In general I agree with Jon Shields (in his post below ) about the absurdity of marking birth as the decisive moment when a child acquires moral worth under our laws. And I admired his powerful Weekly Standard article very much. But I want to make two comments by way of mild dissent on a couple of points.

First, as I note at Public Discourse today in ” Kermit Gosnell and the Logic of ‘Pro-Choice ,’” the most up-to-the-minute philosophers in bioethics are dispensing with any “sharp distinction,” as Jon puts it, between the unborn child and the one who has been born. The Journal of Medical Ethics has an entire symposium on infanticide in its latest issue, in which one can see scholars at prominent institutions reasoning (plausibly, alas) that if the unborn child can be licitly aborted, then “after-birth abortion” can be permitted as well.

Second, Jon is wrong about what Pennsylvania law says on late-term abortions. He writes below, “Had Gosnell killed his victims in the womb and complied with a few other minor requirements, he would have committed no crime under the laws of Pennsylvania or the United States.” In his original Standard article, Jon wrote:

Pennsylvania is one of nine states that require a second physician to concur with the “professional judgment” of an abortionist who wants to perform a third-trimester abortion. Gosnell failed to seek second opinions. One has to wonder: Is that failure really a capital crime? Gosnell ignored a procedural requirement of Pennsylvania law.


There’s a good deal more to the Pennsylvania late-term abortion law than that. As I explain at Public Discourse :

The Pennsylvania Abortion Control Act provides that unless a physician can establish that he “reasonably believes” an unborn child is younger than 24 weeks, or, if the child is older, he can establish that continuing the pregnancy will result in either the death of the mother or “the substantial and irreversible impairment of a major bodily function,” the physician cannot perform a late-term abortion.


If he knowingly commits a post-24 weeks abortion, based on such stringent life and health criteria, the doctor must certify his judgment about the threat in writing; acquire the concurrence of a second doctor in that judgment based on a “separate personal medical examination” of the woman; perform the abortion in a hospital; employ procedures designed to maximize the unborn child’s chances to survive; and have a second physician present, ready to consider any surviving child his primary patient.


The purpose of this Pennsylvania statute is, in substance, identical to that of the federal Born-Alive Infants Protection Act (BAIPA), and state laws similar to the latter. Whereas BAIPA protects the right to life of the child who survives an abortion, the Pennsylvania act protects the child who could survive an abortion, making it criminal in most cases to abort the child and, where an abortion is permissible within narrow limits, requiring doctors to treat the child as a second patient who should be brought into the world alive and unharmed if possible.


Gosnell was convicted of twenty-one counts of illegal abortions under this statute, passed in the late 1980s when pro-life Democratic governor Robert Casey, Sr. was in office. The law is a direct challenge to the anything-goes abortion license established forty years ago in Roe v. Wade and Doe v. Bolton (as I also explain at PD ). We’ll see if these convictions are upheld. If they are—-as they should be—-we could begin to see the unraveling of the regime of abortion on demand.

Articles by Matthew J. Franck

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