Unlike the executive editor of the Washington Post, I did not just become aware of the Kermit Gosnell case. I wrote about it back when the indictment was first reported. On February 7, 2011, I mentioned Gosnell in the context of a “truce” between two wings of the right, the social conservatives and the more “libertarian” advocates of small government. Here is what I said.
“Oddly, this case is not really about abortion. It is about infanticide. According to the charges against him…, Gosnell was a cynical criminal who nominally specialized in very late-term abortions, the cases that other doctors wouldn’t take. But in many cases, rather than perform an actual abortion, he would induce labor and kill the baby after he delivered it. He has been charged in seven cases where there is sufficient evidence, but he probably did it hundreds of times.
“You can see, though, how anti-abortion activists would regard this as an opportunity to revive their campaign. Doctor Gosnell crossed the moral line between abortion and infanticide—but he can be used to argue…that there is no such moral line, that the two practices are morally equivalent….
“I think that there is a strong moral line between abortion and infanticide…. But…I will grant that the anti-abortionists will probably never find a better concrete example to support their argument….
“So this ongoing case—the indictment has just been issued, and the trial is still to come—will put some sustained new life into the anti-abortion wing of the right.”
I was right—eventually. I expected that I wouldn’t have to go out of my way to return to the Gosnell case because the sensational trial would receive obsessive media coverage. Instead, the mainstream media tried to ignore it and hoped the whole thing would go away.
So oddly, I ended up returning to this case in a context where I found myself agreeing with the anti-abortion conservatives that it was inexcusable to bury the story.
It is especially inexcusable because in trying to cover it up, or wish away its implications, the left has damaged the defense of abortion rights more than if they had given the Gosnell case extensive coverage and honestly grappled with its meaning. They have acted like they have a guilty conscience, like they are not intellectually confident of their position and therefore need to wish away inconvenient facts or cover them up under evasive euphemisms like “women’s reproductive health care.”
The abortion debate is America’s great testing ground for the theory that you can win an argument, not on its actual merits, but merely by manipulating the language to “frame” the issue in your favor. So the defenders of abortion don’t call themselves anything so crude as defenders of abortion. They call themselves “pro-choice,” because who wants to be against choice? And the opponents of abortion call themselves “pro-life,” because who wants to be against life?
The abortion debate is also a definitive refutation of this whole theory about “framing,” because it has been framed like all get-out, and neither side seems to be any closer to winning.
James Taranto has popularized the theory that the mainstream media’s sympathetic coverage of Democrats is actually a liability, because it shields left-leaning politicians from tough scrutiny early on, leaving them vulnerable to embarrassing revelations later. (Then again, President Obama is evidence that if the media man-crush is strong enough, no such revelations will matter.) Taranto makes a good case that something similar has happened with abortion. Decades of being able to point to Roe v. Wade and declare the matter settled has made the left ideologically complacent and unable to defend the philosophical basis of their stand on abortion, which is one of the reasons they want to avoid confronting the Gosnell case in all its horrors.
Taranto also points to evidence that this case is moving secular, libertarian-leaning conservatives farther to the right on this issue.
A good example of the left’s shallow attempt to spin the issue is Garance Franke-Ruta’s column blaming Gosnell’s house of horrors on the anti-abortion protesters, because they were outside his clinic protesting instead of investigating what was going on inside. “Nor did the group pull public…records of complaints against Gosnell, which might have allowed anti-abortion advocates to see the pattern state regulatory authorities were ignoring, despite repeated complaints from doctors and Gosnell’s victims.” It’s a fair enough point, I suppose, but she should be careful what she wishes for, because she has just named the anti-abortion movement’s new game plan: find the next Kermit Gosnell.
It won’t be long in coming; activists are already mounting sting operations against abortion clinics. Which is why I think it is important to write about this, because I doubt this case will be a one-off. Kermit Gosnell may be the most extreme case. (One of the more gruesome details of the case is the way Gosnell kept dismembered fetal body parts in jars for no apparent reason, which suggests that he may be an actual psychopath and not just an unscrupulous opportunist.) But one of the things we learned from his case is that state health and medical officials had suspended enforcement of the state’s restrictions on late-term abortions, and in service to that goal, they seem to have blocked all inspections and inquiries into the medical practices of abortion clinics. How many other states have done the same? And under such a regime, how many other houses of medical horror have flourished? If there are any, I expect that sooner or later we’re going to hear about them.
So we had better be prepared, and more so than the intellectually lazy, culturally insulated mainstream media. We had better do some real, genuine thinking about the issues.
The usual players in the political debate have found themselves ill equipped to confront the Gosnell case because abortion is an issue that uniquely calls upon a deep philosophical perspective. That’s why it is particularly vexing for those of us within the broad coalition of the right, because on most issues, most of us can agree on the value of freedom and on the idea that individuals have rights. But the abortion issue won’t let you get away with vague invocations of “freedom.” It requires that you have a specific philosophical view on what is the source of individual rights, and it is precisely on this issue that the right is divided between its more religious and more secular wings.
Put simply, if you think rights are granted by society, as the left does, that leads to one particular view of abortion. If you think that rights are given to us by God, that tends to support a different view. And if you believe that rights have a secular, non-collectivist foundation, as I do, that leads to yet another approach to the question.
The standard “pro-choice” view on the left clearly reflects the social and collective view of rights. If rights are granted by society, then issues of freedom and entitlement will naturally be defined in terms of which groups a society is seeking to protect or empower. We will think of every issue in terms of a battle between women, racial minorities, and youth versus old white males (who are themselves a minority, of course, but whose wealth and power the left seeks to redistribute to the other groups). That’s why they always try to “frame” abortion in terms of “women’s health” and “women’s rights.” The right to abortion is valued primarily as a tool for “empowering” a social group.
The traditional conservative view that rights are granted by God makes rights an inherent possession of the individual, rather than the group. There are collectivist strains in conservatism, by the way, but when it comes to abortion, the conservatives generally are absolutists in their insistence that the individual has a right to life that supersedes social norms or needs. But who counts as an individual? If you believe that rights are implanted in us by God, then you will look for a theological answer to the question of when those rights begin. Thanks partly to John Paul II, who popularized among Protestants the Catholic doctrine that God implants the soul at the moment of conception, this is the moment the religious right identifies as the point when an individual acquires rights.
What about a secular concept of individual rights? The religious right relies on the assumption that rights either come from God or from society, but what about a third possibility: that they come from nature? Thomas Jefferson described the rights in the Declaration of Independence as coming from “the laws of nature and of nature’s God.” Those of us on the secular right, which is to say those of us influenced by Ayn Rand’s Objectivist philosophy, accept the first half of that formulation while seeing no need for the second half. So what in the “laws of nature” provides a secular basis for the concept of rights?
The secular basis for individual rights is the quality that separates man from the animals: our ability to reason. When we ask what is the basis of rights, what we are really asking is: why not just deal with other men by brute force, the way we deal with the animals? There is no such thing as “rights” in the animal kingdom, because there is no such thing as persuasion; you can’t reason with a lion and convince it that its long-term interests would be better served by not eating you. But when it comes to your fellow man, you have far more to gain from voluntary cooperation than you do from expropriation or coercion. That’s true from the very beginning, from early men banding together to hunt gazelles, to every step up on the rungs of civilization: working together to build farms, cities, factories, and global telecommunications networks. The difference between a long, peaceful, fulfilling life in a civilized society and the short and brutal life of a solitary hunter-gatherer is the scope of cooperation among men. The difference between life in an impoverished dictatorship and life in a vibrant free society—think North Korea versus South Korea—is the degree to which that cooperation is voluntary and men are left free to think for themselves.
In short, because we are rational animals, the proper way to deal with one another is through reason and persuasion, not force. So we impose a ban on coercion, allowing force to be used only in retaliation against those who refuse to accept the ban. We do this in recognition of the fact that men can think, and their freedom to think and to rely on their own judgment must be respected. This is the principle of individual rights.
If that is the basis for individual rights, what does this imply about when rights begin? Well, for example, it explains why children don’t have the same rights as adults. A three-year-old does not yet have the ability to think clearly and to rationally control his actions; believe me, I have one at home. But the key word is “yet.” He is not a wild animal, even if he spends a fair bit of his time pretending to be one. So while he is not yet allowed to make crucial decisions about his own life, which at this point includes whether to brush his teeth and when to go to bed, he does have rights that protect his ability to grow and develop and eventually become capable of making his own decisions—which, after all, is the ultimate point of all those paternalistic edicts about bedtime and toothbrushing.
A child has a right to life and to be shielded from violence and abuse because the road to life as a rational, independent adult necessarily begins with an infant who is totally helpless and vulnerable and must be protected. This is why Gosnell’s crimes so shock the conscience. Based on the testimony at his trial, Gosnell routinely displayed a psychopath’s indifference to a newborn infant’s desperate struggle for life.
The case of an infant is straightforward: it is a human being making its first effort to live, and it is a human mind making its first effort to see and understand the world. But the issue is muddier when it comes to abortion. The reason is that there is an unbroken continuum all the way from conception to birth.
From a secular perspective, an embryo is an easier case. It is living, of course, and if allowed to grow it will become a human being. But at these early stages, it is still part of a woman’s body and totally dependent on her. An embryo has not yet even formed the organs that will make it capable of being conscious or viable outside the womb. Because it is not a separate, independently viable living being, much less a rational being, it does not have a separate right to life.
But as a fetus moves along the continuum the question becomes more difficult. A late-term fetus in particular has developed all of its organs and is mostly just growing in size and strength. It is already capable of being conscious and of independent life. Advances in medicine have pushed back the point at which a fetus is viable outside the womb to as early as 24 weeks, which is probably the limit of what is possible. But the survivability of a fetus at this stage is still somewhat doubtful, so we can take the third trimester of the pregnancy—from about 28 weeks on—as a better guide for when the fetus is fully formed and viable.
And this is where the Gosnell case comes in, because these late-term abortions were his stock in trade. His case is relevant because it is a gruesome reminder that in the third trimester there really is not much difference between destroying the brain of the fetus inside the womb before removing it, versus delivering the baby and then cutting its spinal cord. There is still a difference, mind you, and this is why Gosnell is on trial for homicide and not just for violating Pennsylvania’s (unenforced) ban on late-term abortions. But we are very far along the continuum and the difference is very small, and you can see how an unscrupulous doctor could allow himself, with the aid of a little euphemistic medical terminology, to slide down a slippery slope to infanticide.
And here is where I will agree with the conservatives. In the third trimester, I think it is immoral to abort a fetus—in the absence of some serious extenuating circumstance, such as a threat to the life of the mother. By the time you have reached the third trimester, you have already made a baby; you’re just waiting for the right time to deliver it. You might decide you don’t want to raise the child, in which case you can pass that responsibility on to someone else. But the baby is already there, ready and able to live, and I cannot think of a moral reason to deny it that opportunity, particularly in a day and age when there are waiting lists for couples eager to adopt a healthy child and give it a good home.
But the moral issue is not necessarily the same as the legal and political issue. To begin with, the fetus is still in its mother’s body and ideally will stay there until full term, so you cannot protect the life of the fetus without regulating the use of the mother’s own body, which raises both legal and practical difficulties. And you will notice that I made an exception for extenuating circumstances such as a threat to the life of the mother. When my oldest child was at this stage, the Supreme Court was considering a case that related to late-term pregnancies, and I remember how close to home that idea hit. I remember thinking that if something went horribly wrong in my wife’s pregnancy that we might have a very difficult decision to make, and that we wanted to be able to make it ourselves, based on the best advice from our doctor, without a judge or a prosecutor sitting over our shoulders ready to countermand that decision.
So while there is a legitimate debate about restrictions on late-term abortions, there must also be a strong presumption in favor of the judgment of parents and doctors, even at the risk that some will use their authority immorally.
And here is where the Gosnell case cuts both ways. One left-leaning commentator on the Gosnell case cited it as an example of the importance of regulation, which struck me as a real howler, because a big aspect of this story is the negligence and indifference of the many regulators who were supposed to be watching Gosnell’s clinic, who did nothing to prevent him from performing botched procedures with unsterile equipment, despite repeated warnings and complaints. The motive appears to have been overtly political, from the pro-abortion side. Regulators were afraid that any regulation or inspection of clinics could be used to harass abortion doctors—so they responded by performing no inspections at all and following up on none of the complaints filed against Gosnell. Yet there will be no trial for the regulators, because that is how the regulatory state works: regulators supposedly “guarantee” our safety, but with no risk of suffering any personal consequences if they fail. So this is partly a story of the failure of the regulatory state.
Spectacular bureaucratic incompetence in the service of one political agenda could easily be replaced by spectacular bureaucratic incompetence in the service of an opposite agenda. A regime that was negligently lax in service to a pro-abortion agenda could become oppressively intrusive in service to an anti-abortion agenda. This is why I am distrustful of any government involvement and think we should err on the side of giving parents and doctors the maximum freedom of choice to decide when an abortion is necessary and moral. Which makes me strongly inclined to decide the issue in favor of making birth the cutoff for government regulation and relying on what is called the “first breath” rule: a child has a legally enforceable right to life from the moment he draws his first breath out of the womb.
As I have observed in my RCP newsletter, the Gosnell case has not settled the abortion debate; it has restarted it. But neither the left nor the right are really prepared to address the issue in fundamental terms. The left has largely opted for evasion and political spin. As for the right, consider an interview about the Gosnell case with conservative “bioethicist” Leon Kass. As a long-ago student of Professor Kass, in a seminar on Aristotle’s ethics, I was impressed with the depth and seriousness of his mind. Yet he has a tendency to talk in terms of words like “repugnance” and “dignity,” which are concepts for moral emotions, i.e., for how we feel about moral issues, but which are inadequate to define the substantive moral issues at stake. So in a way, both sides have abandoned the field of proper philosophical argument, on an issue that really requires it.
It is important to fill that gap, to know where we stand philosophically, and to clearly define our principles, because this debate is just getting started.