Kermit Gosnell late-term abortion scandal: How late in pregnancy is too late to choose?

Science, technology, and life.
Jan. 20 2011 8:48 AM

The Baby Butcher

Pro-choice absolutism and the grisly abortion scandal in Philadelphia.

Pregnant woman. Click image to expand.
Should there be a limit on when women can seek abortions?

Should abortion be allowed late in pregnancy? Some feminists say yes. In recent months, several have stepped forward to condemn talk of compromise between pro-choice and pro-life moderates. Women's autonomy, they argue, must be absolute.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

Now these absolutists face an awkward discovery. A grand jury in Philadelphia has indicted a local doctor for running an abortion clinic in which no limits applied. Babies of all sizes and gestational ages were casually butchered. It's a tale of gore and nihilism—and an occasion for pro-choice advocates to reflect on the limits of reproductive freedom.

The absolutists have been up in arms since October, when pro-choice moderates met with pro-lifers at Princeton University to discuss their differences and possible areas of collaboration. What irks the absolutists most is the notion of restricting second-trimester abortions. But their commitment to reproductive autonomy doesn't end at the second trimester. Implicitly and often explicitly, it extends to the third.

Last month, two leading reproductive rights activists, Steph Herold and Susan Yanow, published an essay rejecting the concept of time limits. They write:

Women have no obligation to make a decision as soon as they possibly can. The only obligation women have is to take the time they need to make the decision that is right for them. Don't we believe that women are moral decision makers, and carefully consider their options when faced with an unwanted pregnancy? Don't we reject the anti-choice rhetoric that women make the decision to have an abortion callously? The pro-choice movement takes a step backward when we judge that a woman has taken too long to make what may be a life-changing decision. Shouldn't we want women to take the time they need to make the best decision, regardless of where they are in the pregnancy?

Marge Berer, founding editor of Reproductive Health Matters, takes a similar position. In an article on the same site, RH Reality Check, she argues that "an abortion provider must never pass judgement on the validity of a woman's need for an abortion." Instead, "abortion providers should act as technicians with a clinical skill to offer." According to Berer, "anyone who thinks they have the right to refuse even one woman an abortion can't continue to claim they are pro-choice."

Berer takes particular offense at a moral limit suggested by pro-choice writer Frances Kissling. Kissling has proposed that "when a fetus reaches the point where it could survive outside the uterus, is healthy, and the woman is healthy, and she has had five months to make up her mind, we should say no to abortion." Berer quotes this statement with dismay and repudiates it with a question: "Who exactly are the 'we' that she [Kissling] now considers herself to be part of?" Berer concludes that "there will always be a handful of women" who don't make their abortion decisions before 20 or 24 weeks, and "the pro-choice thing to do is to support them and do the abortions anyway."

Ann Furedi, chief executive of the British Pregnancy Advisory Service, goes further. "Is there anything qualitatively different about a fetus at, say, 28 weeks that gives it a morally different status to a fetus at 18 weeks or even eight weeks?" she asks. "Why should we assume later abortions are 'bad'—or, at least, 'more wrong' than early ones?" Furedi rejects this assumption and concludes that "in later pregnancy, too, I believe that the decision, and the responsibility that comes with it, should rest with the pregnant woman. … We either support women's moral agency or we do not. … There is no middle ground to straddle."

Among other things, this means no time limits. Furedi argues that "women should have access to abortion as early as possible and as late as necessary." In her current essay, she writes: "To argue that a woman should no longer be able to make a moral decision about the future of her pregnancy, because 20 or 18 or 16 weeks have passed, assaults [moral autonomy] and, in doing so, assaults the tradition of freedom of conscience…" In fact, "the delivery of an abortion procedure in the second (and even third) trimester is preferable to its denial."

These essays vary, but together, they capture the absolutist worldview. There's no moral difference between eight, 18, and 28 weeks. No one has the right to judge another person's abortion decision, regardless of her stage of pregnancy. Each woman is entitled to decide not only whether to have an abortion, but how long she can wait to make that choice.

It's one thing to preach these ideas in the lefty blogosphere. It's quite another to see them in practice. That's where Kermit Gosnell, the doctor at the center of the Philadelphia scandal, comes in. According to the newly released grand jury report, Gosnell accepted abortion patients without regard to gestational age. "Gosnell catered to the women who couldn't get abortions elsewhere—because they were too pregnant," the report explains. "More and more of his patients came from out of state and were late second-trimester patients. Many of them were well beyond 24 weeks. Gosnell was known as a doctor who would perform abortions at any stage, without regard for legal limits."

This meant killing viable babies. "We were able to document seven specific incidents in which Gosnell or one of his employees severed the spine of a viable baby born alive," the grand jury concludes. One victim was killed at 26 weeks. Another was killed at 28. A third was killed at 32. Some of the dead were 12 to 18 inches long. One had been moving and breathing outside the womb for 20 minutes. The report alleges hundreds of such atrocities. One employee admitted to severing the spinal cords of 100 babies, each one beyond 24 weeks.

Gosnell, as described in the report, is hardly what the absolutists have in mind when they speak of reproductive freedom. According to the indictment, he treated his patients like garbage and caused one of them to die. But those are separate charges. Regardless of how those charges turn out, the grand jury has recommended that Gosnell be prosecuted for murder in the deaths of seven babies, for infanticide in the deaths of two others, and for 33 felony counts of performing abortions after 24 weeks in violation of the Pennsylvania Abortion Control Act.

The question for Furedi, Berer, Yanow, Herold, and anyone else who asserts an indefinite right to choose is whether this part of the indictment should be dropped. You can argue that what Gosnell did wasn't conventional abortion—he routinely delivered the babies before slitting their necks—but the 33 proposed charges involving the Abortion Control Act have nothing to do with that. Those charges pertain strictly to a time limit: performing abortions beyond 24 weeks. Should Gosnell be prosecuted for violating that limit? Is it OK to outlaw abortions at 28, 30, or 32 weeks? Or is drawing such a line an unacceptable breach of women's autonomy?

Throwing Gosnell in jail won't solve the problem. The women who came to him at 26, 28, or 30 weeks will show up somewhere else. And if you won't say no to them, you will have to say yes.

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