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Abortion doctor arraigned on murder charge, argues law unconstitutional

Charges involve late-term abortions at Elkton clinic

By Peter Hermann, The Baltimore Sun

9:26 AM EST, January 21, 2012

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Lawyers for an abortion doctor charged with murder under Maryland's fetal homicide law filed court papers Friday calling the statute illegal and saying that prosecutors are using the law to effectively ban the constitutionally protected medical procedure in Cecil County.

The motion — the first detailed defense in the groundbreaking case — also calls the grand jury indictment filed against Dr. Nicola I. Riley, 46, "an attempt to intimidate" physicians into not performing abortions. Riley was ordered held on $300,000 bail.

Defense attorneys said prosecuting Riley undermines the intent of the 2005 law, which they described as being aimed at curbing domestic violence against pregnant women. That is how the law has generally been used in the past; this is the first time in Maryland a doctor has been charged in connection with an abortion.

The Elkton case, which has attracted national attention, could put the volatile issue of abortion rights at center stage. Charges against Riley and another doctor were filed after a botched abortion in 2010 involving a teenager who was 21 weeks pregnant.

Del. Samuel I. Rosenberg, a Baltimore Democrat who co-sponsored the fetal homicide law, said it is not limited to any type of case. He denied that the wording undermines Roe v. Wade, the landmark Supreme Court decision that established a constitutional right to abortion.

"Our clear intent was that you could not take action under this statute for an abortion that was legal," Rosenberg said.

Maryland law generally prohibits abortions when fetuses are viable, defined as having a reasonable likelihood of sustained life outside the womb. The law allows exceptions when the mother's life or health is in danger.

"I would oppose any legislation or prosecution that would violate Roe and would burden a woman's right to choose," Rosenberg said Friday. "My intent when we worked on this bill was to ensure that the fetal homicide statute would be used in appropriate circumstances. The courts will judge whether this is the case here."

Cecil County State's Attorney Edward D.E. Rollins did not return calls seeking comment on Friday, and a hearing has not been set on the motion, which Riley's attorneys filed after a judge ordered her held on bail. Her attorneys had asked for bail to be set at $50,000.

Police say the charges stem from an abortion at the American Women's Services clinic. Another doctor involved in that case, Steven C. Brigham, also has been charged with murder. He was freed on $500,000 bail last month.

Prosecutors filed a broader criminal case against Brigham, who is from New Jersey, adding four additional counts of first-degree murder involving other fetuses. Nearly three dozen fetuses, some at 20 to 35 weeks of gestation, were found in a freezer at the clinic, police said.

Riley and Brigham have had their licenses to practice medicine and permits to operate clinics revoked in several states.

In past interviews, Rollins has denied that the prosecution threatens a woman's right to have an abortion; nor, he said, were charges brought because he is against the procedure. But he has acknowledged being in "uncharted territory" with the case.

Advocates on both sides of this delicate issue have been careful with their comments. Opponents of abortion lauded the criminal charges but said the case showed how Maryland had failed to properly regulate clinics.

Supporters of abortion rights called the suspects "outliers" because of their alleged poor medical practices, and said targeting them does not threaten doctors working within the law and accepted medical practices.

Maryland authorities suspended Riley's medical license in September 2010, after the abortion involving an 18-year-old at the Elkton clinic, but before criminal charges were filed. Brigham was not licensed to practice medicine in Maryland. The Maryland Board of Physicians said both violated acceptable medical practices in their treatment of the teen.

The board found that the doctors started the procedure in New Jersey, dilating her uterus, and then made her drive herself to Elkton to finish the abortion. After the teen's uterus ruptured, police said, the doctors drove her, nearly unconscious, to a nearby hospital emergency room.

The physicians board said the girl remained in a wheelchair while the doctors argued with staff, and she had to be airlifted to Johns Hopkins Hospital. She survived.

Riley's attorneys raise several issues in their court filing, among them calling the fetal homicide law unconstitutional. They argue that the statute places "an undue burden on a woman's right to choose to terminate her pregnancy in private consultation with her doctor."

"To use this law as the state wishes in this case, to prosecute a doctor for performing an abortion for a patient who sought this medical care and consented to it is … a gross abuse of the criminal justice system," the pleading filed in Cecil County Circuit Court says.

"The state's vague charges reflect an attempt to intimidate any physician who might consider performing an abortion in Cecil County with the threat of criminal prosecution," the pleading continues, "effectively banning the constitutionally protected procedure."

Unlike many other states, Maryland does not define "viable" by the number of weeks a fetus is in the womb, leaving it up to doctors to determine. Defense attorneys said the wording of the law makes it impossible for people to understand what is legal and what isn't, and leaves the definition of whether a fetus is viable "solely on the judgment of the doctor."

The court document quotes from memos from lawmakers at the time of the bill's passage saying, "The bill does not apply to a woman's right to terminate her pregnancy."

The lawyers cite a memo from then-Del. Charles R. Boutin, a Republican from Cecil and Harford counties and one of the bill's sponsors, telling the Judiciary Committee the law is "clearly and solely a victim's rights bill." The motion says the fetal homicide law "was intended to create an enhanced penalty for domestic violence committed against a pregnant woman if she lost the fetus as a result of that violence."

Boutin, who is now a state administrative law judge, said Friday that it would be inappropriate for him to comment on the statute.

Riley's attorneys, including former Baltimore State's Attorney Stuart O. Simms, also argue that doctors are exempt from the fetal homicide statute. "Because Maryland law expressly provides that a licensed physician performing an abortion is immune from criminal liability, the charges against Dr. Riley should be dismissed," the court document says.

The law says that doctors cannot be held liable "for fetal death that occurs in the course of administering lawful medical care."

peter.hermann@baltsun.com

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