Kermit Gosnell and the Logic of "Pro-Choice"

Matthew J. Franck
May 14th, 2013
Copyright 2013 the Witherspoon Institute
Reproduced with Permission
The Public Discourse

In his famous speech on the Kansas-Nebraska Act, given in Peoria, Illinois in the fall of 1854--the speech that relaunched his moribund political career by attacking the opening of new western territories to the spread of slavery--Abraham Lincoln addressed part of his argument to his southern fellow citizens. He was convinced that their own social customs gave evidence of a moral principle against slavery half asleep in their souls:

[Y]ou have amongst you, a sneaking individual, of the class of native tyrants, known as the "slave-dealer." He watches your necessities, and crawls up to buy your slave, at a speculating price. If you cannot help it, you sell to him; but if you can help it, you drive him from your door. You despise him utterly. You do not recognize him as a friend, or even as an honest man. Your children must not play with his; they may rollick freely with the little negroes, but not with the slave-dealers' children. If you are obliged to deal with him, you try to get through the job without so much as touching him. It is common with you to join hands with the men you meet; but with the slave-dealer you avoid the ceremony-instinctively shrinking from the snaky contact. If he grows rich and retires from business, you still remember him, and still keep up the ban of non-intercourse upon him and his family. Now why is this? You do not so treat the man who deals in corn, cattle or tobacco.

Of course, if the right to own and traffic in slaves was protected by the Constitution--as the Supreme Court was to assert in 1857--then the slave-dealer was doing absolutely necessary work. But Lincoln was right: Decent people instinctively recoiled from contact with someone whose business was the despoliation of others' human dignity.

Who but the abortionist is the slave-dealer today? On whom does the traffic in abortions entirely depend? Who else gives practical effect to the "right to choose" an abortion proclaimed in Roe v. Wade?

But our own social customs are not so different from what Lincoln saw in the antebellum South. We "shrink from the snaky contact" with the abortion provider, and even people who call themselves "pro-choice" avert their eyes from the grisly reality of what it means, in practice, to exercise the "right to choose."

Barack Obama, on April 26, was the first sitting president of the United States to give a public address to a convention of the slave-dealers of our age. That morning he gave a twelve-minute speech to the annual conference of Planned Parenthood, an organization responsible for more abortions than any other provider in the country.

Evidently he is not afraid to come into contact with our own "class of native tyrants," who carry on the despicable business of destroying hundreds of thousands of human lives each year, and have the audacity to say they are serving "women's health." But then this is, after all, the same politician who voted against an Illinois law to protect the lives of newborns who survived failed abortions.

There is a limit even to Obama's audacity, though. The president mentioned the "right to choose" four times in his brief speech, but somehow this transitive verb never took an object. Choose what? He never uttered the word "abortion," though it was plain that the entire speech was about the centrality of abortion to the president's notion of women's "health." Is there any other constitutional right, real or invented, that does not go by its true name when its defenders speak of it?

And far be it from the president to utter the name of Kermit Gosnell, the abortionist now convicted of three counts of first-degree murder for "snipping" the necks of babies who survived their abortions, as well as manslaughter in the case of a pregnant woman who did not survive his ministrations.

Gosnell, whose clinic was shut down by the Philadelphia authorities who charged him with murder, is the ne plus ultra of the abortion trade. Not because of the filth, the squalor, the jars of amputated keepsake baby feet, the employment of unlicensed incompetents, the promiscuous use of narcotics on unwitting patients, or the poisonous racism of a physician who preyed upon women and babies of his own race--although all of these are no surprise at all in America's most unregulated branch of medicine.

No, Gosnell is the "slave-dealer" par excellence because, even if he had run the cleanest, brightest, most professional clinic in the country, he was simply following out the remorseless logic of the abortion regime installed forty years ago by the Supreme Court.

Women came to him for the very latest of late-term abortions, and he made sure their children were dead. Whether he accomplished their deaths in utero or ex utero--before or after their births--didn't really matter to Gosnell. And, as we have heard from Planned Parenthood officials, from then-Illinois state senator Barack Obama, and from "pro-choice" politicians like Senator Barbara Boxer, it doesn't matter to them, either.

Their insouciance about infanticide, moreover, is given intellectual respectability when a leading academic publication like the Journal of Medical Ethics publishes a symposium on infanticide in which the majority of the contributing scholars cannot bring themselves to condemn it.

And there is something inexorably logical about this attitude. How can it really matter where an innocent human being's life is deliberately snuffed out? If it's a legally protected "baby" after birth at 24 weeks' gestation, but only an unprotected "fetus" before birth at 25 weeks' gestation, how does that make any sense? Yet this is the kind of gyration the law produces, just as it was shot through with contradictions and inanities under the regime that sanctioned slavery.

It mattered a great deal whether Gosnell's tiny victims were born dead or alive to his defense counsel, attorney Jack McMahon, for it meant the difference between capital crimes and the facilitation of women's "constitutional rights." McMahon mounted no affirmative case for his client, calling no witnesses and entering no evidence into the record. Instead he counted on pure argumentative obfuscation to induce the jurors to acquit.

Of the seven first-degree murder charges on behalf of the babies whose spinal cords were severed in Gosnell's clinic, three were thrown out by the trial judge at the conclusion of the prosecution's case, apparently on grounds urged by the defense that babies seen to breathe or to move "just once" after delivery could have been dead before the scissors were applied to their necks. McMahon seemed to be soliciting a similar conclusion from jurors in the remaining four cases, and perhaps they reached it in one of them. But in three cases, they could not deny that living human beings emerged from their mothers' wombs and were killed by Gosnell, and so they convicted him of murder.

The defense counsel urged jurors to avert their eyes from Gosnell's filthy practice and his profiting on others' misery, instead seeing the doctor as supplying an essential service: "He provided those desperate young girls with relief. He gave them a solution to their problems," McMahon said in closing arguments. Just like the slave-dealer, the abortionist "watches your necessities" and profits from them.

And like the slave-dealer, the abortionist is someone whose acquaintance we don't want to make. This is more true of abortion's defenders than of its opponents. For the defenders, the truth about the men and women who make this judicially-protected commerce possible is not something they want to know, much less to tell others about. This accounts for the dearth of media coverage during most of the Gosnell trial, which improved only slightly after the persistent criticisms of journalists Mollie Hemingway and Kirsten Powers.

When Gosnell passes from the scene, the liberal media blackout will resume. This is why it is incumbent on legislators, state and federal, to inform themselves and the public to the best of their ability.

We have been here before, of course, in some of our legislatures. The most under-reported aspect of the Gosnell case is that he was charged with more than twenty counts of illegal abortion under Pennsylvania law, merely by virtue of having aborted unborn children at 24 or more weeks' gestational age. This law, passed by the state legislature in the late 1980s under Governor Robert Casey, Sr., was an effort to put the Kermit Gosnells of the abortion industry--the worst of the worst of the slave-dealers--out of business.

The Pennsylvania Abortion Control Act provides that unless a physician can establish that he "reasonably believes" an unborn child is younger than 24 weeks, or, if the child is older, he can establish that continuing the pregnancy will result in either the death of the mother or "the substantial and irreversible impairment of a major bodily function," the physician cannot perform a late-term abortion.

If he knowingly commits a post-24 weeks abortion, based on such stringent life and health criteria, the doctor must certify his judgment about the threat in writing; acquire the concurrence of a second doctor in that judgment based on a "separate personal medical examination" of the woman; perform the abortion in a hospital; employ procedures designed to maximize the unborn child's chances to survive; and have a second physician present, ready to consider any surviving child his primary patient.

The purpose of this Pennsylvania statute is, in substance, identical to that of the federal Born-Alive Infants Protection Act (BAIPA), and state laws similar to the latter. Whereas BAIPA protects the right to life of the child who survives an abortion, the Pennsylvania act protects the child who could survive an abortion, making it criminal in most cases to abort the child and, where an abortion is permissible within narrow limits, requiring doctors to treat the child as a second patient who should be brought into the world alive and unharmed if possible.

Gosnell did not conform his actions to any of these regulatory strictures. Still, the Pennsylvania authorities failed to enforce the law to the point of malign neglect-which is why Gosnell continued to prosper after its passage, until he came to the Philadelphia district attorney's attention in a way that couldn't be ignored, following a Drug Enforcement Agency raid on his clinic for reasons unrelated to abortion. He has now been convicted on 21 counts of illegal late-term abortions.

As the jury heads into the next phase of the trial--for the DA has indicated an intention to go for the death penalty on the first-degree murder charges--we can already see the inevitable appeals taking shape. Pennsylvania's near-total ban on late-term abortions, after all, flies in the face of the forty-year-old precedents of Roe v. Wade and Doe v. Bolton. The Roe decision said that states could prohibit post-viability abortions, with exceptions for the sake of a pregnant woman's "life or health," and the companion case of Doe said that "health" could be defined as "physical, emotional, psychological, familial, and the woman's age."

Thus the "health exception" swallowed up the apparent ruling that states could ban late-term abortions, with the predictable result that abortionists could guarantee any pregnant woman the death of her child--if they could accomplish its death before it was born. Gosnell was evidently not skilled enough for this, and so he made the guarantee good by infanticide instead. Under the Roe and Doe precedents, Gosnell's convictions in the 21 cases of late-term abortion could be overturned on appeal--unless the Supreme Court is willing to reconsider the moral failure for which it has been responsible.

But assume for a moment that those late-term abortion convictions are overturned. Why should he not win the same result in the three murder cases? We have it from some of the world's leading medical ethicists, after all, that "after-birth abortion" is as permissible as "pre-birth abortion."

In statements issued immediately after the Gosnell verdict, the slave-dealers' lobby--Planned Parenthood and NARAL Pro-Choice America--reacted as though the real problem with Gosnell is that he preyed on women and endangered their health. To be sure, he did just that. But Gosnell victimized these women as the logical extension of these groups' moral reasoning and public policy goals, which they have advocated for decades. They have devoted themselves to teaching American women that their unborn children simply don't count in any moral calculus, and horrors like Gosnell's clinic are the fruit of their diligent work.

There is no alchemy, no magic spell that can tell us how to distinguish, in terms of their moral claim on us, between the children aborted in Gosnell's Philadelphia abattoir and the ones who were delivered and then killed. In certain respects, Kermit Gosnell has a right to be the most surprised man in America right now. We, on the other hand, who have not wanted to notice the slave-dealers in our midst, have no such excuse.