Gosnell and Post-Viabililty Abortions

Kermit Gosnell

Last year, what had started as an FBI drug raid on a suspected pill mill ended when 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 murdering any of these babies didn't hinge on the question of whether Gosnell had killed them. He'd never denied that he'd killed them. That was what he'd been paid to do. 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.

How is it that post-viability abortions are legal in the first place?

Before Roe

The Roe Court. (Click to enlarge.) Scissors mark Justices
who voted that states must allow post-viability abortions.

Post-viability abortion is at its core a nonsensical concept. Pick up any dictionary and you'll find that "abortion" is defined as the death of the fetus prior to viability.

All pregnancies end. A pregnancy with an "abortive outcome" ends before the baby could survive outside the womb. This abortive outcome could be natural (a miscarriage) or induced by deliberately killing a living fetus. Once the fetus had passed the developmental age of viability, the outcome of the pregnancy is by definition a birth -- either a live birth or a stillbirth. But in 1973, a group of non-physicians handed down a decision called Roe vs. Wade which decreed that logic be damned, language be damned,  medicine be damned: If somebody wanted to kill a fetus at any point in the pregnancy, legally that act of killing would be lumped in under "abortion" and it would be enshrined as a right.

Tinkering Around

Gosnell abandoned the lethal
injection technique when he
found it too difficult.

With this new permission to kill any fetus they wanted to kill, abortionists tinkered around. They took the two basic ways of getting a viable fetus out of the mother -- induced labor and a c-section -- and modified them to make sure that the end result would not be a live baby. Those who preferred to induce labor would do something prior to inducing labor to make sure the baby would come out dead. In the era before ultrasounds allowed an abortionist to guide a needle to the fetal heart or brain to do a lethal injection (how it's done now; see illustration), this was done by injecting poison into the amniotic fluid. If labor induction failed, or if for some reason time was of the essence, a hysterotomy would be performed -- which is just a c-section with the intent of delivering a dead baby.

The Problem

Both of these approaches to the newly-minted post-viability abortion, however, had one serious drawback. Fetuses can be remarkably tenacious of life. You can want them dead, but they can thwart your plans by failing to die. This is known as the "dreaded complication." (Interesting that the "dreaded complication" isn't a dead mother but a live baby. What other medical procedure considers life itself to be both dreaded and a complication?)

Of course, the "dreaded" part of the "dreaded complication" was summed up pretty well by Dr. William Waddill as he was strangling a 30-week abortion survivor: "This baby can't live or it will be a big mess."

Promising a patient an abortion and instead presenting her with an injured premature infant is an open invitation to a massive lawsuit. Those lawsuits can be avoided by using one of two popular approaches:

1. The Obama Approach: Declare that since you'd made the decision to go ahead with an abortion, the fetus is by definition not viable regardless of his or her actual gestational age, size, health status, and condition upon delivery. He or she is to be stashed with the more cooperative -- and hence dead -- fetuses in the utility room or in a biohazard bag or wherever you choose to put them. Just pretend the whole ugly little business with the pulse and the breathing and the movement and the gasping and the crying never happened.
2. The Gosnell Approach: "Ensure fetal demise" after the baby is delivered. This is much quicker and more certain.

To most people, the "How About We Don't Abort the Baby in the First Place?" Approach seems like an obvious solution. In fact, most abortionists decided that this is a good approach, at least for their own personal practices.** But that doesn't stop them from referring women who want post-viability abortions to late abortion specialists. And, as we can see from the plethora of referrals Gosnell got, dead baby trumps live mother.

Philadelphia DA Seth Williams

Of course, we never would have known about any of this if Philadelphia District Attorney Seth Williams hadn't had the courage to go after Gosnell.

One might think that the case was a slam-dunk. After all, Gosnell killed the babies in front of multiple witnesses, and the District Attorney had photographs and corpses as evidence. But consider this: William Waddill had strangled Baby W in a hospital nursery in front of several horrified nurses and a neonatologist. An autopsy showed that the baby's abortion injuries were not fatal; she had clearly and unequivocally died from manual strangulation. Waddill still managed to walk because two -- Count 'em: two -- juries bogged down over the legal definition of "death."

All it takes is one die-hard abortion supporter to tank the case. For over three decades, people had referred women to Gosnell; had declined to investigate his "house of horrors;" had turned a blind eye to the reports of near-term abortions, filthy conditions, and patient deaths. Just one person who shared that "Abortion uber alles" mindset would have left the Gosnell jury as hopelessly deadlocked as both of the Waddill juries.

Williams had the guts to buck tradition and conventional wisdom, and to risk the wrath of his own Democrat party, to prosecute an abortionist for killing live-born infants. But just putting Kermit Gosnell out of circulation and into prison isn't enough. The public needs to be awakened to the reality of post-viability abortions and the means that late-term abortionists use to "ensure fetal demise."

Filmmakers Phelim McAleer and Ann McElhinney have launched a crowdfunding effort to produce a movie about Gosnell's crimes. A contribution to GosnellMovie.com need not set you back any more than $1 -- less than the cost of a soft drink. Every contribution is a message that we will no longer allow the killing of viable babies to take place under the cover of "reproductive health care." If you can't contribute, or have already contributed funding, keep in mind that both prayer and spreading the word about the project are also vital contributions to the efforts. Together we can end the silence.

For more about why it's vital that this movie be made, read (and don't forget to tweet!):

• Verified: Gosnell Got Snipping Idea at NAF Seminar
• Gosnell Clinic Even Nastier than Grand Jury Reported
• The Gosnell Patient Who Barely Escaped With Her Life 
• Kermit Gosnell and the Milgram Experiment 
• Gosnell: The One That Got Away & Hope for Others 
• Gosnell and Viability: Where's the Line? 
• Gosnell: Location Can Mean Misdemeanor vs. Murder 
• Gosnell: The Grand Jury Convened 
• Why the Left must Censor us on Gosnell: The "Outlier" Lie
• "Snipping" and why the Left Must Silence Us on Gosnell
• Semika Shaw and Why the Gosnell Story Must be Told
• Why "Gosnell" Must Be Told: The Compton-Carr Effect

* In a creepy coincidence, McMahon is also the surname of the abortionist who invented the abortion method, popularized by Martin Haskell, that was evidently Gosnell's inspiration for "snipping."

** I find it fascinating that although the abortion lobby fights to force all ob/gyns to perpetrate abortions whether they want to do them or not, there is no concerted effort to force existing abortion practitioners to do late abortions whether they want to do them or not. Bizarre, no?

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.


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.

For more about why it's vital that this movie be made, read:

• Verified: Gosnell Got Snipping Idea at NAF Seminar
• Gosnell Clinic Even Nastier than Grand Jury Reported
• The Gosnell Patient Who Barely Escaped With Her Life 
• Kermit Gosnell and the Milgram Experiment 
• Gosnell: The One That Got Away, and Hope for Others 
• Gosnell and Viability: Where's the Line? 
• Gosnell and Post-Viability Abortions 
• Gosnell: The Grand Jury Convened
• Why "Gosnell" Must Be Told: The Compton-Carr Effect
• Why the Left must Censor us on Gosnell: The "Outlier" Lie
• "Snipping" and why the Left Must Silence Us on Gosnell
• Semika Shaw and Why the Gosnell Story Must be Told