A reminder we forget our past at our own peril

The recently leaked draft Supreme Court opinion would, if issued as the final opinion of the Court, overturn the landmark decisions Roe v. Wade and Planned Parenthood v. Casey. It would have devastating effects on our society, introducing a new era of political intrusion into personal privacy, causing great personal hardship to many people, disproportionally those in poor and marginalized communities, and fostering more political discord. We are fortunate today to have mayoral leadership in Boston and gubernatorial leadership at the State House that has made clear the Bay State is not turning its back on the personal freedoms established for a half century. Any diminution of personal freedom in one arena sets in motion a potentially exponential series of consequences that may threaten basic American liberties, as we have come to understand the meaning of that term in contemporary times.

We may tend to take our current enlightened local political leadership for granted, but such was not always the case in Boston. In my book The Vidal Lecture, I wrote about how the then-district attorney of Suffolk County used the ultimate power of criminal prosecution to advance a political and ideological agenda. If we have learned anything over the past half dozen years, it should be how easy it is for our democratic political system to drift toward autocratic and theocratic rule. We forget the past at our own peril.

It’s 1973. Kenneth Edelin is the chief resident in obstetrics and gynecology at Boston City Hospital. He had come to Boston as a self-described 32-year-old idealist, fresh from three years of experience as a general medical officer in the Air Force. Edelin was highly regarded by his peers and committed to bringing quality medical services to the disenfranchised populations of the city. The doctors at Boston City Hospital had to deal each day with difficult medical issues, issues often exacerbated by the poverty that plagued many of the hospital’s patients. Many young women were victimized by a male-dominated culture that treated them as sex objects. They came to Boston City Hospital looking for help, and abortion was legal, within the limits established under Roe v. Wade in 1973.

The abortions and fetal tissue research projects that took place at Boston City Hospital offended conservative right-to-life groups in Massachusetts. Led by Dr. Mildred Jefferson, these anti-abortion constituencies brought an uncompromising religious perspective to the discussion. Anti-abortion activists made numerous complaints to a variety of like-minded local officials, notably City Councilor Albert “Dapper” O’Neil, who conducted public hearings on the practices at City Hospital.

While Boston’s political and religious leaders debated the propriety of abortion following Roe v. Wade, doctors like Kenneth Edelin responded to the harsh realities faced by poor young women who had few safe places to turn to when confronted by the prospect of an unwanted pregnancy. Evonne Gilbert (a pseudonym used by Edelin in his memoir Broken Justice) was 17 years old, 16 weeks pregnant, and scared when her mother brought her to Boston City Hospital for an abortion. You can hear the pain and anxiety in the mother’s voice: “I can’t take her home pregnant,” her mother said. “Vonnie can’t come home pregnant. She can’t continue this pregnancy. Her father can’t know about this, Dr. Edelin.”

Edelin described the situation as one he had had seen many times: “Many of the women who came in for second trimester abortions were teenagers, often trying to hide their pregnancies until it was too late. Many were alone, lonely and with nowhere else to turn. There was little or no hope that the men who got them pregnant would either be fathers to or providers for the children they made.”

With her mother’s consent and support, Evonne placed herself under Edelin’s care. Edelin believed that he was following all proper medical and hospital procedures, and that he was protected by Roe v. Wade when he performed what turned out to be a very difficult surgical abortion on Evonne, made necessary after a saline infusion had failed. The deep emotional pain associated with the unwanted pregnancy was felt by patient, parent, and doctor. As Edelin wrote,

“I failed her because the saline infusion had failed, and I was going to have to subject her to major surgery . . . She and her boyfriend had failed each other by not using birth control, or if they did, it failed them. . .. Now we were boxed in a corner. I could not fail her again. This had to be perfect.

“I visited Evonne each day after the operation and saw the relief on her face as she healed. The fear was nearly gone from her mother’s face – nearly but not completely. She and Evonne Still had to concoct a story to tell her father, a believable lie explaining where she had been for the last four days. . .. It is impossible to do a hysterotomy without feeling the full impact of the operation.”

It’s 1974. The district attorney of Suffolk County is running for re-election. Garrett Byrne is known to many as “Mr. District Attorney,” the fighting DA whose office famously prosecuted the Brinks robbers in the 1950s. It was Byrne who took on corrupt boxing officials and forced the Clay-Liston fight to leave Boston for the quieter quarters of Lewiston, Maine. And it was Garrett Byrne who tried unsuccessfully, in another election year, to ban the Broadway musical Hair from playing in Boston. Now, Byrne has his prosecutorial sights set on a different target, a highly regarded doctor at Boston City Hospital.

In all his high-profile prosecutions, Garrett Byrne had a villain and a victim. The villain this time was not a bank robber or a rapacious boxing promoter, it was a respected local physician. The language of the grand jury indictment reflected the inflammatory nature of the entire case. It charged that Edelin “did assault and beat a certain person, to wit, a male child described to the said [grand] jurors as ‘baby boy’ and by such assault and beating did kill said person.”

Byrne assigned the man he believed was the best trial lawyer in his office to the case: Newman Flanagan, a smart and effective prosecutor with an ebullient personality and a penchant for wearing outrageously flashy ties. For all his outward flash, Flanagan was a hard-driving and skillful lawyer who understood Suffolk County juries as well or better than most of his peers.

Edelin hired prominent defense attorney William Homans to defend him. He was in good hands. Bill Homans was one of the giants of Boston’s small but effective civil liberties bar—a hard drinking, chain smoking, meticulously prepared workaholic who took on the toughest cases and often the least appealing defendants. Homans’s trial skills were formidable, and he made a strong impression on juries with his “long dark hair tinged with white at the sides, piercing dark eyes set deep in their sockets, a craggy face, and a smile both sudden and engaging.”

Homans was initially taken aback by the indictment. “It doesn’t make sense,” he told Edelin. “By the law, they have virtually no case. I wonder if Garrett Byrne is getting ready for retirement.”  The trial was largely a battle of semantics and a parade of conflicting expert testimony, with both sides offering very different recollections about what took place and very different opinions about the implications of Edelin’s conduct.

Byrne was challenged for using his office in an inappropriate manner. The Boston Globe saw the case “as essentially a political move in response to pressure from this city’s anti-abortion forces.” The New York Times criticized the “impatient prosecutors in Suffolk County” who were “asking the jury to define the crime before it decides the defendant’s guilt or innocence.” Said the Times, “No matter how nobly motivated the prosecutors may consider themselves, their efforts to set social policy in a criminal courtroom constitute a gross abuse of the legal process.”

At the end of the trial the Suffolk County jury convicted Edelin of manslaughter. Assistant District Attorney Flanagan, having attained the conviction, did not press for a tough sentence. Edelin was sentenced to one year of probation. A candlelight march and rally on Boston Common drew a large crowd of people to express their outrage over the verdict. Dr. Leon White, then Boston’s commissioner of health and hospitals, said, “I just think Edelin has been made a fall guy in an issue that should be or could be decided without damaging what I consider a very fine doctor’s career.”

The New York Times weighed in again after the “almost unbelievable” conviction: the case “was an attempt to use a criminal jury to set social policy … the law was being politicized. This was an exercise that should be considered intolerable in any court of law.” The Boston Globe joined the Times in castigating Byrne’s “abuse of legal process,” and the governor’s wife, Kitty Dukakis, publicly referred to the verdict as “a rather sad precedent.”

Much public energy, substantial public funds, and the best talent in the district attorney’s office had been committed to a trial about public morality. The trial and conviction served only to further polarize the city on an issue that resisted easy resolution. In 1976, the Massachusetts Supreme Judicial Court reversed and set aside the manslaughter verdict, stating that there was insufficient evidence to go to a jury to prove the DA’s case. The court noted,

“In the comparative calm of appellate review, the essential proposition emerges that the defendant on this record had no evil frame of mind, was actuated by no criminal purpose, and committed no wanton or reckless acts in carrying out the medical procedures on October 3, 1973.  A larger teaching of this case may be that, whereas a physician is accountable to the criminal law even when performing professional tasks, any assessment of his responsibility should pay due regard to the unavoidable difficulties and dubieties of many professional judgments.”

Exonerated by the state’s highest court, Dr. Edelin went back to his work, in his words he returned to being “a doctor who took care of the women who needed me the most.” But the trial took its emotional and reputational toll. Edelin would refer to the manslaughter conviction as an example of “broken justice,” and in his memoir of the same title written in 2008, he wrote, “the scar on my soul has never gone away.”

Garrett Byrne, who authorized, sanctioned, and directed the Edelin prosecution, won another term as Suffolk County district attorney. Byrne left the entire trial, and most related press statements and interviews, to his trusted deputy Newman Flanagan. This may have been on account of Byrne’s advanced age, or his trust in Flanagan, or a variety of other factors, but it meant that the headlines went to Flanagan, not Byrne. It was a significant political lapse on Byrne’s part, and it would cost him dearly. For he could not know it in 1974, when he won re-election, but it would be Newman Flanagan, his able and trusted assistant, the man he referred to as being “like a son” to him, who four years later would provide him with his stiffest political challenge in over two decades, and hand him an election defeat that forced his retirement from the job he held since 1952.

The story of Kenneth Edelin, Garrett Byrne, and the use and abuse of prosecutorial power ought to be a cautionary tale for anyone who thinks that it’s impossible for us at this time, and in this place, to return to the days when basic rights of privacy were challenged, and doctors threatened by criminal prosecution. The mid-1970s may seem a long time ago, but we know that history has a way of repeating itself, and not always for the better. As I said earlier, we forget the past at our own peril.

James Aloisi is a former Massachusetts secretary of transportation. The story of Kenneth Edelin’s prosecution is included in a chapter of his book, The Vidal Lecture.