Case in 1984 paved way for Gosnell prosecution

Joseph L. Melnick arrives for his trial in May 1989. He ended up stripped of his medical license.
Joseph L. Melnick arrives for his trial in May 1989. He ended up stripped of his medical license. (Inquirer Library)
Posted: May 26, 2013

The trial involved an aging Philadelphia abortion doctor, a desperate and pregnant 13-year-old, and a baby born alive during an abortion and left to die.

But this trial occurred 24 years before that of West Philadelphia's Kermit Gosnell, sentenced Wednesday to three consecutive life terms after a jury found that he murdered three babies born alive in illegal late-term abortions.

It was Commonwealth v. Joseph L. Melnick, the first criminal prosecution under Pennsylvania's then-year-old Abortion Control Act.

The Melnick case was the precursor for prosecuting Gosnell, 72, for what happened inside his Women's Medical Society clinic at 3801 Lancaster Ave.

It involved many of the same legal issues the Gosnell jury faced, such as determining whether an aborted fetus was alive and what an abortion doctor's duty of care was toward that newborn.

But the outcome was strikingly different - Melnick was convicted of one count of infanticide and sentenced to probation - showing how attitudes about abortion have changed.

"It's so polarized now, abortion has become a political football since Roe v. Wade," said Lynne M. Abraham, who before serving 19 years as Philadelphia district attorney was a Common Pleas Court judge and who was assigned the Melnick trial.

The Inquirer and the Philadelphia Daily News, and some national newspapers, extensively covered Melnick's case from his arrest in October 1984 through his trial four years later.

But Abraham said public interest was nil: "There was virtually nobody in the courtroom most days."

A pregnant teen

Melnick's downfall began Sept. 12, 1984, when a Philadelphia woman took her 13-year-old daughter to Melnick for an abortion.

The teen had had an abortion 10 months earlier and Melnick testified that he thought she was about 18 weeks pregnant.

Melnick, who was old-school enough not to use an ultrasound exam to confirm the fetus' gestational age, later said he tried to persuade mother and daughter to have the baby and put the child up for adoption.

But they were adamant, Melnick said, and he went with the woman and daughter to the now-closed West Park Hospital, where he had privileges.

Drugs to induce labor were given, and Melnick testified he was surprised when the teen delivered a fetus of 26 to 28 weeks. A later autopsy put the age of the three-pound, nine-ounce girl at 32 weeks - one month premature.

Melnick insisted that the child was stillborn, but other hospital staff told a different story: occasional gasps, a slow heartbeat, and some movement.

Overruled by Melnick, the staff put the newborn in a container in a tiny side room where she died 90 minutes later. But a nurse decided she could not stay silent, and she contacted authorities.

A month later, then-District Attorney Ed Rendell announced that Melnick was being charged with murder, involuntary manslaughter, and violations of the abortion law: infanticide and performing an illegal abortion.

Rendell told reporters Melnick overruled West Park staff "and chose to ignore these clear signs of life."

An untested law

Proving the case against Melnick would be difficult. The abortion law was new and untested.

Melnick hired one of the city's best criminal defense firms, and Richard Sprague took over his defense.

Sprague did not return calls last week seeking comment.

The murder and manslaughter charges went first, thrown out by a Municipal Court judge at Melnick's 1985 preliminary hearing. Sprague filed a pretrial appeal challenging the abortion law's constitutionality.

It took until spring 1989 before Melnick went to trial before Abraham. Abraham then dismissed one of the two remaining charges - that Melnick performed the abortion knowing it was illegal - leaving the single charge of infanticide.

"It was a very unusual case," said current federal prosecutor Andrea Foulkes, the assistant district attorney who prosecuted Melnick. Foulkes, who was pregnant, confronted both a highly technical case and Sprague, a skilled courtroom tactician.

As with Gosnell's trial, Foulkes said the key point was to prove that "Baby Girl Smith" was born alive.

Melnick testified and insisted he did not detect a heartbeat. He said the gasps and movement hospital staff said they saw were involuntary reflexes, not a life to be sustained.

A half-dozen experts on pathology, neonatology, and pediatrics testified. Most backed Melnick.

"If Dr. Melnick thought this child were alive," Sprague argued, "what motivation would he have not to do something?"

But one expert did not agree: Ronald J. Bolognese, then chairman of Pennsylvania Hospital's department of obstetrics and gynecology.

Bolognese testified that once a doctor sees signs of life during an abortion, a "duty of care" begins even if the baby later dies.

"The physician did not provide adequate resuscitation," Bolognese said.

After 13 weeks of trial, Abraham found Melnick guilty of infanticide.

"It was clear to me that he killed a child," Abraham said in an interview. "It was struggling to breathe and it did have a fetal pulse."

Sentencing day

Melnick faced 31/2 to seven years in prison when sentencing day arrived on Dec. 19, 1989.

Foulkes by then was on maternity leave. Assistant District Attorney David Webb asked for prison and a fine.

Abraham said she considered prison but decided it was not appropriate. She sentenced the 66-year-old Overbrook doctor to 300 hours of community service and three years of probation.

"He made a criminal mistake," Abraham said in court. "It was poor judgment. If he had exercised a little more care, he might have been a hero."

Today, Abraham said, the outcome for Melnick might have been different: The homicide charge might never have been dismissed at a preliminary hearing, and prison might have been likely.

For Melnick, however, seven years of freedom before he died in 1996 may have seemed overrated.

"He lost his license, he was broke, out of work, and died in disgrace," Abraham said.


Contact Joseph A. Slobodzian at 215-854-2985, jslobodzian@phillynews.com, or follow @joeslobo on Twitter.

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