Commonwealth v. Edelin

Hennessey, C.J.

(dissenting in part). I dissent from the main opinion’s1 conclusion that the defendant was entitled at his trial to a directed verdict of not guilty. The Commonwealth had the burden of proving beyond a reasonable doubt that there was a live birth and that death was caused by the wanton or reckless conduct of the defendant. In my view there was sufficient evidence as to each of these elements to warrant submission of the case for the jury’s consideration. Further, I conclude that the defendant was on sufficient and timely notice of the offense charged and cannot now show prejudice by reason of variance between charge and proof. From these determinations it follows that I dissent from the majority’s conclusion that a judgment of not guilty must now be entered.

*533I depart from the Justice Kaplan opinion’s approach both as to the statement of the applicable law, and the appraisal of the facts of the case. As to the law, the Justice Kaplan opinion applies Wade-Bolton in impermissible ways to this manslaughter case, and also offers unacceptable legal premises as to the common law of this Commonwealth. As to the facts of this case, in reaching the conclusion that a directed verdict of not guilty was required, the Justice Kaplan opinion indulges in a weighing and discarding of evidence in a manner permitted only to the jury. On the directed verdict question it is not relevant that much of the crucial evidence offered by the Commonwealth was controverted by the defendant and his witnesses.2

Nevertheless, I would not order that the judgment of guilt be affirmed, because in my view the judge’s instructions to the jury were inadequate, and substantially less than the minimum to which the defendant was entitled.3 Therefore, if my views were to prevail, the verdict of the jury would be set aside and a new trial would be ordered. I summarize later in this opinion the additional jury instructions which I believe should have been given.

Variance

There was no prejudicial variance between charge and proof. The indictment specified the offense of manslaughter, the date of the alleged offense, and the name of the alleged victim. Thus, there could be no possibility of double jeopardy, since there is no further, other, similar *534crime with which the defendant could be charged. Cases cited by the defendant are inapposite, because they do not thus preclude the possibility of double jeopardy. E.g. Commonwealth v. Albert, 307 Mass. 239 (1940); Commonwealth v. American News Co., 333 Mass. 74 (1955). Further, under the law of the Commonwealth, a defendant shall not be acquitted on the ground of variance between the allegations and the proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense. G. L. c. 277, § 35. There could be no prejudice here. See Berger v. United States, 295 U.S. 78, 82 (1935).

The defendant was aware of the elements of the offense charged, and his attempts to obtain particulars were aimed clearly, not at gaining more specificity of the allegations, but at obtaining admissions from the Commonwealth in support of the defendant’s pre-trial motions for dismissal of the indictment. It is surprising to see the acceptance, in the Justice Kaplan opinion, of the defendant’s position on the issue of variance. Whatever ambiguity existed in the particulars as to “live birth” was resolved by assertions by the prosecutor, on the record, several months before the trial, that the subject breathed, and by the Commonwealth’s pre-trial affidavit that the subject was breathing and had circulation. The defendant made an unsuccessful attempt to obtain dismissal under the procedures set out in Commonwealth v. Brandano, 359 Mass. 332 (1971), which permit the defendant to pursue the equivalent of a summary judgment of dismissal before trial. The effort of counsel was commendable, but it should not result later in a dismissal on variance grounds simply because the defendant did not achieve the results he had hoped for from his attempt to bind the Commonwealth to a pre-trial statement of its evidence and its theories of proof. Long before trial commenced, there was an unequivocal statement of the offense charged. Whatever language could be said to have misled the defendant as to the issue of live birth was clarified on the record on several occasions before the trial.

*535 Live Birth

There was ample evidence to warrant an inference that the subject4 was viable and was born alive. Many eminent medical specialists testified at the trial, expressing diverse opinions as to these issues. It is true that there was substantial expression of expert opinion to support the defendant’s position. Nevertheless, the inquiry here on the issue of directed verdict points, as it must, to the evidence as viewed in the light most favorable to the Commonwealth. I state below a brief summary of some of the Commonwealth’s substantial evidence which required submission of these issues to the jury.

Dr. George W. Curtis, the medical examiner, testified that the body at autopsy was normal in all respects, weighed 700 grams at autopsy, and would have weighed more on October 3,1973. He opined that there was respiratory activity, at least a gasping of breath, outside the mother.

Dr. Denis Cavanagh, a diplómate in the Royal College of Obstetricians and Gynecologists of England, a diplómate of the American Board of Obstetrics and Gynecology, chairman of the department of obstetrics and gynecology in St. Louis, Missouri, and an author of many scientific publications, placed the age of the fetus at approximately twenty-four weeks. Based on other medical evidence that the fetus was twenty-four weeks of age and weighed 700 grams, he was of opinion that had the fetus been immediately removed after the detachment of the placenta “the new born infant would have been alive.”

Dr. Norman L. Virnig, director of the newborn service at the St. Paul Ramsey Hospital, and a professor of pediatrics in Minnesota, stated his opinion that the baby’s gestational age was twenty-four weeks, that in this case he thought the “baby was viable,” and further stated that *536had it been removed, on the detachment of the placenta, and “given medical support, the baby would survive.”

Dr. Joseph Kennedy, Jr., a professor of pediatrics at Tufts specializing in neonatology, put the subject’s gestational age at about twenty-four weeks, and said “that the subject was viable in that he had a chance for life.”

Dr. John F. Ward, a fellow in the American College of Pathologists, a clinical professor at the University of Pittsburgh, School of Medicine, stated his opinion that the “fetus was approximately six and a half months gestation,” and from a pathological examination of the lungs, stated his belief that the subject did breathe outside the uterus. He further stated that the subject “was not a stillborn.” Thus there was substantial evidence of a live birth. It meets even the defendant’s assertion that there must be proof that there was a chance for “meaningful life” or survival for a “minimum period,” within the meaning of Wade-Bolton. I am not sure what those terms mean. I do state that it is not for any doctor to guide his conduct by his own estimate as to the duration or quality of life likely to occur.

Wanton or Reckless Conduct

As to the required proof of wanton or reckless conduct of the defendant which caused the death,5 I would agree that there was not sufficient evidence for the jury’s consideration if I could accept the majority’s premise that the judge in his instructions permitted the jury to consider only the postnatal conduct of the defendant. I believe such an instruction would be in error, but it would have been the law of the case if given, and would have effectively restricted the consideration of the evidence to the postnatal period. However, as I read the instructions, and the circumstances in which they were given, the judge permitted *537consideration of both prenatal and postnatal conduct. Further, contrary to the view expressed in the Justice Kaplan opinion, I believe this was a valid instruction within the meaning of Wade-Bolton and within the common law of the Commonwealth.

Clearly the judge’s instructions6 meant that the death, not necessarily the defendant’s conduct, must have occurred after the birth of the subject. The choice of words, although perhaps redundant, was consistent with a desire upon the judge’s part to make it plain to the jury that a “person” must be born alive. Much of the evidence at the trial concerned the procedures followed by the defendant while the subject was in útero. Just before the judge’s charge, the prosecutor devoted a major part of his closing argument to the jury to a discussion of that same prenatal evidence as proof of the indictment. No instruction by the judge during the trial or in his final charge to the jury limited the jury’s consideration to postnatal conduct. The jury necessarily understood the charge to be addressed to all relevant conduct of the defendant, and the judge clearly intended that the jury should have that understanding.

Given a live birth, the common law of Massachusetts permits consideration of the defendant’s prenatal conduct in support of a manslaughter indictment. There is no Massachusetts case directly in point.7 The Justice Kaplan opinion relies on the case of Dietrich v. Northampton, 138 Mass. 14, 15, 17 (1884), which I suggest does not reach *538or control the issue. There is support in the English common law and in the law of at least four American jurisdictions that conduct toward a subject prenatally may give rise to criminal liability if it results in the death of the child after its live birth. E. Coke, Third Institute 50 (1644). State v. Cooper, 22 N.J.L. 52 (Sup. Ct. 1849) (dictum). Abrams v. Foshee, 3 Iowa 274, 278 (1856). Clark v. State, 117 Ala. 1 (1898). Morgan v. State, 148 Tenn. 417 (1923). See also Huskey v. Smith, 289 Ala. 52, 55 (1972); State v. Anderson 135 N.J. Super. 423, 427-428 (Law Div. 1975). Thus the law is not applied prospectively in this case. In the light of the centuries-old precedents, the defendant’s conviction does not violate the due process clause of the United States Constitution. Bouie v. Columbia, 378 U.S. 347, 356 (1964). The defendant certainly knew of the “possible criminality” of his conduct. Mullaney v. Wilbur, 421 U.S. 684, 690 n.10 (1975). Even if this were a case of first impression, application to the defendant of the common law standards of manslaughter would not be an unconstitutional declaration of criminality. “It is not necessary that [courts interpreting the common law] be able to point to a decided case exactly similar in its facts.” Clark & Marshall, Crimes § 1.03 at 21 (7th ed. 1967). Cf. Commonwealth v. Henson, 357 Mass. 686 (1970).

The duty to protect the life of a viable fetus has always been crystal clear and, as shown infra, this duty has not been modified in the slightest by Wade-Bolton. Given birth followed by death, it would be extraordinary if the common law did not permit consideration of all relevant conduct of a defendant in a manslaughter case. It would not be reasonable for a doctor to assume otherwise. Clearly the doctor’s duty to the viable fetus arises at the time he knows or reasonably should know that he could be dealing with such a subject. In any case where he is fairly chargeable with such knowledge during the prenatal stage, it would be incongruous to exclude proof of his conduct during that period.

The Justice Kaplan opinion states that “common sense” tends to support the exclusion of prenatal conduct from *539consideration for, as they say, if a contrary rule were adopted a putative defendant might be encouraged to make sure he extinguished the fetus while still in útero. This projection is incorrect, in my view. On the contrary, the common law rule as I have phrased it would support the community’s and the medical profession’s overwhelming interest in sustaining the life of the viable fetus. All of this must be received for the future against the background of the Commonwealth’s present anti-abortion statute, presumably tailored to the requirements of Wade-Bolton, and potentially available in any case which fits the Justice Kaplan opinion’s proposition that a physician might choose to extinguish the life of the viable fetus before birth.

I reject the Justice Kaplan opinion’s contention that constitutional principles, as expressed in Wade-Bolton, preclude consideration of prenatal conduct.8 By the holdings of the United States Supreme Court, the States may proscribe abortions on demand in the stage subsequent to viability.9 The constitutional immunity of the doctor from criminal prosecution extends only through the stages prior to viability. That immunity extends to the privilege of terminating the pregnancy; it does not protect against wilful, wanton or reckless conduct which causes the death of a viable fetus. Just as the States may now provide criminal anti-abortion statutes which apply to the stage subsequent to viability, so may the laws of homicide apply in cases of a viable fetus, a live birth and a subsequent death caused by prenatal and postnatal criminal conduct.10

*540Reviewing both prenatal and postnatal conduct, there clearly was sufficient evidence for the jury to consider on the issue of recklessness. Considering the evidence most favorable to the Commonwealth, conclusions were warranted that the child was born alive but suffering from the effects of drugs and lack of oxygen, which in turn were the result of the defendant’s techniques, chosen without regard to the possibility of a live birth. Further, an inference was permissible that the child died as a result of its weakened condition together with the defendant’s failure to stimulate it or aid it after birth. Thus, if the jury believed the evidence most favorable to the Commonwealth, they were warranted in concluding that the defendant acted with indifference to or disregard of probable consequences to another. Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). This conclusion would be sufficient to support an inference of recklessness.

There was evidence that the defendant knew that a physician and a medical student in pre-abortion examinations had placed the age of the fetus at twenty-four weeks. Another doctor placed it at twenty-one to twenty-two weeks and the defendant also knew this. This was to be considered in light of the fact that viability may occur, as recognized in Wade-Bolton, in twenty-four weeks. The defendant in his testimony stated that he had reached a conclusion that the age of the fetus was twenty to twenty-two weeks but, again, the credibility of his testimony was *541for the jury. Thus, there was evidence from which it could be found that the defendant was aware, in advance of the abortion, that he could be dealing with a viable fetus.

There was evidence that the defendant separated the placenta from the uterine wall but then delayed the delivery during a period of at least three minutes while the defendant remained motionless with his hand in the uterus. There was evidence that such a procedure is nowhere sanctioned as accepted medical practice. This was compared by one medical witness, Dr. Mecklenburg, to “cutting the air hose on a salvage diver.” Other medical testimony supported findings that this deprivation of oxygen was deleterious, and would result in death of the child after birth and not while it was in útero.

The jury could also find from the evidence that the hysterotomy method is consistent with production of a live child, but that the techniques used by the defendant made a relatively easy operation difficult. They could find that, prior to the sixteenth week of pregnancy, hysterotomy procedure involves separation of the placenta after initial incision into the uterus and before the fetus is removed from the mother’s body. At or prior to the sixteenth week the fetus is very small, weighing about 100 grams and it is possible, after separating the placenta, to remove the fetus and sac intact. A twenty-four week fetus, however, would weigh about 600 grams and intact removal would be impossible. The defendant knew that the' gestational age of the fetus was far beyond sixteen weeks and that it was far heavier than 100 grams. The defendant knew before the operation, of medical opinions relating to twenty-four weeks, and he himself thought it was twenty to twenty-two weeks. There was evidence of a weight of 700 grams, and he could be held to a (pre-operative) fair idea of the size from his prior examinations of the mother. It could be found that he unnecessarily used a technique which endangered the fetus’s chance of survival. There was further evidence from which it could be inferred that anesthesia techniques were unnecessarily used which could be deleterious to the health of a viable fetus.

*542From all of this the jury could conclude that the defendant, knowing he was engaged in a late-term abortion and that a live birth was possible, acted with disregard for the consequences to the subject. Additionally it could be found that he proceeded with methods which unnecessarily endangered the subject. The defendant’s total failure to have regard for the subject’s well being was consistent with his testimony that he regarded the death of the fetus as “presupposed.”

It is clear that the defendant’s state of mind is a crucial consideration as judged at all relevant times before, during and after the abortion. It is in that regard that the judge’s instructions to the jury were particularly wanting. I turn now to that phase.

Instructions to the Jury

The courts must, in dealing with abortion cases, avoid the “overhanging risk [for physicians] of incurring criminal liability at the hands of a second-guessing lay jury.” (Statement of Mr. Justice Stewart in United States v. Vuitch, 402 U.S. 62, 97 [1971].) The Justice Kaplan opinion here attempts to avoid that overhanging risk by concluding that the case should not have been submitted to the jury, and reaches this result despite substantial factual evidence and expert medical opinions that, if accepted by the jury, established all elements of the Commonwealth’s case.

The medical judgment of the physician must have protection against unjustified second-guessing, but in this case the protection should have been accomplished, not by precluding the jury’s consideration, but by appropriate jury instructions.

The sense of the Justice Kaplan opinion, as I read it, is that the proclaimed medical judgment of the defendant overrides the opposing evidence and extinguishes the issues of fact. From this it might be inferred that actual malice must be shown. The Justice Kaplan opinion, not so much in its statement of the rules, as in its treatment of the evidence, may be said to import a subjective standard. *543This in turn would presumably require proof of the defendant’s actual pre-abortion knowledge of viability. Such proof equates with murder, not with manslaughter. In a manslaughter case, the standard of reckless conduct is at once subjective and objective. Commonwealth v. Pierce, 138 Mass. 165, 175-180 (1884). Commonwealth v. Welansky, 316 Mass. 383, 398 (1944).

In this case the defendant was entitled to an instruction that he could not be convicted if his conduct was based upon medical judgments which were made in good faith and were reasonable. Good faith and honest belief that the fetus was not viable (see Kudish s. Board of Registration in Medicine, 356 Mass. 98, 99, 100 [1969]), would not serve to protect him if the facts known to him or those of which he remained in “conscious ignorance” should have alerted him to the wrongfulness of his conduct. Commonwealth v. Pierce, 138 Mass. 165, 179 (1884). In this case, based upon the entire evidence, it was for the jury to say whether the defendant’s medical judgments were within the bounds of reasonableness, but the defendant was entitled to have the issue decided under adequate jury instructions.

More specifically, since in my view prenatal conduct must be considered, the jury should have been instructed that to establish guilt they must find beyond a reasonable doubt that the fetus was in fact viable; that there was a live birth and subsequent death; that the death was caused by the defendant’s prenatal or postnatal actions or omissions to act, in reckless disregard of the well-being of the subject; and that the defendant formed his judgment of non-viability either in bad faith, or unreasonably, based upon facts he knew or reasonably should have known. Such instructions were not given.

Conclusion

This opinion is not, of course, an implied statement of the guilt of the defendant. No one can say what the jury’s conclusion would have been, if they had been sufficiently instructed. The emphasis in this opinion is, as it must be, on the applicable principles of law.

*544Manslaughter prosecutions related to abortions are not likely to occur in the future. It can be predicted that if any prosecutions arise, they are more likely to arise under the new anti-abortion statutes. Nevertheless, there will be applicability, in any prosecution for illegal abortion, of the principle that the medical judgment of the physician may not be proof against criminal conviction where it is shown that his judgment was in bad faith or unreasonable. The issues of the duration of the pregnancy (“twenty-four weeks or more”) and the threat to the life or health of the mother, are raised in the anti-abortion statutes (see G. L. c. 112, § 12J, inserted by St. 1974, c. 706, § 1), and these issues will require application of medical judgment.

Because of this possibility of recurrent application of these principles, I trust that no language in any of the three opinions in this case will be construed so as to overstate the constitutional protections against criminal prosecution afforded doctors charged with crimes arising out of abortions. On appropriate evidence, the question of guilt is for the jury’s decision. I trust also that evidence as to the medical judgment of the defendant physician in any such case has here been placed in proper perspective, as subject to the protection of the tests of good faith and reasonableness, and as requiring most serious consideration by the court and jury.

Justices Braucher and Wilkins join with Justice Kaplan in the main opinion in its entirety. However, Justices Reardon and Quirico join the main opinion only as to the result reached (a judgment of not guilty) and some of its reasoning related to wanton or reckless conduct. For that reason I have referred to the main opinion hereinafter as the “Justice Kaplan opinion.”

The weight and believability of the evidence, as distinguished from existence of the evidence, has possible relevance at the appellate level only as to the issue whether the defendant might be entitled to a new trial because the jury’s verdict was against the weight of the evidence.

join in the majority’s statement which commended the trial judge’s direction of this complex and unique case. In instructing the jury, as in all other phases, the judge was in large part dealing with unprecedented problems.

The parties in their briefs use the terms “baby,” “fetus” and “subject.” To avoid legal implications in the terminology, I have used the term “subject” (a term used frequently by some of the medical witnesses) at many places in this opinion.

Central to the Commonwealth’s case is the concept that abortion (terminating the pregnancy before full term) does not necessarily involve death of the fetus, and indeed the viable fetus must have protection.

In relevant part, the instructions (see also the quotation from the charge in the Justice Kaplan opinion) were as follows: “[Y]ou must be satisfied beyond a reasonable doubt... that the defendant caused the death of a person who had been alive outside the body of his or her mother. If you believe beyond a reasonable doubt that the defendant, by his conduct, caused the death of a person, once that person became such as I have defined the word to you, you may find the defendant guilty of the crime of manslaughter, if that death was caused by wanton or reckless conduct on the part of the defendant. If, on the other hand, you do not find beyond a reasonable doubt that the defendant by his conduct caused the death of a person, then you must acquit him of the crime charged....”

This is not surprising in view of the applicability, prior to Wade-Bolton, of the Commonwealth’s anti-abortion statutes.

The Supreme Court has not addressed this issue, although it has addressed the question of criminal prosecutions in the general context. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 83-84 (1976), where it is stated: “[A] physician’s or other person’s criminal failure to protect a live-born infant surely will be subject to prosecution ... under the state’s criminal statutes.”

Even after viability, the State’s power to forbid abortion is limited in cases where the life or health of the mother is endangered. No contention of such danger to the mother was made in the instant case.

Some have expressed the view that, while the Supreme Court perhaps has the power to limit as it did (in Wade and Bolton) the control by the States over abortions, the judgment of the court in exercising *540that power was an improvident and extravagant exercise. (See, e.g., Mr. Justice White dissenting in the case of Doe v. Bolton, 410 U.S. at 222 [1973]; Hennessey, J., dissenting in Doe v. Doe, 365 Mass. 556, 564 [1974]). The assertion can be stronger as to the instant case, which it could be found, is concerned with a viable subject. Except for the case in which the life or health of the mother is endangered, the Constitution does not permit limitation, as based upon the mother’s right of privacy, of the State’s power of control over abortion of a viable subject. The State has a compelling interest to sustain the life of the viable fetus which outweighs any desire of the mother to abort the fetus. The defendant’s argument that criminal proceedings must not be allowed to chill the exercise of the rights recognized in Wade and Bolton is treated respectfully in the discussion of “Jury Instructions” later in this opinion.