Philadelphia Daily News, Yong Kim
In this March 8, 2010 photo, Dr. Kermit Gosnell is seen during an interview with the Philadelphia Daily News at his attorney's office in Philadelphia. Gosnell, an abortion doctor who catered to minorities, immigrants and poor women at the Women's Medical Society, was charged Wednesday, Jan. 19, 2011 with eight counts of murder in the deaths of a patient and seven babies who were born alive and then killed with scissors, prosecutors said Wednesday.

Kermit Gosnell agreed this week to accept life in prison, waiving an appeal to avoid the death penalty, after being convicted on three first-degree murder charges, one involuntary manslaughter, and a host of lesser convictions on unsafe and unhygienic practices.

For months the mainstream national media had conscientiously ignored the sensational case. One lonely local reporter tweeted a photo of the empty press section at the trial. It went viral.

But it took the combined efforts of Kirsten Powers at USA Today and Conor Friedersdorf at The Atlantic to finally force the case into the national spotlight.

As the disgraced abortion doctor settles into his new life behind bars, the larger implications of his trial are only now being sifted out.

Because Gosnell’s crimes were so multifaceted — involving both the murder of infants and gross indifference to the health of female patients — interpretations of the trial may be something of a Rorschach test.


Not surprisingly, pro-life activists see three first-degree murder charges.

"Babies are dying," said Carol Tobias of the National Right to Life Committee, "whether they are being snipped in the back of the neck like Gosnell, or being torn apart in a D&C abortion. It doesn't matter how clean the facility is.”

"What we need to learn from the Gosnell case is that late-term abortion is infanticide. Legal infanticide,” wrote Kirsten Powers last week. A pro-life liberal — a now-rare species that once roamed the land in sizeable numbers — Powers has focused repeatedly on the “geography” of late-term abortions, pointing to the logical difficulty of calling an action murder when it happens outside, given that moments earlier would have been legal inside the womb.

"That so many people in the media seem untroubled by the idea that 12 inches in one direction is a ‘private medical decision’ and 12 inches in the other direction causes people to react in horror, should be troubling."

Women’s health

Pro-choice advocates would naturally rather focus on hygiene and malpractice, including the manslaughter involving the woman who died at the clinic.

“The jury has punished Kermit Gosnell for his appalling crimes. This verdict will ensure that no woman is victimized by Kermit Gosnell ever again,” said Eric Ferrero, Planned Parenthood's Vice President for Communications in a statement, a sentiment echoed almost verbatim by Ilyse Hogue, president of NARAL Pro-Choice America in a press release, and by Vicki Saporta, President of the National Abortion Federation in an email.

Clearly, Planned Parenthood, NARAL and NAF are not interested in Powers’ 12-inch geography debate. The focus is women's health and the danger that new abortion regulations will drive poor women into substandard facilities.

“We must reject misguided laws that would limit women's options and force them to seek treatment from criminals like Kermit Gosnell,” Ferrero said.

Regulatory failure

Hogue argued in a CNN op-ed last week, “Gosnell also ignored the standards of care and safety recognized as best practices by medical professionals who provide abortion care. That he was allowed to operate for so long — despite multiple complaints — was a failure of the authorities to enforce the laws on the books.”

To her credit, Hogue does open her op-ed by referring to the victims in the three first-degree murder convictions as "infants," rather than the bloodless term "fetuses."

But Hogue is on less solid ground when complaining about regulatory failure in the Gosnell case endangering women. As the grand jury report made clear, the regulatory failures were a conscious decision by a pro-choice Republican governor to unshackle abortion providers.

“Ridge is a pro-choice Republican and it was his administration that decided to halt annual inspections of Pennsylvania’s abortion clinics,” said J.D. Mullane in an interview with National Review. Mullane is the Bucks County Courier Times reporter who doggedly reported the trial throughout.

“This happened because the Ridge administration felt shoddier clinics like Gosnell’s would be forced to close if inspectors from the state department of health came through and did their jobs,” Mullane said. “Closing clinics would create a 'barrier' for women seeking abortions, and Ridge didn’t want that. Though Tom Ridge is a chatty guy, he has maintained radio silence on Gosnell. Now you know why.”

Mushy middle

Kirsten Powers ratcheted up her criticism of the "abortion rights contingent” in a Daily Beast column last week, calling it the “NRA of the left.” By this she means it is unyielding, dogmatic, uninterested in compromise and impervious to logic.

What Powers is looking for is a more nuanced conversation, leading to more balanced policies — nuances like those expressed by Wall Street Journal columnist James Taranto.

Taranto has always been pro-choice but is now officially flummoxed. "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.”

Taranto cannot fathom forcing a rape victim to carry a resulting pregnancy, and sees a policy based on “life at conception” as "draconian and unenforceable, perhaps both.” But he also cannot accept late-term abortions. What he doesn’t know is where he would strike the balance.

Testing boundaries

Roe v. Wade held in 1973 that abortion could be restricted at 28 weeks, Taranto notes, a decision that relied heavily on “trimesters,” a concept lacking any foundation in medicine or biology. Roe was supplanted in 1992 by Casey v. Planned Parenthood, which said the state could regulate 23 or 24 weeks — a point still thought to be the threshold of viability outside the womb.

The pro-life lobby is now pushing the boundaries of what Taranto calls the “mushy middle." Ten states have now adopted laws that prohibit late-term abortions not using fetal viability as the line in the sand, but rather fixing it at the point when fetus is thought to experience pain, held to about 20 weeks.

Nebraska, Alabama, Arkansas, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana and Oklahoma have all adopted fetal pain statutes. Idaho's was recently struck down in federal court, and this latest challenge to Roe seems destined for the Supreme Court.

In challenging Roe, these new laws are also challenging a lesser known but equally important Supreme Court ruling issued at the same time as Roe. This is Doe v. Bolton, the decision that held that late-term abortion restrictions had to provide a sweeping health exception.

Doe is critical because even though Roe did allow state regulation at later stages of pregnancy, Doe subjugated those late-term restrictions to mother’s health. And health was defined sweepingly. Any effort to regulate late-term abortions must deal with the “health of the mother” limits under Doe.

Defining health

“We agree with the District Court,” the Supreme Court held in Doe, “that the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman's age — relevant to the well-being of the patient. All these factors may relate to health.”

The resulting law is summarized by the pro-choice Guttmacher Institute: "Only the physician, in the course of evaluating the specific circumstances of an individual case, can define what constitutes ‘health’ and when a fetus is viable; and states may not require additional physicians to confirm the attending physician’s judgment that the woman’s life or health is at risk in cases of medical emergency.”

Doe thus places the entire decision in the hands of the mother and her doctor, giving subjective psychology and emotions infinite latitude. State restrictions on late-term abortions without broad health exceptions are unconstitutional, while those with such exceptions are unenforceable.

With fetal pain statutes now embarking on the long ascent to the Supreme Court, and with the appalling realization that 12 inches of geography marks the boundary between medicine and murder now fresh in the public consciousness, an uncomfortable national discourse on nuances — a conversation essentially short-circuited since 1972 — may be in the offing.

If so, Gosnell, like Gollum in the “Lord of the Rings,” may have served a useful purpose in spite of himself.

Eric Schulzke writes on national politics for the Deseret News. He can be contacted at [email protected].