By Bernard ‘Bernie’ Smalley Sr.
and Amber Racine
Last week, the Pennsylvania House of Representatives passed legislation intended, on the surface, to more closely regulate and oversee abortion clinics in Pennsylvania.
It is widely known that this new legislation was influenced, at least in part, by the deplorable acts illegally committed by Dr. Kermit Gosnell, the West Philadelphia former abortion doctor indicted earlier this year for the murder of one of his patients, Karna Maya Mongar, and at least seven babies. Ms. Mongar died on November 20, 2009 after undergoing an abortion at Dr. Gosnell’s clinic, Women’s Medical Society.
It is also known that our law firm has the privilege of representing the Mongar family in a civil lawsuit against Dr. Gosnell and the Clinic. A raid, conducted months after Ms. Mongar’s death, by the Federal Bureau of Investigation and Philadelphia District Attorney’s Office, revealed filthy conditions, unsanitary practices, and unlicensed/untrained staff manning the facility while “the doctor” was absent most of the time, according to the District Attorney’s indictment against Gosnell and several others.
This legislation, House Bill 574, expands the definition of a health care facility to include abortion facilities; provides a lengthy definition for the facilities that will now be deemed abortion facilities; and sets the Department of Health’s standards for abortion facilities. On its face, the bill seems designed to ensure that women who visit abortion clinics receive the standard of care to which they are entitled. Delving deeper into the legislative history, considering the fact that Dr. Gosnell’s alleged criminal acts are the clear motivation for the bill, as well as the sensitivity of the on-going abortion debate in light of those acts, it is evident that there may be deeper issues that may affect access to abortion for women and as a result “a woman’s right to choose” across Pennsylvania.
This legislation should not limit in any way a woman’s right to choose. Dr. Gosnell’s alleged actions should not be used as a reason to do so.
Since the world has learned of the shocking conditions at the clinic and the alleged actions of Dr. Gosnell, his wife and the employees at Women’s Medical Society, the circumstances of the case have been used to add fuel to the abortion debate fire. In fact, the official Grand Jury’s Report starts with this overview:
This case is about a doctor who killed babies and endangered women. What we mean is that he regularly and illegally delivered live, viable, babies in the third trimester of pregnancy – and then murdered these newborns by severing their spinal cords with scissors. The medical practice by which he carried out this business was a filthy fraud in which he overdosed his patients with dangerous drugs, spread venereal disease among them with infected instruments, perforated their wombs and bowels – and, on at least two occasions, caused their deaths. Over the years, many people came to know that something was going on here. But no one put a stop to it.
Let us say right up front that we realize this case will be used by those on both sides of the abortion debate… For us as a criminal grand jury, however, the case is not about that controversy; it is about disregard of the law and disdain for the lives and health of mothers and infants.
The details that brought Karna Maya Mongar to Dr. Gosnell are important to this discussion. She was a 41 year old mother and recent political refugee, new to the United States. When Mrs. Mongar learned she was pregnant, and for reasons personal to her, she made the difficult decision to terminate the pregnancy. It was her right. While it may not be a choice that everyone agrees with, it was her right to make the choice that she thought best for her. She was referred to Dr. Gosnell’s clinic and, shortly after being given anesthesia, it was clear that something was wrong. Eventually, the paramedics were called and, despite their efforts to treat her, Ms. Mongar died from an overdose of the anesthetic medications prescribed by Gosnell. We contend the babies fared no better. According to the Grand Jury’s findings, Dr. Gosnell would often induce labor in late-term pregnancies – this is an important distinction as these were actual births. Once the live baby was born, he would cut the child’s spinal cord to end its life or as he put it “ensuring fetal demise,” a fancy term for murder.
House Bill 574 seeks to apply the same fire and safety standards, personnel and equipment requirements and quality assurance procedures to abortion clinics as those required of and applied to comprehensive surgical facilities. These mandates will require abortion clinics to have the same equipment and staffing as larger, better funded facilities that offer a range of varied medical treatments ranging from basic to specialized, complicated procedures. Opponents of the Bill argue that this may impose so many unnecessary, burdensome regulations on abortion clinics that they will be forced to close the clinic to avoid being in violation of the new law. In opposition to this real and dangerous threat to a woman’s right to choose, the bill’s proponents tout it as the measures necessary to prevent another Gosnell tragedy.
Its true that what happened to our client, Ms. Mongar and Dr. Gosnell’s other victims is a tragedy; tragedies that shouldn’t have happened, especially not to vulnerable women who trusted their doctor to help them in their time of need. It is also true that closer monitoring of The Women’s Medical Center would have prevented these tragedies. Gosnell preyed upon these women because he knew that they were often poor, desperate and voiceless.
The question most often raised immediately following Dr. Gosnell’s indictment has been, “How could this happen?” as all of Philadelphia wonders how these atrocities were happening right under our collective noses, merely a few streets from prominent hospitals and universities. And there is no doubt that the State of Pennsylvania and The City’s Department of Health failed to recognize blatant signs that there was something amiss at The Women’s Medical Center. This question won’t be answered by this new legislation, unless it is amended to ensure that women will still have access to a safe abortion. By being so onerous to abortion clinics, it may create new tragedies by taking Pennsylvania back to the time when a woman who wanted an abortion was forced to undergo the procedure in a back-alley.
Abortion clinics should be regulated in the manner that other medical facilities are monitored – to ensure the safety of patients and the qualifications of the treating doctors and staff, but they should not be over-regulated in a fashion that will limit a woman’s ability to get abortion. At the end of the day, it is clear that Dr. Gosnell has done enough harm to women; his criminal acts should not now be allowed to serve as inspiration for the limitation of a woman’s access to a safe abortion.
Bernard “Bernie” Smalley, Sr., is a Shareholder at Anapol Schwartz Weiss Cohan Feldman & Smalley who concentrates his practice in the areas of medical negligence, pharmaceutical liability, defamation, class actions, products liability and other major personal injury matters. He is the first African-American ever elected to serve as President of the Philadelphia Trial Lawyers Assocation, and is an active community mentor and volunteer.
Amber Racine is an associate at Anapol Schwartz Weiss Cohan Feldman & Smalley. An elected member of the executive board of both the Barristers’ Association of Philadelphia and the Bar Association’s Young Lawyers’ Division, she concentrates her practice on consumer and insurance class actions, consumer and insurance fraud litigation, pharmaceutical litigation and other civil and commercial litigation.