Libertarians, Abortion, and Kermit Gosnell, Part II

The now-infamous Dr. Gosnell routinely performed abortions by inducing labor,  delivering live babies, and then severing their spinal cords. If the babies were more than 24 weeks old, this “procedure” constitutes first degree murder under Pennsylvania law.  His jury found him guilty of three counts of this crime, but the number of murders he committed was certainly much higher. See the Report issued by the investigating grand jury in this case, pp. 5-6 (readily available online).

Gosnell’s unsuccessful legal defense was that he had already killed these fetuses in utero by means of  injections of the drug Digoxin. Because the fetuses were past the 24-week cutoff, this would still have been a felony, but not murder, under the laws of Pennsylvania. The jury rejected this claim, which is why Gosnell will spend the rest of his life in prison.

Why should libertarians care about the horrific actions of Kermit Gosnell? For one thing, it highlights the extent to which our Constitution can be twisted to suit the policy preferences of a majority of Supreme Court justices. I am, of course, referring to the Court’s 1973 opinion in Roe v. Wade, and its progeny.

The practical effect of this jurisprudence is that the various states may not prohibit abortions prior to “viability,” or the time at which the fetus can survive outside of the mother, currently at about the 24th week of pregnancy or late in the second trimester.[[1]]  Even in the third trimester, in order to pass constitutional muster states laws must provide an exception for the health of the mother. The Court has construed “health” broadly, to include such things as mental distress.   

Rather than let the voters in each state sort out this thorny moral issue for themselves, the Court decided to play God, very badly, for us all. According to the majority, the state’s interest in protecting “potential life” can only outweigh the interests of the mother and her physician[[2]] after the fetus becomes “viable,” i.e. can survive outside the womb. But as argued in Part I of this essay, the key issue is the moral status of the fetus, not its viability.

The mosquito buzzing around my head at dusk is certainly viable, but I have no compunction about squashing it like, well, a bug. On the other hand, a comatose person on life-support is not “viable” without that apparatus. Would it then be morally permissible for the owner of this equipment to disconnect the patient on a whim? 

Moreover, the time at which a fetus becomes viable is entirely a function of medical technology. As this has improved, viability has been pushed back earlier in the gestation period, and there is no reason why, in principle, it might not be possible to sustain fetuses in an “artificial womb” from fertilization onwards. Not only would it be bizarre for a moral question to be settled entirely by the march of technology, but I am sure this outcome would hardly be welcomed by the Roe majority.

So, once again, our courts have proven to be an ineffectual guardian of rights. The point in fetal development at which consciousness arises is unknown. The prevailing view (so far) is that it just happens to roughly corresponds to or is slightly after viability. But, if it turns out that consciousness precedes viability, then fetal rights may be grossly violated, with the Court’s approval, on a massive scale. 

Moreover, the Roe Court held even third-trimester abortions, which clearly occur after the fetus has full or nearly full moral status, must be permitted if the prospective mother’s mental health would be endangered, i.e. she would feel emotional distress at the prospect of carrying the baby to term. This despite the obvious fact that the woman could have elected to terminate her pregnancy well before the fetus gained moral status. Here, the Court ignores the demands of personal responsibility, and the fetus’s right to life is outweighed by the convenience of the woman carrying it.

A second reason to care about the Gosnell case is for what it reveals about our politics. Because late-term abortions can be complicated and dangerous, clinics that perform them are subject in Pennsylvania to inspection and regulated by multiple state and local agencies. As detailed in the grand jury’s report (pp. 8-13),  after 1993 the Pennsylvania Department of Health “abruptly decided, for political reasons, to stop inspecting abortion clinics at all…officials concluded that inspections would be ‘putting a barrier up to women’ seeking abortions.” In violation of its own policy, this “abdication” continued even after the Department received specific complaints from a doctor at Children’s Hospital of Philadelphia “that numerous patients he had referred for abortions came back from Gosnell with the same venereal disease” and that one of his patients “had died at Gosnell’s hands.”

A similar lack of interest in Gosnell’s activities was shown by Pennsylvania’s Board of Medicine, which licenses and oversees the state’s physicians. According to the grand jury’s report, the Board’s officials were confronted with damning evidence about Gosnell on several occasions, “and repeatedly chose to do nothing.”  Other governmental agencies failed to investigate what the grand jury labeled “a baby charnel house.” This “complete regulatory collapse” was due not to bureaucratic inertia, but “because the women in question were poor and of color, because the victims were infants without identities, and because the subject was the political football of abortion.”   

Libertarians understand that what is most basic about rights is that they outrank utilitarian considerations. For example, suppose Joe’s inflammatory, ill-informed and even hateful internet posting contributes absolutely nothing to the marketplace of ideas, and causes substantial pain and other unpleasant emotions in those exposed to it. Nevertheless, his right to speak must be protected at all costs because censorship shrinks the moral space available not just to Joe, but to all of us.  

Our regulation of abortion manifests exactly the opposite approach. On any plausible philosophical analysis the fetus must be regarded as having moral status at the start of the third trimester, if not sooner. As argued in Part I, there is no principled way to distinguish the moral status of a late-term fetus from a newborn.  But a large segment of our society is committed to the idea that a prospective mother’s mental health outweighs the unborn’s right to life, as demonstrated by the fear of political backlash that spooked the authorities in Gosnell’s case.

I am deeply afraid that our cavalier attitude towards the moral claims of the unborn mirrors a ever growing distain for natural rights in our polity. Like them, future generations are not able to organize and express themselves politically, so they have been saddled with trillions of dollars of debt that we have incurred to fund our current standard of living. Speech codes are almost universal on our college campuses, and they mostly function to suppress the expression of ideas that make the majority uncomfortable. Regulations from every level of government proliferate like weeds, while existing ones never die, so that virtually every aspect of our lives is now governed by our “betters.”

I could continue ad nauseum, but I won’t. The Gosnell case is simply another troubling symptom of a potentially fatal disease. If the unborn’s right to life can be dismissed so casually, what hope is there for the rest of us?