Are states harboring untold scores of Kermit Gosnell clones that are murdering aborted, but still living, fetuses in clinics across the country? In its letter to state attorneys general nationwide, the House Judiciary Committee seems to think so, taking at face value the anti-choice bogeyman of the soulless abortion doctor, slaughtering newborns in clinics across the country with nary a second thought.
The committee sent letters to all 50 state attorneys general, inquiring about criminal prosecutions related to abortion. The letters specifically cite the Born-Alive Infants Protection Act, a 2002 federal law “which provides that all federal protections for persons apply to every infant born alive.” It asked state attorneys general whether “prosecutors in your state treat the deliberate killing of newborns, including those newborns who were delivered alive in the process of abortions, as a criminal offense?” and requested that state officials provide a log of cases for the years 2008 to 2013 in which the act has been used in prosecutions.
The answers provided by states show that Gosnell was, in fact, a rogue provider, and that there is no evidence of a pattern of infants being “born alive” after an abortion, much less of doctors killing infants in those circumstances. (Pennsylvania’s attorney general told RH Reality Check that it did not have a copy of what it had sent to the House Judiciary Committee, or whether it had in fact replied to the committee’s inquiry.)
In responses from 38 attorneys general to date, not one AG office provided evidence that it has ever had cause to prosecute a physician for delivering and then killing a viable fetus, indicating that this notion—that there are multiple cases of fetuses surviving an abortion, only to be killed by a doctor—is a confection of the anti-choice camp, designed to replace fact-based arguments with the lowest form of fear-mongering.
Many of the responses from the attorneys general sound much like this one, from the Utah attorney general:
We did not find any cases in which a person was prosecuted for the deliberate killing of a newborn who was delivered alive in the process of an abortion. Similarly, prosecutors did not indicate that they had prosecuted any cases because a woman died or suffered serious complications as a result of an abortion. Finally, we did not find any cases in which a person was prosecuted for performing abortions after the statutory period.
RH Reality Check has posted the responses from the attorneys general as part of our State of Abortion series. Our analysis of those responses shows that abortion is highly regulated and overwhelmingly safe. These findings hammer home the point that Pennsylvania’s Kermit Gosnell was an outlier. He has been convicted of first-degree murder and involuntary manslaughter, and has pleaded guilty to federal drug charges. He has been sentenced to life in prison without parole.
The uniformity of responses from state attorneys general on the question of so-called born-alive infants reflects the reality of the practice of legal abortion in the United States: 88 percent of legal abortions performed happen before 12 weeks’ gestation, according to the Guttmacher Institute, and well over 90 percent in the first 14 weeks. That reality is nothing like the nightmarish hyperbole put forward by the anti-choice movement.
When later abortions do occur, they can hardly be called “elective.” As Willie Parker, a Washington, D.C.-based doctor who provides later abortions, told the Washington Post last year, his patients come to him under “difficult circumstances,” with fetal genetic anomalies or in extreme poverty.
Vicki Saporta, president of the National Abortion Federation, a professional organization of voluntarily self-regulating abortion providers nationwide, told RH Reality Check that evidence of “born-alive” infants killed by abortion providers is “not what anybody’s going to find.”
“This is not the standard of care or practice,” she said. “This is not what takes place at abortion clinics throughout the country.”
In fact, when individuals are prosecuted for the killing of newborns under the Born-Alive Infants Protection Act and state laws that mirror it, attorneys general report that they are parents, not physicians.
Michigan, for example, cited four cases of criminal prosecutions in the murder of a newborn child, all of which involved women who had recently given birth and asphyxiated, suffocated, or drowned a newborn..
In its response, the Idaho attorney general cites the tragic case of Jennie Linn McCormack, a woman who ordered medical abortion pills online in 2011 because she could not access or afford safe, legal abortion near her home, then used the pills to abort a non-viable fetus. Her case was ultimately dismissed.
But this question of “born-alive” infants after abortion has become a particular favorite among right-wing lawmakers looking to trap reproductive rights activists into advocating for murder.
During a state committee hearing in Florida earlier this year, anti-choice legislators ambushed a Planned Parenthood lobbyist with a “born alive” inquiry. Lawmakers asked her to consider a situation that is very real in terms of the crimes committed by Kermit Gosnell, but wildly hypothetical in the typical day-to-day practice of safe, legal abortion care as it is currently practiced in the United States. Flummoxed, the lobbyist struggled to answer questions that were largely based on a myth.
Responses both from states that heavily regulate abortion providers and abortion as a procedure—as South Dakota does—and states that place very few restrictions on either—as is the case in Vermont—are very much the same: They do not have cause to believe that their abortion providers are committing Gosnell-like atrocities, either rarely or with frequency.
Of course, as we receive more responses from state attorneys general, additional cases may come to light. For instance, a Florida doctor, James Scott Pendergraft IV, was subject to a $37 million judgment after one of his patients went into labor and delivered a daughter, in November 2001. The child survived, but “suffered catastrophic and permanent bodily injuries, impairment, disability, [and] disfigurement,” according to news accounts of the court documents. Many of these injuries were a result of her being born prematurely, at around 23.3 weeks. A pregnancy is generally considered full-term at 37 weeks.
Neither Pendergraft nor the other physician at the clinic had personally examined or assessed the patient, according to court documents, and her pregnancy was several weeks more advanced than she reportedly knew.
The Florida Board of Medicine has disciplined Pendergraft on numerous occasions. In 2007, it suspended Pendergraft’s medical license, and fined him $10,000 for allegedly performing an illegal third-trimester abortion. We are awaiting a copy of the Florida attorney general’s response to the committee, and will post it when it is received.
But even this case underscores the point: Instances of illegal providers can be found, but they are extraordinarily rare. And horrific as those cases may be, these two examples do not support any claims of a pattern of such cases throughout the United States.
Based on the evidence provided by states themselves, it is more than a little misleading for the House Judiciary Committee to suggest that newborn children are being murdered by abortion providers with regularity and abandon; it is the very myth-making and fear-mongering on which they increasingly rely in their push to eliminate safe abortion care.