We can thank, in large part, the Supreme Court, after 38 years of Roe v. Wade, for the lurid reports coming out of Philadelphia.
Since the fall of 2009, officials have investigated the conditions in an abortion clinic run by Dr. Kermit B. Gosnell.
The Philadelphia District Attorney has charged Gosnell with murder for killing an abortion patient and seven babies after they were born. The grand jury report found, among other things, that there had been reports of the exceedingly vile practices at the clinic for nearly 20 years without any action being taken.Philadelphia’s clinic conditions and lackadaisical approach to regulating clinics are the direct result of the “fine print” in Roe.
Because the Justices who decided Roe foolishly believed that abortion had few risks and that doctors should have complete discretion to decide how to do abortions in the first trimester, they basically said that state and local officials can’t regulate in the first trimester, when 90 percent of abortions are done, and that they can try in the second trimester—if they dare.
But the Justices then empowered the federal courts and attorneys for abortion providers to thwart every effort by public health officials to regulate. Federal courts across the country spent the next decade implementing that edict, and by the end of the 1980s, the federal courts had struck down attempts by Chicago and many other cities to regulate clinics in the first trimester. As Edward F. King, the Deputy Director of the Chicago Medical Society told the Chicago Sun Times in 1978, “The courts very effectively knocked the Department of Health out of the picture.
We’re not even entitled to cross the threshold of these clinics.”
This is how the Justices have hobbled public health officials for the past 38 years in dealing with abortion clinic conditions, in Philadelphia and many other cities.
The Supreme Court compounded the problem in 1983 by extending its edict in Roe and invalidating regulations even in the early second trimester.
Roe also empowered any back-alley abortionist with an M.D. to go into court after January 22, 1973 to challenge clinic regulations as an “unconstitutional burden.”
In Chicago, for example, the federal appeals court struck down Chicago’s clinic regulations, and three years later, in November 1978, the Chicago Sun Times published a 12 part series on terrible abortion clinic conditions, based on an undercover investigation with the Better Government Association.
When Illinois tried to enact new regulations to deal with the findings of the Sun Times and the BGA, an abortion provider again challenged those regulations and got the federal courts to strike them down in the 1980s.
The Justices also empowered abortionists to challenge clinic regulations in court and to speak for women about the care that women want and need, as though the interests of abortionists and those of women are identical.
Is that true for any other area of medicine?
On top of all that, a federal law (the Civil Rights Attorneys Fees Act of 1976) has been interpreted by federal courts to require that the attorneys for the abortionists get their attorneys fees paid by state tax dollars when they get the clinic regulations struck down. That too inhibits public health officials from doing anything unless the most extreme conditions in clinics are discovered.
Some states have some clinic regulations and there is, of course, some political and administrative discretion in enforcing some clinic regulations. The Philadelphia grand jury concluded that
“...[t]he Pennsylvania Department of Health abruptly decided, for political reasons, to stop inspecting abortion clinics at all…. With the change of administration from Governor Casey to Governor Ridge, officials concluded that inspections would be ‘putting a barrier up to women’ seeking abortions.”
But the Court ultimately holds all the cards and decides whether any laws on the books are actually enforceable. As Justice O’Connor pointed out in the Court’s 1983 Akron decision: “As today’s decision indicates, medical technology is changing, and this change will necessitate our continued functioning as the Nation’s ‘ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.’"
The problem is that the Court is a passive institution. It dictated this public health vacuum and now can’t do anything about it. It can’t regulate. It can’t fill the vacuum it created. It can only wait on lengthy and expensive cases to get appealed to the Court, and it has imposed conditions that inhibit any case from getting to the Court.
If the history of the past 38 years is replayed in Philadelphia, as it has been in Chicago and other major cities, the current furor will die down, some legislative body might pass new regulations, the ACLU or the Center for Reproductive Rights will file suit, the federal courts will strike down the regulations, the state will use tax dollars to pay attorneys fees to the clinics, the papers will turn a blind eye, and the case will never get to the Justices.
Clarke D. Forsythe is senior counsel of Americans United for Life.