Politics & Policy

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.

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.


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