What happened in Kermit Gosnell's clinic, according to a Philadelphia grand jury—reckless anesthesia, poor sanitation, regulatory neglect, and lethal mistreatment of two women—could turn out to be one of this country's worst unsafe-abortion scandals since Roe v. Wade. But it wouldn't be the first such scandal.
As measured by mortality risk to the woman, abortion is one of the safest surgeries practiced today. It's certainly safer than childbirth. But sometimes, shoddy abortionists are protected by a unique kind of regulatory failure. Scrutiny of pregnancy termination, unlike other procedures, is often perceived and resisted as political.
I know this because I've seen a story like the one in Philadelphia before. It happened two decades ago in Florida. The political stakes were higher, and none of the doctors involved was as bad as Gosnell. But much of what's documented in the Philadelphia report—unsanitary conditions, sloppy anesthesia, unlicensed practitioners, busted emergency equipment, lax record-keeping, and a patient's death—was found in the Florida clinics, too. And when legislators tried to step in, abortion rights advocates stopped them.
I had intended to tell this story in a book I wrote several years ago. The manuscript was too long, so I shelved the story. But reading through the Gosnell grand jury report, I hear too many echoes. What happened in Florida underscores a danger of the pro-choice movement's aversion to government involvement in abortion. Progressives don't normally trust business more than they trust regulators. But on abortion, they do. And that trust carries a price.
The fight in Florida began on July 3, 1989, when the U.S. Supreme Court handed down its opinion in Webster vs. Reproductive Health Services. The ruling upheld a Missouri law that required viability testing—and prohibited abortion of any fetus that passed the test—after 20 weeks of pregnancy. Justice Antonin Scalia argued that Webster "effectively would overrule Roe v. Wade," though the majority opinion didn't say so. Justice Harry Blackmun, Roe's author, agreed that despite the majority's reticence, ultimately "Roe would not survive." Across the country, the ruling was taken as an invitation to state legislatures to restrict abortion.
Two days later, Florida Gov. Bob Martinez, a pro-life Republican, announced plans for a special legislative session on the issue. By the end of the month, he had proposed four restrictions. Two of them—fetal viability testing and a ban on the use of government-funded medical facilities or staff for performing abortions—copied the Missouri law. The third proposal would require clinic workers to describe to each woman, prior to her abortion, the "condition of the unborn child, including its health and stage of development." But the fourth measure purported to protect women, not fetuses. It would subject abortion clinics to "regulatory standards equivalent to those for facilities performing comparable medical and surgical procedures."
This proposal was modeled on an Illinois law—at issue in the then-pending Supreme Court case of Ragsdale v. Turnock—that required abortion clinics to meet the same construction, equipment, and personnel standards imposed on outpatient surgery clinics. The law's ostensible purpose was safety, but first-trimester abortions didn't present the same risks as many procedures done in outpatient clinics. And when abortion clinics encountered patients whose potential complications they couldn't handle, such as epileptics or women with late second-trimester pregnancies, they referred them to hospitals or outpatient clinics that could.
The likely effect of the Illinois law wasn't safety. It was the extinction of clinics. Even the National Abortion Federation, a network of clinics committed to strict standards, calculated that the Illinois standards, if enforced nationwide, would force 90 percent of its members out of business. And that, according to pro-choice critics, was the whole idea.
In fact, pro-lifers had pursued the clinics' extinction for years. That was why, in 1982, a federal judge had struck down most of Florida's authority to police the clinics. Judge Jose Gonzalez, Jr., had ruled that laws requiring registered nurses, blood banks, and other putative safety measures in abortion facilities violated Roe. As a result, by 1989, these clinics faced minimal requirements. Their doctors had to be licensed by the state Department of Professional Regulation, and records of treatment had to be furnished to the Department of Health and Rehabilitative Services.
Gov. Martinez said his goal was to protect women, but his four-pronged assault suggested otherwise. Were doctors who did abortions poorly trained? Banning abortions at public hospitals, where medical students were trained, would worsen that problem. Were hospitals the safest places to perform abortions? Under the governor's scheme, most of them would be barred from providing abortions, since they received public funds.
The target of Martinez's counseling and safety proposals was the "abortion industry," a postulated alliance of clinic operators and their apologists, chiefly Planned Parenthood. Loosely speaking, abortion was an industry, and, under fire, clinic owners and abortion rights activists often banded together. But in the lore of pro-lifers, the industry assumed mythical proportions and inherently sinister motives, feasting on hapless women for its blood money.
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