"We've always contended Dr. Brigham hasn't violated any Maryland laws," Brown said.
Maryland is one of 38 states with a law recognizing fetuses that could have survived outside the womb as murder victims, but the 2005 statute had previously been used only in cases in which a pregnant woman was murdered or assaulted.
In briefs filed in Cecil County Circuit Court, Brigham's lawyers argued that Maryland prosecutors lacked jurisdiction because the fetal deaths actually occurred in New Jersey, where Brigham gave the fetuses a lethal injection.
Brigham, who was not licensed to practice medicine in Maryland, used a bi-state abortion scheme - inducing fetal death in his Voorhees clinic and removing the fetuses in Elkton - to evade New Jersey's outpatient-surgery safety rules, according to New Jersey regulators.
Brigham's New Jersey medical license was indefinitely suspended in October 2010, three months after he and Riley botched a bi-state abortion that left a New Jersey woman with critical injuries. That woman subsequently went to Elkton police, triggering the investigation that led to the doctors' arrests two months ago on murder charges.
As first reported Tuesday by the Cecil Whig newspaper, Rollins said in a news release that after consulting expert witnesses, prosecutors realized that fetal demise "created a jurisdictional issue."
Thus, Rollins said, Maryland "cannot successfully prosecute these matters at this time." However, he added, "the investigation is continuing."
Lawyers for Brigham and Riley argued that prosecutors had misinterpreted Maryland's fetal homicide law and its abortion law regarding the issue of fetal viability.
Brigham's lawyers argued that the abortion law gives the attending physician the responsibility for determining whether a fetus is capable of surviving outside the womb. "And under the law, it doesn't matter if others disagree," Brown said.
Riley's Baltimore lawyers, Daniel Goldstein and Stuart Simms, also argued that the fetal homicide law explicitly says it is not applicable to abortion. In addition, the abortion law also does not prohibit post-viability abortions, they said.
"The state has misread one statute . . . and misapplied another," Riley's lawyers wrote in court filings.
Brigham has a two-decade record of regulatory and professional disciplinary actions in New York, New Jersey, California, and Florida. His company, American Women's Services, continues to advertise clinics in New Jersey, Maryland, Virginia, and Pennsylvania.
Brown said the latest crisis "has been very stressful for Dr. Brigham. He's eager to get back to his life and his practice."
Contact Marie McCullough at 215-854-2720 or email@example.com.
Inquirer staff writer Stacey Burling contributed to this article.