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Prohibitions on Legal Abortion Are Not New

The Anti-Abortion Movement Has a Long History of Criminalizing Healthcare Providers

On Wednesday, May 15, 2019 Alabama Governor Kay Ivey signed legislation that prohibits abortion in nearly all cases. This new law could punish doctors who perform abortions with up to ninety-nine years in prison. Doctors convicted of performing abortions will be categorized as Class A felons joining the ranks of those convicted of first-degree murder, rape, kidnapping, and arson. The decision of Alabama’s governor and legislature to criminalize doctors who successfully perform — or even attempt to perform — an abortion may come as a surprise to some, but it is part of a long-lived strategy by the anti-abortion movement.

It is also worth remembering that these strategies did not originate in the southern states where they flourish today. Anti-abortion activists achieved their first major legal victory using this strategy on February 15, 1975, when an all-white and mostly Catholic jury in Boston found obstetrician-gynecologist Dr. Kenneth Edelin guilty of manslaughter. Edelin was the first African American chief resident at Boston City Hospital. He was also one of only two doctors in the hospital willing to perform abortions. Edelin attracted the attention of local anti-abortion activists who opposed the abortions performed at Boston City Hospital in the wake of Roe v. Wade (1973).

Edelin’s conviction followed a concerted attack on Boston City Hospital by local anti-abortion activists. At a public hearing, these activists claimed that doctors and researchers at the hospital were experimenting upon and killing fetuses by the thousands. On the basis of these accusations, a Suffolk County District Attorney opened a criminal investigation of the hospital. Following his investigation, a grand jury indicted four doctors for studying the effects of antibiotics on aborted fetuses. It also indicted Edelin for performing an abortion on a woman known in the legal record as Alice Roe.

Edelin’s trial began in January 1975. According to the prosecution, Edelin had killed “baby boy Roe,” a 24 to 28-week-old child. The prosecution argued that Edelin had removed “baby boy Roe” from Alice Roe’s uterus while it was still alive and then failed to provide “him” with life-saving care. Edelin testified that he had aborted a non-viable 21 to 22-week-old fetus, and his lawyer argued that “no person ever existed” so “no person was ever killed.” Edelin’s attorney also attempted to show the jury that the testimonies of the prosecution’s witnesses were based on political beliefs rather than medical knowledge.

But these arguments failed to impress the jurors who were ultimately swayed by a photograph of the fetus, and by the prosecution’s argument that Edelin had killed a baby that had drawn breath.

Although Edelin could have received up to twenty years in prison, a judge sentenced him to a year of probation and stayed that sentence until the Supreme Judicial Court of Massachusetts decided upon Edelin’s appeal. The following year, the state’s Supreme Court voted to reverse Edelin’s conviction reasoning that there had been “error” in the trial. Finding “insufficient evidence” for another jury trial, the justices voted to acquit Edelin, freeing him from the charge of manslaughter.

Edelin never served time, but his case marked an important stepping stone for the anti-abortion movement. It set a precedent for anti-abortion activists who learned they could convince politicians and jurors that fetuses were children. It also solidified their strategy of portraying doctors who perform abortions as murderers. The anti-abortion movement’s unremitting effort to punish doctors who terminate pregnancies provides a through line from Edelin’s case to Alabama’s draconian legislation. In six months from now, when Alabama’s abortion ban is scheduled to go into effect, the few providers left in Alabama’s three remaining abortion clinics will face an impossible choice. They can leave the state and abandon women in need in Alabama, or they can practice abortion in defiance of the law and risk the decades in prison that Edelin narrowly avoided.

Lauren Gutterman is co-host of the Sexing History podcast and an assistant professor of American Studies at the University of Texas at Austin. Follow Lauren on Twitter @LaurenGutterman. You can subscribe to the podcast, Sexing History, on iTunes. To hear more about Dr. Kenneth Edelin’s case, check out this episode.

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Lauren Gutterman

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