The Magazine

Barbarism in Philadelphia

The crimes of Kermit Gosnell

Apr 29, 2013, Vol. 18, No. 31 • By JON A. SHIELDS
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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. 

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