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Kermit Gosnell Grand Jury Excerpts: “The wrongful death of a viable fetus is deemed a homicide. DOH must ensure that the law is applied to protect those least able to protect themselves.”

by | Apr 22, 2013

By Dave Andrusko

Page1re-216x300Monday is the beginning of abortionist Kermit Gosnell’s defense. He is charged with eight counts of murder. The outlines of Jack McMahon’s counter-narrative are already clear. (1) None of the seven babies aborted alive were alive when Gosnell slit their spinal cords, contrary to a convoy of witnesses who said they were; (2) Mrs. Karnamaya Mongar died not because of excessive pain killers administered by Gosnell’s untrained assistants but because of preexisting conditions she kept hidden from Gosnell.


Pennsylvania’s abortion regulations, written by the Department of Health, are totally inadequate to protect the health and safety of women at abortion clinics.

The abhorrent conditions and practices inside Gosnell’s clinic are directly attributable to the Pennsylvania Health Department’s refusal to treat abortion clinics as ambulatory surgical facilities. But even if DOH’s [Department of Health’s] position with respect to whether abortion clinics are ASFs were reasonable – which it is not – that interpretation would not excuse the department’s abdication of its duty to afford women who go to these clinics the same types of safeguards that plastic surgery patients receive. This is because – whether a facility is called an ambulatory surgical facility, a hospital, or a freestanding abortion clinic – the legislature with the Abortion Control Act has charged DOH with the duty to write and enforce regulations that protect the health and safety of women undergoing abortion procedures.

DOH’s position is that one subsection of the abortion regulations – 28 Pa. Code §29.33 – contains all of the rules necessary to ensure that women will be protected. But patients at any other ASF are protected by 30 pages of rules and regulations. 28 Pa. Code §§ 51.1 et seq. Gosnell’s clinic, which operated for decades with impunity, constitutes more than sufficient proof that one subsection of regulations, without monitoring, licensing, or inspections, offers inadequate protection.

Given that DOH is capable of writing and enforcing regulations that are comprehensive and enforceable, such as those governing ASFs, we question whether DOH officials have even tried over the decades to protect women who go to clinics for abortion procedures. The ASF regulations, for example, require that patients undergoing every other kind of ambulatory surgery be monitored with high-tech equipment while under anesthesia. The abortion regulations, on the other hand, require that the facility have the high-tech equipment, but do not require that it be used (28 Pa. Code § 29.33(1) and (2)). There is not a single provision in the abortion regulations relating to infection control (nothing to prohibit Gosnell from eating cereal while doing procedures, for example, or from reusing single-use instruments, or from allowing sick, flea-infested cats in the procedure rooms), whereas several pages of rules cover infection control at ASFs.

Most importantly, the abortion regulations include no requirement for DOH ever to inspect or monitor abortion providers. The Grand Jury was astonished to discover that abortion clinics in Pennsylvania, unlike any other health care facility, are apparently supposed to operate on the honor system.

Many abortion clinics deliver quality care because that is their mission. But what if a particular doctor’s mission is to maximize profits by cutting corners? He may hire unqualified staff, reuse instruments, administer expired drugs, tolerate unsanitary facilities, and use obsolete and broken equipment – until one or more of his patients dies. Then, after law enforcement gets involved, DOH might take action.

This is what happened in Gosnell’s case. It is not a workable system for regulating health care facilities that perform one of the most common surgical procedures, or for assuring safe medical care for the women of Pennsylvania.

The laws and regulations designed to protect viable late-term fetuses and infants aborted alive can only be effective with Department of Health oversight.

In contrast to the provisions of the abortion regulations that are supposed to protect women’s health at abortion facilities, those designed to protect late-term fetuses and infants born alive should have been sufficient to accomplish that purpose. Late-term fetuses, because of their advanced gestation and likely viability, are accorded certain legal rights. Pennsylvania’s Abortion Control Act strictly prohibits abortions “when the gestational age of the unborn child is 24 or more weeks.” The only significant exception is to prevent the pregnant woman’s death or the “substantial and irreversible impairment of a major bodily function of the woman.” 18 Pa.C.S. §3211(b)(1).

Pennsylvania law also requires medical practitioners to resuscitate babies that are born alive. The Abortion Control Act states: “All physicians and licensed medical personnel attending a child who is born alive during the course of an abortion or premature delivery, or after being carried to term, shall provide such child that type and degree of care and treatment which, in the good faith judgment of the physician, is commonly and customarily provided to any other person under similar conditions and circumstances.” 18 Pa.C.S. §3212(b).

Gosnell routinely performed abortions beyond the 24-week limit. He was ruthless in severing the spinal cords of viable babies outside their mothers’ wombs. This conduct clearly constitutes prosecutable criminal behavior. In order for district attorneys to be able to prosecute, however, the crimes must first be detected. This is DOH’s job – to ensure that violations of Pennsylvania health care laws are detected. Its inspectors must review files as part of their inspections. They must look at ultrasound tests and pathology reports on second-trimester fetuses. They must make sure that informed and parental consent forms have been signed and that abortions have been reported to DOH.

Instead, Pennsylvania officials have created what amounts to an honor system, a system conspicuously lacking in regulatory oversight or enforcement. If DOH abdicates its responsibility to monitor and inspect abortion clinics, the protections that the Abortion Control Act provides to prematurely born infants and unborn post-24-week fetuses become meaningless to those willing to break the law. The wrongful death of a viable fetus is deemed a homicide. DOH must ensure that the law is applied to protect those least able to protect themselves.

Tomorrow: “Assuring safety at abortion clinics has been a low priority for Pennsylvania’s Department of Health for decades.”

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Categories: Gosnell