What is the justification for abortion?  Is abortion a moral or therapeutic concept?  Medical or legal?  Sociological or personal?  These considerations underlie Gosnell: The Untold Story of America’s Most Prolific Serial Killer, a narrative of the comprehensive criminal enterprise of Kermit Gosnell, M.D., Philadelphia’s notorious baby killer and drug trafficker, by the Irish journalists Ann McElhinney and Phelim McAleer.  Alas, in this unfocused and repetitive but important book, the authors fail to identify the central evil that their accounting reveals: not the when, where, or how of the abortion-related killing, but the fact that it occurs at all.

The right to abortion that shielded Gosnell and his customers from the law for decades comes, we are told, from the U.S. Constitution—somewhere, perhaps, between the 9th and 14th Amendments.  The Ninth Amendment protects rights not enumerated in the Constitution.  The 14th contains Due Process and Equal Protection clauses.  Where, exactly, the right to abortion appears is not important.  The Constitution is living, breathing, protean.  It is all powerful.  It is the product of ancestors and spirits.  It knows what it is doing.

To divine the Constitution’s meaning, we look to justices, the Constitution’s mediums.  In 1973, the mediums midwifed a message from the Constitution: Abortion is a right in the first trimester of pregnancy.  It is also a right in the second trimester of pregnancy.  After 24 weeks, abortion might or might not be a constitutional right.  At that point, the Constitution, which declares that fetal viability begins at 24 weeks, allows states to protect fetal life so long as maternal life and health are not compromised.  So says the Constitution, if not exactly, then at least in spirit.  Please note: Pregnant women can expect precision from the Constitution but not speed.  Roe v. Wade required two oral arguments and more than a year of contemplation.  Of course, by this time, plaintiff Roe’s pregnancy had long been over, having resulted in the birth of a child and adoption.

This 1973 decree was, however, incomplete and confusing.  Medically, an abortion procedure beyond 20 weeks did not exist.  Infants had survived abortions before 24 weeks, as survival depends on fetal weight, not gestation.  Was premature infanticide a constitutional right, too?  The Constitution went dark.

Into this unsettled moral and legal area came Kermit Gosnell.  Gosnell’s unsuitability for medical practice was obvious early in his career.  Admitted to medical school through an affirmative-action program, Gosnell graduated in 1966 and was never board-certified in obstetrics and gynecology.  In 1972, in conjunction with the paternalistic National Organization for Women, Gosnell and an amateur inventor brought 15 pregnant women in their second trimester to Gosnell’s abortion clinic to display a novel abortion gadget called the super coil.  The coil, comprising plastic blades, was inserted into a pregnant woman’s uterus.  The blades worked on a spring and were to cut up a fetus and expel it.  However, the coil went haywire during this demonstration, and 9 of the 15 women required hospital treatment.  (The event is referred to as the Mother’s Day Massacre.)

Life went on.  Neither medical-license discipline nor criminal charges were pursued against Gosnell as he performed abortions through at least the eighth month of pregnancy, cash only.  To cover his tracks, as Pennsylvania law prohibited abortions at 24 weeks, Gosnell doctored the ultrasound records that would reveal his crimes.  Gosnell was a black doctor “serving” black patients in a depressed area and had plenty of happy customers.  Astonishingly, given his clinic’s conditions, catastrophic injuries to his abortion customers were rare.  All parties got what they bargained for, including drug dealers, to whom Gosnell sold bogus scripts.

The authors uncovered the following evidence surrounding Gosnell’s murders.  A cheapskate and hoarder with an appetite for killing, Gosnell delivered hundreds of living babies while performing abortions.  He then murdered these infants by snipping the backs of their necks.  His objectives were allegedly lofty, validating a woman’s “conception of her place . . . in society,” as the Supreme Court put it in Carhart, by guaranteeing her a terminated pregnancy—and let’s not look too closely at what that means.  But his methods were déclassé.  The typical abortionist, aided by ultrasound, injects digoxin into the fetus’s beating heart, extinguishing it.  The dead fetus is then removed.  Gosnell, however, never mastered the ultrasound equipment and was too cheap to buy the drug.  Delivering first and then killing kept overhead down.  The reader is left to ponder the moral distinction.

Gosnell’s penny-pinching did not end there.  To avoid paying a waste-management company, Gosnell dumped aborted baby parts into repurposed household containers and stored them in the freezer of his Women’s Medical Society Clinic.  Gosnell also stored little feet in rows of jars.  Cat litter, blood, and dirt contaminated the clinic, as Gosnell refused to hire a professional cleaning company.  His staff of drug-addicted sociopaths were willing participants who supplemented their income with tips from drug dealers or by scamming the disability system.

Gosnell’s killing spree ended with his arrest in 2010 after police raided his clinic for evidence of drug trafficking.  Officers uncovered his pill operation but were unprepared for the capital crimes.  Gosnell was charged with seven counts of first-degree murder of identified babies that he had killed after their birth, and for conspiracy to commit the murders of hundreds of unidentified others.  He also faced a third-degree murder charge regarding a patient who had died after Gosnell negligently gave her lethal doses of anesthesia during a third-trimester abortion.

Gosnell did not take the stand.  After guilty verdicts for capital murder and other crimes, Gosnell waived his rights to appeal in exchange for the prosecution’s agreement to dismiss the death-penalty specification.  He is serving concurrent sentences of life without parole for murder and 30 years for drug trafficking.  Following his conviction, Gosnell denied that any abortions resulted in live births, reasoning, “No life until breath.”

The authors highlight the media’s blackout of Gosnell crimes and trials, as Gosnell’s practices put both blacks and abortions in a negative light.  Alas, no one could agree on the victims.  Liberals pitied the aborting women who were driven to Gosnell’s unsanitary clinic, but they identified the villain as the state’s late-term abortion restrictions, which offered opportunity to shady characters like Gosnell.  The authors mourn the dead babies as well as the women subjected to Gosnell’s charnel house.  But is the fact that the babies were killed right after birth instead of right before the central tragedy?

As an aside, the economic interests associated with abortion were relevant early on and continue as factors in Supreme Court abortion decisions.  Roe de facto guaranteed abortion-practice rights for doctors, who resented the fear of criminal prosecutions in delivering abortion services.  But in the early 1970’s, asserting a constitutional right to provide abortions was a far-fetched concept, and standing rules prohibited a doctor from intervening as a plaintiff in Roe.  Nevertheless, Roe eliminated doctors’ fears of criminal prosecution.  Last year, the Constitution came through for doctors again, declaring that abortion providers may challenge state abortion-clinic regulations by asserting that such regulations unduly burden women’s abortion rights in general, even when no specific woman has complained.

So in 1973, doctors like Gosnell got immunity from prosecution thanks to a woman’s constitutional right to abortion—or so they thought.  But conflicting medical and legal understandings of abortion and public revulsion at the practice continue to spawn numerous state laws that impose restrictions on abortion—for example, criminalizing partial-birth abortion or outlawing abortions after 20 weeks of gestation.  The court challenges go on and on, as do the Supreme Court’s opinions in response to them.

Regarding abortion, as with other issues, the Constitution gives the appearance of being in over its head.  In 1996, the Constitution declared that it did not provide a right to engage in homosexual conduct.  In 2003, it changed its mind.  In 1972, the Constitution denied that it provided a right to same-sex marriage.  In 2015, it found one.  And in 2000, the Constitution appeared to cough up a right to partial-birth abortion, only to swallow it back down in 2007.  The Constitution giveth, and the Constitution taketh away.  For those left of center, however, the Constitution has been mostly in a generous mood.

Which brings us to Dr. Gosnell and the ultimate question his crimes raise.  As Dr. Bernard Nathanson made clear in his excellent work Aborting America (1979), abortion as a medical matter was the termination of a pregnancy before 20 weeks, but killing a fetus was never the objective.  Fetal death occurred as an unfortunate consequence of immature organs and inadequate technology.  Almost 45 years after Roe, however, the legal definition is still murky.  Is abortion terminating a pregnancy or killing a fetus?  This question, while not stated, is the one that every page of Gosnell asks.  The culture and the law send mixed signals.  “Abortion is just another form of wise pruning,” Gosnell wrote.

We do not yet know whether the Constitution agrees.  Someday, a woman—or more likely, her doctor—will present the Court with the question of whether a robust, viable fetus that the mother does not want must be delivered alive.  The Constitution will once again be of two minds.  On the one hand, even by today’s standards, a constitutional right to a dead baby is a bit of a stretch.  On the other hand, the Constitution guarantees a woman the right to her place in society.  The Constitution will spend months or even a year in agitated contemplation.  It will carefully examine itself, then announce its decision.  The explanation will be lengthy and impassioned.  There will not be much suspense, however.  Because when the Constitution goes seeking a new right, it usually finds it.

 

[Gosnell: The Untold Story of America’s Most Prolific Serial Killer, by Ann McElhinney and Phelim McAleer (Washington, D.C.: Regnery Publishing) 347 pp., $27.99]