Twelve years ago on a Friday in November, Gary Ridgway was leaving the truck factory where he worked in Renton, Washington when he was apprehended by police and taken into custody. DNA evidence tied him to four murders but he had quietly been suspected by authorities in a much larger case, the Green River killings, for nearly two decades. The DNA had finally given investigators enough to act on and in a short time, with further evidence accruing, the dam broke and details came flooding in. Ridgway pleaded guilty to 49 murders*, confessed to 22 more, and is serving out 49 consecutive life sentences without parole in Washington State Penitentiary. With 71 identified victims and more than twenty others from unsolved cases still suspected, he is the most prolific known serial killer in United States history.
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Last month began the trial of Dr. Kermit Gosnell, a Philadelphia abortion doctor facing eights counts of murder stemming from egregious malpractice and routine performance of late-term abortions. One of the eight was a patient, the other seven infants who were born alive and summarily “snipped” (“sticking scissors into the back of the baby’s neck and cutting the spinal cord . . . He called it ‘ensuring fetal demise’” — per the Grand Jury report). This summary hardly does the situation justice — Gosnell is responsible for the death of at least one other patient and many, many more infants — but I have neither the heart nor stomach to recount all the facts in their grotesque detail here. But you should read them. I suggest Conor Friedersdorf’s recent summary of the case or, if you can handle more, the 2011 Grand Jury Report itself. What they describe is a carnival of horrors more resembling the nightmares you would find in the pages of ghoulish fiction than anyone’s wildest conception of a daily reality in sunny Philadelphia. Add to this a colossal and willful negligence by state regulators and you have a clinic that managed to conduct these practices for decades with virtually no interference.
As the trial unfolds more gruesome details continue to emerge, with witnesses speaking to their own experiences with the “Women’s Medical Society.” The big story last week, however, was the non-story: the seeming dearth of coverage by major media outlets of what is clearly a horrific and important story on many levels. Friedersdorf’s column argues well why any one aspect of the case taken in itself would be enough to warrant significant national attention. Yet it was not until a recent campaign by outraged Twitter users to shame mainstream media into covering the trial, and a handful of sobering columns which broke through the “media blackout,” that the story began showing up in anything more than short asides. Kirsten Powers got the ball rolling on the national stage with her USA Today piece, Friedersdorf’s Atlantic write-up shortly followed, and some prominent bloggers—Erik Wemple and Mollie Ziegler Hemingway, among others—have helped bring the issue of media silence to the fore.
The arguments of Powers et al. have been met with some pushback. The “media blackout” is a right-wing myth—so says Irin Carmon, citing a handful or two of pieces about the trial by feminist journalists and a few by major news sources when the story first broke with Gosnell’s arrest in 2011. Surely these counterexamples dispel the ridiculous notion of some concerted media effort to keep everyone quiet. But as David Weigel astutely points out, the peculiarly scant coverage of Gosnell can be a true and unsettling phenomenon without being an active conspiracy, and prominent feminist voices (who have drawn their own lesson from the story, as we will see later) are not necessary the same as the NBCs, NYTs, etc.
A factual clarification of what was actually out there should, so far as it goes, be welcomed. Some have perhaps overstated the supposed blackout by suggesting that zero has been written or discussed by the major players (excepting FOX). This is not strictly true, but acknowledging this does nothing to undermine the larger point that something strange may very well be going on. The real objection is not an all-or-nothing claim of coverage/no coverage but one of proportionality. A dripping faucet is problematic if the circumstance merits a steady stream.
Still others have acknowledged and yet defended the media’s generally subdued response by weakly asserting there is no “angle” to the story as a sustained talking point of national interest — nobody disagrees that Gosnell’s deeds were monstrous and there are few if any ramifications from this isolated case that bear on larger policy issues. This is certainly false (again, see Friedersdorf) but Washington Post health policy reporter Sarah Kliff assumed this line when questioned by Hemingway about her total absence of coverage:
Hi Molly – I cover policy for the Washington Post, not local crime, hence why I wrote about all the policy issues you mention.
Margaret Sullivan, public editor for the New York Times, defended her paper’s coverage (one piece since the trial began, as it has been noted) in a similar vein as “[n]ot insubstantial, and pretty typical for such a case. Could be more but that’s always true.”
There is a ready retort to these explanations but I am willing to make a few concessions. It is true that some stories grip the public imagination by their immediacy, intensity, or any number of circumstantial factors which may cause some to take off and others to fade away or barely get off the ground at all despite the attention they may “deserve.” Part of that is natural. Part is also engineered: I would hardly suggest that the Gosnell case is the first victim of curiously lopsided reportage or that the media otherwise maintain a steadily healthy balance of coverage in proportion to its subjects. And we can be thankful that many movers and shakers have begun to take notice, picking the story up at last or pledging to report on it soon (a nice summary of these recent developments appearing here).
Nevertheless, that anyone could relegate the Gosnell murders to “local crime,” or identify a moderate level of coverage “typical for such a case,” is baffling in the extreme. I wonder what comparative cases Ms. Sullivan might have in mind, of if she is aware of just what scale on which the clinic’s operations were conducted. I don’t mean to reduce one iota the gravity of the crimes for which Gosnell currently stands trial by saying that his present legal predicament is like Al Capone going down for tax evasion. The charges — as horrible as they are alone — are merely the tip of a very large iceberg.
There is something unseemly about comparing tragedies by the numbers, as if the devastation and heartbreak were, or ever could be, bundled and contained in a neat row of figures. Acts of grave evil are unholy snowflakes, each its own permutation of perverse calculation. But numbers give us a rough sense of scale that we would otherwise lack and help us place events in proper perspective. The numbers attributable to Gosnell go far beyond the eight counts of murder he is facing in court. The Grand Jury report reveals the true scope of his practices:
- “While the evidence before the Grand Jury supports only a limited number of murder charges, it is without challenge that Kermit Gosnell, under the pretext of providing medical care, routinely killed viable babies and irreparably damaged women” (116).
- “Gosnell, we are convinced, committed hundreds of acts of infanticide” (247).
- “Steven Massof estimated that in 40 percent of the second-trimester abortions performed by Gosnell, the fetuses were beyond 24 weeks gestational age. Latosha Lewis testified that Gosnell performed procedures over 24 weeks “too much to count, ” and ones up to 26 weeks “very often.” When Lewis started working at the clinic, 20 firsttrimester abortions and five or six second-trimester abortions typically were performed per night. But in the last few years, she testified, Gosnell increasingly saw out-of-state referrals, which were all second-trimester, or beyond” (79).
- “By these estimates, Gosnell performed at least four or five illegal abortions every week” (Ibid.).
Gosnell performed abortions in his Philadelphia clinic for 37 years.
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“Local crime”? “Typical” case? If the truth is near a fraction of the Grand Jury’s reasonable estimates then Gosnell has killed on a historic level. What analogate to this factory of death do the seasoned journalists have at the hip? “Because files were falsified or removed from the facility and possibly destroyed, we cannot substantiate all of the individual cases in which charges might otherwise have resulted” (115). Yet Gosnell is alleged to have killed in tallies that far exceed the worst known serial killer in American history. How could this have gone on for so long, and how could we treat it as just another story?
With Green River it has been noted that Ridgway’s success in evading detection for decades was closely linked to his choice of victim. Most were prostitutes whose disappearance raised no alarm because so many had nobody waiting for them. In the Women’s Medical Society at 3801 Lancaster this principle was carried further. The women “treated” and staffed were poor, desperate, and inhumanely abused; the most numerous victims were the voiceless, the most defenseless, whose only family had walked them through the door.
In its recommendations following a consideration of the evidence the Grand Jury showed a marked frustration by its inability to level the full brunt of Gosnell’s crimes against him. In addition to the scarcity of actionable evidence due to the systematic removal and presumed destruction of files, it faced a Pennsylvania law which maintained a two-year statute of limitations on cases of infanticide (infanticide being the failure to provide medical care—a passive killing, or letting die—versus the active “snipping” which is considered full homicide). The Grand Jury, seeing these acts with their full horror in Gosnell’s practices, tore through the flimsy distinction:
- “At Gosnell’s clinic, no steps were ever taken to attend to these babies [born alive], according to his employees. Every time that Gosnell failed to provide appropriate care and treatment to a child born alive, he committed infanticide, under Pa.C.S. § 3212. We were surprised to learn, however, that infanticide is subject to a two-year statute of limitations. That means we are unable to recommend charges for any of the many instances of infanticide that we heard about that occurred before January 2009″ (229).
- “The two-year statute of limitations currently applicable for these offenses is inadequate to their severity” (17).
- “We recommend that the legislature amend the statute of limitations so that infanticide is treated as what it is – homicide. It is important to extend the statute of limitations not only because of the seriousness of the offense, but also because the crime is hard to discover. . . . We are disappointed that we can charge him for only the babies he let die in the past two years. Homicide has no statute of limitations, and neither should infanticide” (208, 247).
The lesson to draw from all this is plain. Imagine if instead of newborns the case concerned toddlers. And for whatever reason, however desperate or sympathetic their circumstances might be, mothers (or fathers) were taking their two-year-olds to a doctor to have them disposed of — either by “snipping” or letting starve. Would this story — a killing clinic operating for decades and slaughtering by the hundreds, if not thousands — receive the same media response? What this true horror story brings to light is that many people — or at least those writing columns — simply do not consider a live newborn baby as a person with the same intrinsic worth as an older child or an adult.
But there is more to it than that. Consider another scenario: Say the doctor adopted the M.O. of the more conventional serial killer and went around slaying healthy delivered newborns against the will of their loving parents. Extend this to the scale of Gosnell’s victim count and imagine how the echoes of these horrors would ring through every crack and corner of the public square. These infants we would value like everybody else. But there was something different about the ones at 3801 Lancaster. The difference is not merely that they were unwanted human beings — see Hypothetical #1 — or that they were very small — see Hypothetical #2. The difference is that they were targeted for an abotion, and it matters little that they happened to be born first.
The “born first” is another complicating wrinkle. The Grand Jury was careful to separate the acts of illegal late-term abortions, taken in themselves, and the murders and infanticides that often followed:
- “We believe, given the manner in which Gosnell operated, that he killed the vast majority of babies that he aborted after 24 weeks. We cannot, however, recommend murder charges for all of these cases. In order to constitute murder, the act must involve a baby who was born alive” (115).
It turns out that illegal abortions also carry a statute of limitations in Pennsylvania, one which the Grand Jury did not find sufficient:
- “The statute of limitations for illegal abortions beyond 24 weeks should be extended to five years. Like infanticide, illegal abortions can go undetected for years, or forever. There is no one to complain and, most often, no witness to testify. Again, the jurors were frustrated that we could not recommend charges against Gosnell for scores of crimes we know he committed. We recommend that the statute of limitations for illegal post-24- week abortions be extended to five years” (247).
You see how the dividing line between the murders, the infanticides, and the illegal abortions in this case are interminably blurred, yet the latter two carry softer penalties for bringing about the same effect with the same willful intent. There may be a genuine difference these categories attempt to reflect, however slight: though Gosnell did most of the snippings himself, in some cases he would have performed the illegal delivery while an assistant did the actually killing. The moral difference is negligible at best, but more than that the restriction of murder charges to post-birth has chilling implications:
- “The neonatologist who testified before the Grand Jury defined ‘born alive.’ According to this expert witness, the federal Born-Alive Infants Protection Act defines a human as ‘somebody who’s been completely expelled from the mother and has either a heartbeat, pulsating cord, or is moving.’ Pennsylvania’s Abortion Control Act defines ‘born alive’ similarly, but adds breathing and brain wave activity as indicators of life. 18 Pa.C.S. §3203″ (99).
Presumably, then, if instead of being delivered breathing into the open air the unborn child were injected with a fatal drug in utero (as some late-term abortionists have done), or killed by partial birth abortion in which the body is not completely expelled before death, or delivered but happening not to be showing signs of life at the moment of delivery (forgoing any attempt at resuscitation) — and any of these were to happen at the exact same gestational period as the child born alive — murder charges could not result. I leave myself open to correction of my understanding (I am neither a lawyer nor a Pennsylvanian) but if my assessment is in fact accurate then I implore the reader to meditate on this absurdity.
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But let us step back for a moment and again take in the larger picture. The reported counts of Gosnell’s full-blown, legally definable homicides are staggering in themselves. Before you even begin to parse out the “lesser” charges of infanticide and illegal abortion there is in this story enough unquestionable murder, before the court or not, to put the soft-coverage media voices to shame. A survey of the general response to these facts shows that many simply haven’t grasped this central feature of the story. If I have spent less time reviewing the many other elements that made this story an outrage — Gosnell’s unconscionable treatment of women patients and employed staff, and the indefensible blind eye turned by state regulators to the whole operation — it is not with any intention to impugn their own importance but merely in an attempt to stretch our imaginations that we might come even a little closer to grasping the true breadth and depth of human loss. It would seem that, editors’ deflections notwithstanding, this magnitude of domestic carnage in the United States has little precedent.
And yet, perhaps not. Pro-lifers say it is happening all over the place, and has been for forty years — perhaps not with the systemic depravity of Gosnell’s clinic but in some ways more unsettling by its routinely cold clinicalness. If every abortion is just as grave as these, with the total since 1973 now climbing upwards of 50 million, then “human crisis” only begins to describe it. Yet this is just the point at which the matter opens to public dispute. I think we have seen enough to dispel the idea that this is merely tragedy in isolation with few discernable policy implications. Among those commentators, then, who do recognize the importance of the story and have expressed in strong terms that there are lessons to draw, we find them falling largely into one of two camps more or less along strong pro-life and pro-choice lines. One side sees in the Gosnell case an indictment of abortion itself, or at least, in its undeniable extremism, as an embodiment of abortion logic carried to its natural conclusion. The other side sees it as a consequence of anti-abortion restrictions which have driven desperate women to seek treatment in the back-alley conditions of Gosnell’s clinic. The parade of nightmares at the Women’s Medical Society had nothing directly to do with abortion as such — they were illegal abortions, after all, and abusus non tollit usum. Imagine how much worse it would be if the pro-life agenda succeeded — in would enable dozens of Gosnells and we would be witnessing these tragedies all the more. The case attests to the very legitimacy, even necessity, of legal abortion.
I will not presume that either side is trying shamlessly to exploit the situation with their remarks. There is something to be said for giving a tragedy its own space and time to breathe and not aggressively coopting it for political purpose; yet it would be a moral failure not reflect on, learn from, and act in response to great moral evils. I think both sides believe we can genuinely learn something important about abortion from this story. Which lessons we decide to draw, however, is crucial.
There is a prima facie absurdity in the strong pro-choice claim that a phenomenon like Gosnell stems ultimately from too many restrictions on abortion. The chronic failure of regulatory agencies to follow up on disturbing complaints about the clinic and their decades-long neglect to inspect and report the facility properly tell precisely the opposite story. A more sophisticated version of this claim would say that of course we need better regulation to protect women from being subject to horrific malpractice and suffering so cruelly. Abortion providers need to be safe, but there is still a deep problem with restrictive anti-abortion measures that make abortions harder to afford for the poor who really need them or more difficult to procure at late stages of pregnancy. This vision of abortion in America adheres to the LSR mantra (“legal, safe, rare”). To some minds, providing widespread yet well-functioning access to abortion services is the only way to avoid these gruesome cases.
But there is a fundamental tension in this position. We’ll have abortion be legal, sure, and safe, of course, but rare? How does that follow from the rest? I struggle to see how making abortions easier to get across the board could in any way incentivize women to employ this now more convenient option less. Relaxing legal restrictions may reduce the rate of illegal abortions, but that is mere tautology and does nothing to reduce abortions as such — it simply shades them under a larger umbrella. Furthermore there is little in this strong pro-choice logic to suggest why keeping abortion rare should even matter. What is at stake that should make us stress (at least in our rhetoric) keeping abortion rare?
To some it may indeed not matter because under legal abortion, the “babies” are not babies all. Others will still lay some vague claim to the rarity ideal while simultaneously pushing policies that make easy abortions more common. Part of this is no doubt grounded in very sincere concern for women who have gone through procedures like those at the WMS. But both responses are alarmingly deaf to the stark human concern at the heart of the story: We can reasonably conclude that Kermit Gosnell murdered hundreds of babies. Not just “fetuses,” whose claims to personhood one might want to dispute. Babies whose rights even the law acknowledges. It is disingenous to conclude that because Gosnell’s actions were illegal they therefore had nothing to do with abortion: He was an abortion doctor in the business of ending pregnancies, which he did with startling efficiency. Coverage issues aside, those who have spoken up — pro-life and pro-choice alike — have condemned Gosnell. He has no supporters, and there we can be thankful for common ground. To emerge from this story any wiser, however, would require us to reflect on why we all agree so forcefully that what Gosnell did was truly wrong. If the concern is not just for the abused women and the apalling conditions and the regulatory fiasco — as heartbreaking and newsworthy and outrageous as it all is — but the born-alive children too, then Gosnell’s clinic is a painful and graphic reminder to all, including pro-choicers, that at least some abortions are unequivocally murder in the fullest, gravest sense.
The Grand Jury’s disappointment with current Pennsylvania law was palpable. The statutes of limtations restricting prosecution of infanticide and late-term abortions to within two years create a hierarchy of legal categories that can rest, as we have seen, on essentially arbitrary distinctions — how one chooses to kill a child of the very same level of development (by scissors or by closet), or the child’s geographic location at the time death (inside the womb or outside it). But if there is there is no true substantial difference between cases and the same set of babies differ only in the extrinsic circumstances of their executions then it can mean only one thing: Their value as human beings is not fixed and inherent but rather variable to the whims of our covenience. All babies are equal, but some babies are more equal than others. Pennsylvania’s muddled via media of lesser punishments shows that we do not treat like cases alike, and our media’s relative complacency for most of Gosnell’s trial (now entering Week 5) testifies strongly to the pervasiveness of this attitude. But in confronting the stark reality of the Women’s Medical Society the lines separating these seemingly well-drawn categories collapse, and one finds that whatever supposed difference was to justify our separate treatment cannot in conscience hold.
Should we really be surprised by Kermit Gosnell? You cannot fault him on consistency. That most abortion doctors are not thoroughly Gosnellian is a genuine cause for thanks, but it is more a tribute to their humanity than their philosophy. For Gosnell it was not so easy to compartmentalize his work. His disregard for human life was systematic: the cruel indifference toward infants, mothers, and employees all flowed and interwove in crooked harmony. He knew the law. Many abortionists will not perform after 20 weeks but the state does not proscribe it until 24, when most babies become “viable” outside the womb (though it is always variable by case — some before, some after). He would routinely report procedures at “24.5″ even if they were actually done at 25, 26, 27. But what difference does a week or two or three or four make, really, when it’s all the same clay? How have our people and government come to know with the iron-clad confidence of law and policy that here, just behind this line, we are immune from ever committing man’s worst crime against another? How could the span of a Lord’s Day to Sabbath be the difference between a paycheck and a prison term?
It is a curious thing. When a life has no value for 23 weeks beyond what we personally decide to give it; when seven days later “something” changes and it suddenly begins to matter, but disregard of that new value is met only with half-hearted, unequal penalties; when even the law catches up but our state and society play dumb to the murder of children because of how they happened to come into the world — is it any surprise that someone somewhere might see through this house of cards?
People matter or they don’t. Gosnell came down on one side but he is hardly the first or the last to go there. If we learn anything from this story it is that there are deep contradictions still to be challenged and resolved if we are ever to decisively choose the other.
*48 in 2003, one more in 2011.