- The Washington Times - Wednesday, July 20, 2022

The post-Roe blue-state drive to wipe out barriers to abortion has pro-life advocates worried about grisly worst-case scenarios, and the scenarios don’t get any grislier than the Kermit Gosnell case.

The Philadelphia abortion doctor was convicted in 2013 on murder charges in the deaths of three born-alive infants, but often overlooked is that Gosnell was able to avoid regular inspections for 17 years thanks to political concerns about discouraging reproductive rights.

Gosnell was killing in plain sight, but regulators chose to look away because they didn’t want to shine a spotlight on abortion,” said journalist Ann McElhinney, host of a newly released Gosnell podcast. “Women and babies suffered because politicians and regulators chose politics and ideology over the law and protecting women.”

“Serial Killer: A True Crime Podcast” launched June 23, the day before the Supreme Court overturned Roe v. Wade, offering a reminder about the nation’s most notorious abortion doctor and a cautionary tale about the present-day blue-state drive to throw off abortion regulations.

The Gosnell grand jury report found that annual inspections of abortion clinics were halted in 1999 under Pennsylvania Gov. Tom Ridge, a pro-choice Republican, to avoid putting up barriers to women seeking abortions.

“Then, only complaint-driven inspections were supposed to be authorized,” the 2011 report stated.

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One health department official testified that “there was a concern that if they did routine inspections, that they may find a lot of these facilities didn’t meet [the standards for getting patients out by stretcher or wheelchair in an emergency], and then there would be less abortion facilities, less access to women to have an abortion.”

Gosnell’s filthy, substandard clinic was discovered in a 2010 drug raid. In addition to murder, he was found guilty by a Philadelphia jury of manslaughter in the death of a woman who died during an abortion and 21 felony counts of illegal late-term abortions.

“This ‘Serial Killer’ podcast gives us extraordinary access to the details of the Gosnell case but also an understanding of what is legal in America. The timing couldn’t be more perfect,” said Ms. McElhinney, who co-wrote and produced the 2018 movie “Gosnell” with her husband, Phelim McAleer.

What concerns pro-life advocates is that the blue-state drive to sweep away restrictions could create the conditions for another such disaster by discouraging oversight in the name of protecting abortion rights.

The Gosnell investigation turned up horrors at the clinic, including jars of months-old aborted fetal remains; bloody, reused equipment; and unqualified staff, including a teenager administering anesthesia.

The case spurred a push for tighter regulations on abortion clinics. 

Twenty-three states now require abortion clinics to meet the same standards as outpatient surgical centers, according to the pro-choice Guttmacher Institute.

At the same time, the rules have frustrated pro-choice advocates who accuse abortion opponents of passing burdensome requirements that “do little to improve patient care but that set standards that may be impossible for providers to meet,” Guttmacher said.

In the abortion rights movement, such restrictions are known as “TRAP,” which stands for “targeted regulation of abortion providers.”

“Abortion providers in the United States are subject to strict evidence-based regulations (such as state licensing requirements, federal workplace safety requirements, association requirements and medical ethics) created specifically to ensure patient safety,” the institute said. “However, nearly half of states have imposed additional regulations, targeted specifically at abortion clinics that go beyond what is necessary to ensure patient safety.”

Access vs. regulation

With the fall of Roe v. Wade, Democrats are moving to expand access to abortion by eliminating restrictions and making it more difficult for lawmakers to add them.

In California and Vermont, voters will decide in November whether to enshrine abortion rights in their state constitutions. The New York Legislature is moving in the same direction with a measure to make abortion a state constitutional right that could go before the voters in 2023 or 2024.

Michigan pro-choice advocates last week submitted more than 753,000 signatures, well above the threshold, to place a measure on the ballot adding abortion rights to the state constitution.

“This ballot measure is a blueprint for other states to preserve or restore reproductive freedom in their state post-Roe, and allow their residents to make and carry out decisions in all matters related to pregnancy without political interference,” the American Civil Liberties Union of Michigan said in a statement.

Illinois already has some of the most lenient laws in the nation, thanks to a 2019 bill declaring abortion a “fundamental right,” but Gov. J.B. Pritzker, a Democrat, announced last month that he will call a special session of the state legislature to “further enshrine our commitment to reproductive health care.”

March for Life Chicago Executive Director Kevin Grillot blasted the 2019 Reproductive Health Act, saying “a tanning salon in Illinois has more regulations than an abortion clinic.”

Even if efforts to “codify Roe” don’t change state health and safety standards, pro-life advocates say, they offer a legal avenue to block restrictions in the name of protecting abortion rights.

In Vermont, Proposal 5 would amend the state constitution to say that “personal reproductive autonomy … shall not be denied or infringed unless justified by a compelling state interest achieved by the least restrictive means.”

That broad language worries opponents such as state Rep. Anne Donahue, a Republican who heads the “No on 5” group Vermonters for Good Government.

“At a minimum, regulators will be intimidated about any intervention that might be perceived as impinging on a right: The message is, ‘leave it alone,’” she said in an email. “It clearly affects the ‘atmosphere’ around health or safety oversight. And while we can assume every health provider wants to uphold high standards, we provide oversight because there is always the risk of a negligent actor, or just carelessness.”

The measure also raises questions about whether certain licensing rules would be permissible, she said.

“Would a requirement for licensing of an abortion facility be constitutional? There is no way to know because all decisions about the scope of this new right are turned over to the courts to interpret,” Ms. Donahue said. “If a facility or provider safety regulations were burdensome and thus interfered with access, the court would make the determination of the degree of compelling state interest involved.”

Spurred by the Gosnell case, Pennsylvania passed legislation in 2011 requiring abortion clinics to meet the same regulatory standards as outpatient surgery centers, drawing the opposition of the American Civil Liberties Union and Planned Parenthood of Southeastern Pennsylvania.

The ACLU of Pennsylvania accused lawmakers of trying to “regulate out of business women’s health clinics that provide abortion care” by requiring expensive renovations.

In 2013, Planned Parenthood said it cost $450,000 to bring two of its facilities into compliance with the law, even though their rate of medical complications was less than 1%.

“They were thinly disguised as improving patient safety, when really it was about increasing the cost for abortion providers — hoping that some of them wouldn’t be able to afford it,” Planned Parenthood affiliate CEO Dayle Steinberg told NPR.

Mr. McAleer, meanwhile, said he worries that the pendulum has swung too far in the other direction.

Eighteen states and the District of Columbia allow non-doctors to perform abortions. In California, that includes licensed nurse-midwives, nurse practitioners and physicians’ assistants with “the proper training,” according to Planned Parenthood.

Gosnell must be shaking his head in amazement,” Mr. McAleer said. “He was prosecuted for doing ultra-late abortions and allowing unqualified people to perform abortions. Now places such as California and New York are coming very close to legalizing these practices.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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