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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