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45 Mo. L. Rev. 394 (1980)
State Regulation of Late Abortion and the Physician's Duty of Care to the Viable Fetus

handle is hein.journals/molr45 and id is 406 raw text is: STATE REGULATION OF LATE ABORTION AND THE PHYSICIAN'S DUTY OF CARE TO THE VIABLE FETUS Mary Anne Wood* Lisa Bolin Hawkins** I. INTRODUCTION Seven years after Roe v. Wade,1 its legacy of unresolved issues2 sur- rounding the abortion decision appears larger than ever before, despite the growing number of legal opinions interpreting the various ramifica- tions of Roe v. Wade and its companion case, Doe v. Bolton.3 Perhaps none of the unresolved issues is more troubling than those concerning the extent to which a state can regulate the abortion process as the fetus approaches and attains viability. Two widely publicized criminal prosecutions and two recent Supreme Court decisions illustrate these issues. In Commonwealth v. Edelin,4 a doctor who was convicted of manslaughter following the death after an abortion of a twenty-one to twenty-four week fetus appealed his conviction to the Massachusetts Supreme Judicial Court. Dr. Edelin and his super- visor, Dr. Penza, unsuccessfully attempted to abort the fetus by saline amniocentesis., After repeated attempts failed to produce conditions suitable for the introduction of the saline solution, Dr. Edelin performed a hysterotomy.0 He made an incision in the patient's abdomen and then detached the placenta from the uterine wall, thus cutting off the fetus' oxygen supply. According to the testimony of a doctor who was observing the surgery, Dr. Edelin then left his hand in the uterus for three minutes.7 After removing the fetus and finding no signs of life, he placed it in a basin.8 The prosecution argued that the fetus was alive after the placenta was separated from the uterine wall, and that Dr. Edelin had a duty to care for it. According to the prosecution, the three minute delay in remov- *Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University. B.A., 1966, Brigham Young University; J.D., 1976, National Law Cen- ter, George Washington University. B.A., 1976, Brigham Young University; J.D., 1980, J. Reuben Clark Law School, Brigham Young University. 1. 410 U.S. 113 (1973). 2. Id. at 165 n.67. 3. 410 U.S. 179 (1973). 4. 371 Mass. 497, 359 N.E.2d 4 (1976). 5. For a description of the saline abortion technique, see notes 29-32 and accompanying text infra. 6. 371 Mass. at 502-03, 359 N.E.2d at 7. For a description of the hysterotomy abortion technique, see notes 48-52 and accompanying text infra. 7. 371 Mass. at 506-07, 359 N.E.2d at 9. 8. Id. at 503-04, 359 N.E.2d at 7.

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