Matthew J. Franck

The Gosnell Case and American Abortion Law
Will abortion-rights advocates continue to defend the current regime?

On January 14, just eight days before the 38th anniversary of the Supreme Court’s decision in Roe v. Wade, a Philadelphia grand jury issued a 261-page report on the horrifying career of Dr. Kermit Gosnell, an abortionist whose West Philadelphia “Women’s Medical Society” it described as a “baby charnel house.” For decades, Gosnell ran a squalid abortion clinic, violating every conceivable norm of law and medicine by anyone’s standards, from the merely bad (almost nonexistent record-keeping and unlicensed clinic staff), to the truly appalling (employing unsanitary equipment and horribly injuring many of the women who came to him). Two women died in Gosnell’s “care,” and he and two of his staff are charged with third-degree murder in the death of one of them, Karnamaya Mongar.

Over the years, Gosnell specialized more and more in late-term abortions, and his preferred method in cases of the most advanced pregnancies was to induce labor in the women who came to him. What resulted in hundreds of cases was a live birth. And thus the issue that has garnered the most attention to the Gosnell case: The doctor is charged with murdering seven babies born alive in his clinic, whom he, or one of his staff under his direction, killed in the first minutes of their post-natal lives by “snipping” their spinal cords (that was the doctor’s own word for it) with scissors at the neck. The grand jury is morally certain there were many hundreds of “snipping” victims, but these seven are the only ones of whose deaths there is solid evidence today.

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The women who came to Gosnell’s clinic — poor and desperate, late in their pregnancies, and willing for whatever reason to endure the horrors of his ministrations — wanted to be rid of their babies. This result he provided them. But it is difficult to locate the moral difference between the deaths Gosnell brought about in utero and those he accomplished post-natally. Does an unborn child at 26 weeks of fetal development have less moral standing than a born child at 25 weeks of fetal development? Does the latter’s living and breathing outside the womb for ten minutes, or ten seconds, confer a status that the former lacks? How can that be?

This is the absurd moral corner into which the Supreme Court backed us in 1973. Not that it bothered Dr. Gosnell. He was in the getting-rid-of-babies business, and no one was going to be sent home with a live one. Viewed in a coldly rational light, the doctor’s logic was admirably consistent: before birth, after birth, it made no difference.

In Roe, the Court’s majority opinion by Justice Harry Blackmun assured readers that in the late stages of pregnancy, when a fetus was “viable” and thus a live birth was possible, the state could prohibit abortion entirely. Except not really entirely: Blackmun carved out an exception where an abortion “is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

This seems a minor and reasonable exception. But in the companion case of Doe v. Bolton, decided the same day, Blackmun wrote for the Court that in determining what is “necessary” for the “health” of a pregnant woman seeking an abortion, a physician’s “medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.” Such broad language resulted, in practice, in the total elimination of the state’s power to prohibit post-viability abortions, not just a narrow exception to that power. All that is required to defeat any attempted prohibition is a woman who desires an abortion and a doctor who wishes to provide one. The pregnant woman’s emotional health or familial situation can always be cited afterward, if need be, as a complete and perfect defense.

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Cave Canem

02/04/11 21:52

I'm not sure you do get it, MikeB. I see you appropriating arguments and making proclamations as though your were some Ubermensch, exuding his will whither he would. But yours is a faith in a flawed and limited religion.

As a disciple of science, I'm sure you're well aware of Heisenberg's uncertainty principle. That alone is proof of the limits of science in its ability to predict (as was my previous point about altering systems through measurement). No matter how powerful the supercomputer you conjure, it cannot know what you, in your fancy, want it to know. Neither does pure science itself profess to understand absolutely everything (the wishful thinking of certain scientists notwithstanding). Indeed, by virtue of the two above examples alone, science knows its limits well.

So I think it a bit unfair to pure science to attribute to it such power that it does not claim to own.

Which sort of renders the religion of scientific determinism a non-starter. Alas for you, that you choose to repudiate your existence for the sake of such a bleak, desperate, and ultimately flawed faith. If I thought the sum of me was nothing more than a bunch energy and particles impelled down a path by relentless, predetermined forces, I'd just as soon kill myself and get it over with. What's the friggin' point?

(Not that I'm suggesting you do such a thing, MikeB! You ask good questions and make me think, and that's a good thing.)

Chris U

02/04/11 17:16

MikeB:
You're operating under a fundamentally wrong fact. Your two body system does NOT contain all the same components of a live person. The DNA have not yet combined, and I challenge you to find a haploid human adult. To sum it up, two gametes are not a zygote, even if they will certainly become one. Such is the way of things in a time-linear, cause and effect universe.

 Mitch Baker

02/04/11 12:37

@PofA - How hard are you looking? KJL posted about this on 2/1 at 2:21 PM. I found that by searching "forcible rape". I haven't checked, but that would probably be a good search term for other sites, too.

Incidentally, I have seen NOTHING about this on progressive sites... but I haven't looked.

Paul of Alexandria

02/04/11 11:57

Just to get back to the topic, has anyone any further information on the "Republican Rape Redefinition Bill"?
External Link 

e.g.
External Link 

I have seen NOTHING on this on any conservative site.

 MikeB

02/04/11 09:47

And finally, so as not to leave the question unanswered: Cave Canem, I totally support my mother's right to abort me. If she did, I'd be the last to know. "I" would then be someone else, or no one at all. No matter.

 MikeB

02/04/11 09:44

Cave Canem gets the concept, but also gets the wrong answer. Who said anything about altering the result by trying to measure it? Measuring it is the very act which alters the sum of the system's inertia. I fully understand that the result can be completely altered if, at the very moment I am talking about, a meteor hurtles from the sky and penetrates the woman's womb. But with a hypothetical supercomputer, you can know the location, size, velocity, etc. of each meteor in the universe -- indeed, each atom in the universe -- and therefore we're still talking just about matters of Newtonian (or, if you wish, relativistic) physics. It's only when the woman decides to turn on her stomach, or scratch an itch, or the man decides "not tonight" or something volitional, not mechanical, that no supercompter, no matter how large, can get you to certainty.

 MikeB

02/04/11 09:37

And Chris U: some things, such as time, run in only one direction. So my hypothetical two-body system can have all the attributes of life -- so that we can be discussing whether it's a human organism -- while we can nevethless agree that I am not dead, even though I inevitably will be someday. Stated another way, my body does not have all of the attributes of a dead person, but my hypothetical two-body system has all of the attributes of a live one.

 MikeB

02/04/11 09:32

Thanks, Francis Beckwith, but everything you said holds true for the two-body system of winning sperm plus ovum a femtosecond before the moment you describe, and a femtosecond before that, and a femtosecond before that . . . all the way back to the point where something can be said to alter the sum of all of the inertial motions of the system. That's just physics, and a boatload of calculations. A really, really big boatload.

Chris U

02/04/11 03:47

As has been stated (and stated especially succinctly by Francis Beckwith), a fetus is a human being at conception, with some argument as to at which point during conception this occurs.

So, from a scientific point of view, this entire topic is done. Therefore, it progresses into the realm of ethics studies; the question now becomes "is a 2-week, 1 month, 3 month, etc. year old as valuable and of equal value to a born child or adult?" In fact, in the bioethics field, this is indeed considered a major question of interest, with many different noted bioethicists weighing in on the question.

The pro-abortion and pro-life crowds that have reached this point now have to confront the question of whether or not human life is equable in value across all ages and positions. For instance, Peter Singer (a well-known, almost notorious bioethicist) postulates that human life is definitely not equal in value, and that an unborn child (which he freely admits to being human) is not of sufficient value (as an unborn child before a certain point lacks self-awareness) to burden a mother, if said mother decides against delivering.
The pro-life stance, on the other hand, believes in the inherent value of human life.

And a note to Mike B.:
If the physics of the universe dictate that one day you will certainly die (which they indeed do), is that the same thing as you being dead right now?
The answer to the rhetorical question is of course not. Just because you might one day die in a car wreck or of a heart attack in your old age does not mean that you can be considered dead now.

Cave Canem

02/04/11 01:19

That physics might predict anything in the realm of molecular biology is a pretty big leap of faith. Describe systems maybe, but predict the union of egg cells with specific sperm? Even if such prediction could be attempted, the very act of measuring the involved parameters would likely alter the outcome (you want physics?--think of Schroedinger and his cat...).

Nevertheless, even if the powers of physics and microbiology were so profound, that wouldn't change the fact that a human being does not yet exist until the two gametes have joined to form one organism. Prior to that, they might be "of a human being" but by no means constitute "a human being." To speak of "two-body systems" as such is to speak of predestination and determinism. It makes no sense.

Now, intending not to belittle the worthwhile insight of Francis Beckwith (with which I'm admittedly much less knowledgeable), it seems to introduce needless complexity to the moment of conception. If I recall correctly from that little bit of embryology of my younger days: at the moment the sperm penetrates the egg cell, the egg cell membrane undergoes an immediate change whereby no further penetration is permitted to other sperm. I would argue that this is the first act of an individual organism, and is therefore human life from then on. All this stuff about pronuclei and syngamy; morulas, blastocysts, and fetuses; fat, jolly babies and grumpy old geezers: all are subsequent stages of human development--human beingness.

Finally, with regard to "Those of us who don't think an 8-cell blastocyst has the same package of legal rights as a newborn...," I assume that you accept that you too were once 8-cell blastocysts. So I'll ask you, as a fellow former 8-cell blastocyst: would you support your mothers' "right" to abort you? If not, you're hypocrites, for how could you support other women's "right" to abortion but not your mothers' "right" to theirs? However, if you do, yours is a lamentable rejection of your own existence.

Francis_Beckwith

02/03/11 18:15

Mike B:

I actually address the question of the precise moment life begins in my book, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press, 2007), which was actually reviewed in National Review in late 2007. Here's the excerpt of the book to which I refer (notes omitted):

There is a dispute among human embryologists concerning the point in the fertilization process at which a new human being comes to be. Many maintain that this occurs before syngamy, the time at which the maternal and paternal chromosomes cross-over and form a diploid set. Some, for example, argue that a human being comes to be when the sperm penetrates the ovum, while others argue that this occurs when the pronuclei of the maternal and paternal chromosomes blend in the oocyte. It seems to me that the penetration criterion is flawed because the sperm and ovum still seem to be two distinct entities and thus no new individual human human being exists. The pre-syngamy pronuclei standard is less problematic since sperm and ovum have ceased to exist as distinct entities and the oocyte, though not possessing the diploid set of chromosomes of the zygote and embryo, seems to behave like an individual living organism with an intrinsically-directed nature. Nevertheless, even though a new human being may have come to be prior to syngamy (and there is good reason to hold this view), it seems indisputable that at syngamy a new human being, an individual human being, exists and is in the process of development and is not identical to either the sperm or the ovum from whose uniting it arose.

David Boonin argues that the dispute about the precise moment at which a new human organism comes into existence counts against the claim that a human being begins at conception. Although he brings up many of the same points I have briefly summarized above, Boonin’s raising of this important epistemological question (When do we know X is an individual organism and its germ cell progenitors cease to be?) does not detract from the claim that a complete and living zygote is a whole human organism. It may be that one cannot, with confidence, pick out the precise point at which a new being comes into existence between the time at which the sperm initially penetrates the ovum and a complete and living zygote is present. But how does it follow from that acknowledgment of agnosticism that one cannot say that zygote X is a human being? It seems to me that Boonin commits the fallacy of the beard: just because I cannot tell you when stubble ends and a beard begins, does not mean that I cannot distinguish bearded faces from clean shaven ones. After all, abortion-choice supporters typically pick out what they consider value-making properties—e.g., rationality, having a self-concept, sentience, or organized cortical brain activity (as in the case of Boonin)—that they maintain justify one in concluding that a being lacking one or all of them does not have a right to life. (These arguments will be critically assessed in chapter 6). But it is nearly impossible to pick out at what precise point in a being’s existence it acquires the correct trait, e.g., when it becomes rational enough or has a sufficient amount of organized cortical brain activity, to warrant a right to life. But it’s doubtful whether the abortion-choice advocate would abandon her position on those grounds.

 MikeB

02/03/11 16:45

How come, Paladin5000? Because life begins at conception and abortion is the taking of human life?

Paladin5000

02/03/11 16:35

I am opposed to ALL abortions that occur for the convenience of the mother. My only point of indecision is whether a woman should be able to have an abortion in order to save her own life.

 MikeB

02/03/11 15:37

Wynguard, according to Ramesh Ponnuru, a "human organism" is a thing with a genome identical in type to that of you and me, which would, in time and assuming no intervening anomalies, grow up to be an adult like you and me. Do you understand how the two-body system I described fits that definition?

 wynguard

02/03/11 14:41

MikeB your question makes no sense. Even if you correctly predict that something will happen, it only happens when it happens not when you predict it.

So I am me when I am me that is when my life begins. We all start as a zygote and grow from there but even when we are only one cell large we are all there and if we are not there then why pray tell when humans breed we don't breed humans?

James Felix

02/03/11 14:39

The "life begins at conception crowd" has science backing their position - human life begins at conception. That's a fact, not an opinion.
---------------------------
The problem with your "fact" is that it's equally valid (and no less arbitrary) to say that life begins a split second before conception, making most forms of contraception tantamount to murder. Also, to give an egg fertilized moments ago the same standing as a human being means that every miscarriage would have to be investigated as a homicide, every cigarette or martini an act of child abuse. If that's a road you want to endorse going down I can't talk you out of it, but good luck convinving more than the tiniest fraction of the electorate to follow you.

The problem here is just as MikeB diagnosed early in the thread. If the pro-life lobby picked a point in gestation when the fetus was recognizably human (a point which is pretty early now with modern ultrasound) and said "this far but no further" it would be all but impossible for the pro-abortion side to withstand it. But insisting that something with no central nervous system or limbs has the same rights as a toddler strikes most people as an extreme and untenable position, one which they cannot support. That leaves us with the grotesque status quo.

--------------------------------
Also, moral standing and legal standing are not the same thing. 17 year olds cannot vote, but that makes them no less of a person or less protected than 18 year olds.
---------------------------------
Really? Forbid your 17 year old to leave the house on a school night and it's morally helping his education. Try it with an 18 year old and it's immoral, unlawful imprisonment. Compel a 17 year old to clean the garage and it's morally teaching him responsibility, try it with an 18 year old and it's immoral slavery.

OF COURSE some people are morally and legally less protected than others. The very young, the medically incompetant and the criminally convicted, among others, can have all sorts of power exerted over them that is unthinkable to apply to a normal adult, including sometimes deciding if that person lives or dies.

 MikeB

02/03/11 14:13

So, Wynguard: What about the nanosecond BEFORE the winning sperm collided with the ovum and became "you"?

The laws of physics predicted at that time with more than any required level of certainty that the two-body system satisfied the definition of "you." It had all the genetic material. Left to nature, it would become the adult you. All that stuff Ramesh Ponnuru uses to define the term "human organism" in his book, The Party of Death.

Is that two-body system not "you"?

 wynguard

02/03/11 14:01

To use MikeB's formulation. When the winning sperm reaches the waiting egg and becomes a zygote. If you kill that new one cell human you kill a person. If you went back in time to when my bio-father's lucky sperm connected with bio-mom's egg and killed me you would be killing me. Not a potential me but actually me. I would never exist, I would not have a full life. Me. Not a potential me but me.

It is of course easy to kill me when I am so small, no one knows me, I don't make any noise and my corpse is hard to see so it is a bit easier on the conscious then, and a LOT safer, to kill me then it would be to kill me now.

So we are dealing with a real life of a real person when we are talking about abortion. If we all agree on that starting point then we can start talking about compromise and exceptions and there are many to talk about. Some are obvious, tubular pregnancies for instance, some are not but many compromises would politically be reached.

Few pro-lifers I know actually want a draconian ban on all abortions of any kind. Those that do want that have not thought about it very much.

However as long as you talk about me as someone who is perfectly fine to kill as long as no one knows me and I can't speak or think for myself you will find it harder to compromise with pro-lifers because you will be acting as if early in pregnancy a woman is carrying something that is not a human and the pro-lifer will be talking about a human and you will often talk past each other.

Holly

02/03/11 13:50

A few things:
The "life begins at conception crowd" has science backing their position - human life begins at conception. That's a fact, not an opinion. Whether that human life is a "person" seems to up for debate, but far be it from me to arbitrarily decide when personhood begins. Since that is the case, I'll err on the side of protecting all human life. To throw up my hands, say I don't know if it's a person or not, and then decide it is ok to kill this human life because I'm not sure if it's a person or not seems much more morally dubious to me.

Also, moral standing and legal standing are not the same thing. 17 year olds cannot vote, but that makes them no less of a person or less protected than 18 year olds. It's not more a crime to kill a two year old than a one year old. Presently though, it is a crime to kill a 25 week-old outside the womb, but not a 26 week old inside it. That's due to legal standing, and not moral standing.

 MikeB

02/03/11 13:32

James Felix, you are correct.

 MikeB

02/03/11 13:30

Actually, Garandman1a, let's try a little experiment.

Let's see how many people on this site are willing to identify themselves as being "pro life," whatever they think that means, and also willing to say that, despite when life begins, abortion should be legal under all circumstances until [_____] (they can fill in whatever they want in the blank). Or even just to say, life beings long enough after conception to allow for at least some abortions for no reason other than convenience. Or willing to say just about anything other than "there should never be abortion for the convenience of the mother."

James Felix

02/03/11 13:14

"MikeB., you crack me up! to quote from Dr. Seuss, "A person is a person no matter how small." How do you think your life began? Let's face it, you an the pro abortion crowd just don't care. Period."
-------------

Your quote is inapplicable. Setting aside the advisability of setting public policy based on Dr. Seuss, the small people to which he referred had already been born. They were small in stature, not small from being less than fully formed in their mother's womb.

On a less frivolous note though, all you've done with your response is proven Mike's point. His suggestion that there is some point between conception and birth where a group of cells is not yet a person is sufficient to have you lump him in with the likes of Planned Parenthood and the monster Gosnell. That position is morally dubious and politically ruinous for the pro-life side of the debate.

 MikeB

02/03/11 13:05

Garandman1a, believe that if you choose, but I don't.

AliceL.

02/03/11 12:48

MikeB., you crack me up! to quote from Dr. Seuss, "A person is a person no matter how small." How do you think your life began? Let's face it, you an the pro abortion crowd just don't care. Period.

James Felix

02/03/11 12:47

"Does an unborn child at 26 weeks of fetal development have less moral standing than a born child at 25 weeks of fetal development?"

As things stand now yes, it does.

The law, all law, often has to draw arbitrary lines and make distinctions. An 18 year old can vote, a 17 year, 11 month and 30 day old cannot. Someone born six-inches on our side of the border is a citizen, someone born a foot in the other direction is not.

Mind you, I'm not addressing the ghoulishness of this horrible case or the (in)justice of abortion law in general. I merely wish to observe that this particular rhetorical question is misguided.

 Garandman1a

02/03/11 12:39

MikeB, the 'compromise' you seek isn't being held up by the anti-abortion people, but by the pro-abortion people.

This argument has several dimensions, being fought by people mostly at the fringes on both sides. Most people realize there needs to be some restriction on abortions, but the pro-abortion side won't hear of it, lest they confront Franck's "what about just a bit younger?".

The current pro-abortion extreme, which sets the tone for the pro-abortion movement, is the equivalent to a 2nd amendment person advocating the individual right to nuclear ICBM's. Once the pro-abortion lobby steps away from their ledge and admits that there are some logical limits, then and only then can meaningful reforms and compromises happen.

 MikeB

02/03/11 12:25

Those of us who don't think an 8-cell blastocyst has the same package of legal rights as a newborn have a different take on this.

My personal view is that there shouldn't be any difficulty getting abortions until viability. After that, abortions should be illegal under the Pennsylvania standard. If the pro-life wing could agree to that, the pro-abortion wing would probably be hard put to keep fighting.

But we all know that there's this huge "life begins at conception" crowd which, like the gun lobby, is absolutist. You think Matthew J. Franck would settle for abortions prior to any particular moment following conception?

I love Franck's "what about just a bit younger?" question. Consider that there is a moment, immediately prior to conception, when the laws of physics dictate with certainty which of the competing sperm will win the fertilization race. What do we call the two-body system consisting of ovum and winning sperm bearing in on the ovum, a nanosecond or less prior to collision? A "human being"? And consider that that moment can be backed up yet another moment -- it takes massive amounts of supercomputing power, perhaps more than we have today, but theoretically it can be done. And then a moment before that, and a moment before that . . . .

Alexandra

02/03/11 12:07

Gosnell is the face of abortion. There is no such thing as a "clean" abortion. These babies were bigger than my own son at birth, and I note that Gosnell told jokes at the expense of these poor babies. The women should be left off the hook - they wanted dead babies, and Gosnell gave them what they wanted.

The King

02/03/11 11:46

I predict he eventually goes free to much adulation in some corners. He may cop a plea, seems like he might be unprincipled enough to do that.

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