This article orginally appeared in the February 14, 2011 edition of The Nation
Blood-spattered floors. Cat feces. Broken equipment. A 15-year-old giving anesthesia. Two women dead, countless more maimed and injured. Third-trimester fetuses delivered alive whose spines were then severed by the doctor. This was the Women’s Medical Society in West Philadelphia. This is what illegal abortion looks like.
That’s right. Illegal abortion. A great deal has been written about Dr. Kermit Gosnell and the shocking conditions and practices at his facility, which was closed last March after a drug raid, and is back in the news because a grand jury has indicted him and nine employees for murder in the deaths of one woman and seven infants. There have been many calls for further restrictions on abortion, much revulsion expressed at post-viability abortions, much blame cast on prochoicers for supposedly doing nothing to stop him. But it has not been pointed out often enough that what Dr. Gosnell was doing was illegal in Pennsylvania. It is not legal to perform abortions after twenty-four weeks. It is not legal to slit the necks of born-alive fetuses at any age, much less at thirty weeks or even more. It is not legal for untrained, unlicensed employees to perform medical procedures.
Now prochoicers are being blamed for this rogue operator. The grand jury report suggests that Tom Ridge, Republican governor from 1995 to 2001, discontinued inspections because prochoicers claimed they were too burdensome. The ones I talked to were skeptical. “We never lobbied against inspection,” Carol Tracy of the Women’s Law Project, which represents clinics in Pennsylvania, told me by phone. She pointed out that under Ridge’s Democratic predecessor, Bob Casey, who was famously opposed to legal abortion, Gosnell’s clinic was inspected three times, and each time serious problems were found. Nothing was done. Perhaps it’s relevant that Gosnell’s patients were poor, many of them immigrants—like 41-year-old Karnamaya Mongar from Nepal, with whose murder Gosnell has been charged—who may not even have known that safe and legal abortion is available here.
On Slate, William Saletan agreed with the grand jury’s criticism of the National Abortion Federation, which rejected Gosnell’s 2009 application for membership, for failing to alert state authorities to the terrible conditions at his facility. In her organization’s defense, NAF head Vicki Saporta says, “What we saw didn’t meet our standards, but they’d cleaned the place up and hired an RN for our visit. We only saw first-trimester procedures.” Others did alert authorities about problems at the facility, though. A doctor from the Children’s Hospital hand-delivered a complaint to the Health Department after numerous patients returned from Gosnell’s facility with venereal disease from unsterilized instruments. The department never responded. As the grand jury report noted, the department was also alerted by the medical examiner of Delaware County that Gosnell had performed an illegal abortion on a 14-year-old who was thirty weeks pregnant. And the department was informed of Mongar’s death at Gosnell’s hands. Brenda Green, executive director of CHOICE, a nonprofit that connects the underinsured and uninsured with health services, told me it tried to report complaints from clients, but the department wouldn’t accept them from a third party. Instead, the patients had to fill out a daunting five-page form, available only in English, that required them to reveal their identities upfront and be available to testify in Harrisburg. Even with CHOICE staffers there to help, only two women agreed to fill out the form, and both decided not to submit it. The Department of State and the Philadelphia Public Health Department also had ample warning of dire conditions and took no action.
It might seem odd that Pennsylvania, where antichoice legislators have laden abortion with restrictions, should have been so uninterested in the Women’s Medical Society. But actually it makes perfect sense. As Carol Tracy put it, “The problem here was that Pennsylvania has always focused on eliminating abortion, not on abortion as healthcare.” In fact, as she points out, the Pennsylvania Abortion Control Act, the primary vehicle for regulating abortion, is part of the criminal code. “Since abortion isn’t seen as medical care, they didn’t have the appropriate locus for oversight.”
What fueled Gosnell’s business were the very restrictions the legislature was so keen on passing—parental notification, waiting periods, biased counseling and, most important, a ban on state funding for abortion for low-income women. Would women have gone to the Women’s Medical Society if Pennsylvania paid for abortion with Medicaid funds? Would they have had late procedures if they could have afforded earlier ones? Maybe some underage girls went to him to avoid the parental notification rules that supposedly protected them. Only women who felt they had no better alternative would have accepted such dangerous, degrading and frightening treatment. In a way, that’s the saddest part—that women didn’t feel they could turn around and leave.
Will Pennsylvania learn anything from this experience? No, says Brenda Green. As I write, the state legislature has fast-tracked a bill that will ban any insurance plan that covers abortion from insurance exchanges set up under healthcare reform. That means more women forced to pay for abortion out of pocket—and more customers for unscrupulous providers. “That Gosnell was able to get away with his horrific practice does not prove new regulations are needed,” says Susan Schewel, executive director of the Women’s Medical Fund, which helps low-income women pay for their abortions. “It shows we need to enforce the laws we have.”