RealChoice: Gosnell: Location Can Mean Misdemeanor vs. Murder

Kermit Gosnell

Last year, in a little-noted trial, Dr. Kermit Gosnell was convicted of murder in the deaths of three of the hundreds -- perhaps thousands -- of newborn babies he killed by severing their spinal cords while their mothers lay nearby, overdosed to the brink of death on a cocktail of drugs given to them at Gosnell's direction by his accomplices. (I have addressed elsewhere what I believe to be the source of this practice of taking scissors to the back of the baby's neck in order to "ensure fetal demise".)

Whether or not Gosnell was guilty of murdering any of these babies hinged not on the question of whether or not Gosnell killed them. (He'd never denied that he'd killed them.) It hinged on the question of whether he "ensured fetal demise" before or after the baby fully emerged from the birth canal.

For the babies, of course, the difference was irrelevant. But for Gosnell, the difference was profound.

How much sense does this make? Baby almost out of the mother's body when killed = "reproductive health care." Baby entirely out of the mother's body when it's killed = first degree murder. Question abortion.

Gosnell's attorney argued -- successfully in the cases of four infants -- that Gosnell had "ensured fetal demise" prior to the infant leaving the womb at all. This would have taken the Federal Partial Birth Abortion ban (with its penalty of up to 2 years in prison) entirely off the table. Under the PBA ban, the gestational age of the fetus is irrelevant, as long as its death is achieved without the baby exiting the womb intact. (Removing one limb at a time from the womb in the process of dismembering, and thus killing, a living baby is permissible.)

That would have left Gosnell facing only Pennsylvania's Abortion Control Act. If the prosecution could prove that a baby had been of more than 24 weeks of gestation, Gosnell could theoretically have faced at most up to a $10,000 fine and up to 7 years in prison. However, even with a fetus admittedly past 24 weeks, a successful "health of the mother" defense would have reduced the charges to two misdemeanors: performing a post-24 week abortion outside a hospital, and failing to send the fetal remains from a post-24-week abortion to a pathologist.

To borrow a phrase from the real estate business, the most three most important factors distinguishing between a woman exercising her right to choose and a doctor committing murder are location, location, and location.

Baby in the womb: possible misdemeanors

Baby mostly in the birth canal: felony abortion with fine and/or imprisonment

Baby entirely out the birth canal: capital murder

LeRoy Carhart

Interestingly enough, the abortion lobby rolled over on the 24-week cutoff portion of the Pennsylvania Abortion Control Act, which was passed in 1982. Ten years later, however, they pulled out all the stops to challenge the Partial Birth Abortion Ban.

Late-abortion specialist LeRoy Carhart argued, on behalf of himself and anybody else who wanted to be permitted to kill partially-born babies, that the practice is just a perfectly safe and legal facet of reproductive health care. In short, as long as the scissors enter the neck while the baby's head is still lodged in the mother's pelvis, it's just a woman's right to choose an abortion.

As for the legal status were the baby to emerge from the mother's body still alive, the abortion lobby has not lobbied for permission to actively finish the child off with a handy pair of scissors. However they have argued -- in many cases successfully -- in favor of just allowing the baby to die of neglect. No less prominent person than Barack Obama has defended the practice of allowing babies who survive abortions to die of neglect. (More on this in a subsequent post.)

To further muddy the waters comes the entire issue of fetal viability, which the Supreme Court slapped down as being 24 weeks of gestation. The Abortion Control Act starts with that 24 weeks but allows some wiggle room there. In fact, every law regarding abortion at or past a gestational age at which "viability" is assumed leaves that issue largely up to the abortionist. Simply disposing of the remains would make prosecution virtually impossible, because the law defers to the aborting physician's judgment. Considering what happened to Phill Kline in Kansas when he attempted to hold Planned Parenthood and George Tiller accountable for violating his state's ban on post-viability abortions, a prosecutor would be committing political suicide to even investigate, much less file charges regarding, post-viability abortions.

Dr. William Waddill

All of this highlights what has been most shocking to me about the entire Gosnell situation: that Seth Williams had the courage to go after an abortionist for killing babies at all. I believe that were the surrounding circumstances not so egregious -- the filth, the cat feces, the dead mothers, the jars of fetal feet -- Gosnell's legal troubles would have been limited to the Federal drug charges. Without the squalor and depraved indifference to the women's lives, charging Gosnell for murder in the deaths of abortion survivors would have been far too risky. No prosecutor in his right mind would relish spending a lot of time and money on a case that might end up like the Baby W case in California, in which abortionist William Waddill strangled a 32-week abortion survivor in a hospital nursery in front of several horrified nurses and a neonatologist, but was able to walk because of two successive hung juries quibbling over the legal definition of causing the baby's "death."

All of this is just to point out what the Gosnell case reveals about the bizarre and often contradictory legal status of a viable baby just prior to or just after an abortion. It's not just a matter of life and death to the babies in question. It was also quite literally a matter of life and death to Kermit Gosnell, who faced the possibility of being executed for being a bit slow with the scissors.

Getting the Gosnell story in front of the public can bring this macabre dilemma into the public consciousness. Filmmakers Phelim McAleer and Ann McElhinney have launched a crowdfunding effort to produce a movie about Gosnell's crimes.I'm asking my readers to support this project in any way they can:

Contributing funding of as little as $1, less than the cost of a soft drink, both to help financially and to send a message that the people want the cover-up to end.

Prayer that what was done -- and continues to be done -- in the darkness will come to light.

Spreading the word about this vital project.

Let's make this a reality.