From Roe to Gosnell
The case for regime change on abortion.
By JAMES TARANTO
Here is incontrovertible proof that Kirsten Powers and Conor Friedersdorf are correct in arguing that the murder trial of Philadelphia abortionist Kermit Gosnell has received insufficient media coverage: On Friday, Snopes.com was compelled to publish a page confirming that the story is real, not merely an urban legend.
Gosnell, as we noted in January 2011, is charged with eight counts of murder. One of his alleged victims, Karnamaya Mongar, was a 41-year-old woman. The other seven did not live long enough to acquire names. They were infants who were born when Gosnell induced labor in their mothers. According to the Philadelphia grand jury report, he or his employees then killed them by using scissors to sever the neck and spinal cord:
He called that "snipping."
Over the years, there were hundreds of "snippings." Sometimes, if Gosnell was unavailable, the "snipping" was done by one of his fake doctors, or even by one of the administrative staff. But all the employees of the Women's Medical Society knew. Everyone there acted as if it wasn't murder at all.
Most of these acts cannot be prosecuted, because Gosnell destroyed the files.
The trial opened March 18, as the New York Times reported on page A17 of the next day's paper--its last word to date on the topic.
What accounts for the media's lack of interest in a trial that not only is sensational but implicates the most divisive social and political issue in America? PJMedia.com's Roger L. Simon has the answer: "The trial of Dr. Gosnell is a potential time bomb exploding in the conventional liberal narrative on abortion itself." He demonstrates via self-reflection:
I can give you two guinea pigs to prove this point--my wife Sheryl and me. We were in the kitchen last night, preparing dinner, when we saw a short report of this story on the countertop TV.
Both lifelong "pro-choice" people, after watching only seconds, we embarked in an immediate discussion of whether it was time to reconsider that view. (Didn't human life really begin at the moment of conception? What other time?) Neither of us was comfortable as a "pro-choice" advocate in the face of these horrifying revelations. How could we be?
Yes, Dr. Gosnell was exceptional (thank God for that!), but a dead fetus was a dead fetus, even if incinerated in some supposedly humane fashion rather than left crying out in blind agony on the operating room floor, as was reportedly the case with one of Gosnell's victims. I say blind because this second-trimester fetus did not yet have fully formed eyes. (Think about that one.)
So I don't think I'm "pro-choice" anymore, but I'm not really "pro-life" either. I would feel like a hypocrite. I don't want to pretend to ideals I have serious doubts I would be able to uphold in a real-world situation. If a woman in my family, or a close friend, were (Heaven forbid) impregnated through rape, I would undoubtedly support her right to abortion. I might even advocate it. I also have no idea how I would react if confronted by having to make a choice between the life of a fetus and his/her mother. Just the thought makes my head spin.
Anyone who he thinks he knows how he would respond in these situations--and hasn't--is doing nothing but posturing.
Welcome to the mushy middle, Roger. This columnist has been here for quite some time, as you can see from this 1999 piece. But we too, when we were very young, were a "pro-choice" libertarian. We came to question, and ultimately rejected, that position, although fully accepting the "pro-life" side of the argument remains a bridge too far for us.
Our path was more cerebral and less visceral. It started with our education in constitutional law. Although we thought abortion on demand was a good policy, we knew how to read, and the Constitution had nothing to say about the matter. We came to view Roe v. Wade, the 1973 case that declared otherwise, as a gross abuse of power by the Supreme Court, notwithstanding that it was in the service of a cause we agreed with.
Best of the Web Today columnist James Taranto on the murder trial of Philadelphia abortionist Kermit Gosnell. Photo: Getty Images
A funny thing happens when you dissent from Roe v. Wade: You come to see that there's not much else by way of intellectual content to the case for abortion on demand. Roe predates our own political consciousness, so we have to assume there were once stronger arguments. But these days the appeal to the authority of Roe is pretty much all there is apart from sloganeering, name-calling, appeals to self-interest and an emphasis on difficult and unusual cases such as pregnancy due to rape.
So totemic is Roe that on one recent day two top New York Times commentators, editorial page editor Andrew Rosenthal and columnist Bill Keller, cited it as if it were still the law and ignored the 1992 case that supplanted it, Planned Parenthood v. Casey. The latter was pretty much a complete do-over, although the "core holding" was the same.
When you dissent from Roe v. Wade, you notice that people committed to the pro-abortion side almost never acknowledge that the question of abortion poses a conflict of rights or of legitimate interests. Try to pin them down as to where they'd draw the line--at what point in fetal development does abortion become unacceptable? It's pretty much impossible. The court in Casey said abortion could be restricted after 23 to 24 weeks, earlier than Roe's 28 weeks, but groups like Planned Parenthood oppose restrictions on late-term abortion, too. All they care about is "a woman's right to choose."
The line-drawing exercise is indeed a vexing one. We aren't "pro-life"--which is to say that we do not favor the outlawing of all abortion--and not only because of the difficult cases Simon notes. Our own moral intuition is that an early-term abortion, or the use of an abortifacient to prevent implantation, is different in kind from a late-term abortion or infanticide.
But we concede that intuition is irreconcilable with the scientific fact that the difference between a zygote and an infant--or, for that matter, an adult--is one of degree: All are the same human being at different stages of development. (To be sure, the natural occurrence of apogamy, or monozygotic twinning, makes that last statement a bit of an oversimplification, as do recent and prospective technologies like in vitro fertilization and cloning. That doesn't make the puzzle any easier to solve.)
Any line one could draw between acceptable abortion and homicide would be an arbitrary one. Both extremes in the abortion debate are united in rejecting the line-drawing exercise in principle for that reason. But either "principled" position leads to monstrous results.
A law protecting every human life from the moment of fertilization would be draconian or unenforceable, and probably both. Would a free society really tolerate its government's forcing a rape victim to carry her attacker's child to term? Surely not--but an exception for rape would also create a loophole, an incentive for women seeking abortions to claim rape falsely. Norma McCorvey, the anonymous Roe v. Wade plaintiff, did just that, albeit unsuccessfully, before filing her lawsuit.
Abortionist Kermit Gosnell
The reductio ad absurdum of the pro-abortion side is Kermit Gosnell. That is why the Gosnell case has crystallized our view that the current regime of abortion on demand in America is a grave evil that ought to be abolished. It is murderous, if not categorically then at least in its extreme manifestations. Maintaining it requires an assault on language and logic that has taken on a totalitarian character. And it is politically poisonous.
Some pro-abortion commentators have denied that the horrors of the Women's Medical Society implicate their ideology. While they have little to say about the babies Gosnell allegedly killed, they certainly don't approve of the way he treated his pregnant patients, at least two of whom, according to the grand jury, ended up dead, with untold others mutilated or infected. No, these advocates assure us, they want abortion to be "safe and legal." (The Clintonian "rare" is not heard anymore. In a Philadelphia Inquirer op-ed last month, Kate Michelman of NARAL Pro-Choice America came right out and said that she wants abortion to be "common.")
But the grand jury--which described its members as covering "a spectrum of personal beliefs about the morality of abortion"--directly blamed "pro-choice" politics for the regulatory failure that allowed the clinic to remain open for decades. The Pennsylvania Department of Health had conducted occasional inspections of the clinic starting in 1979, although it failed to act on the violations it found:
After 1993, even that pro forma effort came to an end. Not because of administrative ennui, although there had been plenty. Instead, the Pennsylvania Department of Health abruptly decided, for political reasons, to stop inspecting abortion clinics at all. The politics in question were not anti-abortion, but pro. With the change of administration from Governor [Bob] Casey to Governor [Tom] Ridge, officials concluded that inspections would be "putting a barrier up to women" seeking abortions. Better to leave clinics to do as they pleased, even though, as Gosnell proved, that meant both women and babies would pay.
It's worth noting that the governors in question were both outliers in their parties: Casey (the respondent in the 1992 Supreme Court case) was an antiabortion Democrat; Ridge, a pro-abortion Republican. But Ridge's lassitudinous policy was bipartisan, continued by his successor, Democrat Ed Rendell. Inspections of Pennsylvania abortion clinics resumed only after a 2010 raid at the Women's Medical Society--initiated by the FBI, which was following up on a Drug Enforcement Administration investigation into suspected illegal narcotics prescriptions.
The grand jury also faulted the National Abortion Federation, "a professional association of 400 abortion providers nationwide that offers referrals and services to member providers." In 2009 Gosnell applied for membership in the NAF, a sort of Good Housekeeping seal of abortion:
When asked if she had ever seen anything like the conditions and practices she observed at Gosnell's clinic in any of the roughly one hundred clinics she has visited in the United States, Canada, and Mexico, the evaluator answered: "No."
Based on her observations, the evaluator determined that there were far too many deficiencies at the clinic and in how it operated to even consider admitting Gosnell to NAF membership.
The NAF rejected the clinic, but that's all it did. As the grand jury observed: "We have to question why an evaluator from NAF, whose stated mission is to ensure safe, legal, and acceptable abortion care, and to promote health and justice for women, did not report Gosnell to authorities."
Gosnell worked one day a week at another clinic, Delaware's Atlantic Women's Medical Services, which was NAF-certified. "At least six patients were referred from Atlantic to Gosnell's clinic in Philadelphia for illegal late-term abortions," the grand jury reported. The federation suspended the Delaware clinic's membership only after the grand jury urged it to do so in its January 2011 report. (The clinic later closed.)
The grand jury report does not name any other clinic that referred women to Gosnell, but it implies that he had carved out a lucrative niche for himself in the abortion industry. He had a bad reputation in Philadelphia:
As a result, Gosnell began to rely much more on referrals from other areas where abortions as late as 24 weeks are unavailable. More and more of his patients came from out of state and were late second-trimester patients. Many of them were well beyond 24 weeks. Gosnell was known as a doctor who would perform abortions at any stage, without regard for legal limits. His patients came from several states, including Delaware, Maryland, Virginia, and North Carolina, as well as from Pennsylvania cities outside the Philadelphia area, such as Allentown. He also had many late-term Philadelphia patients because most other local clinics would not perform procedures past 20 weeks.
Karnamaya Mongar, the woman Gosnell is accused of murdering by overdosing her with drugs, was likewise referred by an out-of-state clinic because her pregnancy was so far along. Again the report does not name the referring clinic, and it's unclear if it was in Virginia, where she lived, or the District of Columbia.
The abortion lobby opposes restrictions on late-term abortions. But surely at least they agree that infanticide--the killing of a child after birth--is murder. Or do they?
Two weeks ago John McCormack of The Weekly Standard reported on a shocking exchange between Alisa LaPolt Snow, a lobbyist for the Florida Alliance of Planned Parenthood Affiliates, and members of the Florida House who were holding a committee hearing:
"So, um, it is just really hard for me to even ask you this question because I'm almost in disbelief," said Rep. Jim Boyd. "If a baby is born on a table as a result of a botched abortion, what would Planned Parenthood want to have happen to that child that is struggling for life?"
"We believe that any decision that's made should be left up to the woman, her family, and the physician," said Planned Parenthood lobbyist Snow.
Rep. Daniel Davis then asked Snow, "What happens in a situation where a baby is alive, breathing on a table, moving. What do your physicians do at that point?"
"I do not have that information," Snow replied. "I am not a physician, I am not an abortion provider. So I do not have that information."
Rep. Jose Oliva followed up, asking the Planned Parenthood official, "You stated that a baby born alive on a table as a result of a botched abortion that that decision should be left to the doctor and the family. Is that what you're saying?"
Again, Snow replied, "That decision should be between the patient and the health care provider."
One full week later, ChristianPost.com reports, "Planned Parenthood clarified . . . that it is not in favor of killing babies who survive a botched abortion." Are you reassured?
YouTube has an audio recording of a 2001 exchange in the Illinois Senate between a sponsor of a bill to protect infants born alive in an "abortion" and a colleague who worries that such the bill's requirement of a second physician would be too burdensome for the abortionist. It's chilling to listen in light of the Gosnell allegations. The second senator, who voted against the bill, is now president of the United States. In 2008, according to FactCheck.org, Barack Obama said he would have supported a similar federal law that was enacted in 2002 and accused his critics of "lying." Are you reassured?
Last year the Journal of Medical Ethics published a paper by two academics who argued that "what we call 'after-birth abortion' (killing a newborn) should be permissible in all the cases where abortion is [allowed], including cases where the newborn is not disabled."
There is a brutal logic to that position. As an abstract matter, birth is as arbitrary a point as any to draw the line between abortion and homicide. If a woman has a "right to choose" to hire a doctor to kill her baby in utero or partway down the birth canal, why should she lose that right simply because he's slow in getting the job done? Or, to put the shoe on the other foot, if infanticide is murder, how can an abortion of a child at the same stage of development be acceptable?
To avoid confronting the reality of what they were doing, Gosnell and his employees spoke in an elaborate euphemistic code. A baby wasn't born, "the fetus precipitated." Gosnell didn't slash it to death, he "snipped" it to "ensure fetal demise." The Times, in that A17 story, adopted the Gosnell code, referring repeatedly to the babies Gosnell is charged with murdering as "fetuses."
So did Roger Simon, we're guessing out of "pro-choice" habit. This Orwellian use of language was a commonality between the Gosnellites and the "safe and legal" abortion crowd. "Pro-choice" itself is one such euphemism. Lots of political movements are in favor of one or another form of "choice," but this is the only one we can think of that cries foul if you specify the choice that they're pro. The National Rifle Association surely would not object to being characterized as "pro-gun." (We should add that we're not wild about "pro-life" either. But it is merely tendentious. Its aim is to persuade but not to conceal.)
Most news organizations have adopted this pro-abortion doublespeak as a matter of style. The New York Times, for example, characterizes the two sides as "abortion-rights" and "antiabortion." That at least has the virtue of acknowledging that the debate is about abortion, but it still tips the scale in favor of the pro-abortion side by acknowledging its claims of rights but not the antiabortion side's. And then there's the ever-popular "procedure whose opponents call it partial-birth abortion." What do its supporters call it? And who are they?
The most jaw-dropping example of pro-abortion Orwellianism is the one we cited last week: the fierce objection to the assertion that life begins at fertilization. As we noted, that is a simple statement of scientific fact--a tautology. MediaMutters responded, in essence, that human embryogenesis is just a theory. The proof was--you guessed it--an appeal to authority, namely the majority opinion in Roe v. Wade:
The law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth.
Justice Blackmun says it, I believe it, and that settles it!
We'd like to cite one more example because we find it especially neuralgic, though we must acknowledge this is one that professional abortion advocates typically have the sense to avoid. It is the characterization of an unborn child as a "parasite" because it depends for sustenance on its mother. Again, this is at best scientifically illiterate: In biology, a parasite by definition is a creature of a different species from the host. At worst, calling a baby a parasite is an act of rhetorical dehumanization, of a piece with likening hated minorities to insects or rodents or pigs.
Which brings us to the poisoning of American politics. In this respect neither side is innocent, though it is our impression that the pro-abortion side is far more aggressive. We hasten to acknowledge that our observation here may be biased by experience. We have lived almost all our life, and the entirety of our professional career, in big cities or upscale suburbs where the "pro-choice" view is dominant. Someone from Houston or Salt Lake City might have a different perspective. Then again, we are very widely read, and it seems to us that, say, National Review is a lot more respectful toward opposing viewpoints than the New York Times editorial page, and that antiabortion news sites are models of civility and reason compared with leftist and feminist ones.
Perhaps the most pernicious manifestation of this incivility is the effort to turn the sexes against each other--or perhaps more accurately the effort to cow men into submission. The imaginary "war on women" rages on: "Man, the feeding frenzy over Gosnell is a sobering reminder of how much hatred there is out there towards women," tweeted Slate's Amanda Marcotte Saturday. Over at Salon, Irin Carmon casually dismissed critics of the media's noncoverage as "almost uniformly male," a gendered argumentum ad hominem and quite a thigh-slapper given that she, like this column, opened by citing Kirsten Powers.
If you're a man and you're opposed to or uncertain about abortion, you've almost certainly had a woman tell you that because of your sex, you have no right to your opinion about the subject. (We've heard it from antiabortion women too, though much more rarely.) It's idiotic, offensive and indicative of a war on men.
The gist of Carmon's argument is that the horrors of the Women's Medical Center were caused by "politicized stigma, lack of public funding or good information, and a morass of restrictive laws allegedly meant to protect women." She favorably quotes a Philadelphia writer, Tara Murtha: "The bottom line is that politicizing abortion led to Gosnell. Their answer? Politicize it more."
In other words, if only abortion opponents were out of the picture, abortion would be safe and legal in no time. Problem solved. That conclusion, while arguable, strikes us as dubious. But the premise is delusional.
We live in a free society. People have an absolute right to form opinions about matters of public concern, and a nearly absolute right to express those opinions, individually or in concert with others of like mind. "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The Supreme Court, by interpreting (or misinterpreting) the Constitution, has the capacity to impose vast and sweeping changes in the law, as it did when it decided Roe v. Wade. What it cannot do--what it lacks not only the authority but the slightest ability to do--is control people's thoughts.
One suspects that when the justices decided Roe, they expected a consensus would quickly jell in favor of legal abortion. That is certainly what they hoped for when they decided Casey 19 years later. "The Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," Justices Sandra Day O'Connor, Anthony Kennedy and David Souter wrote in their joint opinion.
That was a wish, not a command. There was no consensus on abortion in 1973, nor in 1992. Nor is there in 2013. If the Supreme Court, with all its authority and majesty, cannot conjure a consensus into being, it is silly and vain for Irin Carmon to imagine that she can.
All of which is to say that the bitter polarization around the question of abortion is inseverable from the Roe regime.
A variant of the if-only-the-other-side-would-disappear argument appeared in Michelman's Philadelphia Inquirer op-ed. One Gosnell patient, she wrote, "told the Associated Press that she had intended to go to a Planned Parenthood clinic but was scared away by antiabortion protesters."
Well, why were the protesters there? Again, the answer comes back to the Roe regime. Normally if you think a law is unjust, you take your case to lawmakers. But a march on Harrisburg would be futile. Even if Pennsylvania legislators agree with the protesters that abortion is murder, they can't do anything about it. The Supreme Court has tied their hands. So the protesters, driven by a sincere belief that innocent children are in jeopardy of being murdered, go to the scene of the "crime" to try to stop it before it happens, through the power of persuasion.
And what were the prospective patients afraid of? In her next paragraph, Michelman describes their "fear of violent protesters." But she provides no evidence to support her characterization of the protesters as violent, and a National Abortion Federation list of incidents of "extreme violence" against abortion providers and facilities, which goes back to 1997, includes not a single incident from Pennsylvania. Maybe Planned Parenthood frightened potential clients away by slandering the protesters as violent.
But maybe the prospective patients were averse to the message rather than the messenger. In a fascinating piece last week for LiveActionNews.com, Sarah Terzo (whose shirttail bio describes her as "a member of Secular Pro-Life and Pro-Life Alliance of Gays and Lesbians") reports that "pro-choice counselors at abortion clinics occasionally have to deal with a woman who asks, point blank: 'Is abortion killing my baby?' "
The clinic workers are trained to say no, naturally:
Linda Couri, who worked at Planned Parenthood, described how she responded when a teenager considering abortion asked her the following question: "If I have an abortion, am I killing my baby?"
Couri said: " 'Kill' is a strong word, and so is 'baby.' You're terminating the product of conception."
You're terminating the product of conception. The fetus precipitates. Again the Orwellian doublespeak, in this case employed therapeutically. Euphemism is an analgesic for the psychological pain that "strong words" aggravate. And the protesters exercising their First Amendment rights outside Planned Parenthood refuse to stop administering "strong words." It's not hard to understand, or to sympathize with, the woman who decides to go elsewhere.
But strong words can be therapeutic too. They promote wakefulness as well as inflammation:
Couri was haunted by the girl's question and troubled about her [own] response. She began questioning whether providing abortions was really moral. She recalls asking her supervisor if she had done the right thing. The supervisor did not deny that abortion was killing a baby but told her that in the teenager's case, abortion was a "necessary evil." Struck by the use of the word "evil," Couri continued to question her position at the clinic. Eventually, she left, and now she is a pro-life speaker.
Here, then, is another reason it is vain to expect opponents of abortion to disappear: The abortion industry itself is a breeding ground for them. Even Norma McCorvey became an antiabortion activist later in life.
One advantage the abortion lobby has is widespread complicity. If abortion is evil, almost everybody is at least a little bit guilty. There have been more than 50 million abortions in America since 1973, according to the Alan Guttmacher Institute. Maybe you've had, or facilitated, one. Very likely someone you know has had one, and do you want to call her a murderer? (If no one you know has had an abortion, what makes you think you know that?) Probably you've had sex for the pleasure of it, not wanting a baby to result. People were doing that before Roe, of course, but the nationwide deregulation of abortion made it a lot less risky, or at least made it seem so.
The Linda Couri story illustrates the antiabortion side's corresponding advantage: Sometimes the guilty repent. Many abortion opponents, being Christians, recognize that as a central insight. And the guiltiest, by virtue of having borne direct witness, can be the most zealous penitents.
One of the strongest practical arguments in favor of the Roe regime is that abortion has been around since time immemorial and outlawing it only drove it underground, leading women to endanger themselves by seeking out the services of back-alley quacks. The Philadelphia grand jurors recounted a powerful example from their own city's history.
It was called the Mother's Day Massacre. A young Philadelphia doctor "offered to perform abortions on 15 poor women who were bused to his clinic from Chicago on Mother's Day 1972, in their second trimester of pregnancy." The women didn't know that the doctor "planned to use an experimental device called a 'super coil' developed by a California man named Harvey Karman."
A colleague of Karman's Philadelphia collaborator described the contraption as "basically plastic razors that were formed into a ball. . . . They were coated into a gel, so that they would remain closed. These would be inserted into the woman's uterus. And after several hours of body temperature, . . . the gel would melt and these . . . things would spring open, supposedly cutting up the fetus."
Nine of the 15 Chicago women suffered serious complications. One of them needed a hysterectomy. The following year, the Supreme Court decided Roe v. Wade. It would be 37 more years before the Philadelphia doctor who carried out the Mother's Day Massacre would go out of business. His name is Kermit Gosnell.
Back-alley abortions were indisputably a problem before 1973. That's no defense of the Roe regime, which failed to solve it.
What do we mean when we call for the abolition of the Roe regime? Simply this: a reversal of Supreme Court precedent, an acknowledgment by the court that it erred when it decided Roe v. Wade and Planned Parenthood v. Casey. That would turn the question of abortion back to the states and the people, where the 10th Amendment makes clear it belongs.
The abortion debate needs more politics, not less. As we noted above, drawing the line between acceptable abortion and homicide is necessarily an arbitrary exercise. For judges to issue arbitrary rulings is a corruption of the judicial function. But the production of arbitrary results--imperfect but workable arrangements that can be revised if necessary to adapt to new circumstances or knowledge--is the essence of politics.
A reversal of Roe and Casey would no more yield a consensus than the decisions themselves did. Neither the worst pro-abortion fears nor the fondest antiabortion hopes would be realized. Abortion would remain legal in many states, and any hope for a "Human Life Amendment" to the Constitution would be a pipe dream, the same as it is today. But in the absence of consensus, politics in a democratic republic would produce that least bad outcome: compromise.
Some will say it's unrealistic to call for a reversal of Roe and Casey. But Casey was decided 5-4, and, as we noted last July, it reportedly came within a hair's breadth of going the other way. Although several new justices have yet to weigh in on the abortion question, it is generally believed that the balance of the court is similar today to what it was in 1992.
Look at it this way: For Irin Carmon to succeed in realizing her dream of Safe and Legal Utopia, all those who disagree with her have to change their minds, and supporters of her view have to lock in their agreement permanently. For us to succeed, a change of one well-placed mind would suffice. The odds are probably against us, but they look awfully good by comparison.