By Mark Osler
Editor's note: Mark Osler, a professor of law at the University of St. Thomas Law School in Minnesota, is a former federal prosecutor and the author of "Jesus on Death Row," a book about capital punishment.
(CNN) -- Thirty-nine years ago, Roe v. Wade was decided. With the passage of nearly four decades, the landscape of abortion has changed in a way that should trouble even those who consider themselves pro-choice.
Right now, 10 states and the District of Columbia have no statutory time limit on when abortions can be performed, while five more states allow abortion up to the end of the second trimester (about 27 or 28 weeks). Yet, we know that by 28 weeks, the great majority of fetuses would survive birth. In other words, we allow the killing of viable infants in our country. This is a fact that progressives (including me) would rather not address.
As two Maryland abortion doctors face murder charges for allegedly performing late-term abortions, the issue now has a pair of human faces.
Drs. Steven Brigham and Nicola Riley were arrested after the discovery of what are alleged to be several viable fetuses in a freezer chest. The story only got stranger on New Year's Day, when a clinic apparently owned by Brigham burned to the ground in Florida. Important facts are still unknown, and the doctors have asserted their innocence regarding any late-term abortions.
There has been relatively little discussion of this case in progressive circles. It's no wonder that we would rather look away. The abortion debate has largely devolved into professional activists screaming at each other on television and at street protests. We don't want to be like those people.
We are also haunted by the ragged remains of the Supreme Court opinion in Roe v. Wade. Despite being disavowed by subsequent opinions and some of the individual justices, one part of that precedent lives on in the statutes of some states and the practices of several doctors: The assertion in Roe's majority opinion that "viability is usually placed at about seven months (28 weeks)."
The scientific claim that viability (the ability of a fetus to live outside the womb) "usually" occurs at 28 weeks has been undermined by medical advances over the past 38 years.
Children who would have died if born late in the second trimester in 1973 would more than likely live if they were born now. A Swedish study in 2009 found that preterm babies born late in the second trimester who are given intensive care survive at surprising rates: 53% of those born at 23 weeks live, 67% at 24 weeks, and by 25 weeks, 82% of the babies survive. (Sweden's health care system makes it possible to reliably track survival rates, but the type of care provided there is similar to that available in the United States).
In the same way that the law had to change to accommodate advances in DNA evidence that can exonerate those on death row, state laws must change to accommodate that with modern medical care, a child born at 27 weeks is very likely not only going to live, but live a fairly normal life.
We progressives tend to revere science, and there are few scientific proofs more convincing than those former preterm infants who live and thrive all around us. Though late-term abortions are only a small fraction of the total number of terminated pregnancies, it remains a defining issue for our society.
As someone who works against the death penalty, trying to save the lives of people who have committed murder, I have a moral obligation to set my feet, breathe in deeply and honestly admit that prosecutors are morally in the right to pursue cases where they believe viable fetuses are being aborted in violation of the law. A life is ended, and that is murder, if the facts so prove.
Some will see any accommodation on abortion as "appeasement" of conservatives, but this attitude is nothing less than the adoption of hard-line evidence-ignoring tactics that progressives so often (and properly) decry in groups such as the National Rifle Association. We may disagree about whether life begins at conception, but it is now irrefutable that life is viable at 27 weeks. To deny this plainly observable fact is akin to denying the existence of evolution or global warming.
Much as Troy Davis (who was executed in Georgia last year despite troubling exculpatory evidence) and Hank Skinner (who received a stay of his execution in Texas to allow DNA testing to be pursued) personified the problems with the death penalty, there are those who do so just as starkly when we ponder late-term abortion.
For me, that person is named Rees. On a hot summer day in Waco, Texas, his proud grandfather carried him across the street for me to meet, months after his birth at about 24 weeks. His eyes were clear in the Texas sun, he was wrapped in a blue-and-white blanket, and he was surrounded by love.
He was, and is, a person, and that matters as much as Troy Davis and Hank Skinner.
Friday, February 3, 2012
Thursday, February 2, 2012
Abortion doc charged in 10 deaths
By Jim Walsh
A Voorhees doctor faces multiple murder charges in connection with late-term abortions that were performed at his Elkton, Md., clinic.
Dr. Steven Chase Brigham was being held Friday in Camden County Jail, pending extradition to Maryland. He is accused of 10 counts of first- and second-degree murder and one count of conspiracy to commit murder. The unborn babies of Brigham's patients are considered to be the murder victims, according to Elkton, Md., police.
Brigham already faced legal challenges from medical regulators over his practice of starting late-term abortions for women in New Jersey and then completing the procedures after the patients had traveled to the Maryland clinic. His medical license has been suspended in New Jersey and revoked in Maryland.
Maryland authorities said they began a criminal investigation after an 18-year-old woman suffered a life-threatening injury during a procedure at the Elkton clinic on Aug. 13, 2010. A doctor who worked at the clinic — Nicola Riley, 46, of Salt Lake City — drove the patient to a local hospital. The woman later underwent emergency surgery for a perforated uterus at Johns Hopkins Hospital in Baltimore.
Investigators learned the woman had been driven from Voorhees to the American Women’s Services clinic in Elkton, where Brigham and Riley were present when she was injured. A police search of the clinic four days later found about 35 fetuses in a freezer chest, authorities said.
Authorities provided no additional information about the case on Friday.
“We are not commenting at all on the charges,” said Kerwin Miller, a deputy state’s attorney in Cecil County, Md. “I don’t want to be in the position where we create any problems. This is too serious a case.”
Miller said an indictment in the case is expected to be available to the public next week.
The indictment charges Brigham with five counts each of first- and second-degree murder and one count of conspiring to commit murder. First-degree murder is charged in cases that involve premeditation, said Miller.
Riley, the other doctor at the clinic, also faces two charges of murder and one count of conspiring to murder. She was being held in a jail in Salt Lake City.
Both doctors were arrested on Wednesday night, Maryland officials said.
New Jersey authorities suspended Brigham’s medical license in November 2010, when the state Board of Medical Examiners said in part he had “provided grossly negligent care” to five women who sought late-term abortions. The state board also alleged Brigham had performed about 50 abortions in Elkton between January and August 2010 “without holding a license to practice in Maryland.”
An attorney for Brigham could not be reached for comment.
Abortion foes welcomed the arrest of Brigham, 55, who has been a target of their criticism for decades.
“We have called for the revocation of his license for all these years,” said Marie Tasy, executive director of New Jersey Right to Life. “We’re obviously thankful, and we can only hope that Brigham will never be able to hurt, maim or kill another human being.”
At the same time, Tasy said, “We’re troubled that he continues to own and operate (abortion) clinics throughout New Jersey.”
Tasy also noted Philadelphia authorities brought murder charges against an abortion provider, Dr. Kermit B. Gosnell, and several staffers at his West Philadelphia clinic. Gosnell allegedly performed abortions beyond the 24-week legal limit in a “decrepit and unsanitary clinic” and killed babies that were born alive by plunging scissors into their spinal cords, said a grand jury report.
“I think these two cases shine a bright light on what goes on inside the abortion industry,” asserted Tasy. “I don’t think they’re that isolated.”
But Vicky Saporta, president of the National Abortion Federation in Washington, D.C., has said Brigham’s activities “are not representative of abortion care…throughout the country.”
In a September 2010 blog post that addressed an investigation into Brigham’s practices by the Maryland Board of Physicians, Saporta said Brigham “has come under fire from state licensing boards and health departments throughout his career and has had his medical license temporarily suspended, relinquished or revoked in five states.”
“These repeated disciplinary actions make it evident that Dr. Brigham operates outside recognized standards for quality abortion care,” she said.
A Voorhees doctor faces multiple murder charges in connection with late-term abortions that were performed at his Elkton, Md., clinic.
Dr. Steven Chase Brigham was being held Friday in Camden County Jail, pending extradition to Maryland. He is accused of 10 counts of first- and second-degree murder and one count of conspiracy to commit murder. The unborn babies of Brigham's patients are considered to be the murder victims, according to Elkton, Md., police.
Brigham already faced legal challenges from medical regulators over his practice of starting late-term abortions for women in New Jersey and then completing the procedures after the patients had traveled to the Maryland clinic. His medical license has been suspended in New Jersey and revoked in Maryland.
Maryland authorities said they began a criminal investigation after an 18-year-old woman suffered a life-threatening injury during a procedure at the Elkton clinic on Aug. 13, 2010. A doctor who worked at the clinic — Nicola Riley, 46, of Salt Lake City — drove the patient to a local hospital. The woman later underwent emergency surgery for a perforated uterus at Johns Hopkins Hospital in Baltimore.
Investigators learned the woman had been driven from Voorhees to the American Women’s Services clinic in Elkton, where Brigham and Riley were present when she was injured. A police search of the clinic four days later found about 35 fetuses in a freezer chest, authorities said.
Authorities provided no additional information about the case on Friday.
“We are not commenting at all on the charges,” said Kerwin Miller, a deputy state’s attorney in Cecil County, Md. “I don’t want to be in the position where we create any problems. This is too serious a case.”
Miller said an indictment in the case is expected to be available to the public next week.
The indictment charges Brigham with five counts each of first- and second-degree murder and one count of conspiring to commit murder. First-degree murder is charged in cases that involve premeditation, said Miller.
Riley, the other doctor at the clinic, also faces two charges of murder and one count of conspiring to murder. She was being held in a jail in Salt Lake City.
Both doctors were arrested on Wednesday night, Maryland officials said.
New Jersey authorities suspended Brigham’s medical license in November 2010, when the state Board of Medical Examiners said in part he had “provided grossly negligent care” to five women who sought late-term abortions. The state board also alleged Brigham had performed about 50 abortions in Elkton between January and August 2010 “without holding a license to practice in Maryland.”
An attorney for Brigham could not be reached for comment.
Abortion foes welcomed the arrest of Brigham, 55, who has been a target of their criticism for decades.
“We have called for the revocation of his license for all these years,” said Marie Tasy, executive director of New Jersey Right to Life. “We’re obviously thankful, and we can only hope that Brigham will never be able to hurt, maim or kill another human being.”
At the same time, Tasy said, “We’re troubled that he continues to own and operate (abortion) clinics throughout New Jersey.”
Tasy also noted Philadelphia authorities brought murder charges against an abortion provider, Dr. Kermit B. Gosnell, and several staffers at his West Philadelphia clinic. Gosnell allegedly performed abortions beyond the 24-week legal limit in a “decrepit and unsanitary clinic” and killed babies that were born alive by plunging scissors into their spinal cords, said a grand jury report.
“I think these two cases shine a bright light on what goes on inside the abortion industry,” asserted Tasy. “I don’t think they’re that isolated.”
But Vicky Saporta, president of the National Abortion Federation in Washington, D.C., has said Brigham’s activities “are not representative of abortion care…throughout the country.”
In a September 2010 blog post that addressed an investigation into Brigham’s practices by the Maryland Board of Physicians, Saporta said Brigham “has come under fire from state licensing boards and health departments throughout his career and has had his medical license temporarily suspended, relinquished or revoked in five states.”
“These repeated disciplinary actions make it evident that Dr. Brigham operates outside recognized standards for quality abortion care,” she said.
Voorhees abortion doctor free on $300K bond
By Jim Walsh
A Voorhees doctor, arrested last week on murder charges in connection with late-term abortions in Maryland, was released on bail Friday.
Steven C. Brigham posted bond of about $300,000 after an arraignment hearing in Cecil County, Md. A judge also unsealed an indictment that detailed Brigham’s alleged crimes — five counts each of first- and second-degree murder and one charge of conspiring to murder.
Authorities have accused Brigham and a second doctor at his Elkton, Md., clinic under a 2005 state law that allows a murder charge for the death of a viable fetus.
“To our knowledge, this is the first time a physician has been charged under this statute,” said Brigham’s lawyer, C. Thomas Brown of Elkton, Md. The attorney asserted Brigham, 55, “has not violated any laws,” but said he needs more information from the state “to determine the specifics of these charges.”
Prosecutors, who have drawn fierce criticism from defense attorneys, refused to comment. A copy of the indictment could not be obtained Friday.
Brigham already faced legal challenges for a controversial two-state abortion procedure at his American Women’s Services clinics. Authorities said he tried to skirt regulatory restrictions by starting late-term abortions at clinics in Voorhees and other sites in New Jersey, then completing the procedures after his patients had traveled to the Elkton site.
A criminal investigation began after an 18-year-old woman suffered a life-threatening injury during a procedure in Elkton in August 2010. A doctor at the clinic — Nicola Riley, 46, of Salt Lake City — drove the teenager to a local hospital, and the patient later underwent emergency surgery at Johns Hopkins Hospital in Baltimore.
A police search four days later found 35 fetuses in a freezer chest at the clinic, authorities said.
Brigham and Riley were arrested in their home states on Dec. 28.
Riley remains in custody in Utah, where her lawyer said she’s being held in “a Kafka-esque limbo.”
The attorney, Daniel Goldstein, said the charges against Riley remain under seal, leaving her unable to prepare a defense. Riley’s attorneys have asked a judge to find a Maryland prosecutor and Elkton’s police chief in contempt because they discussed the case with reporters while the indictment was under seal.
“She cannot reasonably respond to the bald and false allegations in the media without knowing the details of the acts charged,” her attorneys said in a court brief. They contended the prosecutor’s actions were “a ploy to gain traction on a hot-button political issue in the media and with public opinion.”
New Jersey authorities suspended Brigham's medical license in November 2010 for allegedly providing “grossly negligent care” to five women who wanted late-term abortions. The state Board of Medical Examiners also asserted Brigham had performed about 50 abortions at the Elkton clinic between January and August 2010 “without holding a license to practice in Maryland.”
Earlier this week, another abortion clinic owned by Brigham in Pensacola, Fla., was heavily damaged in an arson fire. A 41-year-old man was arrested and charged in that case.
Reach Jim Walsh at (856) 486-2646 or jwalsh@gannett.com
A Voorhees doctor, arrested last week on murder charges in connection with late-term abortions in Maryland, was released on bail Friday.
Steven C. Brigham posted bond of about $300,000 after an arraignment hearing in Cecil County, Md. A judge also unsealed an indictment that detailed Brigham’s alleged crimes — five counts each of first- and second-degree murder and one charge of conspiring to murder.
Authorities have accused Brigham and a second doctor at his Elkton, Md., clinic under a 2005 state law that allows a murder charge for the death of a viable fetus.
“To our knowledge, this is the first time a physician has been charged under this statute,” said Brigham’s lawyer, C. Thomas Brown of Elkton, Md. The attorney asserted Brigham, 55, “has not violated any laws,” but said he needs more information from the state “to determine the specifics of these charges.”
Prosecutors, who have drawn fierce criticism from defense attorneys, refused to comment. A copy of the indictment could not be obtained Friday.
Brigham already faced legal challenges for a controversial two-state abortion procedure at his American Women’s Services clinics. Authorities said he tried to skirt regulatory restrictions by starting late-term abortions at clinics in Voorhees and other sites in New Jersey, then completing the procedures after his patients had traveled to the Elkton site.
A criminal investigation began after an 18-year-old woman suffered a life-threatening injury during a procedure in Elkton in August 2010. A doctor at the clinic — Nicola Riley, 46, of Salt Lake City — drove the teenager to a local hospital, and the patient later underwent emergency surgery at Johns Hopkins Hospital in Baltimore.
A police search four days later found 35 fetuses in a freezer chest at the clinic, authorities said.
Brigham and Riley were arrested in their home states on Dec. 28.
Riley remains in custody in Utah, where her lawyer said she’s being held in “a Kafka-esque limbo.”
The attorney, Daniel Goldstein, said the charges against Riley remain under seal, leaving her unable to prepare a defense. Riley’s attorneys have asked a judge to find a Maryland prosecutor and Elkton’s police chief in contempt because they discussed the case with reporters while the indictment was under seal.
“She cannot reasonably respond to the bald and false allegations in the media without knowing the details of the acts charged,” her attorneys said in a court brief. They contended the prosecutor’s actions were “a ploy to gain traction on a hot-button political issue in the media and with public opinion.”
New Jersey authorities suspended Brigham's medical license in November 2010 for allegedly providing “grossly negligent care” to five women who wanted late-term abortions. The state Board of Medical Examiners also asserted Brigham had performed about 50 abortions at the Elkton clinic between January and August 2010 “without holding a license to practice in Maryland.”
Earlier this week, another abortion clinic owned by Brigham in Pensacola, Fla., was heavily damaged in an arson fire. A 41-year-old man was arrested and charged in that case.
Reach Jim Walsh at (856) 486-2646 or jwalsh@gannett.com
Abortion doctor's lawyers seek dismissal of murder charges
By Ben Nuckols
WASHINGTON — Lawyers for a South Jersey abortion doctor charged with murder in Maryland for the deaths of five fetuses have asked a judge to dismiss the charges, arguing that prosecutors lack jurisdiction because the deaths occurred in New Jersey.
Dr. Steven Brigham, 55, of Voorhees, lost his New Jersey medical license in 2010 after regulators discovered an arrangement under which he would begin second- and third-trimester abortions in New Jersey, and then have the patients drive themselves to Maryland the next day to complete the procedures.
His attorneys argued in a motion filed last week that the arrangement protects him from criminal prosecution in Maryland because Brigham administered drugs that killed the fetuses while the patients were in New Jersey. He then extracted the fetuses at his clinic in Elkton, Md., a small town in the northeast corner of the state.
Brigham’s lawyers also argue that he is immune from prosecution under Maryland’s fetal homicide law, which was intended to apply to people who kill or do physical harm to pregnant women, causing fetal death. The law includes exemptions for physicians administering lawful medical care, and Brigham’s attorneys say using it against an abortion doctor interferes with a woman’s constitutional right to terminate a pregnancy.
“By bringing these charges, the state has placed a chilling effect on doctors who perform abortions and thus will inhibit women from finding doctors who perform abortions even if the procedure is necessary to protect the life or health of the woman,” attorneys Nancy Forster and C. Thomas Brown argue in their motion.
Cecil County State’s Attorney Ellis Rollins declined to comment Monday.
Prosecutors have made few public statements about their rationale for the charges, although Rollins has acknowledged they are in uncharted territory. Experts on both sides of the abortion debate say it is highly unusual, if not unprecedented, to charge an abortion doctor with murder under a fetal homicide law. Thirty-eight states have such statutes.
At a bail review hearing earlier this month in Cecil County Circuit Court for Brigham’s co-defendant, Dr. Nicola Riley, Deputy State’s Attorney Kerwin Miller suggested that prosecutors believe any death of a viable fetus to be homicide, regardless of the circumstances.
“The law is clear that it is unlawful, as a matter of fact it is homicide, when you kill a viable fetus,” Miller said, according to a transcript of the proceeding. “So an abortion on a viable fetus is not a lawful procedure, is not lawful medical care.”
In their motion, Brigham’s attorneys also take issue with prosecutors’ characterization of the fetuses as viable, arguing that the state has no right to interfere with a doctor’s judgment about the need for an abortion.
Maryland’s fetal homicide law, the attorneys argue, “leaves the determination of viability to the ‘best medical judgment of the attending physician.’ If a doctor determines that the fetus is not viable, for whatever reason, and the state disagrees with that determination, under their theory, the doctor can be charged with fetal homicide.”
Doctors generally consider fetuses to be viable outside the womb starting around 23 weeks. Prosecutors have not detailed how they determined the viability of the five fetuses Brigham is accused of killing. One of them was known to have been aborted at 21 weeks.
Riley, Brigham’s former colleague, also has been charged with murder in the death of that 21-week-old fetus. Her attorneys also have argued that she is immune from prosecution under the fetal homicide law. Both Brigham and Riley, of Salt Lake City, Utah, are free on bond.
In the case that led to charges against both Brigham and Riley, the patient suffered serious injuries, and Riley drove her to a nearby hospital rather than call 911. That case alerted medical regulators to Brigham’s unusual arrangement, which authorities described as an effort to take advantage of Maryland’s more permissive abortion laws. Brigham was not licensed to perform abortions after the first trimester in New Jersey.
In Maryland, licensed physicians can perform abortions before the fetus is deemed capable of surviving outside the womb, and abortions of viable fetuses are permitted to protect the life or health of the mother or if the fetus has serious genetic abnormalities.
WASHINGTON — Lawyers for a South Jersey abortion doctor charged with murder in Maryland for the deaths of five fetuses have asked a judge to dismiss the charges, arguing that prosecutors lack jurisdiction because the deaths occurred in New Jersey.
Dr. Steven Brigham, 55, of Voorhees, lost his New Jersey medical license in 2010 after regulators discovered an arrangement under which he would begin second- and third-trimester abortions in New Jersey, and then have the patients drive themselves to Maryland the next day to complete the procedures.
His attorneys argued in a motion filed last week that the arrangement protects him from criminal prosecution in Maryland because Brigham administered drugs that killed the fetuses while the patients were in New Jersey. He then extracted the fetuses at his clinic in Elkton, Md., a small town in the northeast corner of the state.
Brigham’s lawyers also argue that he is immune from prosecution under Maryland’s fetal homicide law, which was intended to apply to people who kill or do physical harm to pregnant women, causing fetal death. The law includes exemptions for physicians administering lawful medical care, and Brigham’s attorneys say using it against an abortion doctor interferes with a woman’s constitutional right to terminate a pregnancy.
“By bringing these charges, the state has placed a chilling effect on doctors who perform abortions and thus will inhibit women from finding doctors who perform abortions even if the procedure is necessary to protect the life or health of the woman,” attorneys Nancy Forster and C. Thomas Brown argue in their motion.
Cecil County State’s Attorney Ellis Rollins declined to comment Monday.
Prosecutors have made few public statements about their rationale for the charges, although Rollins has acknowledged they are in uncharted territory. Experts on both sides of the abortion debate say it is highly unusual, if not unprecedented, to charge an abortion doctor with murder under a fetal homicide law. Thirty-eight states have such statutes.
At a bail review hearing earlier this month in Cecil County Circuit Court for Brigham’s co-defendant, Dr. Nicola Riley, Deputy State’s Attorney Kerwin Miller suggested that prosecutors believe any death of a viable fetus to be homicide, regardless of the circumstances.
“The law is clear that it is unlawful, as a matter of fact it is homicide, when you kill a viable fetus,” Miller said, according to a transcript of the proceeding. “So an abortion on a viable fetus is not a lawful procedure, is not lawful medical care.”
In their motion, Brigham’s attorneys also take issue with prosecutors’ characterization of the fetuses as viable, arguing that the state has no right to interfere with a doctor’s judgment about the need for an abortion.
Maryland’s fetal homicide law, the attorneys argue, “leaves the determination of viability to the ‘best medical judgment of the attending physician.’ If a doctor determines that the fetus is not viable, for whatever reason, and the state disagrees with that determination, under their theory, the doctor can be charged with fetal homicide.”
Doctors generally consider fetuses to be viable outside the womb starting around 23 weeks. Prosecutors have not detailed how they determined the viability of the five fetuses Brigham is accused of killing. One of them was known to have been aborted at 21 weeks.
Riley, Brigham’s former colleague, also has been charged with murder in the death of that 21-week-old fetus. Her attorneys also have argued that she is immune from prosecution under the fetal homicide law. Both Brigham and Riley, of Salt Lake City, Utah, are free on bond.
In the case that led to charges against both Brigham and Riley, the patient suffered serious injuries, and Riley drove her to a nearby hospital rather than call 911. That case alerted medical regulators to Brigham’s unusual arrangement, which authorities described as an effort to take advantage of Maryland’s more permissive abortion laws. Brigham was not licensed to perform abortions after the first trimester in New Jersey.
In Maryland, licensed physicians can perform abortions before the fetus is deemed capable of surviving outside the womb, and abortions of viable fetuses are permitted to protect the life or health of the mother or if the fetus has serious genetic abnormalities.
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