On Feb. 18, 2010, detectives and FBI agents raided the Philadelphia office of Dr. Kermit Gosnell. They had been led there by an investigation of illegal drug sales. What they found was, presumably, the worst licensed abortion clinic in the United States: dirty surgical instruments, blood on the floor, cat excrement on the stairs, a stench of urine in the air, and operating facilities one agent compared to a bad gas station restroom. Fetal remains were in milk jugs and cat-food containers. Last month, in its reconstruction of the scene, a grand jury reported:
"Semi-conscious women scheduled for abortions were moaning in the waiting room or the recovery room, where they sat on dirty recliners covered with blood-stained blankets. All the women had been sedated by unlicensed staff—long before Gosnell arrived at the clinic—and staff members could not accurately state what medications or dosages they had administered to the waiting patients."
The grand jury's report, citing forensic evidence and testimony from clinic employees, accuses Gosnell of routinely delivering viable babies and severing their spinal cords. But it also details ill treatment of women. According to the report, Gosnell used unlicensed workers to administer anesthesia, failed to obtain patients' informed consent, gave them expired drugs; endangered their health with poor sanitation and broken equipment, and caused the deaths of at least two women.
Yesterday, Pennsylvania Gov. Tom Corbett fired several state officials faulted by the grand jury for failing to intervene in the case. Corbett ordered two agencies to tighten their procedures for inspecting and investigating abortion clinics. Meanwhile, Pennsylvania lawmakers have begun hearings into the scandal. They want to know how the abuses described in the report went unprosecuted for decades. And they want to make sure it never happens again. Ahead looms a statewide, and possibly nationwide, debate over the regulation of abortion clinics: How do we balance freedom of choice, consumer protection, and the role of government?
The Pennsylvania Department of Health inspected Gosnell's clinic when it opened in 1979. The department was supposed to check back within a year, but there's no clear record of another inspection until a decade later. Nor is there any evidence that the evaluators, when they returned, examined Gosnell's patient files, his sanitation, his emergency equipment, his use of anesthesia, his compliance with rules of post-operative care, or the qualifications of employees who did his lab work.
From 1993 on, Gosnell went completely uninspected. The grand jury says the health department "decided, for political reasons, to stop inspecting abortion clinics at all. … With the change of administration from Governor Casey to Governor Ridge, officials concluded that inspections would be 'putting a barrier up to women' seeking abortions." Casey was pro-life; Ridge was pro-choice. The department's senior counsel, in his testimony before the grand jury,
"described a meeting of high-level government officials in 1999 at which a decision was made not to accept a recommendation to reinstitute regular inspections of abortion clinics. The reasoning, [the witness] recalled, was: "there was a concern that if they did routine inspections, that they may find a lot of these facilities didn't meet [the standards for getting patients out by stretcher or wheelchair in an emergency], and then there would be less abortion facilities, less access to women to have an abortion.""
In 2009, a health department official learned that a patient had died at Gosnell's clinic. But she didn't send out an investigator—which was her usual practice when a patient died—because the implicated facility was an abortion clinic. She took the case to her boss but, according to her testimony, never received authorization to pursue it.
The other agency that could have stopped Gosnell was Pennsylvania's Department of State, which included the state Board of Medicine. According to the grand jury, the department ignored complaints about Gosnell for years. The complaints involved unlicensed administration of anesthesia; sexually transmitted infections (apparently spread by the clinic itself); perforated uteruses, cervixes, and bowels; hospitalizations of infected patients; and family members prevented from summoning emergency aid. The consequences allegedly included a hysterectomy and a patient's death.
Why didn't the Department of State pursue Gosnell? The department's representative, in his testimony, cited the agency's lack of law-enforcement powers. The grand jury rejects this excuse but notes that the Board of Medicine, absurdly, has less inspection authority than the board that supervises cosmetologists. The grand jury also blames the two departments' inaction on their failure to "share information or coordinate." The Department of Health referred complaints and queries about Gosnell to the Department of State. The Department of State, in turn, sought—and failed—to dump a crucial complaint about Gosnell onto the Department of Health.
Two years ago, Gosnell applied for membership in the National Abortion Federation, a private network of clinics committed to patient safety. NAF examined his facility and flunked him for numerous reasons: Unqualified assistants were administering anesthesia, nobody was monitoring sedated patients, medications weren't recorded, and women weren't informed of the risks of drugs and procedures. The grand jury applauds NAF's high standards but wonders "why an evaluator from NAF, whose stated mission is to ensure safe, legal, and acceptable abortion care, and to promote health and justice for women, did not report Gosnell to authorities."
Among reproductive health advocates, it's unclear who knew what. The grand jury report says "some pro-choice and women's health groups learned from Gosnell's patients of their frightening experiences." The report adds that "community groups tried to help women file complaints," but it doesn't name the groups. Last year, after the raid on Gosnell's clinic, Philadelphia news station WHYY reported that Dayle Steinberg, the president of Planned Parenthood Southeastern Pennsylvania, said " she hadn't heard of any problems at [the] clinic until the allegations surfaced in recent days." But according to the Delaware County Daily Times, after this year's release of the grand jury report,
"Steinberg said the news surrounding Gosnell's arrest was not the first time he popped up on her organization's radar. Planned Parenthood had been hearing unsubstantiated rumors about his clinic for several years, Steinberg said. It was not until the last few years that the organization began hearing rumors of his services "not being high quality.""
Somewhere in the chain of rumors, the network of health providers failed to expose what was happening.
At the root of the state's lax oversight, pro-choice legal scholars see a failure to recognize abortion as health care. "By and large, our policymakers have never viewed abortion as a medical procedure—instead placing it under the Pennsylvania Criminal Code—and therefore haven't nurtured a system of abortion care that is woman-focused," write Carol Tracy and Susan Frietsche of the Philadelphia-based Women's Law Project. "The commonwealth's focus has been on denying access, not protecting the health and safety of women who need this medical care." The Department of Health's legal analysis illustrates this mentality. The department assumes—wrongly, in the grand jury's view—that since abortion clinics are regulated under their own subsection of Pennsylvania law, they're immune to dozens of pages of rules that apply to ambulatory surgical facilities.
Gov. Corbett's administrative changes have begun to address this problem. Now there's talk in the legislature of writing these and other changes into law. Several proposed bills aim to equalize regulations and fix the coordination and inspection problems cited by the grand jury. One proposal, drafted by a pro-choice state senator, would "make it mandatory for the Department of Health to immediately respond to any complaints, in addition to doing much more timely inspections." Another, offered by a pro-lifer, would make the inspections annual and impose on abortion clinics " the same safety standards which other health care facilities must meet." A third senator, also pro-choice, is planning legislation that would " require the Department of Health to investigate 'serious events' reported at clinics and share those findings with the Department of State."
Some abortion rights advocates are open to these ideas. But Corbett's changes are stirring old fears. "We just hope this doesn't mean PA, with our new pro-life governor, will slowly slip the way of so many other states … and make it harder for a woman to get a safe abortion," warns the Philadelphia Weekly's politics blog. Other pro-choicers, fearing burdens and restrictions, have spoken out against the whole idea of further regulation. " No new regulations can stop a physician who has decided to disregard the law," Steinberg wrote in an op-ed four days after the release of the grand jury report. Susan Schewel, executive director of the Women's Medical Fund, adds: " Singling out abortion providers for new regulations won't solve the problem. Current regulations are adequate when enforced." Tracy Weitz, director of the University of California's program in " Advancing New Standards in Reproductive Health," says of Gosnell, " the lesson none of us should take is more regulation, because he was already outside the regulations."
The fears of these advocates are understandable. Some pro-lifers are using the Gosnell scandal to promote legislation aimed more at obstructing abortion than at making it safe. Pro-choicers are also correct that many laws, such as restrictions on public funding or insurance coverage of abortions, drive women into the arms of substandard clinics like Gosnell's. But the anti-regulation message of many abortion rights advocates in the wake of the grand jury report is oddly categorical. It's particularly odd coming from progressives who otherwise support consumer protection. In the words of Daily Times columnist Gil Spencer, it " sounds an awful lot like the National Rifle Association."
I'd like to think that in the months ahead, Pennsylvania's abortion providers and pro-choice groups will work with legislators and the governor to fix the regulatory problems that led to the Gosnell fiasco. But I worry that many of them won't. I've seen providers and their allies in the reproductive rights community circle their wagons before. I've seen them deny the significance of bad doctors, dirty clinics, and a woman's death. I've seen them resist inspections and dismiss abortion laws the way the NRA dismisses gun control. I've seen them fight and kill legislation similar to what's being proposed in Pennsylvania. These things happened years ago in a different place, and I'm afraid they could happen again. Tomorrow, I'll tell that story.
Next: The Abortion Industry