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


On January 14, just eight days before the 38th anniversary of the Supreme Court’s decision in Roe v. Wade, a Philadelphia grand jury issued a 261-page report on the horrifying career of Dr. Kermit Gosnell, an abortionist whose West Philadelphia “Women’s Medical Society” it described as a “baby charnel house.” For decades, Gosnell ran a squalid abortion clinic, violating every conceivable norm of law and medicine by anyone’s standards, from the merely bad (almost nonexistent record-keeping and unlicensed clinic staff), to the truly appalling (employing unsanitary equipment and horribly injuring many of the women who came to him). Two women died in Gosnell’s “care,” and he and two of his staff are charged with third-degree murder in the death of one of them, Karnamaya Mongar.

Over the years, Gosnell specialized more and more in late-term abortions, and his preferred method in cases of the most advanced pregnancies was to induce labor in the women who came to him. What resulted in hundreds of cases was a live birth. And thus the issue that has garnered the most attention to the Gosnell case: The doctor is charged with murdering seven babies born alive in his clinic, whom he, or one of his staff under his direction, killed in the first minutes of their post-natal lives by “snipping” their spinal cords (that was the doctor’s own word for it) with scissors at the neck. The grand jury is morally certain there were many hundreds of “snipping” victims, but these seven are the only ones of whose deaths there is solid evidence today.

The women who came to Gosnell’s clinic — poor and desperate, late in their pregnancies, and willing for whatever reason to endure the horrors of his ministrations — wanted to be rid of their babies. This result he provided them. But it is difficult to locate the moral difference between the deaths Gosnell brought about in utero and those he accomplished post-natally. Does an unborn child at 26 weeks of fetal development have less moral standing than a born child at 25 weeks of fetal development? Does the latter’s living and breathing outside the womb for ten minutes, or ten seconds, confer a status that the former lacks? How can that be?

This is the absurd moral corner into which the Supreme Court backed us in 1973. Not that it bothered Dr. Gosnell. He was in the getting-rid-of-babies business, and no one was going to be sent home with a live one. Viewed in a coldly rational light, the doctor’s logic was admirably consistent: before birth, after birth, it made no difference.

In Roe, the Court’s majority opinion by Justice Harry Blackmun assured readers that in the late stages of pregnancy, when a fetus was “viable” and thus a live birth was possible, the state could prohibit abortion entirely. Except not really entirely: Blackmun carved out an exception where an abortion “is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

This seems a minor and reasonable exception. But in the companion case of Doe v. Bolton, decided the same day, Blackmun wrote for the Court that in determining what is “necessary” for the “health” of a pregnant woman seeking an abortion, a physician’s “medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.” Such broad language resulted, in practice, in the total elimination of the state’s power to prohibit post-viability abortions, not just a narrow exception to that power. All that is required to defeat any attempted prohibition is a woman who desires an abortion and a doctor who wishes to provide one. The pregnant woman’s emotional health or familial situation can always be cited afterward, if need be, as a complete and perfect defense.