Deadly Silence, Fatal Complications
The State Supreme courthouse in Jamaica, Queens in New York seems an unlikely place for a sex-ed class. Nonetheless, the borough's chief assistant district attorney, Barry Schwartz, recently gave 14 jury members a lesson on how babies are made--and how abortions are performed. "The way the doctor dilates the cervix in the first-trimester abortion is to take a...metal rod...that's a little bigger than the hole," said Schwartz, "and bore out the hole a little bit." As the prosecutor vigorously stabbed the air for effect, female jury members crossed their legs and winced. A first-trimester abortion is usually "simple stuff," Schwartz explained, except when the fetus is actually more than 13 weeks old, which was the problem in the case he's now prosecuting. "When you try to pull a big thing through a small hole," Schwartz said, "you're going to rip something." That is exactly what happened to Guadalupe Negron, a 33-year-old Honduran immigrant, when she visited the office of Dr. David Benjamin on July 9, 1993. After handing $800 in cash to the receptionist, Negron slipped off her clothes and went into the examining room. She was 20 weeks pregnant. But Benjamin misdiagnosed her and performed a first-trimester abortion. The result: a punctured uterus and a torrent of blood. According to the prosecution, the doctor did not check on her in the recovery room until an hour and half had passed. A few minutes later, she was dead. Benjamin, 58, is now on trial. Queens District Attorney Richard Brown claims he "exhibited a depraved indifference to human life" in his treatment of Negron and has slapped Benjamin with a second-degree murder charge. This case marks the first time in New York State that a doctor has been charged with murder for botching a medical procedure. Benjamin isn't much more than five feet tall, but his considerable girth requires two sets of handcuffs, linked together, to bind his wrists behind his back. In the courtroom, the doctor usually wears an olive green suit and a somber expression. His elderly mother-in-law sits several rows behind him, alternately sobbing, muttering, and sleeping. Every day, Benjamin's wife, Jackie, tells reporters about the hardships of life at Rikers Island. "Can you believe," she asks, "treating a doctor like this?" In 1966, the year Benjamin immigrated here from Iran, prochoice politics were fairly straightforward. Legalizing abortion was the goal, and protesters tried to convince the public by waving poster-size photos of women who'd died at the hands of back-alley butchers. Two decades later, however, prochoice activists have made no public protest over Negron's death. As right-wingers across the country are denouncing--and even shooting--abortion doctors for being "murderers," Benjamin's murder trial presents a dilemma for the activists. Do they side with the abortion doctor or the dead woman? Do they insist the doctor is guilty of murder or demand a lesser charge? And how do they make sure no more women die? This last question has long divided the prochoice movement. Meanwhile, the victims are always the same: poor women with no access to safe abortions. As the right wing continues its assault on abortion rights, the prochoice movement is in danger of abandoning its neediest constituents. A small ad in El Diario drew Negron to Metro Women's Center in Corona, Queens. Looking in the back of this Spanish-language newspaper, Negron discovered dozens of doctors who do abortions in their offices. Many even perform abortions up to the legal limit: 24 weeks of pregnancy. What Negron did not know, however, is that virtually none of these "clinics" are licensed by the state Department of Health. If she had been less than three months pregnant, Negron could have gone to the Bronx Planned Parenthood clinic on East 149th Street, not too far from her home in the Highbridge section. An abortion there costs $350. If Negron had waited until she was in her second trimester, Planned Parenthood would have referred her to another licensed clinic, or to a respectable doctor. But it is unlikely that Negron knew about any of these options. In the past, a neighborhood health clinic might have steered her in the right direction; now many of these facilities have shut down. In fact, Negron--like many other poor, immigrant women--may not even have known that abortion is legal. And she was probably afraid to have any contact with an institution like Planned Parenthood lest she jeopardize her, or her family's, immigration status. So when Negron realized she was pregnant, she just started counting her dollars. Saving money wasn't easy. Negron and her husband sold ice cream and flowers from a cart on the street. They already had four young sons and knew they couldn't afford another child. Frequently, they sent money back to Honduras where three of their boys still live. After more than three months of perseverance, Negron and her husband managed to pull together close to $800. By then she was well into her second trimester. That's when she called Dr. Benjamin's office and a Spanish-speaking receptionist picked up the phone. Reading from a hand-scrawled price list, the receptionist told Negron that, since the cost of an abortion rises with each week of gestation, a 20-week pregnancy would run her $1200. (At most licensed clinics, the procedure would have been cheaper, though prices often rise with the length of the pregnancy.) The two women haggled until the price dropped. Negron made an appointment for the next day. The taboo against abortion is a powerful one, and so Negron--accompanied by her 22-year-old niece--drove to Queens for the procedure. She hoped that friends and family in her Roman Catholic community wouldn't find out. After Benjamin finished with Negron, he left her in a room that had "a couple of bloody couches but not much more in it," according to the prosecutor. While lying on a stretcher dressed only in a diaper, Negron grew very pale. Her pulse started falling and the blood kept pouring out of her. She complained to her niece about being in a lot of pain. Meanwhile, Benjamin was busy in the examining room. He was performing another abortion. When Benjamin eventually did attend to Negron, he allegedly made a few more mistakes. The doctor stuck a breathing tube into Negron's esophagus instead of her trachea. No oxygen got to her lungs and vomit started coming out of the tube, according to the paramedics who arrived shortly after. Benjamin's wife, who sometimes helped out in his office, attempted to do CPR. But she kept pushing on Negron's stomach instead of her sternum, the paramedics say. The puddle of blood between Negron's legs kept growing and her fingernails started turning blue. By the time EMS paramedics arrived, they say that Negron was already dead. (Benjamin's lawyers concede the doctor made mistakes, but claimed that Negron herself--by sitting up abruptly--caused the large tears that led to her fatal hemorrhaging. They also say she might not have died if EMS had arrived sooner, a claim EMS disputes.) What Negron didn't know when she made an appointment with Benjamin was that 37 days earlier he had received a letter from the state Board of Professional Medical Conduct revoking his license. "Gross incompetence and negligence" was the cited reason. At the time of Negron's abortion, Benjamin was still permitted to practice medicine while his appeal was pending. The state Department of Health had also investigated Benjamin eight years earlier. At that time, his license was suspended for three months. Testimony at a disciplinary hearing revealed that Benjamin had performed an unnecessary hysterectomy on a 25-year-old patient and attempted to bribe women with candy and money in order to keep them from reporting him to authorities. Outside the courthouse stands a man with a placard. "Abortion and malpractice is not murder. Free David Benjamin." Bill Baird, 63, wears black Reeboks, a blue striped shirt, and a red-dotted tie. His mission, he says, is nothing less than to "fight to the death for women's right to choose....First (abortion providers) had to endure shooting and firebombing, and now here's a new weapon to use against us," he says. "This will discourage doctors from wanting to do abortions, especially late-term abortions, and that will hurt women in the long run." Twenty-eight years ago, Baird was arrested for giving a condom to a female student during a lecture at Boston University. His case, Eisenstadt v. Baird, made it all the way to the Supreme Court in 1972. It protected the right to privacy, improved access to contraception, and was quoted in Roe v. Wade, the 1973 decision legalizing abortion. Today, Baird runs a prochoice group based in Huntington and named after himself. He spends his time crisscrossing the country publicizing his views. A tireless crusader, Baird is now consumed by efforts to free Dr. Benjamin. In Baird's mind, the villain in this story is the Queens district attorney. "Publicity and making 'new law' in which a doctor can be charged with 'murder' is a ruthless way to get votes," says Baird. The prosecutor contends that Benjamin was charged with murder only because of the unique circumstances of this case. Though a growing number of prosecutors across the country are bringing criminal charges against doctors who make fatal errors, indictments for murder are rare. In the courtroom, Baird sits in the front row, scribbling notes. The activist has been helping Benjamin's lawyers find expert witnesses. And he says the doctor's wife phones him for support every night. Despite his avowed commitment to women's reproductive rights, however, Baird spends little time discussing the victim in this case. Instead, he staunchly defends Benjamin's innocence. Undeterred by the doctor's shoddy professional record, Baird insists that puncturing the uterus during an abortion is a "common mistake." (It is not, according to Dr. Allan Rosenfield, dean of Columbia University's School of Public Health.) Baird even goes so far as to claim that Benjamin did an "incredibly good" abortion because, when the medical examiner checked Negron's uterus, "there was not one residual amount of (fetal) tissue remaining." Baird also seems to have no quarrel with the defense's argument that Negron is responsible for the botched abortion because she gave conflicting information about the date of her last period. "Medicine is a team effort," says Baird. "You rely on the integrity of the patient to tell you the date of their last period." In contrast, Rosenfield says, "You can make a mistake plus or minus two weeks, (but) the bottom line is that any well-trained practitioner would not mistake a 20-week pregnancy for a first-trimester pregnancy." As Baird describes him, Benjamin sounds like a martyr for the prochoice cause. "Every time I see this guy in handcuffs, it reminds me of the 1960s when I saw doctors who were arrested and jailed...for doing abortions," Baird says. Describing Benjamin as an "elderly Jewish doctor who gets beat up all the time" in jail, Baird launches into a lengthy account of his own experiences with prison violence. Baird notes proudly that he's been imprisoned eight times for abortion-related activities. Baird tells this to every reporter who steps within three feet of him. Another tidbit he always shares is that Betty Friedan once called him a CIA agent. Baird then proceeds to slam the entire prochoice movement for failing to embrace him because, he says, it is full of female chauvinists. "I've done everything I can for this movement," he says. "I'm not about to change my sex." This sort of grandstanding hasn't made Baird very popular with other activists. Nor has his loose-cannon criticism of their strategies. "Where are my sisters?" Baird asks outside the courthouse. "Why aren't they supporting this woman (the doctor's wife), this mother of seven children? What a disgrace to the prochoice movement!" Baird's "sisters"--in the National Abortion and Reproductive Rights Action League, Planned Parenthood, or other groups--have no intention of joining him. "There's always this sensitivity about do you support even bad providers?" says Merle Hoffman, president of Choices Women's Medical Center, one of the city's largest abortion clinics. She speculates that activists "don't think Benjamin is pure enough to go out and support." On the other hand, the prochoice movement hasn't held a protest over Negron's death or seized upon the trial to inform women about avoiding storefront abortion doctors. It's a shame, because the movement has become a formidable political force. State legislators learned this six weeks ago, when NARAL and other groups launched a successful campaign to stop a bill that required parental notification for abortions on teenagers. The reasons for the movement's silence in the Benjamin case are complex and not altogether convincing. Mobilizing around this trial is "a double-edged sword for us because we don't want to play into the myth that abortion is a dangerous procedure," says Kelli Conlin, head of the New York chapter of NARAL. In 1993, 110,435 abortions were performed in New York City. Negron and three other women were the only fatalities. "The risk of first-trimester abortion is significantly less than that of pregnancy," says Dr. Rosenfield. "And (so is) the risk of a second-trimester abortion, properly done." Twenty years ago, New York was one of the first states to legalize abortion. It now has some of the country's most liberal laws, including medicaid coverage for medically necessary abortions. Nonetheless, in the recent past New York City has been the site of two well-publicized fatal abortions. Less than two years before Negron's death, Dr. Abu Hayat--who came to be known as the "Butcher of Avenue A"--attempted to abort an eight-month fetus. Instead, he sliced off an arm. Both the baby and mother survived. Hayat is now serving 29 years in Sullivan Correctional Facility for assault and for performing an abortion after the sixth month. Like Benjamin, Hayat advertised in foreign-language newspapers, and his practice was also frequented by poor women. Prochoice activists fear that, if they speak out about the Benjamin trial, they'll give right-to-lifers another platform to tell abortion horror stories. Indeed, one phone call to the New York State Right to Life Committee about Benjamin's case elicits an avalanche of rhetoric. "This is just one more example," says spokesperson Lori Hougens, "of how the abortion industry views women as a means to an end and a passage to profit. Abortion is a violent procedure." Another reason prochoice crusaders are lying low is their uncertainty about how to regulate private doctors, who perform about a third of the abortions in New York State. "The Department of Health can come in (to licensed clinics and hospitals) at any time and do spot checks," says Hoffman, whose Queens clinic performed 17,792 abortions in 1993. "Yet Dr. X can be doing 100 abortions a week down the street and they have no right to go into his office." As a result, practices like Benjamin's flourish. Some activists argue that physicians should not be permitted to do second-trimester abortions in their offices. Conlin however, says such a regulation "isn't really warranted by the risk factors." If the medical profession did a better job of policing itself, she insists, the problem of incompetent abortionists would be solved. For many choice crusaders, the overriding fear is that, with greater regulation, fewer doctors will perform abortions. As it is, the antichoice movement has had a significant impact on availability. According to the Alan Guttmacher Institute, there are now no abortion providers in 40 per cent of New York counties. In addition, a recent New York Times investigation found that almost all of the city's full-service hospitals stopped doing abortions over the last decade. Nationwide, access to abortion for poor women like Negron is under assault. Both the House and Senate now have antichoice majorities. Just last week, the prochoice movement achieved an unexpected victory when it managed to stop the defunding of Title X, which supports family-planning clinics like Planned Parenthood. Soon, states may no longer be obligated to fund abortions for poor women even in cases of rape and incest. These attacks have kept groups like NARAL and Planned Parenthood very busy. "The mainstream prochoice groups really focus on the very, very basic issue of keeping abortion legal and maybe some of the bigger burning issues like parental notification (and) keeping medicaid funding available," says Wilma Montanez, director of the Latina Roundtable on Health and Reproductive Rights. "But most of the women in these groups come from privileged backgrounds and cannot imagine not having $200 to get an abortion." As the right gains ground and the prochoice movement is forced to do battle on many fronts, Montanez says, "that's where the commitment (to poor women) starts to waver." David Benjamin's trial is expected soon. If convicted, he faces 25 years to life in prison. None of this, however, is much solace to Guadalupe Negron's family. None of this, says Marcy Wilder, NARAL legal director, changes the fact that "what happened in this case sounds like what happened before Roe v. Wade when abortion was still illegal."