Report No. 23 (1981) IACHR. Case No. 2141 (Estados Unidos de America)

• Report Number: 23
• Case Number: 2141
• Year: 1981
• Case Type: Merits
• Court: Inter-American Comission of Human Rights
• Respondent State: United States
• Alleged Victim: "Baby Boy"

OEA/Ser.L/V/II.54; Doc. 9 rev. 1; 16 October 1981; Original: Spanish ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS; 1980-1981

RESOLUTION 23/81 Case 2141 (UNITED STATES) March 6, 1981 SUMMARY OF THE CASE 1. On January 19, 1977, Christian B. White and Gary K. Potter, filed with the Inter-American Commission on Human Rights a petition against the United States of America and the Commonwealth of Massachusetts for the purposes established in the Statute and Regulations of the Commission. The petition is accompanied by a cover letter of the Catholics for Christian Political Action, signed by Gary Potter, President. 2. The pertinent parts of the petition are the following: Name of the person whose human rights have been violated; "Baby Boy" (See Exhibit, p.ll, line 7 from top, and Amplificatory Document p. 1) Address: Boston City Hospital, Boston Massachusetts.Description of the violation: Victim was killed by abortion process (hysterectomy), by Dr. Kenneth Edelin, M.D., in violation of the right to life granted by the American Declaration of the Rights and Duties of Man, as clarified by the definition and description of the American Convention on Human Rights (See Amplificatory Document p.1). Place and date of the violation: Boston City Hospital, Boston, Massachusetts, October 3, 1973, U.S. Supreme Court Building, Washington, D.C. January 22, 1973. Local authority who took cognizance of the act and the date on which this occurred: District Atrorney's Office, Boston, Massachusetts. Judge or court which took cognizance of the act and the date on which this occurred: Superior Court of Boston, Massachusetts, Judge McGuire sitting, April 5-11, 1976. Final decision of the authority (if any) that acted in the matter; The Supreme Judicial Court of Massachusetts, Boston, Massachusetts, acquitted Edelin on appeal, on December 17, 1976. In the case of it not being possible to have recourse to a local authority, judge or court, explain the reasons for such impossibility: On a related point, no appeal to the Supreme Court of the United States is possible. (See Amplificatory Document, p.6). List the names and addresses of witnesses to the act (if any) or enclose the corresponding documents: Exhibit A: Official copy of the decision of the Supreme Judicial Court of Massachusetts in the case of Commonwealth vs. Edelin; Exhibit B: "Working and Waitinz,"The Washington Post, Sunday, August 1, 1976. The undersigned should indicate whether they wish their identity to be withheld: No withholding is necessary. 3. In the "Amplificatory Document" attached to the petition; the petitioners add, inter alia, the following information and arguments: a) The victim in this case, a male child not yet come to the normal term of pregnancy, has from the beginning been identified by the Massachusetts authorities only as "Baby Boy", Exhibit A, p.ll, line 7 of Case S-393 SJC, Commonwealth/of Massachusetts/vs. Kenneth Edelin. b) This violation of the following rights granted by the American Declaration of the Rights and Duties of Man, Chapter 1, Article I ("... right to life...", Article II ("All persons are equal before the law... without distinction as to race, sex, language, creed, or any other factor," here, age), Article VII ("All children have the right to special protection, care, and aid") and Article XI ("Every person has the right to the preservation of his health...") began on January 22, 1973, when the Supreme Court of the United States handed down its decisions in the cases of Roe vs. Wade, 410 U.S. 113 and Doe vs. Bolton, 410 U.S. 179. c) The effect of the Wade and Bolton decisions, supra, in ending the legal protection of unborn children set the stage for the deprivation of "Baby Boy's right to life. These decisions in and of themselves constitute a violation of his right to life, and the United States of America therefore stands accused of a violation of Chapter 1, Article I of the American Declaration of the Rights and Duties of Man. The United States Government, through its Supreme Court, is guilty of that violation. d) At trial, the jury found Dr. Edelin guilty of manslaughter, necessarily finding as fact that the child was such as to fit within a "protectable exception" (over six months past conception and/or alive outside the womb) to the Supreme Court of the United States' rubric in the Wade and Bolton cases. On appeal, the Supreme Judicial Court of Massachusetts reversed, on these grounds; 1) Insufficient evidence of "recklessness" and "belief in" [or concern about] "the viability of the fetus" (paraphrased). Exhibit A, p.190, line 17 to p.19, line 6. 2) Insufficient evidence of life outside the womb. Exhibit A, p.22, line 5, to p.25, line 1. 3) Procedural error. Exhibit A, p.25, line 2 to p29, line 7. e) This decision came down on December 17, 1976, and, by preventing Dr. Edelin from being punished for his acts, put the State of Massachusetts in the posture of violating "Baby Boy's" right to life under the Declaration. f) The Supreme Court of the United States has no jurisdiction in this matter, since the grounds for reversal given in the opinion of the Supreme Judicial Court's opinion is based on points of law that are purely state matters, and Edelin's rights were not violated by his being held harmless. Evidentiary sufficiency on the elements of a crime and matters of state court procedure may be addressed by the Supreme Court of the United States, or any other U.S. Federal Court, only where the state has not considered the matter. 4. Exhibit A, attached to the petition, is a xerox copy of the full text of the decision of the Massachusetts Supreme Judicial Court in the case of Commonwealth vs. Kenneth Edelin 5. On April 1, 1977, Mary Ann Kreitzer (4011 Franconia Rd. Alexandria, Va. 22310) wrote a letter to the Commission, on behalf of herself and six other persons, asking "to be considered as complainants in the communications brought before the Commission by Mrs. Potter and White and Catholics for Christian Political Action concerning the Edelin case...". 6. Later, a similar request was made by Reverend Thomas Y. Welsh, Bishop of Arlington (200 North Glebe Rd. Arlington, Va.), Frederick C. Greenhalge Jr. (Box 1114, Los Gatos, Santa Clara County, California 95030) and Lawyers for Life, represented by Joseph P. Meissner (Room 203 3441 Lee Road, Shaker Heights, Ohio 44120). 7. By a letter of May 5, 1977, the petitioners submitted to the consideration of the Commission four questions on what reservations are acceptable to the American Convention on Human Rights. 8. The Commission, at its 41st Session (May, 1977) decided to name a rapporteur to prepare a note to the Government concerned, but at its 42nd Session, adopting a recommendation made by its Ad Hoc Committee, the Commission directed the Secretariat to forward to the Government of the state in question the pertinent parts of the petition and to request the usual information. 9. By a note of July 20, 1978, the Chairman of the Commission requested the Secretary of State of the United States to supply the information deemed appropriate, in accordance with articles 42 and 54 of its Regulations. 10. On January 26, 1979 the Commission received a letter from the petitioner stating: The United States having failed to reply to your Commission's letter of inquiry of July 20, 1978, within the 180 days permitted by your Commission's regulations (article 51), the regulations now require you to regard the allegations of fact as proven (article 51). 11. On February 22, 1979, Ambassador Gale McGee, Permanent Representative of United States to the Organization of American States submitted to the Commission's "a memorandum prepared within the Department of State replying to the principal points raised by the complainants." 12. A preliminary question was raised in the United States response: With respect to the exhaustion of legal remedies in the Edelin case, decisions of state supreme courts are appealable to the U.S. Supreme Court. However, no appeal was taken in this case and the time for appeal has now lapsed. 13. On the facts referred to by the petition, the memorandum states: The specific case brought to the attention of the Commission is that of "Baby Boy", the name given to the fetus removed by Dr. Kenneth Edelin in performing an abortion in Boston on October 3, 1973. Dr. Eldelin was indicted for manslaughter on the basis of that abortion and convicted after trial. The Supreme Judicial Court of Massachusetts reversed the conviction and directed the entry of a judgment of acquittal on December 17, 1976. The Court found that there was insufficient evidence to go to a jury on the overarching issue whether Dr. Edelin was guilty beyond a reasonable doubt of the "wanton" or "reckless" conduct resulting in a death required for a conviction, and that motions for a direct verdict of acquittal should have been granted. 14. The U.S. Government response, on the substantive questions raised by the complainant, is developed in a three part argument that the right-to-life provisions of the American Declaration on the Rights and Duties of Man was not violated, even in the hypothesis that the American Convention on Human Rights could be used as a means of interpretation in this case: a) With regard to the right to life recognized by the Declaration, it is important to note that the conferees in Bogotá in 1948 rejected language which would have extended that right to the unborn. The draft placed before them had been prepared by the Inter-American Juridical Committee. Article 1 of that draft provided: Toda persona tiene...