Kermit Gosnell and late-term abortions: An answer to pro-choicers.

Science, technology, and life.
Jan. 24 2011 8:04 AM

The Baby Butcher, Revisited

Is it OK to abort a viable fetus? An answer to pro-choicers on Kermit Gosnell.

Mugshot of Kermit Gosnell.

Kermit Gosnell, a Philadelphia abortionist, has been charged with butchering viable babies, causing a woman's death, and endangering other patients. A grand jury report details his alleged crimes. Last week, I cited the report as a challenge to several feminist writers who have lately asserted a woman's right to decide not only whether to have an abortion but how long she can wait to make that choice. Gosnell stands charged with abortions beyond the 24-week gestational limit prescribed by Pennsylvania law. I asked the feminist writers whether, in the name of women's autonomy, those charges should be dropped.

William Saletan William Saletan

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

I haven't seen an answer to my question. Instead, I've been challenged by other pro-choice writers who see the Gosnell case very differently. They think I've misunderstood the scandal and its lessons. Fair enough. Let's look at their arguments.

1. The vast majority of abortions take place early in pregnancy. "Only 1.5% of abortions occur after 21 weeks of pregnancy," notes Vanessa Valenti at Feministing. She's right. Women and clinics deserve credit for acting earlier and keeping that number down. Still, 1.5 percent of 1.2 million abortions per year is 18,000 very late abortions. How long should the abortion decision clock be allowed to run?

2. Gosnell doesn't represent abortion providers or the pro-choice movement. I agree. His disrespect for women and viable fetuses, not to mention infants born alive, was exceptional. Amanda Marcotte draws an instructive contrast between Gosnell and the late George Tiller. The National Abortion Federation also deserves praise for holding clinics to standards of good care that Gosnell flunked.

3. The best way to prevent late abortions is to facilitate early ones. Marcotte, Jill Filipovic of Feministe, and Scott Lemieux of Lawyers, Guns and Money all make this point. They're right. No woman prefers a late abortion. The more we do to make early abortions accessible, the less we'll have to deal with late ones. That includes funding, through public or private sources, of abortions for women who would otherwise have trouble paying for them. And ultimately, it means preventing abortions through better contraception.

4. Many supposedly pro-life laws contribute to the problem of late abortions. Pema Levy offers this argument at the American Prospect, and I have to agree. Waiting periods are a glaring example. Women don't need a law to make them think about the morality of abortion. Waiting periods just increase the development of the fetus that will be destroyed. Steph Herold, one of the writers I challenged, points to studies showing how various restrictions push women later into pregnancy before they're able to get their abortions. These laws are morally counterproductive.

5. The Gosnell case isn't about abortion. Several bloggers make this claim. Most argue that since Gosnell induced delivery before killing the babies, what he did wasn't abortion. But this doesn't affect the question of gestational age. The grand jury report alleges hundreds of cases in which women came to Gosnell for abortions beyond 24 weeks. One way or another, they wanted their pregnancies terminated. Should these requests have been honored?

6. If late-term abortions are outlawed, only outlaws will do late-term abortions. That's the quip headline (almost) on Amanda Hess' blog post at TBD. It's true that abortion laws make back-alley butchers like Gosnell more likely. But the same argument has been made about female genital mutilation: If you don't let parents obtain it legally, they'll go to unlicensed underground practitioners. Is there some point at which a decent society must simply forbid a practice? If killing a viable fetus—a baby that no longer needs a womb to survive—isn't such a practice, what is?

7. Late-term abortion is no worse than other surgeries. P.Z. Myers, an excellent science writer, summarizes Gosnell's treatment of babies this way: "Much noise is being made about the 'horrific' killings, but late term abortions, even the ones done in clean, properly maintained facilities with well-trained personnel, are always necessarily bloody and unpleasant affairs, like most surgeries." Filipovic responds in a similar vein: "Abortion is pretty gross. So are many medical procedures. So is childbirth, actually. Can we move the conversation forward now?" What's missing from these reactions is any acknowledgment that aborting a viable fetus is horrific in a different way from other procedures. It's the intentional killing of a human being. Why is it so hard to admit this?

8. Most late-term abortions are medically necessary. Valenti says of abortions after 21 weeks:

And what do you think the overwhelming majority of those cases are? Women who might die if they don't have one. Fetuses who wouldn't survive outside of the womb. Fetuses with such extreme abnormalities that they'd suffer during what would be a very brief time on this earth.

It's true that many women seek late-term abortions for these reasons. The later the abortion, the more likely it is that fetal or maternal health is a factor. Take a cohort of women who get pregnant around the same time. As their pregnancies advance, women who don't want babies will get abortions. This leaves behind a pool of pregnant women who, on average, are likely to want their babies. Some of these women will discover during amniocentesis or some other pregnancy event that they face a serious fetal or maternal health problem. Since most women who wanted elective abortions have left the pool of pregnant women, the medical-necessity cases will represent an increasingly large share of the aborting population.

You can see some evidence of this in the Guttmacher Institute's 2004 survey of patients at major abortion providers. Among women less than 13 weeks pregnant, the percentage who cited fetal health as a reason for their abortions was roughly 11 percent. But among patients 13 weeks pregnant or more, the percentage who cited fetal health was 21 percent.

Still, that's only 21 percent of all women seeking second-trimester abortions at those clinics. And just 10 percent of second-trimester patients cited their own health as a reason for their abortions, essentially no different from the percentage of first-trimester women who cited this reason.

We don't have solid data on elective abortions late in the second trimester, much less the third, but we do have well-informed estimates concerning so-called "partial-birth" abortions. I'm one of many journalists who bought the initial pro-choice claim that these abortions were mostly for medical reasons. Investigative reports subsequently debunked this claim and corroborated the confession of Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, that "in the vast majority of cases" the patient was "a healthy mother with a healthy fetus that is 20 weeks or more along."

The Gosnell grand jury report provides no evidence that women who came to him for post-viability abortions did so for medical reasons. On the contrary, the report indicates he was indiscriminate: One of his employees testified that "she rarely, if ever, saw Gosnell decline to do a procedure because a woman was too far along." And the only abortion on which the report offers evidence either way seems to have been elective. According to the report:

In 2004, a 27-year-old woman went to Gosnell, pregnant with her first child. She testified that she was surprised when Gosnell told her she was 21 weeks pregnant. On the first day of what was to be a two-day procedure, Gosnell inserted dilators in the woman's cervix. After Gosnell had finished inserting the laminaria, the woman asked him what happened to the babies after they were aborted. She testified that Gosnell told her they were burned.
At home, thinking over how Gosnell disposed of the fetuses, the woman had a change of heart. She called her cousin and the cousin called Gosnell to tell him that they wanted him to take the laminaria out. Gosnell said that he could not do that once the procedure was started. And he did not want to return the $1,300 that the patient had already paid. The pregnant woman ended up going to the Hospital at the University of Pennsylvania to have the laminaria removed. It was determined at the hospital that she was 29 weeks pregnant. A few days later, the 27-year-old delivered a premature baby girl. She was treated at Children's Hospital of Philadelphia and is today a healthy kindergartener.

It isn't clear how pregnant this woman thought she was. But the report says Gosnell knew how far along his patients were and lied to them (in many cases manipulating the ultrasound) to bargain up his price or fake compliance with the law. At 29 weeks, the survival rate for premature infants is 97 percent. Gosnell apparently knew he was aborting a healthy woman's healthy, viable baby. This was an elective third-trimester abortion. And we have no idea how often this happens. We know about this incident only because 1) the woman changed her mind and went to a hospital, and 2) the doctor was later investigated for non-abortion reasons.

The grand jury recommended that Gosnell be prosecuted for 33 violations of Pennsylvania's Abortion Control Act. If those charges are pursued, we may find out how many of these abortions were for medical reasons. The Abortion Control Act prohibits abortions after 24 weeks except when the "physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman." If Gosnell can't produce evidence of such risks, that might answer the question.

9. Late-term abortions can be blamed on access problems. According to Herold:

Women have second trimester abortions because they need to, not because they want to. Why? Because their insurance doesn't cover abortion, because they needed time to raise money for the cost of an abortion, because they needed to arrange travel/childcare/time off of work in order to spend a full day at the clinic, because they needed time to make the decision with confidence, because they needed to make time to travel out of state to access an abortion provider.

Herold is right, of course, that women don't prefer late abortions. But to what extent do access problems account for their lateness? Herold cites two studies. In the 2004 Guttmacher survey, nearly all second trimester patients said they wished they'd had their abortions earlier. Of these women, 67 percent said it had taken a long time to arrange the procedure. But 50 percent said (in addition or instead of that answer) that they'd taken a long time to decide. A 2002 study in Northern California found a narrower gap: 63 percent of second-trimester patients cited logistical factors, while 51 percent cited emotional factors such as changing their minds or difficulty making the decision. And in a third study, conducted in England and Wales in 2005, the most common reason cited by second-trimester patients for the lateness of their abortions was that "it took me a while to make my mind up and ask for one."

The next most common reasons cited in the English study were 2) "I didn't realize I was pregnant earlier because my periods are irregular," 3) "I thought the pregnancy was much less advanced than it was," 4) "I wasn't sure what I would do if I were pregnant," 5) "I didn't realize I was pregnant earlier because I was using contraception," and 6) "I suspected I was pregnant but I didn't do anything about it until the weeks had gone by." The most commonly logistical factor—"I had to wait more than 5 days before I could get a consultation appointment"—was eighth on the list. Abortion Review, a news update service produced by the British Pregnancy Advisory Service (whose executive director, Ann Furedi, is one of the pro-choice writers I challenged in last week's article), concluded: "Perhaps the most striking finding of this study is the extent to [which] the delay in obtaining an abortion arose, not from factors within the abortion service such as lack of appointments, but from women's delay in seeking an abortion in the first place."

So here's my challenge to these pro-choice writers: I agree with you on most abortion policy questions. Contraception or abstinence is best, emergency contraception is next best, early abortion is next best, and we should make these options more accessible, not less. But we'll still be left with some women who, for no medical reason, have run out the clock, even to the point of viability. Should their abortion requests be granted anyway? I've answered your questions. Now it's your turn to answer mine.