The Gosnell Case and American Abortion Law
Will abortion-rights advocates continue to defend the current regime?


This is how America’s regime of abortion on demand came about. Since 1973, states have been powerless to prosecute an abortion at any stage of pregnancy, if the charge is merely that the procedure was undertaken too late, or after viability. Thanks to Doe, prosecutors have simply desisted from bringing criminal cases on such a basis. And unscrupulous doctors have been licensed to kill viable unborn children. Hundreds, if not thousands, are aborted every year.

The Philadelphia grand jury didn’t get the memo, however. Their lengthy “presentment” recommends that Dr. Gosnell be charged with 33 counts under a Pennsylvania law banning all abortions from the 24th week of gestation onward, except where a “physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.” This is tight language about exceptions. Unlike the language in Doe, it really is an exception, not an obliteration of the rule. Where did it come from?

This provision was added to the state’s Abortion Control Act in 1989, under Gov. Robert P. Casey Sr. And according to a former Casey aide with whom I spoke, the prohibition on third-trimester abortions, with its very tight exception, was written precisely in order to bring about a confrontation with the on-demand abortion regime the Court created in Doe. If the state prosecuted a post-viability abortion at 24 weeks or later, the Supreme Court might be forced either to clarify that it really endorsed abortion at any time for any reason as a matter of constitutional right — or to step back from Doe’s broad language and say that the right to life of the unborn has some weight, at least after live birth is possible.

But in 22 years, not one prosecution has occurred under this provision of Pennsylvania law. Until now. In the Gosnell prosecution, Philadelphia district attorney R. Seth Williams has a choice. Does he go forward with the 33 counts of “illegal late-term abortion” (a fraction of the actual number of such abortions Gosnell performed, but all that can be solidly proven under a two-year statute of limitations) — as well as the eight murder charges? Or does he quietly drop them?

And if he does charge Dr. Gosnell with illegal abortions as well as murder, abortion-rights advocates such as NARAL and Planned Parenthood have a choice. Do they continue to agitate for the regime of abortion on demand that they’ve been defending for 38 years? Do they fold this particular hand, and concede that some abortions occur too late to be permitted at all? There is danger for them in this. If a viable unborn child has a right to life, what about the one just a week or a day shy of viability? And the one just a bit younger than that?

Abortion-rights advocates will be right to sense that the stakes are all or nothing. But do they want Dr. Kermit Gosnell to be the face of the legal order to which they have devoted their energies for four decades?

— Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J.