Justice  /  Comment

Why the Courts Had to Force the Trump Administration to Let a 17-Year-Old Have an Abortion

A 1974 case gave the antiabortion movement a new playbook to whittle away abortion rights for poor women.

The strategies antiabortion federal officials and activists in Texas employed date back nearly 45 years, to the weeks after abortion became legal. After Roe v. Wade (1973), some antiabortion activists launched a still unfulfilled quest to overturn the Supreme Court’s decision through a constitutional amendment. Others however, have found greater success by seeking to limit women’s access to abortion through state and local laws, thus eroding the national implementation of Roe.

In Boston, of all places, they learned that humanizing fetuses through fetal imagery and carefully selected language provided a powerful boost to their cause in the political arena. This antiabortion activism, in a place long considered the bastion of liberalism, ultimately created a template for how to incrementally limit abortion rights, leaving women’s rights activists scrambling to fight in the streets and in the courts over the next 40 years as Roe’s promises were hollowed out.

On Sept. 21, 1973, Alice Roe, the daughter of West Indian immigrants, went to Boston City Hospital seeking an abortion. The doctor who initially examined her noted that she was 21 to 22 weeks along and assigned her case to Dr. Kenneth Edelin, the hospital’s first African American chief resident and one of only two doctors there willing to perform abortions. After carrying out Alice’s wishes, Dr. Edelin recorded no heartbeat or sign of life in the fetus and, per protocol, sent it to the hospital’s pathology lab, where it was preserved in a bottle of formaldehyde.

Soon after, a Boston-based antiabortion activist received word from a hospital employee that there were “two big babies in bottles” at the hospital’s morgue. He persuaded the local district attorney to investigate Edelin and the hospital. The DA ordered an autopsy to see if the larger of the preserved fetuses — Alice Roe’s — had been alive when it was aborted.

The medical examiner concluded that the fetus had breathed after being removed from the uterus, leading the DA’s office to decide to prosecute Edelin for manslaughter.

When a grand jury indicted Edelin, it had an immediate and chilling effect. Boston City Hospital temporarily stopped providing abortions.

Edelin’s trial hinged on two questions: Did he abort a fetus, or murder a child? And was Edelin’s responsibility to his patient, or to her fetus? The prosecution sought to convince the jury that “baby boy Roe” had been removed from Roe’s uterus alive and died because Edelin failed to provide it with life-saving care.