Prosecutors are seeking the death penalty for abortionist Kermit Gosnell, who is on trial in Philadelphia for doping one patient to death and killing seven fetuses born alive. He doubtless seems a worthy candidate for death row. Dr. Gosnell, after all, is a monster. Yet his barbarity never required him to venture much beyond the expansive abortion rights created by Roe v. Wade and its companion 1973 Supreme Court decision, Doe v. Bolton. Dr. Gosnell, indeed, could argue that he had a constitutional right to slaughter his very young victims. If instead we insist Kermit Gosnell should die, then perhaps we must reexamine Roe and Doe.

Dr. Gosnell was a merciless killer, willing to perform abortions at any stage of pregnancy. He routinely induced labor in women more than six months pregnant and then cut the spines of their breathing newborns. This was Gosnell’s “standard procedure,” according to the grand jury report. “These killings became so routine,” in fact, “that no one could put an exact number on them.”

One corpse found at his clinic, named Baby A, was so large that Gosnell joked he could “walk me to the bus stop.” Baby A weighed 6 pounds. After Gosnell snipped Baby A’s spine, he crammed the 19-inch corpse into a shoebox, though arms and legs spilled out. Gosnell deposited another child, Baby C, on a countertop while he attended to the newborn’s mother. There it lay, breathing and moving its arms, for some 20 minutes. Gosnell’s assistant then “slit its neck,” just like all the others.

Yet the grand jury found that the “hundreds” of abortions like those of Babies A and C that Gosnell performed over his long career “were not even the worst cases.” Gosnell and his wife performed the very late abortions on Sundays, when no other staff were present to see them. Gosnell destroyed those case files at his home, leaving no record. “We may never know the details of these cases,” concluded the grand jury.

When law enforcement officers raided Gosnell’s office on suspicion of drug dealing, they found some 45 fetal bodies. They were stuffed in “bags, milk jugs, orange juice cartons, and even in cat-food containers.” Some were frozen in an office refrigerator. Gosnell also kept “rows of jars” containing severed baby feet.

Such behavior suggests that Gosnell delighted in his violent deeds. One witness recalled a baby that writhed in pain from the pressure of surgical scissors around its neck. Gosnell joked, “That’s what you call a chicken with its head cut off.” At his trial, Gosnell listened with calm bemusement as prosecutors and witnesses told of his devilry. One journalist reported, “He just calmly watched and occasionally took notes with a vague hint of a smile on his face from time to time.”

Dr. Gosnell, in short, fits the profile of a sociopathic killer. But unlike most such deviants, Gosnell could argue that he acted within his constitutional rights.

Under Roe and Doe, doctors possess a constitutional right to perform abortions during the third trimester of pregnancy. While Roe allows states to ban third-trimester abortions, Doe says that any such ban must allow exceptions for the health of the mother, and assessments of maternal health must include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” In other words, abortion remains a right in the third trimester for any reason that is relevant to a patient’s well-being.

Who gets to assess the well-being of the mother under Doe? The doctor. The Court in Doe concluded that the necessity of any late-term abortion is a “professional judgment” that the “physician will be called upon to make routinely.” As the pro-choice Guttmacher Institute explains, “only the physician, in the course of evaluating the specific circumstances of an individual case, can define what constitutes ‘health.’ ”

Thus, states cannot overrule a physician’s evaluation with any independent assessment. States cannot even articulate broad criteria by which doctors should assess well-being. Only doctors can decide what Doe allows in practice. Under Doe, no one has a right to overrule the independent judgment of abortionists.

The grand jury seemed to think otherwise. It concluded, for example, that Gosnell performed “a flagrantly illegal abortion of a 29-week-old fetus.” It even claimed that aborting fetuses after 24-weeks’ gestation is “a crime in itself.” As a matter of constitutional law, that seems false. Under Roe and Doe, abortionists can always kill fetuses up to the moment of birth for any reason they find compelling, so long as they can couch that reason in terms of the mother’s well-being.

So what clear legal violation did Gosnell commit? Two relatively minor ones.

Pennsylvania is one of nine states that require a second physician to concur with the “professional judgment” of an abortionist who wants to perform a third-trimester abortion. Gosnell failed to seek second opinions. One has to wonder: Is that failure really a capital crime? Gosnell ignored a procedural requirement of Pennsylvania law. Had Gosnell performed the same late-term abortions across the river in Cherry Hill, New Jersey—or in 40 other states—he would not have committed even a procedural offense.

One might object, further, that Gosnell’s real crime was not the practice of third-trimester abortion. Instead, Gosnell should have saved the lives of those fetuses that survived his attempts to abort them. Pennsylvania has a law protecting babies that survive abortions. And it is clearly the grand jury’s view that Gosnell’s acts were criminal. As the grand jury report emphasized in horror, Gosnell killed “live, viable, moving, breathing, crying babies.” Even so, sending Gosnell to his death on the basis of this argument would seem problematic under the current legal abortion regime, for at least three reasons.

First, it ignores the fact that there have been many such killings over the years. In the 1970s and ’80s, it was not uncommon for newborns to survive saline abortions. These babies were badly burned by salt solutions and often died untreated. What made Gosnell different was volume—he killed abortion survivors far more often than any known predecessor. But he might have reasonably concluded that the act itself of killing abortion survivors was not remotely akin to murder. It had been done before, even in state hospitals, without so much as a fine.

Second, the protection of babies who survive abortions remains a subject of controversy, not a matter of settled law or even morality. While 27 states including Pennsylvania have laws protecting such infants, another 23 states and the District of Columbia do not. Indeed, a Planned Parenthood official recently testified in court that in cases of “botched abortion” the decision to kill the newborn should be left to the “patient and the health care provider.” Planned Parenthood representatives later reversed this position as a result of political fallout from the testimony, but their private view is clear. And many politicians share it. Barack Obama repeatedly refused to support a bill protecting abortion victims born alive when he was a state senator in Illinois.

So, one might reasonably ask if someone deserves the death penalty for an act that is legal in nearly half the states, an act that isn’t frowned upon by public figures from the president of the United States to the representatives of esteemed interest groups. Gosnell apparently concluded that in the eyes of the abortion industry’s liberal advocates, killing survivors of abortion is at worst a moral gray area.

This message was conveyed quite powerfully in the state of Pennsylvania, despite its legal ban. According to the grand jury report, when pro-choice governor Tom Ridge came to power in 1993, his administration instructed state officials to cease clinic inspections since they “would be ‘putting a barrier up to women’ seeking abortions.” State inspections, which had been only sporadic before, stopped altogether. When Ridge’s policy was revisited at a meeting of “high-level government officials” in 1999, they decided to continue their hands-off approach to abortion clinic regulation. Like Governor Ridge, they didn’t want to restrict women’s reproductive freedom. As the grand jury concluded, the state Department of Health “has deliberately chosen not to enforce [state] laws.” Gosnell saw that the state did not fully believe in its own abortion restrictions, including the prohibition on killing infants born alive. Now the state seeks Gosnell’s death for violating those same laws.

Third, the liberal position on killing abortion survivors makes a bizarre kind of moral sense. After all, what is the moral difference between killing an 8-month-old human being in the womb and killing it in the bright light of an operating room? And if there is a difference, can it bear the moral weight of the death penalty? If Gosnell is executed for his abortion practices, it would seem to be because he didn’t pump enough lethal digoxin into the hearts of his victims before they were born.

In fact, Gosnell did sometimes try to inject digoxin into the hearts of fetuses, as is standard practice in third-trimester abortions. But he wasn’t very good at it. He was an inefficient, unskilled killer. That was his crime. And if Gosnell failed to notice a moral distinction between killing a 30-week-old fetus in the womb and slitting that same infant’s neck after it passed through the birth canal, can anyone really blame him? He is in good company. Justice John Paul Stevens, with Justice Ruth Bader Ginsburg concurring, wrote in the 2000 partial-birth abortion case of Stenberg v. Carhart:

Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows.

Had Kermit Gosnell found a second physician to back him up and then killed the third-trimester fetuses before they passed through the birth canal, he would have committed no crime under Roe and Doe or the laws of Pennsylvania. The grand jury never wrapped its mind around this chilling fact. Instead, the jurors turned their attention to recommendations for preventing “future Dr. Gosnells.”

Sensibly, the grand jury proposes annual inspections of abortion clinics. The oversight of Gosnell’s clinic was appallingly bad, even though his misdeeds were well known. Because of that neglect, Gosnell “made little effort to hide his illegal abortion practice.”

But the regulations serve the interests of adult patients, not late-term fetuses. Proper oversight would have compelled Gosnell to improve the quality of his care for mothers. Fetuses, however, could still be killed—can still be killed—in Pennsylvania at any stage and for any reason two doctors are willing to describe as relevant to the well-being of the mother.

Insofar as late-term fetuses are protected at all, it is not because the Supreme Court allows states the option of placing a few minor restrictions on the actions of abortionists. Instead, viable fetuses—those that can survive outside the womb—are protected only by the moral sensibilities of abortionists.

Not every abortionist is a Gosnell—far from it. In fact, most doctors exercise restraint. Their moral sense, rooted in their human nature, compels them to sympathize with fetuses who resemble newborns. Many abortionists limit their practice to relatively early abortions precisely because they feel such sympathy. The pro-choice activist and feminist physician Susan Wicklund recently explained her decision to restrict her practice after observing a second-trimester abortion:

Seeing an arm pulled through the vaginal canal was shocking. One of the nurses in the room escorted me out when the color left my face. .  .  . From that moment, I chose to limit my abortion practice to the first trimester: 14 weeks or less.

A growing body of evidence suggests that Wicklund is not unusual. While nearly all clinics perform first-trimester abortions, fewer than one-fourth perform abortions at 20 weeks’ gestation, and only 11 percent at 24 weeks. This is true even though profits increase with gestational age, as Kermit Gosnell keenly appreciated. Unlike him, the vast majority of abortionists draw the line somewhere in the second trimester, precisely when the fetus is becoming more recognizably human.

So, while Roe and Doe grant something close to an absolute right to abortion, abortionists quietly limit that freedom. Human nature, not laws, limits the effective scope of abortion rights in the United States. Not everyone, of course, is restrained by the common moral sense. Sociopaths like Gosnell are incapable of sympathy for other human beings. This is what enabled him to venture where almost all his colleagues fear to tread.

Even so, Gosnell’s transgression is in a sense arbitrary, as perhaps he understood better than his colleagues or critics. For all their differences, many pro-life and pro-choice advocates agree that there are no morally relevant differences between killing a fetus at 15 weeks and killing a fetus at 30 weeks. We just tend to feel much worse about the latter.

The grand jury imagines that the legislators and regulators of Pennsylvania can find a way to “prevent future Dr. Gosnells.” They can’t. The Supreme Court has forbidden control over abortions by the democratically elected branches of government. So as long as abortion is every woman’s right, and women want abortions, and providing them continues to be profitable, Dr. Gosnells will emerge. We can perhaps require them to kill their victims in the womb. But we can’t prevent abortionists from specializing in killing viable fetuses. That is the consequence of the Roe and Doe regime.

Nevertheless, if Kermit Gosnell is executed, it will be for his abortions, not his other crimes. Although he will likely be found guilty of third-degree murder in the case of one mother, she died as a result of negligence. The grand jury made clear that her death was “not necessarily the product of specific intent to kill.” Only Gosnell’s abortion practice involved the intentional killing of innocent human beings. It is for this that he is charged with seven counts of first-degree murder.

So should Gosnell be convicted and find himself on death row, it will be for his specialty, late-term abortion, a practice permitted by our courts but forbidden by our consciences. It will be because the ordinary citizens serving on the trial jury in Philadelphia believe that the expansive power to destroy human life established in Roe and Doe is deeply immoral and in no way protected by our Constitution.

Jon A. Shields is associate professor of government at Claremont McKenna College.

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