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Barbarism in Philadelphia

The crimes of Kermit Gosnell

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