Gosnell and Abortion, Part 1 of 3

Less than a week after Kirsten Powers’ USA Today piece, the concerted pro-life effort to get the Gosnell trial the media attention it tragically deserves has succeeded. Sort of.

There are a lot of articles being written about Gosnell, but the vast majority are focusing on the coverage of the trial, not the trial. To be fair, some of these pieces delve into the grim details. Conor Friedersdorf of The Atlantic pointed out that in addition to dead babies, the story included: “The Exploited Women. The racism. The numerous governmental failures.” And yet Washington Post reporter Sarah Kliff still thinks this is a “local crime” story, at least as far as her Twitter feed is concerned.

Kevin Drum of Mother Jones concurs, dismissing the pro-life outcry as “working the refs” and “a hustle”. The Daily Caller even covered an attempt to delete Kermit Gosnell’s Wikipedia page because it was just a “local multiple-murder story in Pennsylvania.” (The attempt failed.) According to Drum, the lack of coverage doesn’t even need an explanation. Why wasn’t it covered? “Beats me. I’ve often wondered just what it is that causes some local crime stories to become media sensations and others to molder in obscurity.” Just one of those things, right?

Friedersdorf, also pro-choice but possessed of some journalistic integrity, tried a little harder and came up with 14 theories. The most interesting comes near the end of the list:

13. Horrific as It Is, This Case Doesn’t Speak to Anything Larger About Abortion.

Is Friedersdorf claiming that it was horrific enough to be covered, but that was cancelled out because it says nothing about abortion? Try that logic out on other horrific stories: “Yeah, we were going to cover a school shooting, but then we realized it wasn’t related to abortion so we packed up and went home.” It sticks out on the list because it doesn’t even answer the question. Or make any kind of sense at all.

The reality is that the Gosnell story isn’t ignored because it says nothing about abortion, but because it says a lot about abortion. Friedersdorf had previously dismissed the idea that “Pro-Choice Journalists Are Willfully Ignoring the Story to Avoid Giving an Advantage to Pro-Lifers” (theory #9 on his list), but that’s not how cognitive biases work. Their entire function is to pre-empt the pain of cognitive dissonance by filtering out the uncomfortable evidence before you’re aware of it. They lead people to do and say irrational things like, I don’t know, propound entirely senseless theories just because they are reassuring. Pro-choice journalists (a close synonym for just “journalists”) aren’t willfully ignoring the story, but they were definitely ignoring it, and now that they can’t do that they are mostly changing the subject by going meta.

The Gosnell case isn’t threatening because it’s intrinsically pro-life,but it’s definitely kryptonite to the pro-choice status quo. Starting today and continuing to posts on Thursday and Friday, I’ll do a run-down on how the Gosnell story is a clear and present danger to the myths and doublethink necessary to preserve America’s abortion status quo.

1. America’s Abortion Laws Are Very Extreme 

Most polls reflect that there is wide, popular support for the Supreme Court case that legalized abortion in the United States: Roe v. Wade. Most polls also reflect, however, that Americans are fairly moderate on abortion and believe it should be available only in limited circumstances and not, for example, as just another method of birth control. (Wikipeda summarizes some of the relevant polls.) The problem is, that’s exactly what Roe, and a lesser-known ruling handed down the same day, did.

Most people who are familiar with the abortion debate know that Roe set up a trimester system. Here it is:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

This sounds perfectly reasonable, but note that an exception for “health” is always required. What does “health” mean? The answer lies with that lesser-known ruling: Doe v. Bolton. In that decision, the majority opinion wrote:

Whether, in the words of the Georgia statute, “an abortion is necessary” is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, 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.

This opinion makes two things clear. The first is that the definition of “health” is incredibly broad. The second is that the person who gets to make the decision about “health” is the woman’s doctor which is to say, the abortionist. Practically speaking, the combination of Roe and Doe come very close to making abortion available on-demand throughout the 9 months of pregnancy. How close? Well the first person to be charged with an illegal abortion in the United States (since Roe) was Dr. Jose Higuera, who was charged in 2001 in Michigan. As far as I know, Gosnell will be the second. Both of these cases are very, very exceptional, however. In Higuera’s case, he was charged after performing an abortion on a 28-week fetus for a woman who cited only “personal reasons”. He botched the abortion and as a result his patient “suffered a perforated uterus, small bowel obstruction, peri-uterine abscess, and needed a hysterectomy, salpingectomy, and small bowel resection.” Notice that if he hadn’t seriously injured his patient, however, she wouldn’t have been likely to testify against him. And without her testimony that the abortion was not for her “health” there would be no way to charge him. That would be like saying that speeding is illegal, but also saying that you can only convict a driver if one of the passengers is willing to testify that they were speeding.

Interestingly enough, Pennsylvania’s abortion law actually doesn’t include the health exception, which arguably makes it unconstitutional. When Planned Parenthood sued to stop the 1989 law from going into effect, however, they didn’t raise that issue and so the Supreme Court didn’t rule on it. In the absence of a ruling, the law, which bans abortions after the second trimester unless “pregnancy would result in irreversible impairment of a major bodily function”, remains in effect but also subject to possibly being overturned in a future legal battle. But even in the interim, what kind of effect is it? By all accounts, Gosnell violated that law with impunity–performing literally hundreds of illegal abortions over more than a decade–while every responsible oversight agency intentionally turned a blind eye. It was only after he committed numerous murders (both children and pregnant women) that he was finally arrested, and charging him with the illegal abortions seems like little more than an afterthought.

The reality is that late-term abortions are rare in the US, but not because of the law. (More on why they are rare tomorrow.) The health exception loophole is too broad to be of any use except in the most egregious of circumstances. Even when there are stricter laws on the books, however, they are almost never prosecuted, as Gosnell’s case illustrates clearly. And that’s one major reason why pro-choice reporters don’t want to touch the case. Late-term abortions are supposed to be rare hard-cases. For Gosnell they were routine. He carried out hundreds or even thousands of late term “illegal” abortions, and faced absolutely no consequences. Just as Higuera wouldn’t have, if he hadn’t grievously injured and lied to his patient. Late term abortions may represent only a small fraction of all abortions (about 1.5%) but that still means we’re talking more than ten thousand every year. That’s not supposed to happen.

But it does. And not just at Gosnell’s clinic. Stories of horrific late-term abortion / murders abound. Here’s the HuffPo admirably covering murder charges against Maryland doctors accused of killing viable fetuses as late as 26 weeks. Note that, once again, charges were only filed after the abortionists botched an abortion and seriously wounded a patient. The case was always a long shot, relying on applying a law that was originally designed to protect pregnant women from violent attackers and that had an exemption for abortions, so it’s no surprise prosecutors dropped the charges last month.

Far from being unique, Gosnell’s case highlights that the problem of murdering babies who survive the initial stages of a late-term abortion could be widespread. LifeNews has additional stories.

And that’s the iceberg underneath the Gosnell case: that here in this country the laws about abortion are not moderate. They are not reasonable. They are not, most Americans would agree if they knew the reality, acceptable. Pro-choice journalists absolutely do not want to start down that road, not because it’s a political strategy, but because they don’t want to see the reality for themselves, either. It’s just too hard to live with.