Abstract

This conference was prompted by the prosecution of Dr. Kermit Gosnell, who ran an abortion clinic in Philadelphia, Pennsylvania. Dr. Gosnell was convicted in May of 2013 of charges arising from the killing of viable infants born in his clinic, the negligent death of an adult patient, and the systematic disregard of regulations governing the performance of abortions in Pennsylvania. One question proposed for our consideration is whether Dr. Gosnell is an “outlier,” a description offered by the National Abortion Federation following Gosnell’s indictment.

Presumably, one might want to know whether Gosnell was typical of abortion providers because it could shed light on contested questions concerning the justification for new abortion regulations. If Gosnell is uncharacteristic of abortion providers, one might argue, then his prosecution does not suggest the need for additional oversight. In this short essay, on the other hand, I argue that whether or not we can currently identify more providers like Gosnell, and there may well be some, his dangerous medical practice was a foreseeable consequence of the unsupervised market for abortion services in which he operated.

Dr. Gosnell was able to routinely violate Pennsylvania law because Pennsylvania health officials decided access to abortion should be prioritized over monitoring compliance with regulations designed to ensure the safety of abortion procedures. Prioritizing access over safety is an ironic development in the history of abortion rights activism. A key argument for recognizing a constitutional right to abortion was that legalization would promote safety by ensuring that abortions were performed by licensed medical professionals subject to oversight by the state, a premise undermined by the laissez-faire practices of Pennsylvania officials.

Any concern that oversight of abortion clinics might unnecessarily restrict access can be adequately addressed through the familiar principle of general applicability. There should be no question that states can properly enforce against abortion clinics regulations applied generally to other medical facilities presenting comparable risks to health.

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