Thursday, February 03, 2011

The legal implications of the Gosnell case

HT: Pundit and Pundette

The Gosnell Case and American Abortion Law: (Links mine)

The piece begins by mentioning the 261-page report on the horrifying career of Dr. Kermit Gosnell and zooms in on the charge of murdering seven babies born alive in his clinic.

The women who came to Gosnell’s clinic ... wanted to be rid of their babies. This result he provided them. But it is difficult to locate the moral difference between the deaths Gosnell brought about in utero and those he accomplished post-natally. Does an unborn child at 26 weeks of fetal development have less moral standing than a born child at 25 weeks of fetal development? Does the latter’s living and breathing outside the womb for ten minutes, or ten seconds, confer a status that the former lacks? How can that be?

This is the absurd moral corner into which the Supreme Court backed us in 1973. Not that it bothered Dr. Gosnell. He was in the getting-rid-of-babies business, and no one was going to be sent home with a live one. Viewed in a coldly rational light, the doctor’s logic was admirably consistent: before birth, after birth, it made no difference.

The piece then notes that Roe permitted the states to limit abortion in the final third of pregnancy, after the baby is able to survive outside the womb -- except for an exception if an abortion “is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” This seems reasonable, perhaps, until you look at Roe's companion, Doe v. Bolton, which defined "health" as a physician’s “medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.”

Such broad language resulted, in practice, in the total elimination of the state’s power to prohibit post-viability abortions, not just a narrow exception to that power. All that is required to defeat any attempted prohibition is a woman who desires an abortion and a doctor who wishes to provide one. The pregnant woman’s emotional health or familial situation can always be cited afterward, if need be, as a complete and perfect defense.

.... Since 1973, states have been powerless to prosecute an abortion at any stage of pregnancy, if the charge is merely that the procedure was undertaken too late, or after viability. Thanks to Doe, prosecutors have simply desisted from bringing criminal cases on such a basis.

But the Grand Jury nevertheless pushed for 33 illegal abortion charges against Gosnell. They are legally free to do so, based on the 1989 Pennsylvania Abortion Control Act, which tightened the Roe-mandated "health" exception to cases where a “physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.”

And according to a former Casey aide with whom I spoke, the prohibition on third-trimester abortions, with its very tight exception, was written precisely in order to bring about a confrontation with the on-demand abortion regime the Court created inDoe. If the state prosecuted a post-viability abortion at 24 weeks or later, the Supreme Court might be forced either to clarify that it really endorsed abortion at any time for any reason as a matter of constitutional right — or to step back from Doe’s broad language and say that the right to life of the unborn has some weight, at least after live birth is possible.

But in 22 years, not one prosecution has occurred under this provision of Pennsylvania law. Until now. In the Gosnell prosecution, Philadelphia district attorney R. Seth Williams has a choice. Does he go forward with the 33 counts of “illegal late-term abortion” (a fraction of the actual number of such abortions Gosnell performed, but all that can be solidly proven under a two-year statute of limitations) — as well as the eight murder charges? Or does he quietly drop them?

And if he does charge Dr. Gosnell with illegal abortions as well as murder, abortion-rights advocates such as NARAL and Planned Parenthood have a choice. Do they continue to agitate for the regime of abortion on demand that they’ve been defending for 38 years? Do they fold this particular hand, and concede that some abortions occur too late to be permitted at all? There is danger for them in this. If a viable unborn child has a right to life, what about the one just a week or a day shy of viability? And the one just a bit younger than that?

Abortion-rights advocates will be right to sense that the stakes are all or nothing. But do they want Dr. Kermit Gosnell to be the face of the legal order to which they have devoted their energies for four decades?

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