Written by Editor-in-Chief Jodi Jacobson for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Kermit Gosnell mugshot

The Gosnell case shouldn't inspire legislators to crack down on reproductive freedom.

There are two roles anti-choicers like to play for which they are ill-equipped. First, they like to play doctor. And second, they like to play God. In doing so, they spread outright lies about both abortion and contraception to mislead and whip the public into a frenzy about sex, pregnancy, and childbirth. And then, believing themselves to be the righteous ones, they seek to capitalize on their self-created panics to make public health and medical policy for the country based solely on emotion, facts be damned. Their end goal, as they make clear, is to outlaw abortion and contraception no matter the costs to public health, women’s lives, or society writ large.

The trial of Kermit Gosnell provides anti-choicers and their allies with a perfect platform for their efforts. In Gosnell, they have an unethical, unscrupulous criminal acting as a doctor. He preyed on women too poor to seek early, safe abortion care, ran a filthy “clinic,” and conducted illegal abortions during which, it is alleged, some infants were born alive and killed. In their quest to make safe, legal abortion care as inaccessible as possible, anti-choicers are now seeking to sway public policy by conflating safe abortion care with Gosnell’s atrocities, to tar all legitimate providers of safe abortion care as Gosnell clones, and to use a criminal case as a justification to drive legitimate providers out of business.

One recent example of this effort comes courtesy of Washington Post columnist Jennifer Rubin, who, in a column Wednesday, suggested several ways to further diminish access to safe, legal abortion care in the United States through what she calls a “Gosnell amendment.” If you read the piece, it is clear she has no idea what she is talking about.

Rubin, for example, calls for changes in Medicaid but appears not to understand how Medicaid works in the first place. She also calls for changes in federal funding of abortions, but appears not to understand that current law already severely restricts public funding of abortion.

She writes:

First, all Medicaid and other federal support for abortion services should come with caveats—health standards (of the type Pennsylvania refused to issue and enforce) and appropriate training for all personnel. Second, federal taxpayer dollars should not go for late-term abortions.

Let’s start out by making clear that this is the kind of grasping for irrelevant straws I described above (using the existence of a criminal to tar and feather an entire field of professionals who have no relationship to the criminal activity). For one thing, as confirmed in a phone call today to the Pennsylvania Department of Public Welfare, and notwithstanding the fact that what he did was illegal in the first place so the case illustrates nothing about safe abortion care, Gosnell was not receiving Medicaid payments for women seeking abortion. In fact, in 2010, there were only seven abortions in the entire state of Pennsylvania paid for by state tax funds, and no federally funded abortions anywhere in the state that year. As in zero. Zip.

But no mind: Rubin claims that Gosnell proves there are problems with federal Medicaid funding of abortion care, because eliminating Medicaid funding of abortions for any low-income woman under any circumstance is high on the anti-choice agenda and Gosnell gives them a platform for their arguments.

As for regulations and “health standards,” both the Centers for Medicaid and Medicare Services and state Medicaid agencies already work together both to certify and regulate Medicaid providers of all kinds, and both medical societies and advisory boards at the state and federal level set standards for care. Does this mean there is never any fraud? Of course not: Republican Rick Scott, the current governor of Florida, was implicated in one of the biggest Medicare frauds in the country in the late ’90s, showing that laws on the books are in fact broken until evidence is accumulated to bring a case. It was not lack of law or regulation, but rather lack of enforcement that allowed Gosnell to carry on for so long. Changes to Medicaid would therefore not have prevented and will not prevent past, current, or future quacks or criminals from operating in such a capacity until they are caught, just as homicide laws will never prevent all homicides and laws against arson won’t eliminate arsonists. Laws and regulations are meant both to define and to hopefully reduce criminal activity but will never eliminate it.

Rubin’s suggestion that federal taxpayer dollars should not go for abortions also is a head-scratcher, since the Hyde Amendment already forbids the use of federal funds for abortions except in cases of life endangerment, rape, or incest. This law has guided public funding for abortions for low-income women under joint federal and state programs since 1977. At a minimum, states must cover those abortions that meet the federal exceptions. States also are free to expand coverage of Medicaid funding of abortion for other reasons, using their own funds. Pennsylvania does not offer expanded Medicaid coverage for abortion.

Moreover, the system in Pennsylvania (as in many states) is such that even in cases of rape and incest it is virtually impossible to get reimbursed for a Medicaid-eligible abortion. As Claire Keyes, former director of a clinic in Pennsylvania, told RH Reality Check via email:

Although technically Medicaid in PA is supposed to cover rape and incest, in reality it did not. There were too many sub-carriers, if that is the right word, each with its own rules, own personnel. No matter how much time we as providers tried to “train” their employees for them in order that women whose pregnancies resulted from rape or incest would be covered, it was not worth it. No one from the top level of management ever cared enough to issue policy statements to their employees, so it was just a waste of time. We often had to submit 4-5 times for the same patient, then reaching the end of the eligible period for submission for reimbursement of the services. It was easier to not even try.

If one takes Rubin at her word, she would like to eliminate the exception in the Hyde amendment for Medicaid coverage for any “late-term” abortions, though she does not specify what she means by “late-term.” In the third trimester only, or both second and third trimesters? Is she saying that there should be no public funding whatsoever to cover an abortion for a poor woman whose life is quite literally in danger from a pregnancy gone terribly wrong? And if so, is she not then saying that the life of a woman living in poverty has less value than the life of a woman with a similar condition who can afford an abortion on her own? Does she mean to imply that a woman in the United States facing a situation similar to one now going on in El Salvador—where a woman now carrying a non-viable fetus and whose kidneys are failing due to pregnancy-related complications of uncontrolled lupus—should be left to die?

That gets us to the broader issue of late-term abortions. Every state should have an infant-born-alive statute, and those states that do not should have to justify why medical personnel should not have an affirmative duty to provide medical care to an infant who survives abortion. Do we really want any state to endorse by silence Gosnell’s practices?

Perhaps Jennifer Rubin was out of the country or not reading the papers in 2002 when President Bush signed into law the Born-Alive Infant Protection Act. This is federal law, as in it covers all the states. Since Kermit Gosnell is and was a criminal, he was not adhering to the law, as is the nature of the term “criminal.”

And exactly how far does Rubin want to go to eliminate late abortions? Under Roe v. Wade, states may not prohibit abortions even after fetal viability in cases where it is “necessary to preserve the life or health” of the woman. Third-trimester abortions, which make up an estimated 1.3 percent of abortions in the United States, happen when there are medical complications that compromise the life or health of the woman in question or fetal anomalies incompatible with life. In the Gosnell case, women who came for late abortions came for them because they didn’t have enough money to get early abortions, conditions created by the very policies Rubin advocates. 

If she wants a total ban on late abortions without exceptions for life and health, which women does Ms. Rubin suggest should be left to die? Which women should be left with lifelong health problems from a pregnancy gone horribly wrong? It’s a little harder when you have to face real people in need, so I ask, for which of these women does Rubin feel she or others are better equipped to decide what to do? Would she make the choice for Kate? For Gracie’s parents? For Autumn Elise’s parents? Why does Rubin or anyone else get to decide for these families what is best for them?

The inconvenient truth here is that the very policies anti-choicers espouse are the ones that create the conditions in which Gosnells thrive: limiting access to safe abortion care by closing clinics, driving up the costs, requiring women to go through innumerable unnecessary hoops to secure an abortion, and driving them later in the process—denying women living in poverty public support for safe abortion care. All of these and other policies espoused by anti-choicers drive women to desperate circumstances, as a trip to any number of countries with high rates of maternal mortality from complications of unsafe abortion will tell you.

Rubin’s column doesn’t prove any of the points she apparently set out to make, but it does prove a few things: She isn’t cut out to play doctor, God, or legislator. And given the inexcusable lack of factual accuracy in her piece, it is not clear to me she is cut out to be a columnist either. I know that the Washington Post got rid of its ombudsperson, but did it fire all the editors and fact-checkers too?

Public domain mugshot via Wikimedia Commons.