PHILADELPHIA—In American jurisprudence a man is innocent until proven guilty. But in the Kermit Gosnell murder trial that began last week, neither side disputes the fact that the West Philadelphia abortionist killed babies: We are only dickering over whether he killed some inside the womb (permissible) or outside the womb (not permissible), and whether some victims were 24 weeks old (permissible) or 25 (not permissible).
The arbitrariness of today’s legal parameters (in distinction from moral parameters) lends a surreal quality to the proceedings as I watch from the press box, roughly five feet from the 72-year-old man who faces the death penalty if convicted. Gosnell is charged with first-degree murder in the deaths of seven babies whose spines he severed with scissors, and one count of third-degree murder in the death of a 41-year-old woman who is alleged to have been administered an overdose of anesthesia.
I say “arbitrary” because there is only a slight spatial difference of about 10 inches between the killing of a fetus in utero and the killing of a baby (note the sudden name change) on the operating table next to the woman. I say “arbitrary” because a baby possessed of arms, legs, a face, and a brain is not much impressed that it is perfectly legal to be dismembered by D&E in a reputable hospital in its 24th week of gestation, but not at 24 weeks and five days.
A witness for the prosecution toward the beginning of the trial, neonatologist Dr. Daniel Conway of Philadelphia’s St. Christopher’s Hospital for Children, told the court that babies of a gestational age of 27 weeks have an 85 percent chance of survival, and that if delivered alive they must, according to Pennsylvania state law, be provided care.
A famous etching by the 18th century Spanish artist Francisco Goya called El Sueño de la Razón Produce Monstruos (The Dream of Reason Produces Monsters) is a commentary on the bizarre aberrations of his society. It is not clear whether the best rendering of his word “sueño” is “dream” or “sleep.” If it is “sleep,” Goya seems to have been saying that abandonment of logical thinking leads to monstrous social developments. If it is “dream,” then Goya’s point is the equally disturbing one that a society with no higher authority than human reason leads to monstrous things. In the case of the ongoing Gosnell trial, the title works either way.