Kennedy testified that Edelin performed the abortion 24 weeks after conception. "The subject was 'viable,'" Kennedy said, "in that he had a chance for survival for a long period of time."

Homans asked for a more specific definition of "chance for survival" and Kennedy testified that if there was a one in 500 chance that the fetus could have survived, it was viable.

Flanagan immediately stood up and asked if this definition of viability also applied to a fetus that faces a "two-to-one" prospect of survival. Kennedy said that it did.

Yesterday's day in court began with a hearing to determine whether Flanagan could introduce as witnesses mothers of babies that had been delivered prematurely.

McGuire ruled that Flanagan could not produce these witnesses.

Flanagan said that the introduction of witnesses that at delivery were "younger than this particular subject, smaller than this particular subject, and weighed less than this particular subject" would show that the fetus in the Edelin case was indeed viable.

"These are only possible cases," Homans said. "Isolated incidence of survival should not lead anyone to expect that any given fetus should survive."

McGuire agreed that such a presentation would be "evidence of similar but unrelated events."

Homans also argued, "The only thing the jury gains from seeing the baby in the courtroom is seeing it kick or laugh or cry. The baby can't testify as to its gestational age.