Unclear if fetal deaths occurred in Md., Cecil prosecutor says

Cecil County's top prosecutor said Wednesday that he withdrew murder charges against two abortion doctors because he lacked definitive evidence that the fetuses at issue were terminated in Maryland.

"We know what the doctors did. We just don't know where they did it," State's Attorney Edward "Ellis" D.E. Rollins III said, adding that charges could be reinstated. Rollins withdrew all charges Tuesday against Nicola I. Riley and Steven C. Brigham, doctors charged under Maryland's fetal homicide law for the death of fetuses that the prosecutor's office considered viable outside the womb.


Brigham routinely began abortion procedures at his offices in New Jersey and completed them in Maryland, according to a 2010 New Jersey order suspending his medical license there. Riley had been hired to assist Brigham in completing the abortions at his Elkton clinic, the order said. Riley, 46, lives in Utah and Brigham, 55, in New Jersey.

The withdrawal of charges brought an anticlimactic end to a case that was founded on a novel legal theory and had the potential to change the landscape of abortion law in Maryland and many other states. A murder conviction in Maryland of an abortion provider could possibly have influenced the interpretation of fetal-homicide laws in 37 other states.


Fetal-homicide laws have been used in Maryland during the prosecution of cases involving the homicide of a pregnant woman.

Rollins, a Republican who became Cecil's state's attorney in January 2011, denies that bringing the murder charges was motivated by anything other than a desire to uphold Maryland's fetal-homicide law, which has never been used to prosecute abortion providers.

"I can tell you what this case is not about," Rollins said. "It's not about abortion. … That's not what it was ever about."

Riley and Brigham were charged with first- and second-degree murder and conspiracy to commit murder relating to an Aug. 13, 2010, abortion in Elkton. An 18-year-old's uterus ruptured, and she was driven by Riley to a nearby hospital, then flown to Baltimore, where she recuperated. Brigham was charged with first- and second-degree murder for four previous abortions of fetuses that the prosecutor considered viable.

Rollins said his office had been consulting with an expert, whom he declined to identify. Early in the investigation, the expert told the state's attorney that the termination and removal of the fetuses must have occurred in the same place, said Rollins.

This expert, whom Rollins planned to use at trial, then changed his determination, under pressure "from [the expert's] colleagues in the late-term abortion community," he said. The witness decided the termination and removal of the fetus could have happened in different places.

"We've got an expert whose testimony is useless to us because he's said two different things now," said Rollins, who concluded that his office could no longer prove the pregnancies were terminated in Maryland and therefore dropped the charges.

The explanation didn't ring true to Riley's attorneys.


From the evidence that the state's attorney turned over to the defense counsel, it was apparent that Rollins had chosen cases in which the patients had only had their cervices dilated in New Jersey — a process that would not have terminated the fetus — in preparation for the extraction to take place in Maryland, said Stuart O. Simms, one of Riley's attorneys.

Brigham's attorneys had argued in court filings that the case should be dismissed because the fetal terminations occurred in New Jersey.

Rollins' decision came less than a week before a judge was to hear arguments to dismiss the charges, Simms said, and the state's attorney had never provided expert testimony or other evidence that the fetuses involved were viable.

"It was always just a bald statement that the fetus was viable," Simms said.

C. Thomas Brown, an attorney for Brigham, agreed that defense counsel had never been provided sufficient information from prosecutors to support even the fundamentals of their argument.

Dr. David Fowler, chief medical examiner for Maryland, said that his office was asked to provide an opinion on whether some of the fetuses found at Brigham's Elkton clinic were considered viable outside the uterus. Viability is generally considered to be achieved in the 24th week of a pregnancy, he said.


"The state's attorney's office would have been given a report of every single fetus" that detailed its height, weight and other measurements, said Fowler. The state's attorney's office used his reports to determine which fetuses achieved viability.

Rollins said his office also looked closely at whether prosecutors could bring charges against Riley and Brigham for the unlawful practice of medicine but concluded that those allegations wouldn't stick.

"We took the high road," Rollins said. "We didn't bring a bunch of superficial charges that we couldn't prove. We brought what we thought we could prove.

"We vetted this thing from A to Z," he said. "My only question was: Did these people violate the law?"

Rollins has said his office is going to review all its evidence and may hire another abortion expert to re-examine the place of termination of the fetuses.

If the state's attorney determines that the terminations occurred in New Jersey, similar charges are not expected there.


"There's no indictable offense in this state that fits what he was doing here," said Jason Laughlin, a spokesman for the prosecutor's office in Camden County, N.J., where Brigham's primary clinic is located.

In addition to New Jersey, Brigham controls abortion facilities in Pennsylvania, Virginia and Maryland. Though the Elkton facility has closed, three clinics remain in Maryland.

Brigham has never been licensed to practice medicine in Maryland. He was able to oversee abortions in the state by employing Maryland-certified doctors, like Riley. Though her license was suspended after the August 2010 procedure, she may have it reinstated after an administrative hearing.

Maryland's physician licensing board ordered Brigham to stop practicing medicine without a license.

But closing Brigham's facilities in Maryland is the only way to keep him out of the state, said Vicki Saporta, president of the Washington-based National Abortion Federation, a professional association of abortion doctors.

Dori Henry, a spokeswoman for Maryland's Department of Health and Mental Hygiene, said that until new regulations on surgical abortion facilities go into effect, there is little that agency can do to regulate Brigham's offices in the state.


State officials are now reviewing public comments on the regulations.