PHILADELPHIA—The messy state of homicide law reflects the messy state of legal and moral reasoning in our times. “Patricide” means the killing of one’s father, with no differentiation for age. But “infanticide” does not neatly correspond in the killing of an infant without age distinctions. If it did, both “-cides” would seem to invite the same degree of punishment.
A jury is deliberating on whether abortionist Kermit Gosnell committed first-degree murder of four babies and infanticide of one baby. The average Joe will be forgiven if the subtlety of these charges escapes him. In his instructions to the men and women who must be brought up to snuff on such fine distinctions, Judge Jeffrey Minehart was clear: “First-degree murder” entails legally defined “malice,” which he parsed to include “intent to kill” or “intent to inflict serious harm.”
“Infanticide,” on the other hand, Minehart said, involves the following four elements: (1) the defendant is a physician; (2) the physician attended the birth of a live child, i.e., a “human being” … ”completely expelled from the mother” and showing signs of life; (3) the physician failed to provide that child care; and (4) the physician did so “intentionally, knowingly, or recklessly.”
A huddle of reporters stayed after school Tuesday to pepper Gosnell’s attorney with questions, including a clarification of infanticide. Jack McMahon offered a thumbnail version: Murder is the active killing of a baby where infanticide is a passive withholding of help. I exchanged quick looks with another reporter, as moments earlier we had been discussing the subject and I had suggested that the four criteria for infanticide fit Karen Feisullin to a tee. Feisullin was the prosecution witness who performs abortions in more posh neighborhoods (aka “a hospital”). McMahon had extracted from the suburban ob-gyn under oath that she provides no survival help to aborted babies “accidentally” born alive. Rather, she lays them on a table and covers them with a cloth—and calls it “comfort care.”
Those of us who seek an end to confusion and messy thinking are hoping the jury will be able to see through labels to essences. Feisullin and many a “reputable” abortionist are performers of “infanticide” by the strict legal definition handed to us by Judge Minehart. And “comfort care” is very cold comfort indeed if all it is is passive killing of a human being rather than active killing.