Black markets in back alleys?

Steven H. Aden
In the wake of the Kermit Gosnell prosecution and conviction, a number of abortion advocates have attempted to argue that state-created restrictions on abortion may actually be to blame.

Preposterously, NARAL Pro-Choice America said that "[a]nti-choice politicians, and their unrelenting efforts to deny women access to safe and legal abortion care, will only drive more women to back-alley butchers like Kermit Gosnell."

Amesh Adalja recently argued on Forbes.com that such restrictions may have the unintended consequence of creating a "black market for abortion."

As Adalja maintains, "[b]ecause abortion is a right, the government's circumspection of it is tantamount to nullification of that right and a physician's right to practice medicine is similarly curtailed."

But if abortion is a "right," it is a right only to the extent that all sensitive medical matters -- sterilizations, HIV/AIDS, and sexually acquired infections, for instance -- are generally accorded the right to privacy by courts and legislatures.  There is no "right" to substandard medical care, for abortion or anything else.

The nature of the "fundamental right" the Supreme Court announced in Roe v. Wade was not the right to access abortion from anyone under any circumstances, but rather the right to make what the Court saw as "primarily a medical decision," the "basic responsibility [for which] must rest with the physician."

But so-called "physicians" like Gosnell are not responsible enough to govern themselves.  If abortion providers reliably self-regulated, there would be no Gosnells and no need for government intervention to protect women from the dangers of the substandard practices that appear to be rampant in the abortion industry.  Alabama, Pennsylvania, Ohio, New York, Michigan, and other states have shuttered numerous abortion businesses in the last year for dangerous, unhealthy, and illegal practices.

The reason why Gosnell-like clinics exist isn't government regulation but a lack of government enforcement of regulations already on the books.

The grand jury that referred charges against Gosnell explicitly called out state health officials for failing to inspect the business for 17 years: "Pennsylvania's Department of Health has deliberately chosen not to enforce laws that should afford patients at abortion clinics the same safeguards and assurances of quality health care as patients of other medical service providers. Even nail salons in Pennsylvania are monitored more closely for client safety."

Why was the health department derelict in its duties, according to the grand jury?  Witnesses testified that the department simply decided not to inspect abortion clinics through two gubernatorial administrations out of concern that it would be "putting a barrier up to women" seeking abortions.  The lesson the grand jury took from its investigation was that "[w]ithout regular inspections, providers like Gosnell continue to operate; unlawful and dangerous third-trimester abortions go undetected; and many women, especially poor women, suffer."

Thus, regulations such as time frames for abortion, counseling requirements, waiting periods, and ultrasound mandates all put abortion providers on the same footing as other more safety-conscious health care specialists, such as ambulatory surgical centers, and thereby protect women's lives and health.

The majority of these regulations have come since 1992, when the Supreme Court affirmed in Planned Parenthood v. Casey -- a case involving Pennsylvania's abortion regulations -- that "[a]s with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion."

So, contrary to what Adalja has argued, these regulations are designed not "to limit the availability of abortion by erecting onerous regulations," but rather to impose critical protections for the health and safety of women who seek abortions, as well as, the High Court affirmed, to promote the state's "profound interest" in human life.

That's why the federal Partial Birth Abortion Ban Act is not an example of unnecessary regulation on the federal level.  The Supreme Court affirmed the constitutionality of that law in part on its perception that it helped safeguard the medical profession from practices considered barbaric in a civilized society.  Congress acted reasonably, the court said, in concluding that "[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion ... is a gruesome and inhumane procedure that is never medically necessary and should be prohibited."

Partial-birth abortion allows an abortionist to deliver one's child up to the navel, jab scissors in its neck, and insert a vacuum to suck its brains out so that its skull can be collapsed and the infant then delivered dead.  Distinguishing between that practice and what the jurors in the Gosnell trial found to be first-degree murder would be an exercise in pure sophistry.

And so is the argument that government regulations designed to stop people like Gosnell actually help people like Gosnell.  That type of claim will succeed only if we bury our heads in the sand on which such illogical blame-shifting is founded.

Steven H. Aden is senior counsel with the Alliance Defending Freedom Center for Life in Washington, D.C.

In the wake of the Kermit Gosnell prosecution and conviction, a number of abortion advocates have attempted to argue that state-created restrictions on abortion may actually be to blame.

Preposterously, NARAL Pro-Choice America said that "[a]nti-choice politicians, and their unrelenting efforts to deny women access to safe and legal abortion care, will only drive more women to back-alley butchers like Kermit Gosnell."

Amesh Adalja recently argued on Forbes.com that such restrictions may have the unintended consequence of creating a "black market for abortion."

As Adalja maintains, "[b]ecause abortion is a right, the government's circumspection of it is tantamount to nullification of that right and a physician's right to practice medicine is similarly curtailed."

But if abortion is a "right," it is a right only to the extent that all sensitive medical matters -- sterilizations, HIV/AIDS, and sexually acquired infections, for instance -- are generally accorded the right to privacy by courts and legislatures.  There is no "right" to substandard medical care, for abortion or anything else.

The nature of the "fundamental right" the Supreme Court announced in Roe v. Wade was not the right to access abortion from anyone under any circumstances, but rather the right to make what the Court saw as "primarily a medical decision," the "basic responsibility [for which] must rest with the physician."

But so-called "physicians" like Gosnell are not responsible enough to govern themselves.  If abortion providers reliably self-regulated, there would be no Gosnells and no need for government intervention to protect women from the dangers of the substandard practices that appear to be rampant in the abortion industry.  Alabama, Pennsylvania, Ohio, New York, Michigan, and other states have shuttered numerous abortion businesses in the last year for dangerous, unhealthy, and illegal practices.

The reason why Gosnell-like clinics exist isn't government regulation but a lack of government enforcement of regulations already on the books.

The grand jury that referred charges against Gosnell explicitly called out state health officials for failing to inspect the business for 17 years: "Pennsylvania's Department of Health has deliberately chosen not to enforce laws that should afford patients at abortion clinics the same safeguards and assurances of quality health care as patients of other medical service providers. Even nail salons in Pennsylvania are monitored more closely for client safety."

Why was the health department derelict in its duties, according to the grand jury?  Witnesses testified that the department simply decided not to inspect abortion clinics through two gubernatorial administrations out of concern that it would be "putting a barrier up to women" seeking abortions.  The lesson the grand jury took from its investigation was that "[w]ithout regular inspections, providers like Gosnell continue to operate; unlawful and dangerous third-trimester abortions go undetected; and many women, especially poor women, suffer."

Thus, regulations such as time frames for abortion, counseling requirements, waiting periods, and ultrasound mandates all put abortion providers on the same footing as other more safety-conscious health care specialists, such as ambulatory surgical centers, and thereby protect women's lives and health.

The majority of these regulations have come since 1992, when the Supreme Court affirmed in Planned Parenthood v. Casey -- a case involving Pennsylvania's abortion regulations -- that "[a]s with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion."

So, contrary to what Adalja has argued, these regulations are designed not "to limit the availability of abortion by erecting onerous regulations," but rather to impose critical protections for the health and safety of women who seek abortions, as well as, the High Court affirmed, to promote the state's "profound interest" in human life.

That's why the federal Partial Birth Abortion Ban Act is not an example of unnecessary regulation on the federal level.  The Supreme Court affirmed the constitutionality of that law in part on its perception that it helped safeguard the medical profession from practices considered barbaric in a civilized society.  Congress acted reasonably, the court said, in concluding that "[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion ... is a gruesome and inhumane procedure that is never medically necessary and should be prohibited."

Partial-birth abortion allows an abortionist to deliver one's child up to the navel, jab scissors in its neck, and insert a vacuum to suck its brains out so that its skull can be collapsed and the infant then delivered dead.  Distinguishing between that practice and what the jurors in the Gosnell trial found to be first-degree murder would be an exercise in pure sophistry.

And so is the argument that government regulations designed to stop people like Gosnell actually help people like Gosnell.  That type of claim will succeed only if we bury our heads in the sand on which such illogical blame-shifting is founded.

Steven H. Aden is senior counsel with the Alliance Defending Freedom Center for Life in Washington, D.C.