By Jason Tomassini
BALTIMORE (Reuters) - A murder case against two doctors who allegedly completed late-term abortions in Maryland after starting them in New Jersey could be the first to test a state law tied to the "viability" of an unborn fetus.
Steven Chase Brigham, 55, the owner of American Women's Services clinics, and his employee, Nicola Irene Riley, 46, were arrested last week after a 16-month criminal investigation by Maryland authorities.
Officers who searched the Elkton, Maryland clinic during the investigation found 35 fetuses in a freezer, a source with knowledge of the case told Reuters.
A series of earlier investigations by state medical boards revealed that Brigham illegally initiated abortions at a clinic he owns in Voorhees, New Jersey, and then allegedly completed the procedures at a clinic in Maryland, where he was not licensed.
In New Jersey, late-term abortions can be performed only in a hospital or licensed ambulatory facility; there is no such restriction in Maryland.
Brigham faces multiple charges including five counts of first-degree murder. Riley also faces multiple charges, including one count of first-degree murder.
Brigham is awaiting extradition from Voorhees, New Jersey. His attorney, C. Thomas Brown, could not be reached for comment.
A hearing for Riley is scheduled for Tuesday morning in Salt Lake City, her attorney, Sharon Krevor-Weisbaum said.
"I can tell you we strongly believe the charges are without legal basis," Krevor-Weisbaum said, adding that she had not yet seen the indictment, which was filed under seal.
She said the fetal homicide statute in Maryland does not apply to her client because that law provides exceptions for licensed doctors, like Riley.
Maryland criminal law states that people can be charged with murder if they "intend to cause the death of the viable fetus." The law does not define "personhood" and states it is not intended to infringe on a woman's right to have an abortion.
But state law also defines a fetus as "viable" if "there is a reasonable likelihood of the fetus' sustained survival outside the womb."
Brigham provided abortions to five patients ranging from 18 to 33 weeks pregnant, according to a report by the New Jersey State Board of Medical Examiners.
The determination of whether those fetuses were "viable" could occur in court.
"This is probably the first case that Maryland has ever seen with this factual scenario using this statute. It's a unique situation," Cecil County State's Attorney Ellis Rollins told Reuters when the case emerged on Friday. He declined further comment on Monday.
The Maryland Department of Mental Health and Hygiene has proposed a draft law to better define when an abortion can be performed legally, and specifically cites Brigham and Riley's case.
The New Jersey medical report said Brigham started the five late-term abortion cases in his New Jersey clinic, giving patients injections that either softened the cervix or caused "fetal demise." The patients then traveled to Maryland where the abortions were completed, the report said.
Brigham completed some himself and Riley completed others under Brigham's supervision, the report said. Brigham's New Jersey license was suspended in October 2010 and he received a cease-and-desist warning in Maryland a month earlier.
Brigham argued to the board that the procedures in New Jersey are only preliminary to an abortion and that he only consulted doctors at the Maryland clinic.
The criminal investigation began in August 2010 when a woman nearly six months pregnant sought an abortion at Brigham's New Jersey clinic, where she received the preliminary injections.
She then drove to the Maryland clinic, where Riley performed the abortion procedure with Brigham present, the New Jersey report said.
At the time, Riley held medical licenses in Maryland, Utah and Wyoming. Her Maryland license has since been suspended.
During the procedure, the woman suffered an injured uterus and bowels. Riley took her to a nearby hospital and she survived, police said.
As part of the criminal investigation that followed, police found 35 fetuses in a freezer at the Maryland abortion clinic.
Freezing fetuses is "normal practice," Krevor-Weisbaum said, noting doctors preserve the fetuses until proper medical waste procedures can be conducted. She did not know if the murder charges were connected to the frozen fetuses.
(Editing by Barbara Goldberg and Greg McCune)