NRO Falsely Attributes Gosnell's Crimes To An Increasingly Anti-Choice Court

The National Review Online falsely attributed convicted murderer Kermit Gosnell's illegal practices to judges who have “declared every abortion sacrosanct.”

This assertion from a May 13 editorial, “Gosnell is Not an Aberration,” flies in the face of a mounting pile of judicial decisions upholding restrictions on abortion and Roe v. Wade's explicit holding that the right to reproductive choice is not unqualified.

NRO identifies judges as “enablers” of Gosnell's illegal practices, stating: 

Gosnell had thousands of enablers: every judge and justice who has declared every abortion sacrosanct, every politician who has blocked meaningful regulation and oversight of the practice, and every intellectual who has furthered the notion that what resides in a woman's womb is nothing more than a meaningless clump of cells.


The Supreme Court in theory allows for the protection of infants who have reached the stage of viability, but in practice the Court has made enforcement of such laws all but impossible, which is why prosecutions of late-term abortions are exceedingly rare, even in states such as Pennsylvania, where the practice is nominally illegal.

The Supreme Court's decisions do not support this.  Notably, although the Court in Planned Parenthood of Southeastern PA v. Casey, concluded that “the essential holding of Roe v. Wade should be retained and once again reaffirmed,” the Court also upheld four provisions of a Pennsylvania statute that sharply restricted access to abortion--striking down only a provision requiring a woman to provide a signed statement that she had notified her spouse of her intent to seek an abortion.

Writing for a plurality of the Court, Justice Sandra Day O'Connor explicitly defined Roe's holding to include limitations on the right to terminate a pregnancy:

First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

In keeping with these three interests, the plurality upheld an informed consent provision, pre-procedure counseling requirements, a 24-hour waiting period, and a parental consent requirement for minors. These restrictions remain on the books today, a fact that NRO recognized:  “The state of Pennsylvania disallows most abortions after the 24th week of pregnancy, meaning that practically all of Gosnell's late-term abortions were crimes.”

Not only did the Casey court uphold significant restrictions, it did so by a bare plurality. As Justice Harry Blackmun noted in a separate opinion, Roe hung by a thread:

Three years ago, in Webster v. Reproductive Health Serv., 492 U.S. 490 (1989), four Members of this Court appeared poised to “cas[t] into darkness the hopes and visions of every woman in this country” who had come to believe that the Constitution guaranteed her the right to reproductive choice. Id., at 557 (Blackmun, J., dissenting). See id., at 499 (opinion of Rehnquist, C.J.); id., at 532 (opinion of Scalia, J.). All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame. Decisions since Webster gave little reason to hope that this flame would cast much light. See, e. g., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 524 (1990) (opinion of Blackmun, J.). But now, just when somany expected the darkness to fall, the flame has grown bright.

I do not underestimate the significance of today's joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.

Justice Blackmun's prediction that the Court's composition could affect the right to choose proved prophetic.  In its 2000 opinion in Stenberg v. Carthartthe Court reaffirmed the right to terminate a pregnancy when necessary to preserve a woman's health and thus struck down Nebraska's limitation on so-called “partial birth abortions.” 

However, only six years later in Gonzalez v.Carhart, the Court upheld a similar federal ban.  As Justice Ruth Bader Ginsburg noted in her dissenting opinion, “for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.”  She observed that the decision was in direct conflict with its prior precedent, and identified the Court's composition as the reason for that departure:

Though today's opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of “the rule of law” and the “principles of stare decisis.” Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman's health. See supra, at 7, n. 4. Although Congress' findings could not withstand the crucible of trial, the Court defers to the legislative override of our Constitution-based rulings. See supra, at 7-9. A decision so at odds with our jurisprudence should not have staying power.

Nonetheless, NRO mischaracterizes the Court's decisions, which have increasingly limited Roe's reach:

Thanks to the misguided social entrepreneurship of the Supreme Court, abortion is protected as a constitutional absolute, and late-term abortions, grisly as they are, enjoy substantial protection as well.