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.