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.
For pro-lifers, the abortion-industry legend solved two moral problems. First, it provided a villain. Though they often spoke of women indulging in abortions for "convenience," most pro-lifers believed women were essentially nurturing. They couldn't imagine one and a half million nurturers freely choosing murder each year. Nor could most Americans. To make sense of the abortion rate, and to avoid alienating the public, pro-lifers had to cast women as victims, not accomplices, of abortionists.
Second, the "industry" critique obscured the morality of people who performed or defended access to abortions. Pro-lifers didn't see their opponents as advocates of women's rights, religious freedom, or public health. They saw them as a "special interest" that deserved to be stripped of its government "subsidies."
In reality, the pro-choice coalition in Florida, as elsewhere, was complicated. Some of its leaders were legislators open to compromise. Some were feminists bent on vast cultural reforms. Some were single-issue activists. Some were political operatives who saw the issue as a weapon in elections. Some ran clinics. Some ran professional medical associations. All of these people agreed that Martinez had to be stopped. But beneath that consensus, differences simmered.
Among the factions, none felt more isolated than abortion clinic operators. They saw themselves as medics on the front lines of a war. They called themselves providers. While others, at a comfortable distance, exalted an abstract right to choose, the providers made that choice a real option. They found doctors to do the job. They endured death threats, vandalism, arson, and bombings. They fought off enemy blockades. Without charging high fees or receiving public aid, they saved and raised enough money to offer free abortions to women who couldn't pay. And they took pride in their work. As one clinic owner put it:
We abortion providers, we Florida Abortion Council members, we heroines and heroes and pioneers of the movement, have brought one of the most dangerous deeds in America out of the back alleys of butchery, away from coat hangers, knitting needles, and kerosene douches, and have made it the safest surgical procedure in the country today.
Not every clinic operator was so noble. Providers varied considerably in motives and quality. Insiders divided them evenly into two categories: mission clinics and entrepreneurs. Mission clinics often operated in rural areas, especially in central and north Florida. The only people willing to perform abortions in the face of the hostility common to such regions were those driven by moral commitment. Most were maverick feminists. Where nobody else would meet women's needs, they would. Entrepreneurs favored more profitable, tolerant, and anonymous urban areas. If business went bad, they would pack up and turn to other trades. But the mission clinics would find a way to stay open.
The Florida Abortion Council, known as FLAC, included 18 of Florida's 48 providers. Thirteen of its members, along with seven other Florida clinics, belonged to NAF, the national clinic alliance. Both groups followed rigorous safety standards. NAF devoted three meetings each year to discussing medical precautions and innovations. FLAC held its own meetings on quality control. It was the only such statewide organization in the country, and its leaders were duly proud. Its members were mission clinics, and virtually all of Florida's independent feminist providers belonged to it.
Twenty-three clinics in Florida belonged neither to NAF nor to FLAC. Some had failed to meet the requisite standards. Others hadn't bothered to apply. Nearly all were entrepreneurial. Most were owned by doctors. Many were concentrated in a stretch of south Florida, around Miami, that was foreign to leaders of the clinic associations. These clinics didn't cooperate with the associations on peer review. They enjoyed the legal protections hard won by activist providers but shared none of the work or expense. And stories about them, involving dissatisfied patients and substandard care, circulated among the more responsible clinics.
In south Florida, conscientious providers privately blacklisted the bad clinics and avoided referring women to them. Many referred patients only to NAF or FLAC members. But making this private rating system public seemed unthinkable. As little as the good providers trusted the bad ones, they trusted the government less. Nothing would make them break their silence. Not even a woman's death.