THE CASE OF the Commonwealth v. Kenneth C. Edelin, which the Massachusetts Supreme Court is now considering on appeal, has more to do with the rights of patients than it does with abstract definitions of birth and death. The conviction of Dr. Edelin for manslaughter following an abortion he performed on October 3, 1973 was the triumph of a zealous prosecutor in limiting women's right to abortion. Although stricter legislation on abortion in this state was passed in 1974, the Edelin conviction stands as a grim symbol for women who believe in abortion as a right.

As the defense has repeatedly argued, when a 17-year-old woman entered Boston City Hospital in late September 1973 requesting an abortion, Edelin observed the law regarding his practice--as far as the law went. Edelin determined that it was legal for him to perform the abortion after estimating that the fetus was less than 24 weeks old. But there the legal guidelines ended. No laws dictated what sort of abortion Edelin had to perform or what procedure he had to undertake after initial efforts at aborting the fetus failed. When Edelin used a hypodermic needle to penetrate the uterus, he was relying on his medical judgement; when those penetrations produced "bloody taps" and he undertook to open the uterus in an abdominal incision, his decision was again a medical, not a legal one.

Even neglecting the larger issue, the higher court must dismiss the prosecution's case because it rests on a confusing and contradictory welter of evidence. As he did during the trial, Assistant District Attorney Newman A. Flanagan drowned his weak appeal in emotionalism. Flanagan could not contradict the overwhelming evidence that the fetus never lived outside of the mother's womb--only this would have legally constituted birth, according to the trial judge, James P. Maguire--but he could shout emotionally that "this is the case of a child that was born." Even given his contention that a child had been born, Flanagan could not prove that the alleged human life Edelin ended was "viable." All he could do was to argue against making patients and their doctors "the absolute judge of what the law is in this country." What Flanagan himself would like to do with the abortion law was clear.

Had the uncertain points of law been defined at the outset--had lawyers known what degree of separation from the mother constituted birth or even what constitutes abortion--the case might have been decided differently. The State Supreme Court must now acquit Edelin and return to women a symbol of their fundamental rights.