Dr. Kenneth C. Edelin yesterday appealed before the Massachusetts Supreme Judicial Court his year-old conviction of manslaughter for a death following a legal abortion he performed in 1973.
In a 90-minute appeal, defense lawyers argued that his patient's constitutional right to an abortion gave Edelin the right to perform, in his best medical judgment, an operation which terminated a possible fetal life.
The lawyers maintained that there was insufficient medical evidence to prove that after the abortion Edelin terminated a "viable" human being.
Edelin was convicted by a Suffolk County Superior Court jury on February 15, 1975, for allegedly causing the death of a 22-24 week old fetus after an abortion performed at Boston City Hospital.
The higher court's decision on the appeal is expected within the next few months.
William P. Homans Jr. '41, who represented Edelin at his trial, argued for the first half hour that the prosecution failed to prove that "the fetus was born alive outside the mother."
Charles R. Nesson '60, professor of Law, speaking on behalf of Edelin, concluded the appeal, saying that because it could not be adequately proved that the fetus was "viable" when still inside the body of its mother, the state had no power to impose a criminal sanction on Edelin.
However, assistant district attorney Newman A. Flanagan, who prosecuted the original case against Edelin, said, "This case is the case of a child that was born."
Flanagan said that although every woman has the right to an abortion, described by the Supreme Court as the "termination of a pregnancy," their doctors "should not have the absolute right to decide what the law is in this country."
Homans said after the trial yesterday that he is "rather discouraged" that the five Supreme Court justices asked so few questions.
The defense challenged the testimony of the chief prosecution witness, Dr. Enrique Giminez, who said that Edelin, in performing the abortion, held his fingers inside the uterus for three minutes in order to assure the death of the fetus.
Homans argued that Giminez's testimony "established at most circumstantial evidence since he couldn't see what Edelin's fingers were doing."
The defense also challenged the reliability of prosecution medical witnesses' testimony that the fetus had breathed after being removed from the mother.
Homans said he was "shocked" at Flanagan's argument because he "did not understand how it met our argument."
Flanagan was unavailable for comment yesterday.
The Edelin case attracted national attention last year because of the implications it could have for abortions performed in this country