Congress and the Gosnell Case

The trial of abortionist Kermit Gosnell, who is being prosecuted for killing babies and at least one woman at his Philadelphia clinic, has drawn attention to the shocking failure of the Pennsylvania government to protect the basic rights of some of its most vulnerable citizens. As the grand-jury report explains, state governments (beginning with the administration of “pro-choice” Republican governor Tom Ridge) made a deliberate decision not to monitor these clinics.

What has gone unnoticed and unmentioned in coverage of the trial are the federal government’s responsibilities. The Fourteenth Amendment to the Constitution requires all states to afford the equal protection of the laws to “all persons.” The Supreme Court has ruled — wrongly, in our view — that unborn children in the early stages of pregnancy do not count as “persons” entitled to that protection. There is no debate, however, that infants have a right to the law’s protection.

Well, almost no debate: President Obama, as a state senator in Illinois, argued against protecting those infants who had not reached the stage of “viability.” He claimed that such protection was incompatible with the Court’s abortion rulings. The Court itself has never said so. Instead it has ruled that as soon as a child is even partially out of the womb it may be protected. It has never even suggested that infants fully outside the womb are anything other than persons whom states are constitutionally obligated to protect.

In Pennsylvania, the state government was manifestly not following the Constitution’s command. It was taking no action to keep lethal violence from being inflicted on infants at abortion clinics. Almost all persons in the state’s jurisdiction enjoyed the basic guarantee that the state will try to deter and punish their deliberate killing. But not “all persons”: not these newborn persons. From them, this guarantee was withheld. The Constitution does not allow the state to make any group of persons, as Justice Anthony Kennedy once wrote, “a stranger to its laws.”

The grand-jury report suggests as well that the fact that the victims were poor and black partly explained the passivity of state officials. This claim, if true, strengthens the case that the state was failing to fulfill its legal duty. There is, of course, all too much precedent for such state failure to enforce civil rights granted by the Constitution. The Fourteenth Amendment contemplates such failure and offers a solution: Its fifth and concluding section confers upon Congress the power to enforce its substantive guarantees. In this case, power clearly implies duty. It is a power Congress has often used to force states to do the right thing, or to step in itself to bring justice where states refused.

That doesn’t mean there should be a rush to legislation. We don’t yet know whether any legislation is warranted or prudent, let alone what form such legislation would take. To find out, Congress needs to hold fact-finding hearings to learn whether other states have taken the same see-no-evil approach to infanticide at abortion clinics that Pennsylvania did. Do they monitor the clinics? Do they have laws that eliminate any uncertainty that infanticide at abortion clinics can be prosecuted? Do they prosecute these cases when they discover them? Or have views like those of state senator Obama stayed the government’s hand? Are there obstacles — confusion about the state of the law, or a lack of resources, for example — that inhibit states and localities from protecting infants, and are those obstacles that Congress can remove?

Gosnell is also on trial for committing late-term abortions past Pennsylvania’s statutory deadline. Such prosecutions are vanishingly rare. Our understanding is that they almost never occur because prosecutors worry that the Supreme Court has made successful prosecutions nearly impossible. While the Court has consistently allowed in theory that unborn children who have reached “viability” may be protected, it has also consistently said that at any stage of pregnancy abortion must be allowed where necessary to safeguard a woman’s health.

In Doe v. Bolton, the companion case to Roe v. Wade, Justice Blackmun wrote that health should be understood expansively to include “emotional, psychological, [and] familial” factors as well as “the woman’s age.” The Court has never disavowed that rule, which obviously makes it extremely difficult for states to make good on their statutory efforts to protect the lives of children in the late stages of gestation. Just how hard it has made that work is something it would be good for the men and women of Congress, and the rest of us, to know. Hearings are the way to find out.

— Robert P. George is a visiting professor at Harvard Law School and McCormick Professor of Jurisprudence at Princeton. Ramesh Ponnuru is a senior editor at National Review, a columnist for Bloomberg View, and a visiting fellow at the American Enterprise Institute.