RealChoice: Gosnell and Viability: Where's the Line?

Kermit Gosnell

Last year Dr. Kermit Gosnell was convicted of murder in the deaths of three of the hundreds of newborn babies he had killed by severing their spines while their mothers lay nearby, overdosed to the brink of death by his accomplices.

Whether Gosnell was guilty of murder hinged on the question of whether he had done the killing before or after the baby had fully emerged from the birth canal.

Gosnell's attorney, Jack McMahon, argued that these killings were perfectly ordinary abortions that accomplished what Gosnell was paid to do, which was whatever was necessary to make sure that the viable unborn baby was rendered lifeless before it left the mother's body.

All of this was so gruesome that even Gosnell's attorney walked away from the trial convinced that the legal limits for abortion should be pushed back to perhaps 16 weeks to prevent any more viable infants from being killed

The Pennsylvania Abortion Control Act places the limit for on-demand abortion at 24 weeks. Is that early enough in the pregnancy to prevent the killing of an unborn baby that could survive if born alive and provided with care? We can start by looking at the preemie survival rates at Preemie.web:

22 weeks: 0-10% survival rate

23 weeks: 10-35% survival rate

24 weeks: 40-70% survival rate

25 weeks: 50-80% survival rate

26 weeks: 80-90% survival rate

27 weeks: > 90% survival rate

At first blush, one might think that setting the cutoff at 22 weeks would do the job. However, we have to take another factor into account. Military Obstetrics & Gynecology addresses errors in estimating gestational age: "The accuracy of ultrasound in predicting gestational age gets worse as the pregnancy advances. By 20 weeks, ultrasound is accurate only to within plus or minus two weeks, and by the third trimester, its accuracy falls to plus or minus 3 weeks."

Ultrasound is the most common method of estimating gestational age in abortion practice. Many women are going in for late abortions because they'd lost track of their cycles and weren't sure they were pregnant at all, so dating from the woman's last menstrual period isn't an option. The doctors are having to rely almost entirely on ultrasound.

Here are some cases of abortion doctors miscalculating gestation age: a supposedly 21-week baby who turned out to be 30 weeks, a supposedly 11-week baby that turned out to be 27 weeks, a baby that was believed to be about 12 weeks and turned out to be 28 weeks, and a supposedly 6-week baby that turned out to be 26 weeks. I'll recognize, however, that these are unusual screw-ups. I'll just focus on being within the margin of error for a doctor who is taking reasonable care.

With the range of error of properly performed ultrasounds, a "22 week" baby with an estimated 10% or less chance of survival may just as readily be a 20 week baby with no chance of survival or a 24 week baby with a 40-70% chance of survival. An estimated 20 week baby might only be 18 weeks but might be a 22 week baby with a survival rate of up to 10%.

Orlando abortion clinic advertises abortions past 28 weeks.

This clinic advertises to 28+ weeks.

Different states vary at where they draw the line. In some states, there is no gestational age limit at all for on-demand abortions. The only limit is how late in the pregnancy the doctor is willing to kill the baby. some facilities openly advertise elective abortions past 28 weeks -- babies that have a greater than 95% chance of survival, and who may actually be three weeks older than estimated. They might be as old as 31 weeks, as likely to survive as a term infant, albeit with intensive support during the first weeks after birth.

Thus, the current state of medical care and ultrasound skill means that to avoid aborting a viable infant, the legal cut-off must be at 20 weeks.

Of course, regardless of gestational age, if you sever their spinal cords they have a 0% chance of survival.

Filmmakers Phelim McAleer and Ann McElhinney have launched a crowdfunding effort to produce a movie about Gosnell's crimes. Bringing the story of Kermit Gosnell out before as large an audience as possible can move this country toward an awareness of the vulnerability of viable unborn babies.