, 22 weeks along in her pregnancy. The procedure began with the routine practice of injecting a saline solution into the uterus, but when that did not work, Dr. Edelin performed a hysterotomy. Prosecutors charged that by performing the hysterotomy, a surgical procedure where a small incision is made in the uterus and the fetus is detached from the placental wall by hand, Dr. Edelin had deprived the fetus of oxygen within the womb at a time when it could have survived outside.
In less than a day of deliberation, an all-white, predominately male and Catholic jury convicted Dr. Edelin of manslaughter.
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Dr. Edelin appealed the verdict, and in 1976 the Massachusetts Supreme Court unanimously overturned the conviction and formally acquitted him. The decision acquitting Dr. Edelin made crucial distinctions in the developing case law around abortion rights in a newly post-Roe world. According to the court, a doctor could commit manslaughter only by ending the life of a fetus that was clearly and definitively alive outside the pregnant person’s body, rejecting the theory advanced by the prosecutor and anti-choice activists that the fetus might have been born alive in the uterus after being separated from the uterine wall and was therefore a “person” for purposes of the manslaughter statute. The court also clarified that for purposes of the prosecution, “life” meant having something more than “fleeting” respiratory efforts and more than “several” heartbeats. Finally, the court made it clear that doctors could not face criminal liability for failing to take “heroic measures” to save a fetus once outside a pregnant person’s body.
Following his acquittal, Dr. Edelin continued his career in medicine. He became a professor of obstetrics and gynecology at Boston University, where he served as chair of the department until 1989. He also was the managing director of the Roxbury Comprehensive Community Health Center, the largest provider of primary health services for Boston’s Black community. From 1989 to 1992, he served as the chairman of the Planned Parenthood Federation of America. In 2007, after retiring from teaching and medical practice, he published his memoir, Broken Justice: A True Story of Race, Sex and Revenge in a Boston Courtroom. He was also the author of numerous articles on teen pregnancy and substance abuse during pregnancy.
Convicted murderer Scott Roeder is set to be re-sentenced in connection with the death of Dr. George Tiller while his associate Angel Dillard will stand trial for threatening another Wichita, Kansas abortion provider. These are particularly alarming developments at a time when anti-choice violence has spiked.
It only took a jury about half an hour in 2010 to convict Scott Roeder of first-degree murder for the 2009 shooting death of Dr. George Tiller at Tiller’s church in Wichita, Kansas. Roeder admitted during the trial that he had thought about and planned Tiller’s murder for years. He offered no witnesses in his defense. Instead, Roeder argued that he was justified in Tiller’s murder because it was the only way to end abortion in Wichita.
Roeder was sentenced to life with no chance for parole for 50 years, otherwise known as a “hard 50.” But in 2013, the U.S. Supreme Court decision ruled juries, not judges, needed to make certain criminal sentencing decisions. Though a jury convicted Roeder of the crime of first-degree murder, a judge issued his sentence. That means Roeder’s underlying murder conviction stands, but the amount of time he’s supposed to serve is now up for grabs. On Wednesday, a judge ruled that a new jury will have to decide if Roeder’s “hard 50” sentence was justified. And with that potential new sentencing comes a fresh opportunity for Roeder and his attorneys to advance the radical legal argument that the murder of abortion doctors is justified under the law—a particularly alarming sentiment at a time when anti-choice violence has spiked.
The necessity defense invoked by Roeder is an actual, legitimate legal defense where the defendant argues they committed a particular crime in order to avoid a greater “harm or evil” being committed. To that extent, it is not so much an “I didn’t do it” defense as it is a “there’s a good reason why I did it, and so you should go easy on me” defense. In Roeder’s case, as echoed by other anti-choice radicals, murdering abortion doctors is “necessary” to prevent the greater evil of legal abortion.
Not all states recognize the necessity defense; Kansas generally doesn’t. And suffice it to say that no court has recognized the defense in connection with the murder of a doctor for doing his job. But that didn’t stop Roeder and his attorneys from arguing it anyway, and it won’t stop them from doing it again this summer.
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Nor, for that matter, did it stop Sedgwick County District Court Judge Warren Wilbert from saying Wednesday that Roeder may have a constitutional right to presenthis evidence for why the necessity defense should apply to his case. Essentially, Roeder and his attorneys can potentially outline for a new jury all the reasons Roeder felt his killing of Tiller was for the greater good.
This is not the first time Wilbert has indicated a willingnessto consider Roeder’s “necessity” defense. Wilbert also oversaw Roeder’s initial criminal trial and ruled that Roeder couldn’t specifically argue the necessity defense because Kansas law does not recognize it. But Wilbert did leave the door open for Roeder to present during his first trial evidence and arguments that he murdered Tiller to defend the lives of “the unborn.” That opening could have allowed jurors to find Roeder guilty of a lesser charge like voluntary manslaughter, defined under Kansas law as the “unreasonable but honest belief that circumstances existed that justified deadly force.” That didn’t happen, thankfully, and the jury convicted Roeder of intentional first-degree murder, a crime that carries an automatic sentence of life in prison. Now, because of the 2013 Supreme Court ruling, a jury will determine whether Roeder must serve at least 25 or 50 years of his life sentence before he is eligible for a parole hearing.
Roeder’s next scheduled hearing is on April 29, when Roeder’s attorneys have been instructed by the court to provide any “mitigating factors” a jury should consider in weighing Roeder’s sentence. Roeder’s actual sentencing hearing has not yet been scheduled.
Roeder’s re-sentencing may seem like one of those “procedural” issues that doesn’t change much. The chance of Roeder, who was 51 when convicted, of dying in prison is likelier than him ever being paroled. But it is a procedural issue that comes at an inauspicious time for the issue of violence against abortion providers, especially in Kansas.
Angel Dillard, a woman who claims to be a “minister” to Scott Roeder, is set to stand trial in Kansas on May 3 for claims she threatened Dr. Mila Means, another Wichita abortion provider, out of taking over Tiller’s clinic following his murder. According to reports, Dillard told Means in a 2011 letter that thousands of people across the country were looking into her background. “They will know your habits and routines,” the letter read. “They know where you you shop, who your friends are, what you drive, where you live. You will be checking under your car [every day]—because maybe today is the day someone places an explosive under it.” That letter prompted the Department of Justice to bring a Freedom of Access to Clinic Entrances (FACE) Act claim against Dillard. Initially, a federal court ruled Dillard’s letter was protected free speech, but a federal appeals court overturned that decision and ordered Dillard to stand trial.
During their initial investigation of Dillard, the Obama administration had tried, unsuccessfully, to find out what connection she had to Roeder after prison logs revealed Roeder had several communications with Dillard and Rev. Michael Bray. Bray, an Ohio anti-choice radical, also promotes the use of lethal force in the battle over abortion rights, and spent four years in prison in connection with attacks on several abortion clinics in the Washington, D.C. area.
When Dillard’s trial begins in May, the Justice Department could, through other evidentiary means, be able to make the specific connections between Roeder, Dillard, and Bray without relying on testimony from any of them. Justice Department attorneys may even be able to connect Tiller’s murder, and the threats against Means, to other Wichita-based anti-choice activists like Operation Rescue’s Troy Newman. When Roeder was arrested, for example, he had Newman’s second-in-command Cheryl Sullenger’s phone number in his car. Sullenger served almost two years in prison after pleading guilty to her role in a 1988 plan to bomb a California abortion clinic.
And, of course, the consequences of these operations reach beyond Wichita or anti-choicers’ direct contacts. Most recently Sullenger and Newman have admitted to their roles in “consulting” with the radical anti-choice Center for Medical Progress, an organization set up by David Daleiden and others to try and prove through infiltration that Planned Parenthood and other providers were selling unlawfully selling fetal tissue for profit. Planned Parenthood has not been found guilty of any wrongdoing. But CMP’s videos, and the dozens of baseless state and federal investigations they’ve inspired, have produced a significant uptick in violent threats and activities against abortion providers, such as the Black Friday siege of a Planned Parenthood in Colorado Springs, Colorado. The attack ended in the shooting deaths of three people; the accused shooter, Robert Lewis Dear Jr., has said he committed the murders to “save the babies.”
Dear had initially said he planned to plead guilty to the murder charges connected with the Planned Parenthood attacks. He has apparently changed his mind and, if found competent to stand trial, would now like to plead not guilty.
There is no evidence, at least none disclosed, that Dear had any direct contact with anti-choice radicals like Newman or Sullenger, or that he even knows who they are. The Colorado Supreme Court recently ordered documents related to Dear’s arrest unsealed. They could be disclosed as soon as next week, and could provide more answers as to any relationships Dear has with the broader anti-choice movement.
Roeder, Dillard, Dear. All three cases will be going on this summer as anti-choice activists descend in July on Wichita to mark the 25th anniversary of the Summer of Mercy, a massive protest organized by radicals to try and make Wichita “abortion free.” Operation Rescue first orchestrated the 46-day campaign in 1991; Operation Save America (OSA) has since picked up the mantle. According to Rusty Thomas, director of OSA, July’s protest will focus on “states defying a tyrannical court” that recognized the right to an abortion.
“They must do their duty to interpose and nullify that lawless decree and protect the preborn,” Thomas told Christian Newswire.
Thomas insists July’s protests will be peaceful. But anti-choice radicals also insist their rhetoric and propaganda have no link to violence against abortion providers, even in the face of evidence to the contrary. So even if Thomas is correct and July’s protests produce no immediate acts of violence, the Roeder, Dillard, and Dear trials show “peaceful” anti-choice activity is an oxymoron.
Many anti-choice radicals hold Roeder up as a hero, and his re-sentencing hearing provides an opportunity to rally against the “lawless decree” of Roe v. Wade, as well as the courts that protect abortion rights and convicted Roeder of his crimes. It also provides as a forum for Roeder and his attorneys to yet again advance, even fruitlessly, the legal argument that murder of an abortion doctor can sometimes be justified if the murderer really truly believes they are preventing a greater evil. Dillard will be arguing in her trial that her letter to Dr. Means suggesting she’d wake up to a bomb under her car wasn’t truly a threat because abortion providers should just expect those kinds of letters. Roeder, Dillard, and their attorneys will be in courts of law in Kansas arguing for not just the normalization of violence against abortion providers, but the legal justification for it.And Dear’s trial will be displaying the natural extension of that rhetoric.
Meanwhile, Thomas will be calling on their supporters and the courts to ignore the rule of law. That is troubling—to say the least.
Michelle Mitchell was in active labor in late June 2010 when she claims that she and her certified midwife showed up to deliver her baby at a hospital in Augusta County, Virginia.
Throughout her pregnancy, Mitchell had prepared for a birth free from unnecessary medical intervention. But like an alarming number of patients nationwide, Mitchell says her reluctance to consent to a cesarean section was ultimately ignored by doctors and hospital staff, who instead coerced her into surgery.
Mitchell sued, claiming the surgery was an assault and battery. Her trial, which is scheduled to begin in Augusta County Circuit Court Wednesday, reflects a broader trend of patients across the country who say they, too, have been pressured by doctors into c-section deliveries. And thanks to a recent New York trial court ruling, doctors in some areas may even be able to legally override consent with impunity when it comes to determining patient delivery methods.
According to court documents, Mitchell claims that once she was admitted to the hospital, Dr. Mark Brooks, who is a defendant in the lawsuit, demanded she have a c-section based on an ultrasound image performed a week earlier by Mitchell’s previous doctor and concerns over the baby’s size. Mitchell says that her previous doctor had recommended an induction of labor or c-section, but gave her no indication that vaginal birth was medically not an option or that a c-section was required.
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Mitchell says that she signed a document refusing consent for the c-section, and that over the next four hours, Dr. Brooks and other employees of the hospital threatened her in various ways, including calling Child Protective Services to take her expected child away should she fail to consent. According to the complaint, after hours of this treatment, Mitchell relented.
In addition to the trauma of feeling abused and coerced by her medical providers, Mitchell reports the surgery left her with physical injuries as well. According to the complaint, during her c-section Brooks also operated on Mitchell’s ovary; Brooks has, she claims, refused to explain what was done to that ovaryor why. The result has, Mitchell says, left her with scars, numbness, and a complete loss of feeling on the right side of her abdomen.
Brooks generally denies Mitchell’s allegations. Furthermore, his attorneys have not really defended his treatment of Mitchell and her c-section as much as they have advanced claims that Mitchell can’t prove her case. They argue in court documents that Mitchell changed her mind after executing the signed refusal and consented to the surgery. Furthermore, they say, Brooks did not threaten her, but instead simply laid out all the available treatment options and paths.
Hospitals charge about twice as much for a c-section as a vaginal birth, but it is not clear that profit motive is behind the increase in surgeries. Worries about medical malpractice claims do drive this increased number to an extent, but as National Advocates for Pregnant Women’s Farah Diaz-Tello noted in a previous interview with Rewire, there is no legal or ethical authority that supports addressing malpractice concerns by forcibly performing unwanted c-sections.
The medical community supports Diaz-Tello’s conclusion. The American Congress of Obstetricians and Gynecologists Committee on Ethics “condemns the use of coercion on a pregnant woman, as this threatens the physician-patient relationship and violates the intent of the informed consent process.” Most recently, the committee issued new, relaxed guidelines for attempting a vaginal birth after previous cesarean deliveries, also known as a VBAC. Those guidelines emphasize the importance of respecting patient decision making, which is beneficial to maternal, fetal, and child health, and note that a VBAC avoids major abdominal surgery, lowers a woman’s risk of hemorrhage and infection, and can shorten postpartum recovery time.
The committee also states that in cases where a doctor is recommending surgical delivery and a patient refuses consent, less intervention is better. According to the committee, when “faced with a continuing disagreement with a pregnant woman, a physician should turn to an institutional ethics committee. Resorting to the legal system [for doctors] is almost never justified.”
So long as a patient gives their informed consent to the c-section, the law should reasonably shield the doctor from any claims arising due to surgery complications. That is the purpose of informed consent—to protect patients from unwanted medical procedures and to protect providers from claims that patients did not understand the risks associated with a procedure.
Yet stories like Mitchell’s persist. Oftentimes, as in the case of Jennifer Goodall in Florida, the pressure comes from doctors who do not want to facilitate a patient undergoing a VBAC. Goodall had been told by doctors and hospital administrators that vaginal birth was too risky and should she not consent to a c-section, they would call Child Protective Services on her for endangering her baby.
Or, more recently, Rinat Dray, a mother of three who claims staff at Staten Island University Hospital pressured her to consent to another c-section despite her express wishes to have a VBAC. Dray has also filed a lawsuit against her providers. The accounts are unsettlingly familiar to Mitchell’s.
According to the allegations in Dray’s complaint, after several hours of labor, the attending physician told Dray that he would not examine her unless she agreed to have surgery. When she refused the surgery, the staff then consulted with a hospital attorney, who authorized the doctors to overrule Dray’s refusal to have a c-section. The complaint states that hospital staff made the decision to ignore Dray’s express wishes regarding her care without consultation with the facility’s bioethics department and without engaging the hospital’s patient advocate. According to records in the case, the surgery was approved by the hospital’s legal department over Dray’s explicit objection. A physician noted in her medical records, “The woman has decisional capacity. I have decided to override her refusal to have a c-section.”
During the process of Dray’s c-section doctors perforated her bladder, an injury that continues to cause Dray medical complications and forms the basis of her complaint against the hospital.
Dray’s case is still active. However, a recent trial court ruling regarding it suggests that part of the struggle is a result of anti-choice fetal personhood ideology, and the threat that ideology causes to medical care.
In a ruling on a series of requests to either dismiss or narrow Dray’s case, the trial court ruled that even though a fetus is not recognized as a person until after a live birth under New York law, the state has an interest in protecting viable fetal life, which it advances by outlawing self-abortion and abortions after the 24th week of pregnancy. That state interest, the trial court reasoned, is enough “to override a mother’s objection to medical treatment at least where there is a viable full term fetus and the intervention itself presents no serious risk to the mother.”
In other words, because the State of New York has a certain interest in protecting a viable fetus, doctors in the state can, for now, override pregnant patient consent with impunity. The New York court’s interim order in the Dray case effectively makes doctors agents of the state capable of enforcing the “rights” of a fetus over the rights of their own patient.
“In my client’s case the court … assumed having an interest meantthat the doctors get to do what they want based on the fact that the state might have an interest without allowing those interests to be evaluated,” explained Dray’s attorney Michael Bast in an interview with Rewire.
“The doctors are acting as prosecutor, judge, and jury,” Bast continued. “The doctors get to decide if the baby is at risk, how much at risk, is that risk more or less than the risk to the mother, and then make that moral decision—and just go carry out the remedy they deem appropriate.”
With Dray’s case still active and a ruling on the merits of her claims outstanding, there is a chance New York courts will correct the error of this recent decision. Earlier in October, the highest court of appeals in the state ruled a Long Island woman should not have been convicted of second-degree manslaughter for the death of her 6-day-old baby from in-utero injuries sustained in a car accident she caused. There, the court ruled that it was clear the New York legislature did not intend to hold pregnant women criminally responsible for reckless conduct “with respect to themselves and their unborn fetuses.” The New York court made it clear that unless the law specifically states otherwise, prosecuting pregnant women, or even threatening social service intervention and the quasi-criminal family law system, is wrong.
But it is precisely the idea that women like Mitchell, Goodall, and Dray are behaving recklessly by refusing surgical birth that has led doctors in each of these cases to leverage the power of the state and its resources against their own patient, in opposition to medical standards. Patients who are completely competent to consent to medical care have that consent overridden simply because they are pregnant.
If that is not an expression of the danger of the fetal-rights movement to patient autonomy, I don’t know what is.