Righteous Indignation: The Trial of Dr. Kermit Gosnell and Some Thoughts on Abortion

The criminal trial of Dr. Kermit Gosnell raises a question: What is the difference between late-term abortion and infanticide?

Ed. note: This is the second installment of Righteous Indignation, our new column for conservative-minded lawyers.

In Pennsylvania earlier this week, the trial of Dr. Kermit Gosnell drew to a close. Gosnell, a West Philadelphia abortion doctor, is accused of murdering four children who were allegedly born alive after Gosnell’s efforts to abort them. The jury now considers four counts of first-degree murder for the deaths of the children, along with one count of third-degree murder for the death of Karnamaya Mongar, a Bhutanese refugee to whom Gosnell allegedly gave a lethal overdose of Demerol. He also faces twenty-three counts of performing illegal late-term abortions. If convicted of first-degree murder, Gosnell faces the death penalty.

Trial witnesses, including clinic workers, offered gruesome testimony. Some of the allegations: the lethal drug Gosnell injected into the babies in utero failed to stop their hearts, and they emerged from their mothers’ birth canals breathing, wriggling, even crying; Gosnell then “snipped” the backs of the babies’ necks with scissors, severing their spinal cords; and Gosnell joked about the size of the “fetuses” whose spinal cords he cut, including a baby who he said was big enough “to walk me home.”

A mother of another of Gosnell’s alleged victims reportedly delivered her baby into a toilet while waiting for Dr. Gosnell. A clinic worker testified that the child made swimming motions in the toilet bowl before another employee snipped the child’s neck. Prosecutors dubbed Gosnell’s Women’s Medical Society clinic a “House of Horrors”….

Last Friday, as the Gosnell trial wound to a close, President Obama spoke at the gala for the national Planned Parenthood convention in Washington, D.C. He praised organization’s efforts. He promised that Planned Parenthood “isn’t going anywhere.”

When our president addresses abortion, he presents images of empowered young women, of choices, of rights, of privacy. Health care offered in offices with pink walls and floral curtains. The images are sunny, glossy, and enlightened. Abortion is pretty.

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But these images belie the grisly reality of late-term abortion. Our society suffers from a schizophrenic picture of what we mean when we talk about abortion: our cool President celebrating “women’s health care” on the one hand, but Kermit Gosnell snipping tiny necks on the other.

Is the Gosnell trial evidence less stomach-churning if we use the phrase “late-term abortion” rather than “first-degree murder”? Really? Why?

The defense and prosecution agree that Gosnell intended to cause the deaths of these individual children. They simply disagree on when Gosnell succeeded. Did he cause the children’s deaths by stopping their hearts minutes before their mothers delivered the children’s bodies? Did he cause their deaths by snipping their spinal cords minutes after the children emerged from their mothers’ birth canals? Michael Geer of the Pennsylvania Family Institute told the New York Times that the distinction “is maybe a 15-minute or half-hour time frame and 10 inches of physical space.”

As the proud owner and operator of female reproductive organs, I’d like to think that magical things happen in the inches between my uterus and, ahem, the end of my birth canal. Magical things. But surely the bestowal of personhood or membership in the human moral community is not affected by an organism’s passage through that space. (Just ask anyone who’s been there.)

The abortion debate has been framed in such a way that persuasion seems all but impossible. Both sides are reduced to piecemeal nips and tucks at the legal margins. Proponents of abortion rights hold that this is all about women and their uteruses. Abortion-rights advocates tell me that Charles Dobson and his henchmen are trying to control me by controlling my lady parts. Meanwhile, those of us who oppose abortion are more concerned with what’s inside those uteruses . . . namely, a human person. Discussions of substantive due process and another headcount of which Justices voted for which opinion in Planned Parenthood v. Casey miss the point.

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So, both sides keep talking past each other, describing and re-describing their chosen pictures of what abortion looks like.

Here’s an analogy that might clarify the differences in those pictures.

My appendix burst in the middle of my third year of law school. I spent my 3L winter break in the hospital and my first few weeks of the spring semester with a tangle of catheters and drain bags tucked beneath my clothes.

I hadn’t planned for this medical emergency, of course. I hadn’t planned to spend my holiday lying half-dead in a hospital room and racking up six figures of medical bills.

I could have taken better measures to prevent this from happening. I failed to do things I knew I should do — sleep, for example — and did things I knew I shouldn’t do — chain-smoke Camels, for example. If I had even gone to the ER earlier, catching my appendicitis before the organ actually burst, my condition wouldn’t have escalated. So, in some non-trivial sense, what happened to my body was my responsibility.

The surgeons removed what remained of my appendix. Doctors extracted clumps of my cells, human tissue inside my body that I no longer wanted there. I wasn’t happy to be faced with circumstances that demanded I make that choice, but it was rightfully mine. Virtually any law restricting my opportunity to decide whether to have that tissue removed from my body would be impermissibly paternalistic, if not barbaric.

When we picture abortion like an emergency appendectomy, women’s “right to choose” makes sense. We don’t have to presume that women take their unplanned pregnancies lightly, nor do we have to condone the behavior that led to their unplanned pregnancies, nor decide whether the pregnancies were their responsibility to prevent. We just let them choose whether they want a clump of human tissue removed from their bodies. One need not promote drive-thru D&Cs for all, but women get to choose.

But a human fetus is not a diseased appendix. If it were, Kermit Gosnell would not horrify us as he does.

We ought to be horrified even if Gosnell is not guilty under Pennsylvania’s homicide laws. His alleged actions should sicken us, even if these were “late-term abortions” and not “murder.” Gosnell’s defense team argued that the children the doctor pulled from his patients’ wombs were already dead from lethal injections given minutes earlier by Gosnell. Thus, whatever Gosnell did after the babies were ex utero, his conduct didn’t result in their deaths once they were delivered. You can’t kill a baby twice, after all.

When “you can’t kill a baby twice” is you or your client’s best defense, you ought to reconsider your line of work.

When “you can’t kill a baby twice” is a reflection of a valid reading of current criminal law, you ought to reconsider your laws.

The fundamental horror in this case is that our society endorses laws that give weight to whether Kermit Gosnell succeeded in killing these children before they passed through their mothers’ birth canals or a few minutes later.

Our legal system requires line-drawing. Often, the more precisely drawn those lines, the better. Yet this line — between late-term abortion and first-degree murder — carries the thinnest wisp of moral force and yet the heaviest of legal consequences. When the moral issue is how our society treats its smallest, most defenseless members, relying on such a flimsy legal distinction seems grimly farcical.

Reconciling our laws and our consciences is no mean feat. But if Kermit Gosnell’s trial teaches us anything, it should be that such a reconciliation is in order.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com