Accidental Life

by Pamela Binnings Ewen

  “Did you see movement?” She hesitated and he jumped on that. “Any movement of the arms, the legs.”

  “Well. I thought I saw the legs moving a little while I talked to her.”

  Peter moved close, looking down at her. “Did you or did you not see the infant move?”

  She linked her hands in her lap and studied them. Peter waited, letting time impress its weight.

  When she looked up, he saw it in her eyes. “Yes. I saw the fetus moving under the towel she’d used for a blanket. I bent down once and looked at him.” She shrugged. “Just curious, you know?”

  Peter said nothing.

  “His arms and legs moved a little bit. I could see that he was breathing. And his mouth, his lips would press together and push out, like they do. He did that a couple of times.”

  “How did you know the infant was a boy?”

  “Clara told me.”

  “And you’re certain of what you’re telling this court. You’re certain the infant that Clara Sonsten held in that room was still breathing.”

  Her eyes darted to the defendant, and away. “Yes. I’m certain.”

  “Did you notice the time?”

  “Yes. I was getting ready to leave, to go home, so I was aware of the time. It was a little past six forty-five when I left that night. And I left right after I saw Clara in the empty labor room.”

  He looked at Melanie and it took every bit of control he had developed over the years not to push further with direct questions about other times, other infants. Melanie knew of other live-birth cases at the clinic, he was certain. But remembering the judge’s threat, he knew that if he went in that direction it would have to be subtle, with a hope that somehow she’d slip up and reveal what she knew.

  “Miss Wright, tell us what happened the next morning, when you arrived at work. Did you run into Nurse Broussard that morning?”

  “Yes.”

  “What time was that?”

  “Uhm . . . about nine thirty or so. I was getting some coffee in the break room and she walked in.”

  “And did you tell her that you’d seen Clara with the infant in that labor room?”

  “No.” She hesitated. “I didn’t tell her that.”

  “Why not?”

  She shrugged. “It wasn’t a big deal. Sometimes they live awhile . . .”

  “Objection!” Peter turned to find Vince flying toward the bench. He stretched his hand toward the judge. “Your Honor . . .”

  “Objection sustained.” Judge Morrow’s eyes narrowed as he turned to Peter. With a glance at Melanie he said, “Watch yourself, Counsel.”

  “Sorry, Your Honor.” Inside, he smiled.

  As Peter watched Michelene erasing the statement he’d prayed for from the record, he also prayed the judge wouldn’t forget what he’d just heard . . . and the implications.

  He walked back to the table. “Your witness,” he said to Vince.

  Vince waved him away. With a look of disdain toward Melanie Wright, he said, “No questions for this witness.”

  40

  After lunch Peter called Dr. Mortimer Stern to the stand.

  Peter took him through the bona fides to establish the doctor’s expertise. Mortimer Stern was a licensed medical physician certified in the state of Louisiana, board certified in neonatology and pediatrics. He’d been practicing for thirty-seven years in New Orleans and named the hospitals in which he was currently admitted to practice in Jefferson and Orleans Parish, which included most of them. He also held a law degree from Tulane University. He’d never practiced law, nor had he ever taken the bar exam. But the degree qualified him to testify regarding the impact of law on medicine.

  At the end of all of this the defense conceded that the witness qualified as a medical-legal expert.

  “Dr. Stern,” Peter said after they’d finished the preliminaries. “You are familiar with Louisiana law and federal laws governing abortion?”

  “Yes, I am.”

  “For purposes of clarity, would you please state for this court your understanding of the meaning of a live birth?”

  “That is a birth in which a child after being expelled from the mother shows such signs of life as breathing, a heartbeat, pulsation of the umbilical cord, or movement of voluntary muscles.” He tipped back his head and gazed at Peter. “In other words, one or more of these things happens after the child is entirely outside and independent of the mother. My definition is consistent with that used by the World Health Organization.”

  “Does it matter whether the umbilical cord is cut?”

  “No. Not for purposes of the definition.”

  “Thank you. And now, can you state your understanding of the meaning of the term, viability?”

  “Viability is the stage of development of the fetus when the physician, in light of information available to him . . . or her, judges that there is a reasonable likelihood of sustained survival for the unborn child outside the body of the mother, with or without artificial support.”

  From the corners of his eyes, as he’d expected, he saw Vince McConnell stand. “Your Honor, for the record the defense disagrees with Dr. Stern’s definition of viability. We’d like a continuing objection.”

  “Duly noted.” The judge turned to Peter. “Please proceed.”

  Peter turned back to his witness. “And how is the time at which viability is expected to occur usually determined, Dr. Stern?”

  “During the interim between conception and live birth, the Supreme Court in Roe v. Wade held that the point of viability—the recognition of potential life—is usually placed at about twenty-eight weeks gestation, but that it may also occur as early as twenty-four weeks.

  “That said”—he went on—“nine years have passed since Roe v. Wade, and the question of whether an unborn child has a possibility of surviving outside the body of the mother at earlier gestation has improved as medicine has advanced. And that will continue to be the case.” He paused and turned, making eye contact with Judge Morrow, as Peter had suggested. This was a critical point.

  “With the neonatal intensive care available in hospitals today, an infant born alive has a much better chance of surviving outside the mother than, say, in 1973. So, we’re back to this—a determination of viability is always somewhat subjective.”

  Peter nodded. “Now. Please tell the court how a physician determines gestational age.”

  “Fetal gestational age is determined in three ways.” Stern held up one hand and begin ticking off his fingers as he spoke. “First, by the patient’s calculation of the number of days since her last menstrual period, beginning with the first day. Second, through physical examination of the patient. And third, through sonogram, although those are not often used, not available. Not yet.” He frowned. “But we’re working on that.”

  Peter crossed his arms. “Based upon your experience, in your expert opinion what would you say is the earliest gestational age given medical knowledge today, in 1982, at which an unborn child has a chance of survival outside the womb?”

  Stern looked out over the gallery. “First, understand that reporting information on live-birth abortion is almost—but not completely—nonexistent. The CDC, Centers for Disease Control, has recently admitted as much. Having said that, we know that live births sometimes occur with late-term induction since the purpose of that procedure is to allow the fetus to arrive intact. Which, in my opinion, is necessary for the woman’s health in a late-term abortion.”

  “Can you give this court an idea of the expected survival rates for prematurely born infants today?”

  Mortimer Stern adjusted his glasses and nodded. “Chances of earlier survival in premature births have vastly improved in the last nine years since Roe. One neonatal mortality study completed just last year, in 1981, concluded that infants born alive at less than twenty-five weeks, with birth weight b
etween 500 and 1,249 grams, have a 20 percent rate of survival. Another comparative study in 1978 found that infants born in one hospital with a weight of 1,000 grams, and some less, had a 42 percent rate of survival.”

  He took off his glasses and leaned slightly forward. “And recently a hospital in Los Angeles reported that an infant, gestational age twenty-two weeks at birth was still thriving, with a 95 percent chance of survival.”

  “Can you explain the conversion between metric weight and pounds and ounces to the court?”

  “Of course.” He looked out over the gallery. “One pound equals 453.6 grams.” He took off his glasses and looked at Peter. “These are not necessarily abortion statistics, you understand. These are prematurely born infants.”

  “Thank you, Doctor.” He handed Stephanie Kand’s autopsy report to Dr. Stern and asked him to identify it. After the report was admitted into evidence, he asked the witness to look at the first page and read the weight of Infant Chasson.

  “Infant Chasson was determined to weigh twenty-four ounces at the time of birth. One pound, eight ounces.” He looked up. “That is 680.4 grams.”

  “Objection. Judge, no foundation has been set for this testimony.” Peter turned to see Vince McConnell standing at the defense table, spreading his hands. “Where are those studies?”

  “We’ve got copies of the studies to enter into evidence, Your Honor.” Peter walked to Dooney and she handed him the copies. He heard McConnell exclaim under his breath as he sat down.

  “Defense objection is overruled,” Morrow said in a lazy tone.

  Approaching Dr. Stern again, Peter handed the witness a set of copies and Stern identified each study. They worked their way through the details then, the background and credentials of the participants, while Morrow and McConnell followed along.

  When they’d finished, he clasped his hands behind his back and walked toward the lectern. “Dr. Stern,” he said, halting and turning around. “Can you give us an idea of your own experience with what we’ve been talking about here today?”

  Stern shifted his position so that he could look at Judge Morrow. “I am currently participating in a Japanese study on the mortality and morbidity rates of infants less than 600 grams at birth. These are micro preemies, you understand.”

  “And what is the purpose of this study?”

  “The Japanese government recognizes that survival rates are increasing as medical knowledge advances. The government is considering an amendment to their Eugenic Protection Act to reflect that.” He gestured to the study in Peter’s hands. “I’ve included my own journal records as well. The survey, still in progress, examines the mortality and morbidity rates of infant subjects less than 600 grams, less than infant Chasson.”

  Peter nodded. “And what has the Japanese study shown so far?”

  Stern went on. “Indications so far are that survival rates of infants over six hundred grams weight, at twenty-three and twenty-four weeks are approximately twenty-one percent and thirty-four percent, respectively. It’s too early yet to state numbers definitively, but this is certainly a study worth following.”

  “But the study has not concluded yet?

  “No.”

  “Thank you, Dr. Stern.” Peter walked to the witness stand and stood, facing the judge. “Did this study also examine the cause of death in these infants born-alive, the ones that did not survive?”

  “Yes.” Stern took off his glasses and looked at Peter. “The primary cause of death in the studies was found to be acute respiratory failure.” He looked up. “That is also consistent with my own experience.”

  “And given your opinion, what medical treatment would you advise in the case of a twenty-two to twenty-four-week infant born alive during an induced abortion?”

  The witness took a deep breath. “Well the physician should do an immediate medical assessment at birth, looking for tone, color, temperature, heart rate, respiration, his or her response to stimuli. Then, if there is a reasonable possibility for sustained survival, you’d place the baby in neonatal intensive care. He’d be placed under a warmer in an incubator, and because of the prematurity of the lungs he would likely be hooked up to a ventilator for breathing assistance. Blood gas, glucose, calcium, and bilirubin levels, would be monitored.”

  “And if the facility does not have the necessary intensive care on location?”

  Seconds passed. Stern lifted one shoulder and said, “In that case, the only practical alternative would be to attempt to clear the air passages best you can, place the baby in a warming pan . . .” His eyes faded toward the defense table. “Call an ambulance, and pray.”

  Peter paused, letting the words sink in. Then he turned toward the judge. “Pass the witness, Your Honor.”

  Dr. Matlock was called to the hospital for a delivery that afternoon, and patient appointments were cancelled and rescheduled. Alice left work at three o’clock. She’d been thinking about the trial all day, wondering what was going on. She couldn’t go back to the courthouse; couldn’t take that much time off and this was driving her crazy—wondering if Charles Vicari would get away this time, as he always had before.

  When the streetcar stopped at Oak Street, she climbed down the steps and headed toward Ciro’s. She’d buy the morning paper before going on home. Surely there’d be something about the trial in the paper.

  A bell rang over the door when she opened it and stepping in, Alice saw Ciro’s oldest daughter sitting on a stool behind the counter. “You’re early today,” she called.

  “Not so much,” Alice said. She pulled a Times-Picayune from the rack and took it over to the counter to pay.

  “Anything else??” Franchesca asked.

  “Not today, thank you.”

  She was in no mood for conversation this afternoon, not with the trial going on. Once she was home, Alice dropped onto the sofa in the living room and looked down at the newspaper. The article was on page one, above the fold. It took only a few minutes to read, but the point was clear. So far, the reporter wrote, the State’s case was floundering.

  She read through the story again, then dropped the paper onto her lap and gazed through the living room windows, thinking about that night, about Charles Vicari and Eileen Broussard and Chicago. She thought of all that she remembered, almost every minute. Across the street she saw Franchesca come out onto the sidewalk in front of Ciro’s with a broom. As the young woman began sweeping, Alice pressed her head on her hand and closed her eyes. The prosecution of Charles Vicari was in trouble.

  And now she realized that, at last, she’d run out of time. If she didn’t make the call, Charles Vicari would probably walk away without a second look.

  Vincent McConnell stood beside the defense table and Peter saw that Charles Vicari now had a legal pad before him. He held a pen in his hand as he stared at Stern, poised to take notes. McConnell looked up and greeted Mortimer Stern.

  “Dr. Stern, in your earlier testimony you stated a definition of the term ‘viability.’ In your mind, when a fetus is viable, that changes everything, doesn’t it?”

  “Yes. At the point a fetus is viable, courts hold that the state has an interest in protecting potential life.”

  “So, the concept of viability draws a line for a physician, is that what you’re saying?”

  “Of course, legally . . . and, in my opinion, morally.”

  “And it closes some of the woman’s options, too. Isn’t that right?”

  Stern gave a thoughtful nod. “There are exceptions for the woman’s health after viability. But, yes, I suppose you’re right.”

  Vince tipped his head and casually strolled toward the witness stand. “Yet you have testified earlier today that premature infants have a greatly improved chance of survival at an earlier stage of development these days because of medical advances since the decision of Roe v. Wade nine years ago.” He halted and looked at the flo
or. “And in fact, you said that each year the point of viability moves to an earlier point in time as medical knowledge advances. Is that right?”

  “Yes.”

  “So, for clarity; please give us once again your definition of viability.”

  “The Supreme Court has defined viability as the point at which the fetus is potentially able to live outside the mother’s womb, albeit with artificial aid.”

  “Not quite, Doctor.” Vince shook his head. “Isn’t it true that in fact, the Supreme Court went a little further in Roe v. Wade, stating that viability is presumed to also include the capability of meaningful life outside the mother’s womb.” He paused then asked the question. “What do you think the Court meant by inserting that idea, the idea of sustaining a meaningful life . . . as opposed to merely existing.”

  “I can’t answer that.” He frowned at Vince. “But what is meaningful to one person, may not be to another.”

  “Perhaps it means quality of life?”

  Peter fixed his eyes on Stern, willing him to stick with his first answer. It didn’t work.

  “Yes,” Stern said. “I suppose so.”

  “Thank you.” Vince then walked toward the jury box and turned, angling himself so that he faced the judge. “Now then, please tell this court, Doctor, since we have established that the question of whether a fetus is viable is subjective, would you agree that when the Defendant concluded prior to the abortion that the fetus wasn’t viable, that his subjective conclusion was reasonable under the circumstances, and within the standard of good medical practices?”

  “His disregard for the infant born alive certainly was not.”

  “That wasn’t my question.” Vince turned his face to the judge. “Move to strike the last answer as nonresponsive.”

  The judge concurred. Vince turned back to Stern, moving toward the witness. “Let me rephrase. In your opinion, given the circumstances, was there any way for the Defendant to know with certainty that the fetus carried by Miss Chasson was viable at the time he began the abortion procedure?”