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The Kermit Gosnell Effect

How his gruesome trial is helping anti-abortion legislation in far-away states

Philadelphia District Attorney's Office

In the debate over reproductive rights in America, there is almost no such thing as a new idea. But new stories and images can refresh shopworn arguments. Hence the pro-life movement’s interest in the trial of Kermit Gosnell, the Philadelphia abortion provider whose name is coming up in legislative battles across the country.

Gosnell, for those who missed the story, is on trial this spring for crimes that might very well make him the worst abortion practitioner in post-Roe v. Wade America. He is charged, among other things, with aborting fetuses into toilets in his blood- and feces-smeared clinic, the Women's Medical Society; using broken equipment and dangerous sedatives to save money; intentionally targeting disadvantaged and desperate clients by offering abortions on the cheap and past Pennsylvania's 24-week legal cutoff; employing unlicensed staff members to treat nonwhite patients while seeing the white patients himself; killing infants that he accidentally aborted alive by, as he called it, “snipping” their spinal cords with scissors; causing the death of one woman, who overdosed on sedatives at his staff's hands; and perforating the uteruses, cervixes, and bowels of other patients, one whom died of an ensuing infection. 

When Gosnell’s trial began in March, the conservative media pounced on major outlets, accusing them of ignoring the story because of liberal bias. The finger-pointing that ensued (on both sides of the partisan divide) almost drowned out the logic at the center of the anti-abortion movement's original accusation: that pro-choice liberals kept the story out of the papers because they knew it hurt their cause, and that anyone who supports the right to abortion is responsible for Gosnell’s atrocities. It's not just a media story, though: Conservative activists and legislators, many of whom have been trying to do away with abortion for years, see political potential in this gruesome tale.

When you think about the fact that Gosnell's alleged practices put him in flagrant, intentional violation of the law, it seems silly that his name is now a rallying cry for more legislation. But the accounts of lethally low standards in his clinic lend themselves all too well to one of the pro-life cause’s most powerful strategies: “TRAP” laws. (The acronym stands for Targeted Regulation of Abortion Providers.) These are seemingly minor requirements that purport to protect women’s health, but that in fact make it vastly more difficult or expensive for doctors to provide abortions. Most commonly, they force clinics to go through burdensome and expensive building renovations or licensing processes, or mandate that doctors who provide abortions have hospital admitting privileges—which many hospitals in southern and rural areas withhold from anyone who does the procedure. TRAP laws are arbitrary measures; conservatives like them specifically because they put clinics out of business. But what better figure than Gosnell—who hired a fifteen-year-old to assist with procedures, and left his hallways so cluttered that a stretcher bearing a woman in critical condition allegedly could not fit through—to distract from TRAP laws’ true purpose, and their irrelevance to women's safety?

Sure enough, Gosnell has been a popular conservative bogeyman in TRAP fights since the grand jury report of his crimes came out in January 2011. Unsurprisingly, he had the most direct influence in Pennsylvania. After the raid on the Women’s Medical Society, an “Ambulatory Surgical Center” requirement that had until then failed to clear the legislature speedily passed. "ASC" regulations are building codes for facilities that perform complex procedures; with the exception of abortion clinics, they are not imposed on outpatient centers—like dentist’s and dermatologist’s offices—that perform minor, low-risk surgeries. Keep in mind that abortion has a complication rate of under 0.3 percent. In 2011, a Democratic state representative whose 22-year-old cousin died of sepsis after going to Gosnell said on the floor, “"I honor her memory by voting for this bill … so women will no longer walk into a licensed health-care facility and be butchered as she was." According to Andrew Hoover of the Pennsylvania ACLU, “Gosnell was the driving force" in the debate.

Meanwhile, "ASC" regulations have nothing to do with preventing gruesome malpractice like Gosnell's. Dayle Steinberg of Planned Parenthood Southeastern Pennsylvania said her organization spent over $400,000 coming into compliance with the new standards, on things like the installation of new floors and ceilings because the law specified that they not have seams between tiles. Some practices in the state folded under the expense, while others moved into hospitals, raising the costs for women. Pennsylvania now has thirteen freestanding clinics, down from twenty-two before the legislation passed. 

Gosnell is also a favorite rhetorical firework for pro-life groups and legislators in other states. Julie Rikelman of the Center for Reproductive Rights said Gosnell has driven committee debates in Kansas, which passed a TRAP law in April 2011, and Michigan, home of what women’s rights groups have termed an anti-choice “super bill.” He came up in Alabama, which just this month passed one of the most burdensome TRAP laws in the country, and in Virginia, where activists have spent the past two years fighting a bill without success. Charniele Herring, the Minority Whip in the Virginia house and a vocal opponent of the TRAP bill, said she remembers a Gosnell reference in a committee hearing, but stressed that the onerous legislation’s supporters pushed it just as enthusiastically before the Philadelphia clinic’s bust gave them “an excuse.”

Gosnell just “sensationalizes” the conversation, Rikelman said, adding:“This is a way to try and continue the lie that these laws are about trying to protect women, when actually they harm women.”

The Gosnell story isn't just showing up in legislative debates, but also in campaigns. An arm of the national pro-life group the Susan B. Anthony List is inserting itself in the Virginia gubernatorial race with a $50,000 radio ad buy targeting Terry McAuliffe, a pro-choice Democrat. A spokesperson announced the campaign last week, saying, “In light of Kermit Gosnell’s ‘house of horrors,’ it is an outrage that anyone who purports to care about women would oppose efforts to ensure that Virginia women are treated with basic dignity and respect … Despite evidence that these common ground health and safety standards are needed, Terry McAuliffe refuses to defect from his abortion industry allies, who have vigorously fought these pro-woman efforts from the beginning.”

Meanwhile, in Washington, D.C., an Arizona representative is pushing to criminalize all abortions after 20 weeks with the express purpose of keeping “attention on the Gosnell case.” And in Florida, the advocacy group Americans United for Life has cribbed imagery from Gosnell to cheerlead a bald-facedly political bill. The “Infants Born Alive Protection Act,” HB 1129, provides “that all infants born alive are entitled to the same rights, powers, and privileges as any child born in the course of natural birth.” As Ron Bilbao of the Florida ACLU pointed out to me, the federal government already makes provisions for these rights. “It’s not an abortion bill,” he emphasized. “Since [pro-life legislators] are not getting any traction with their other pieces of legislation, they want to be able to go back to their districts and say they got something done.” The image of Gosnell severing the spines of 30-week-old newborns, still fresh in the popular imagination, made it easy to sell this bill as a pro-life victory.

The painful irony is, the laws that are shuttering clinics all over America would have done nothing to stop Gosnell, who, it's alleged, was fully aware that he was operating outside of a long list of rules and regulations. Pennsylvania's abortion laws were strict long before the 2011 TRAP-style addition: NARAL, a pro-choice group that grades states’ laws, gave Pennsylvania an “F” for its harsh codes on abortion in 2010, the year Gosnell was busted (Pennsylvania got an “F” this year, too). The problem wasn’t a lack of legislation, but a lack of enforcement. Pennsylvania’s Department of Health did not investigate abortion clinics between 1993 and the fateful raid on the Women's Medical Society, and it ignored multiple reports of illegal activity going on behind Gosnell's doors. Law enforcement only invaded the clinic because they had heard Gosnell was selling narcotics on the side.

Reproductive rights advocates argue that not only would more stringent regulations have failed to stop Gosnell, they actually would have helped his business. Harsher rules mean fewer clinics, and more women who struggle to find or afford good care early in pregnancy. The grand jury report alleges that women heard through word-of-mouth that Gosnell was the least expensive option around—an important credential when first-trimester abortions usually run over $300. Susan Schewel of the Philadelphia-based Women’s Medical Fund, which raises money for women who cannot pay for abortions, said her group gave over 1,500 grants to women last year, and the last time they tried to estimate overall need in their area (in 2006, before the recession) they guessed that 4,500 women a year were coming up short to pay for the procedure.

The grand jury report suggests that Gosnell knew he was preying on women who had nowhere else to go, and blames the state for failing to protect its most vulnerable citizens. “Every aspect of that practice reflected an utter disregard for the health and safety of his patients, a cruel lack of respect for their dignity, and an arrogant belief that he could forever get away with the slovenly and careless treatment of the women who came to his clinic. The only thing Gosnell seemed to care about was the cash he raked in from his illegal operation.” The report goes on to say: “We think the reason no one acted is 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.”

There shouldn’t be anything political about a man who murdered infants; operated on women in unsafe, degrading conditions; and sacrificed his patients’ safety for pecuniary gain. But we can add another travesty to this episode’s list of horrors: a case that exemplifies the danger of targeting skilled, safe abortion providers, and the need for more good options, has been claimed as proof positive of the opposite argument. 

Follow me @ncaplanbricker.