The Questions No One Is Asking About the Kermit Gosnell Case

In this March 8, 2010 photo, Dr. Kermit Gosnell is seen during an interview with the Philadelphia Daily News at his attorney'
In this March 8, 2010 photo, Dr. Kermit Gosnell is seen during an interview with the Philadelphia Daily News at his attorney's office in Philadelphia. Three years after drug agents stumbled upon a gruesome medical clinic in West Philadelphia, abortion doctor Kermit Gosnell is going on trial on eight counts of murder. Jury selection is set to start Monday, March 4, 2013 in the death penalty case. Opening statements are scheduled for March 14. (AP Photo/Philadelphia Daily News, Yong Kim) MANDATORY CREDIT NO SALES

Co-written with Carol E. Tracy

With Kermit Gosnell's criminal trial underway in Philadelphia, public outrage at the physician accused of murdering one woman and seven infants increases with each grisly new piece of evidence.

But the Gosnell trial raises several inescapable questions: How could this happen? In particular, how, in a state that has led the nation in imposing restrictions on abortion, could such atrocities go undetected? Just as puzzling is why the numerous complaints against him were ignored.

The answer is simple: Throughout the 1970s and 1980s, when abortion policy was established, the Commonwealth of Pennsylvania's primary goal was to overturn Roe v. Wade and, barring that, impose as many barriers as possible to limit access to abortion. By and large, our policymakers have never viewed abortion as a medical procedure - instead placing it under the Pennsylvania Crimes Code -- and therefore have not nurtured a system of abortion care that is woman-focused, readily accessible, and responsive to their medical needs. The Commonwealth's focus has been on denying access, not protecting the health and safety of women who need this medical care. If the charges against Gosnell prove true, Gosnell was an outlaw who repeatedly violated numerous laws and should have been shut down years ago, but the state did not hold him accountable to its own laws and policies.

So why did women go to his clinic? Why not choose a legitimate, reputable provider of abortion care? During a Senate Public Health and Welfare Committee hearing on proposed abortion regulation bills, Tyhisha Hudson, a woman who had obtained an abortion at Gosnell's clinic, was asked why she went to him. She testified that women in her neighborhood knew that Gosnell was the man you saw for the cheapest abortion.

Another Gosnell patient, Davida Johnson, noted in an Associated Press article that she intended to go to Planned Parenthood for an abortion procedure, but was scared away by anti-abortion protesters picketing outside the clinic. An acquaintance suggested she go to Gosnell, where protesters (ironically) were not an issue.

Evidence suggests that a number of factors influenced a woman's decision to seek care at Gosnell's clinic: Medicaid's refusal to provide insurance coverage for most abortions; the scarcity of abortion providers in Pennsylvania (and across the nation); the fear of violence perpetrated by protestors at clinics, and the right-wing culture that has so stigmatized abortion that many think it is still illegal 40 years after Roe v. Wade.

It is critically important that the women of Pennsylvania know that abortion is legal and is a safe medical procedure. As set forth in the Gosnell Grand Jury Indictment, legitimate providers, like Planned Parenthood and members of the National Abortion Federation, follow the law and standard medical procedures.

Unfortunately, politicians in Congress and in Harrisburg continue to make it more and more burdensome for women to get safe abortions. Since 1976, Congress has annually re-authorized the Hyde Amendment, which bans federal Medicaid coverage of abortion care except in cases of rape, incest, or if the pregnant woman's life is endangered. Pennsylvania law likewise restricts any state Medicaid money from funding the procedure except in those three rare circumstances (rape, incest, and threat to the woman's life), so low-income Pennsylvania women are as a rule responsible for covering the entire cost of an abortion out-of-pocket. This cost equals or exceeds an entire month of TANF (Temporary Assistance for Needy Families) assistance benefits for most families.

Bills currently pending before the Pennsylvania legislature would ban coverage of abortion in health insurance policies sold in the health care exchange under the Affordable Care Act. These extreme measures would ban abortion coverage even when the woman's health is endangered if she is forced to continue a dangerous pregnancy, and even when the coverage would be separately paid for with the woman's own money.

Reputable, careful providers of high quality abortion care are under attack. As a result of an orchestrated campaign of harassment, intimidation and violence against individual doctors and freestanding women's clinics by domestic terrorist organizations like the Army of God and Operation Rescue, the number of abortion providers in the United States declined 38 percent between 1982 and 2005. In Pennsylvania, there is not a single freestanding abortion provider in the hundreds of miles between Pittsburgh and Harrisburg.

To compound the provider shortage problem, the Pennsylvania legislature passed a new law in 2011 modeled after a bill on the wish list of the National Right To Life Committee: mandating that the remaining handful of abortion providers come into compliance with volumes of costly regulations designed for ambulatory surgical facilities where much more complex surgeries take place. Today, there are just 13 freestanding providers of surgical abortion care in Pennsylvania, down from 22 two years ago.

Pennsylvania is not alone in developing strategies to regulate abortion care right out of existence. In fact, state legislatures have enacted 135 abortion restrictions in the last two years, according to the Guttmacher Institute.

For readers who feel this doesn't apply to them, mark our words, it does, because it is likely that you know someone who has had an abortion. One in three women will have an abortion by the time she is 45. Between 30 and 40 million women have had abortions since Roe v. Wade was decided in 1973.

History tells us that whether abortion is legal or illegal, women will have abortions - the only difference is whether women live or die. As in the pre-Roe days, women with resources can usually find quality care; but those without resources will often seek out the cheapest possible care. The long-term impact of burdening and stigmatizing abortion care could be that the most vulnerable women will once again have to risk their health and lives to get what should be a completely safe and common medical procedure.

Kate Michelman is President Emeritus of NARAL Pro-Choice America and co-chair of WomenVote Pa, an initiative of the Women's Law Project.

Carol E. Tracy is Executive Director of the Women's Law Project and co-chair of WomenVote Pa, an initiative of the Women's Law Project.