I first became aware of the Gosnell case through Joseph Bottum’s February 2011 Weekly Standard article “To live and die in Philadelphia” and Clarke Forsythe’s January 2011 Weekly Standard online column “The Supreme Court’s back alley runs through Philadelphia.” Bottum’s and Forsythe’s pieces were based on the grand jury report in the case, which has now gone to trial.
The Standard takes another look at the Gosnell case today, not to elaborate on the evidence that has emerged at trial, but rather to place it in the context of the abortion culture growing out of the 1973 Supreme Court rulings in Roe v. Wade and Doe v. Bolton. In “The barbarism in Philadelphia” Claremont McKenna associate professor of government Jon Shields writes: “Dr. Gosnell…fits the profile of a sociopathic killer. But unlike most such deviants, Gosnell could argue that he acted within his constitutional rights.” Looking at applicable law, Shields adds: “Had Kermit Gosnell found a second physician to back him up and then killed the third-trimester fetuses before they passed through the birth canal, he would have committed no crime under Roe and Doe or the laws of Pennsylvania. The grand jury never wrapped its mind around this chilling fact.”
Professor Shields arrives at this troubling conclusion:
The grand jury imagines that the legislators and regulators of Pennsylvania can find a way to “prevent future Dr. Gosnells.” They can’t. The Supreme Court has forbidden control over abortions by the democratically elected branches of government. So as long as abortion is every woman’s right, and women want abortions, and providing them continues to be profitable, Dr. Gosnells will emerge. We can perhaps require them to kill their victims in the womb. But we can’t prevent abortionists from specializing in killing viable fetuses. That is the consequence of the Roe and Doe regime.
Nevertheless, if Kermit Gosnell is executed, it will be for his abortions, not his other crimes. Although he will likely be found guilty of third-degree murder in the case of one mother, she died as a result of negligence. The grand jury made clear that her death was “not necessarily the product of specific intent to kill.” Only Gosnell’s abortion practice involved the intentional killing of innocent human beings. It is for this that he is charged with seven counts of first-degree murder.
So should Gosnell be convicted and find himself on death row, it will be for his specialty, late-term abortion, a practice permitted by our courts but forbidden by our consciences. It will be because the ordinary citizens serving on the trial jury in Philadelphia believe that the expansive power to destroy human life established in Roe and Doe is deeply immoral and in no way protected by our Constitution.
Shields’s article hasn’t received much attention, but attention is warranted.