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The pearl of the ‘Pro-Life’ movement? Reflections on the Kermit Gosnell controversy
  1. Kate Greasley
  1. Correspondence to Ms Kate Greasley, Law Faculty, New College, Oxford University, Oxford OX1 3BN, UK; kate.greasley{at}new.ox.ac.uk

Abstract

The paper comments briefly on the recent controversy surrounding the criminal prosecution and conviction of rogue abortion doctor Kermit Gosnell in the USA, for, among other things, the murder of infants born alive. Without contesting the disturbing nature of the crimes committed by Gosnell and his colleagues, it critiques a few ways in which opponents of abortion have sought to use the case as ammunition against the legal provision of abortion and against the morality of all abortion.

  • Abortion
  • Ethics
  • Infanticide
  • Law
  • Partial-Birth Abortion

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In early 2013, opposition to legal abortion in the USA has appeared to have happened upon a real gem. The beginning of April saw the commencement of the trial of Dr Kermit Gosnell, an abortion doctor operating in Philadelphia, Pennsylvania, who was accused of a number of criminal offences, including multiple counts of murder.1 i The criminal investigation into Dr Gosnell's practice was launched after an FBI raid in 2010 allegedly revealed a ‘house of horrors’ in the ‘Women's Medical Society’ abortion clinic, which he had by then been managing for 30 years. The beginning of the trial itself brought in its wake a media storm and refuelled the familiar debates surrounding abortion in law and ethics.

The nature of the allegations against Gosnell (and others who had worked alongside him at the Philadelphia clinic) were deeply unsettling, as was the general scene described and documented by those involved in the raid. Among other things, Gosnell was accused of the murder of a number of newborn infants who were delivered alive before being killed by having their spinal cords' ‘snipped’. He also faced charges for the homicide of a woman in 2009, who died after being prescribed a lethal dose of an abortifacient drug at the clinic, when she was 19 weeks pregnant. Other allegations included malpractice (Gosnell was not a certified obstetrician/gynaecologist, neither were all of his staff qualified practitioners) the performance of illegal late-term abortions, beyond the Pennsylvania limit of 24 weeks, and the illegal prescription of drugs. Accounts of the 2010 raid reported the finding of aborted fetuses stored in freezers and other fetal remains stored in jars, as well as appallingly unsanitary conditions and outdated, broken equipment. Added to all this were reports of numerous botched abortions, which injured patients by perforating their organs, leaving fetal tissue inside of them, or causing serious infection.ii On 13 May, 2013, the jury in Gosnell's trial found him guilty of three counts of first-degree murder of babies born alive, the involuntary manslaughter of the poisoned patient, and 21 counts of performing abortions after Philadelphia's limit of 24 weeks gestation. He was sentenced to life in prison without parole. Colleagues of Gosnell who also carried out the notorious ‘snipping’ practice at his clinic pled guilty to counts of third-degree murder.

Not even the most militant advocates of abortion rights have attempted to defend Gosnell's practice, with Planned Parenthood (the main provider of abortions in the USA), the National Abortion Federation and NARAL Pro-Choice America all voicing unqualified condemnation of his actions, and lauding his conviction.4 ,5 One striking feature of the public debate surrounding the case was the controversy engendered by suggestions from anti-abortion campaigners that, for political reasons, the trial was not covered by news organisations in proportion to its newsworthiness, a contention which has, in turn, been rebutted by alternative accounts of the media coverage.6 Of course, this peripheral dispute is likely to be of less interest to those seriously engaged in abortion ethics and regulation than the ways in which the Gosnell case has, and may, feature in argument about the legality and morality of abortion.

For groups who are ideologically opposed to abortion—a powerful lobby in the USA—the Gosnell scandal has been treated as a real find. Mouthpieces of the anti-abortion movement responded quickly to explore the potential for deploying the case as a sharp challenge to the desirability of permissive abortion laws, and the moral permissibility of abortion in general—a cautionary tale for a country that has become morally lax in its pursuit of reproductive choice. Commentary on the website of the American Life League, one of the largest US pro-life organisations, described Gosnell as the ‘poster boy for murder and mayhem in our nation’, speculating that there is ‘no end in sight for such stories…until…Americans come to realise that human beings exist from the point of their creation.’7 Troy Newman, the leader of extreme pro-life group Operation Rescue, described Gosnell as a ‘gift from God’ and the trial as a ‘watershed moment for the issue of abortion’ which, in his words, has ‘prompted significant changes in abortion laws and attitudes towards enforcement in several states’.6 ,8 Other pro-life groups have aired screenings on Capitol Hill of a documentary graphically depicting the Gosnell ‘house of horrors’, which, they contend, ‘amplifies’ their arguments against abortion provision.9 In the UK, the ProLife Alliance added its voice to those groups holding Gosnell up as a case in point against legal abortion, describing the case as one that cuts against the argument that decriminalising abortion is necessary for ensuring that abortions which do take place are safe.10

As an initial observation, there is, of course, something perplexing about abortion opposition's use of this case to argue that existing abortion laws in the USA, and in Pennsylvania particularly, are flawed and in need of reform. This is because Gosnell's shocking practices were contrary to law, which is why he and others stood trial and were convicted of criminal offences, not in the least, murder, with the catastrophic ramifications of those convictions on their lives (in Philadelphia, Gosnell potentially faced the death penalty for first-degree murder, a possibility about which there was heavy speculation prior to sentencing). At first glance, arguing that Gosnell's rogue practice exemplifies the need for legal change is like arguing that there must be something remiss with the law of self-defence as a defence to murder, if many homicides are nonetheless committed without that defence. That people do break laws does not show the laws themselves to be in error, and supporters of the current legal regime regulating abortion in the USA do not have an immediate case to answer on this front. Abortion regulation does not permit infanticide—the killing of infants born alive—which, without any defence, amounts simply to murder in US law (as it does in the criminal law of the UK).

Reports to the effect that local government health departments altogether failed to properly monitor the clinic or to respond to claims about the malpractice that went on there, do, nevertheless raise serious concerns. But these concerns are of a different nature. Problems with the letter of the law should not be confused with problems inhering in the mechanisms for its enforcement, and the fact that Gosnell's practice fell foul of legal permissions does not, in itself, demonstrate that those permissions are unacceptable. There is a difference between what the law permits and what Gosnell was convicted of doing.

Be that as it may, the Gosnell case might used as a springboard for a more nuanced argument against all forms of legal abortion, which is that the extremities of his practice (and, presumably, of any other rogue abortion practice) would never have taken place if not for the legality of first and second trimester abortion post-Roe v Wade, the landmark Supreme Court decision of 1973, which construed the right to terminate a pregnancy as part of the constitutional right to privacy, in the form of procreative autonomy. The nub of this argument, which also seems implicit in the UK ProLife Alliance's statement on the trial, is that legal abortion essentially facilitates Gosnell-type abuses, including infanticide, by lending them the dignified front of legitimate women's healthcare. In other words, illegal abortion practices would not so easily escape censure, perhaps, would not even take place, if they could not masquerade as law-abiding ones.10

The misguided nature of this proposition is readily apparent to those acquainted with the history of abortion in the USA (and in the UK prior to the 1967 Abortion Act) and, unsurprisingly, has already been pointed out by a number of contributors to the Gosnell debate. There was a time when the kinds of horrors uncovered in Dr Gosnell's clinic were not such a rarity as they are today. Botched, late-term abortions, unsanitary conditions, amateur abortionists, outdated equipment, serious risks to the health and life of women and little or no concern for, or monitoring of, their condition post-abortion, are all features of abortion provision that seem to stand out particularly as artefacts of the past, part of the modus operandi of certain kinds of illegal abortionists, known as ‘butchers’, who thrived in the pre-Roe era when strict prohibition of abortion in many states made them the only option for many women determined to have their pregnancies ended. Naturally, not all women who wanted abortions faced such bleak options. Women who were privileged, or who were impregnated by privileged men, could often locate a qualified and trusted gynaecologist to perform the procedure safely, frequently with the help of their family doctor. At worst, such women might be referred to abortionists who, although operating illegally, were nevertheless trained professionals with a record for safety and good practice. These options being either expensive, or requiring a certain kind of ‘social currency’, it was disproportionately the poor, black or immigrant women who had to take their chances with the butchers, sometimes with catastrophic results.iii

Like those women, Dr Gosnell's patients were mostly poor, black or immigrant, and in many cases, seemed to use Gosnell's clinic as a last resort, once it had acquired a reputation for performing abortions on anyone who asked for one. The Grand Jury investigating Gosnell's practice (prior to trial) reported that the Nepalese woman Karnamaya Mongar, for whose manslaughter Gosnell was convicted, had attempted to procure an abortion at a number of clinics in Virginia, starting from when she was 15 weeks pregnant. Each of the clinics referred her elsewhere until she was finally referred to Gosnell's Women's Medical Society at 19 weeks. As the Grand Jury noted, the women who attended Gosnell's clinic were there because they were by this point too pregnant to get abortions elsewhere. Like their counterparts of the past, they turned in desperation to a disreputable abortionist operating flagrantly outside of the law. It is not known what the limitations were that each of Gosnell's patients faced in procuring abortions elsewhere, and at earlier stages of pregnancy, but one thing surely is clear: the calamities of the Women's Medical Society were far more the legacy of the pre-Roe legal regime, when states were free to prohibit abortion wholesale, than they are of widespread legal abortion provision today. Contrary to ProLife Alliance's claim, then, legal and accessible abortion is undoubtedly necessary for ensuring that abortions that do take place are safe. As the Gosnell example worryingly shows, it is simply not sufficient for ensuring it, proper monitoring and enforcement of regulation also being undoubtedly essential.

As defenders of legal abortion are also at pains to point out (and once again, a comment almost too obvious to make), the plethora of legal restrictions on abortion provision that continued to augment in the USA in the wake of the Roe ruling (often with the constitutional blessing of the Supreme Court), and far more recently, are exacerbating factors in the circumstances that enable a business like Dr Gosnell's to thrive. Perhaps most notable (and, widely, noted) is the Hyde Amendment of 1976, which banned all federal funding for abortion services, with limited exceptions, the constitutionality of which was upheld by the Supreme Court in Harris v MacRae.13 The regulation remains in place after the latest wave of healthcare reforms, and presents a natural barrier to safe, legal and early abortion for low-income women who, without state-provided abortion services, are unable to scrape together enough money to pay for an abortion until it is already rather late, and only someone like Gosnell would see them. As sociologist Carole Joffe notes, Gosnell's clinic was able to thrive in large part because he undercut others’ prices, when, ‘for very poor women—who are way over-represented among abortion patients—differences of even five or ten dollars can be the deciding factor of where to go.’14 Though a highly-regarded community health centre was situated in the same low-income neighbourhood as Gosnell's practice it, being federally funded, the centre could not offer abortion services.

Needless to say, abortion-restrictive laws like the Hyde Amendment do not just exist as preserved relics of the past, but rather, are proliferating at an astonishing rate, particularly at the state level. Mandatory waiting periods, counselling requirements (often not amounting to anything that might reasonably be construed as ‘counselling’), and the recent trend of targeted hyper-regulation of abortion providers (known as ‘TRAP’ laws) do nothing to prevent abortion, but only impede it and delay it, generating the clientele upon whom Dr Gosnell preyed.iv In particular, the wide-scale harassment of abortion clinics through TRAP laws merely increase the distances travelled and expenses incurred by women seeking abortion, by effectuating the closure of safe and law-abiding abortion clinics that are simply unable to find the financial resources to meet the artificial requirements imposed on them.v As Carole Joffe comments, Gosnell's clinic was not just ‘a strange throwback to the past’, but representative of the rogue abortion clinics ‘which today prey on women’, fuelled by ‘the marginalisation of abortion care from mainstream medicine, the lack of universal healthcare in the USA and the particular difficulties facing undocumented immigrants in obtaining healthcare’.14

As much as the notion infuriates opponents of abortion, it is an inescapable conclusion that the regulatory regime that they are, on the whole, attempting to bring about, (including, for those who support them, restrictions on funding for contraception) is one in which the Gosnell ‘house of horrors’ could only become more common and less newsworthy, it not being reasonable, or consistent with past experience, to believe that women who are desperate enough to seek out a late-term abortion—itself an extreme measure—will be deterred by illegality.

None of this negates the possibility that the prochoice lobby may well have something itself to learn from the Gosnell case. For one thing, the controversy arguably highlights the problems of ostracising abortion care from mainstream medicine and oversight, a problem which Carol Joffe has underscored in several places.iv 14 Though the provision of abortion care in independent, purpose-built facilities insulates providers from some of the difficulties they may face when working in hospital environments (in particular, hostility from disapproving colleagues) it also arguably removes a layer of scrutiny and support which, as well as giving abortion care medical legitimacy, curtails Gosnell-type slippery slopes. Needless to say, a general implication of the case for defenders of abortion rights is the need to underscore the necessity of safety regulation, monitoring and legal limits in their discourse and practice. Though Gosnell's practice is not representative of abortion care, questions surely need to be asked as to why the aberrations there were ignored for so long. And the perceived legitimacy and safe practice of abortion provision may depend on those defending legal abortion being at the forefront of this inquiry.

More than this though, the Gosnell controversy may exacerbate the problems of being too undiscriminating in the campaign for reproductive choice, or at least put pressure on defenders of abortion choice to offer a more nuanced and moderated defense of reproductive freedom than they are often wont to offer. Legal or not, Gosnell's late-term and postbirth abortion practices are an extension (or even, a perversion) of abortion provision, and as has been seen in much public reaction to the case, are practices that offend the moral sensibilities of many who are not ideologically opposed to all abortion. Consequently, the case may bring in its wake an increased pressure, and perhaps a fitting one, on the prochoice campaign to adumbrate an abortion ethic that unequivocally does not validate the unconstrained or nonchalant termination of late-term fetuses, and even more so, babies born alive, under the aegis of reproductive choice.

It is this challenge that the ideological opponent of abortion might deny that defenders of abortion rights can meet, and for this reason, may attempt to draw more argumentative mileage against abortion in general out of the Gosnell scandal. In particular, and as many have recognised, the Gosnell example might be employed to animate some basic anti-abortion claims that permissive abortion laws are morally arbitrary or incoherent. A good example of this kind of response can be found in a press statement about the case issued by the UK anti-abortion organisation, Life21: The question that they [defenders of abortion rights] fear answering is “what has Kermit Gosnell done that is so wrong?” After all, if you support partial-birth abortion, or very late-term abortion, or even abortion at all, why is infanticide of a newborn so awful? These children are after all unwanted.

It goes on: A thoughtful and honest analysis of the Gosnell case highlights the many difficulties and tensions in the “birth as a moral boundary” position.

Of all the use made of Kermit Gosnell's crimes as ammunition for anti-abortion argument, I must say that I find this line of reasoning the most legitimate and the most on-point for those concerned with the morality of abortion—a question that one can, in any case, isolate somewhat from the question over the desirability of permissive abortion laws, if one does come to the conclusion that for pragmatic reasons, abortion ought to remain legal (or legal up to some point). The thought plays out something like this: if you find these actions shocking (the killing of infants born alive), why not also partial-birth abortion, and all late-term abortion, and so on? Pointing out the close resemblance between Gosnell's infant victims and late-term fetuses puts pressure defenders of abortion rights to find a moral distinction between the two kinds of subject, a distinction that abortion opponents are confident will not be forthcoming; as they often quip, what is in the few inches of journey through the birth canal? The effect is to harness all the power of common revulsion against Gosnell's infanticide and direct it back at the defender of abortion, like some philosophical karate move.

And to be sure, reflecting on the close developmental similarities between fetuses and newborn infants, and on the moral sustainability of birth as a dividing line between permissible and impermissible killing, does pose ethical challenges for those engaged in justifying abortion practice. It forces them to contemplate questions such as whether the fetus's location in, and dependence upon the woman's body, warrants a differential moral appraisal, and what moral relevance, if any, attaches to a human being's emergence from the womb into the world. They may have to ask themselves what kind of fact they believe the fact of moral humanity (what some would term ‘personhood’) to be, and, depending on their answer to that question, whether all forms of arbitrariness need be eliminated from the legal determination of when living human beings enter that category (bearing in mind that conception, too, is a threshold incapable of reduction to a single moment: how far must the sperm penetrate the egg before a new person can be said to exist, and if ‘thus’ far, why there, and not a nano-second sooner or later?). In other words, they, just like abortion opponents, will need to direct themselves to the canonical questions of abortion ethics.

Without advancing any particular answer to these questions, I want to make one or two brief points about the anti-abortion line captured by Life's statements. The first is that we do not need the Gosnell case in particular to exemplify the problem of the abortion-infanticide boundary. Everyone understands what infanticide is, that it is generally morally reviled, and the problems involved in distinguishing morally the termination of newborns from that of late-term fetuses, without being shown what infanticide looks like, or reminded that it too does indeed, if rarely, take place. It is perhaps unsurprising that those fiercely opposed to abortion would wish to gloss the age-old debate with the grisly Gosnell trial, but the gloss is philosophically redundant.

Second, and more importantly, the argument from the arbitrariness of birth as the threshold for personhood and the right to life is an argument that relies on the similarities between developed fetuses and newborn babies. It draws on certain symmetries between the two—physiological, sentience-based, etc—in contending that they cannot be morally distinguished. Given that this is the nature of the argument, one premised on developmental equivalences, it weakens as one advances further and further back into pregnancy, and the equivalences begin to break down. If the immorality of abortion depends upon the fetus's likeness to a newborn, in developmental complexity, sentience, responsiveness to pain, and so on, then it seems to follow that as the likenesses diminish, so does abortion's moral problematicness. Everyone can understand the argument when it applies to late-term fetuses. But how does Life, or anyone making similar contentions, manage to implicate all abortion, from conception onward, in the same dichotomy? Indeed, the manner of reasoning implies the exact opposite. By themselves introducing the significance of biological development and resemblance to infants as intrinsic to the morality of abortion, anti-abortion discussants set themselves up for the counter-attack that underlines the developmental differences between newborns and fetuses at many other stages of gestation. A zygote or embryo is hardly comparable to a newborn, and certainly does not share with late fetuses and infants the properties that are meant to show them to be metaphysically indistinguishable. So if resemblance is the test, it seems at least true that zygotes and embryos do not warrant strong protection. The karate move works both ways.

The result is certain incoherence in abortion opposition's use of the Gosnell case in the way I laid out. If Gosnell's alleged infanticides and late-term abortions are particularly, uniquely horrifying, as the anti-abortion line begins by noting, then we have, at the very outset of their reasoning, an implicit acknowledgment that there are features separating newborns and late fetuses from zygotes, embryos and perhaps early fetuses, features in virtue of which the destruction of the former group is especially disturbing—if not for this reason, why else? But this in turn rests on the implicit assumption that degrees of development are in fact relevant to the classification of moral subjects before birth. If embryos are also thought to be equal to newborns in moral status, then as much time and effort would be worth devoting to exposing the ‘horror’ of embryo destruction. Embryo destruction would be as paradigmatic an example of murder as infanticide. And there would be nothing special, nothing uniquely disturbing, about Gosnell's crimes. Against the backdrop of this belief then (the belief that all abortion destroys a full-fledged person) anti-abortion argument provides no reason to zero in on Gosnell's actions as especially repugnant. Only an abortion ethic that ascribes meaning and value to developments in human physiology or sentience (or both) could do that.

Why, then, have ideological opponents of abortion made so much of Gosnell's crimes? I suppose there are two alternatives. One is that they do indeed find it difficult to believe the claim to which they say they are committed: that full-fledged humanity, or ‘personhood’, begins at conception. They, like everyone else (including those supportive of abortion rights), are acutely disturbed by the revelations at the Women's Medical Society precisely because they credit late-term fetuses and newborns with value and interests with which they do not credit embryos. Alternatively, if they do in fact remain committed to their claim that all abortion entails the killing of a person, we must conclude that they are disingenuous in expressing an amplified amount of moral horror at Gosnell's killings, and decrying them as so much worse than ‘ordinary’ abortion. Whether or not they state things in these terms, this is the clear implication of their special interest in the case. Of course, Gosnell's charges are likely to shock people with less hard-line sensibilities about abortion—people who do in fact treat in utero development and increasing human resemblance as if it were morally meaningful, which is what makes Gosnell's practices a strategic focus for those wishing to muster up abortion opposition. However, as a challenge to the morality of abortion per se, their use of the case is not only a non sequitur, it is a contradiction of their most fundamental premise: that inviolable human life begins at conception.

References

Footnotes

  • Competing interests None.

  • Provenance and peer review Not commissioned; externally peer reviewed.

  • i Dr Gosnell and others in his clinic were originally accused of eight counts of murder (including that of the female patient). Three of the charges, which related to allegedly viable infants born alive, were thrown out by the judge.2

  • ii For a full report of the findings of the FBI raid, and investigation into the operation of Dr Gosnell's ‘Women's Medical Clinic’ see reference 3.

  • iii For excellent accounts of the historical regulation of abortion in the US, and legal and illegal abortion practice, see Joffe11 and Dubow.12

  • iv For good accounts of recent legislative trends which fit this description, see Dubow12 chapters 3–5 and epilogue, Steinbock15 chapter 2, Sanger,16 Guttmacher Institute State Policies in Brief.17

  • v For examples of alleged excessive regulation of abortion clinics, see Eckholm,18 The Guttmacher Institute,19 Finer et al.20

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