In “Barbarism in Philadelphia: The Crimes of Kermit Gosnell” (April 29, 2013), Jon A. Shields performed a service in educating readers about how Roe v. Wade created a legal environment in which practitioners of late abortion such as Dr. Kermit Gosnell were able to conduct their brutalities with little scrutiny or restraint for decades. However, Shields fails to take note that in 2007, the U.S. Supreme Court for the first time upheld a ban on one method of late abortion​—​partial-birth abortion—and did so in a manner that may allow protections to be extended more broadly. For example, there is reason to hope that the Court would permit bans on abortion after the point that scientific evidence demonstrates that an unborn child can experience pain (20 weeks fetal age, if not earlier). Such bans, based on a model developed by National Right to Life, have now been enacted in nine states.

Shields demonstrated confusion on an important point in his opening sentence, when he characterized “killing seven fetuses born alive” as among the charges for which Gosnell is being tried. There are no such charges, because “fetuses born alive” do not exist. Both in medical terms and in legal terms, once a human being is born alive​—​that is, completely outside the mother and alive​—​he or she is no longer properly referred to as a “fetus,” but as a baby or a newborn. This is true no matter how premature that live-born baby may be. Gosnell is charged with killing not seven “fetuses,” but seven newborn human beings.

Shields went much further astray, in the same direction, when he asserted that only 27 states have laws protecting “babies who survive abortions,” and that therefore the act that Gosnell is charged with, murdering such babies, is “an act that is legal in nearly half the states. .  .  .” Untrue. Once entirely outside the mother, a living baby is a human being and a person under the laws of every state, and under federal law. A person who deliberately kills such a live-born human being commits the crime of murder.

It is true that when such acts come to light, they often are not prosecuted, either because of difficulties in proof, or because in some jurisdictions an aura of political protection surrounds abortionists and causes clear legal principles to be disregarded​—​call it the “abortion distortion factor.” It is also true, as Shields noted, that prominent pro-abortion activists, including Barack Obama, have said things that indicate they do not really believe that babies born alive during abortions should be regarded as human beings. But there is nothing in Roe v. Wade or any other U.S. Supreme Court decision, or in federal or state laws, to support this premise.

Douglas Johnson

Federal Legislation Director

Mary Spaulding Balch, J.D.

State Legislation Director

National Right to Life Committee,

Washington, D.C.

The author responds: In “Barbarism in Philadelphia,” I argued that Dr. Gosnell’s offenses cannot bear the weight of the death penalty under our present abortion regime. Douglas Johnson and Mary Spaulding Balch do not address that matter. But they raise important points. They assert that the killing of abortion survivors is murder under the laws of every state. Nevertheless, 27 states have found it necessary to pass legislation explicitly protecting those infants, while many other states have explicitly refused to adopt such protections​—​an odd situation if the matter were really as cut and dried as Johnson and Balch say. How could a representative of Planned Parenthood affirm that doctors have the right to kill abortion survivors? How could abortion survivors be left to die, even in state hospitals, without prosecution?

I argued that the wrongness of killing abortion survivors remains controversial in our country, not clear and settled. Johnson and Balch concede that prosecutions are rare, partly because, as they put it, “in some jurisdictions an aura of political protection surrounds abortionists.” But to say that an “aura” is the main obstacle to the enforcement of abortion laws ignores the deeply felt, principled motives that drive the decisions of pro-choice state officials. In the Gosnell case, Pennsylvania officials balked not at enforcing significant restrictions on abortion but at performing any oversight at all.

Johnson and Balch are right that I should have been consistent in referring to infants born alive as babies or newborns, never fetuses. But my loose word choice reflects a deeper truth: The distinction between killing a 28-week-old fetus in the womb and killing a baby of 28 weeks’ gestation moments after it passes through the birth canal is morally meaningless. That is one reason some choice advocates feel able to defend killing abortion survivors.

Johnson and Balch express hope that the Supreme Court’s 2007 decision upholding a ban on a single technique, partial-birth abortion, will open the door to actual bans of abortion after 20 weeks. Perhaps it will. For now, the rights established by Roe v. Wade and Doe v. Bolton appear as close to absolute as they did in 1973.

Jon A. Shields

Associate Professor

Department of Government

Claremont McKenna College

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