Law, politics, and five abortion victims: Will justice prevail in DC?

Progressive Anti-Abortion Uprising holds a protest outside the office of District of Columbia mayor Muriel Bowser, April 7, 2022. Progressive Anti-Abortion Uprising holds a protest outside the office of District of Columbia mayor Muriel Bowser, April 7, 2022. | Katie Yoder/CNA.

The bodies of five abortion victims in the District of Columbia have captured headlines, with pro-life activists asking if they were killed in illegal abortions—and if local authorities will really do their best to investigate.

“This is absolutely heartrending. Human dignity matters -- these babies matter,” U.S. Sen. Ben Sasse, R-Neb., told CNA April 6. “These children deserve to have their deaths investigated, and they deserve the dignity and respect of a proper burial.”

Sasse, who has backed legislation to strengthen federal protections for infants who survive abortions, said the District of Columbia “needs to conduct a medical exam to determine if any of the babies were aborted in violation of law, and to thoroughly investigate if the abortion clinic that performed these abortions is violating any federal or state laws.”

Five babies that appear to be of late-term gestation are now in the possession of Washington, D.C. Metro Police, which retrieved the remains Friday from an apartment in the city where they were being stored by members of Progressive Anti-Abortion Uprising. The group demonstrates against abortion and engages in activism in and around abortion clinics. They said that on March 25 a “whistleblower” had provided to them these remains and the remains of 110 other smaller babies, the latter of which they had given a dignified burial.

The remains reportedly came from Dr. Cesare Santangelo’s Washington Surgi-Clinic, an abortion clinic in the northwest of the district. WUSA 9 News said inspection records indicate the clinic has not faced any citations in the last five years. Santangelo has no record of professional disciplinary problems.

PAAU said they had tried and failed to find an independent pathologist willing to examine the five larger children’s bodies. They were reluctant to hand over the bodies to police because they did not believe authorities would conduct a thorough investigation.

Lauren Handy, one activist involved in the discovery, was arrested by the FBI on March 30 for alleged violations of the Freedom of Access to Clinic Entrances Act during a protest at the Washington Surgi-Center in 2020.

Observers are debating what kind of crime might have been committed at the clinic, given the nature of permissive abortion laws.

“Washington, D.C. does not have any late-term abortion law,” Susan Wills, an associate scholar at the pro-life think tank the Charlotte Lozier Institute, told CNA April 6. While the federal Partial-Birth Abortion Ban Act of 2003 could have been violated, she said, “it’s questionable whether partial-birth abortion is involved.”

“Presumably the state penalties for murder would apply,” Wills added. In her view, a pending U.S. Supreme Court case that could alter or abolish legal abortion precedent could also help give scrutiny to these cases.

The Lozier Institute’s Kathi Altman, a medical doctor and certified ob/gyn who stopped performing abortions on moral grounds, examined images of the bodies. She believes it is likely that at least two of the five babies were partially or fully born when they were killed.

Wills said any criminal case “really would require the medical examiner to look at the children. The District of Columbia, as I understand, has expressed no desire to do so or to look further into it.”

“Politically we just need to have more legislators with backbone who are willing to stand up for the life of the unborn and recognize them as human persons,” said Wills

On April 1, the Washington Post reported that the medical examiner’s office does not plan to autopsy the bodies, though two anonymous officials told the Post that the decision not to do autopsies “could change if they receive additional information.” Executive Assistant Chief of Police Ashan Benedict said at a March 31 press conference that the five babies recovered “were aborted in accordance with D.C. law” and that an investigation into how the remains arrived at the apartment is ongoing.

Amherst College professor emeritus Hadley Arkes worried that the local authorities’ responses ignores existing abortion restrictions.

“The laws established a right of babies to be spared the awful partial-birth abortion, or to be killed even if they survived—but those rights can be rendered a nullity if the local authorities are determined to look the other way, and do nothing to enforce the laws,” he told CNA April 5.

Arkes was an early backer of what became the Born-Alive Infants Protection Act, a 2002 law that recognized the need to protect infants who survived attempted abortions. However, the version signed into law lacked civil or criminal penalties.

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“The only way to enforce the original act then was through the threat to withhold federal funds from hospitals and clinics, but that proved to be a discouragingly cumbersome process,” he said, attributing enforcement problems to Clinton administration holdovers in the George W. Bush-era U.S. Department of Justice.

For Arkes, the discovery of the five abortion victims “offers another powerful example” for efforts to restore civil and criminal penalties to the act. These had been stripped from the original bill in the 1990s, Arkes said, to help avoid a veto from then-president Bill Clinton. This later version was then signed into law by Bush in 2002.

Sasse is a regular co-sponsor of the Born-Alive Infant Abortion Survivors Act. The proposed legislation would require that babies born alive during botched abortions receive the same standard of care that other newborns of the same gestational age would. Violations by the abortion provider could be punished by five years in jail, a fine, or both. The mother of a child born alive in an abortion could not be prosecuted under the act, and would have the right to a civil action against those who violate it.

It has been introduced several times in Congress, but has failed to become law.

Since 2003, the Partial Birth Abortion Ban has barred abortions which use this technique with a fine or imprisonment up to two years.

The ban was the topic of questions at an April 6 hearing before the U.S. House of Representatives Committee on Education and Labor. Testifying before the committee, Health and Human Services Secretary Xavier Becerra declined to admit that such abortions are illegal.

In response to a question about the ban from U.S. Rep. Jim Banks, R-Indiana, Becerra said his job is to enforce the law, and then affirmed the pro-abortion rights Supreme Court decision Roe v. Wade, Fox News reports. This decision, in his view, means “women have reproductive rights that they are entitled to enforce and that they are entitled to have the government respect. I will do everything I can to make sure a woman's rights and reproductive care are defended.”

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Becerra had voted against the ban as a Member of Congress from California. In 2007, the U.S. Supreme Court upheld the law in a 5-4 decision.

Wills told CNA that, to her knowledge, there have been no prosecutions for violations of the partial-birth abortion ban.

She said that Leroy Carhart, a late-term abortionist based in Nebraska, has admitted doing them.

“He has been civilly sued by a woman who was seriously injured,” she said. Carhart and others face a lawsuit in Maryland federal court from a woman who said she suffered multiple internal injuries and permanent damage during a May 2020 abortion at his Bethesda clinic. The woman was 25 weeks pregnant at the time.

“Frankly, a lot of women injured in abortions do not come forward because of the stigma attached to abortion still,” Wills told CNA. “It only takes one or two courageous souls to come forward.”

Arkes said those who wanted to strengthen the Born Alive Infants Protection Act took renewed motivation from the case of Dr. Kermit Gosnell, a Philadelphia abortion doctor. His abortion clinic’s practices led to his conviction of three counts of murder and one count of involuntary manslaughter. He was also found guilty of involuntary manslaughter in the death of a patient who died of an overdose in 2009.

A January 2011 grand jury report detailed the alleged crimes of Gosnell’s clinics, including evidence that he or his staff snipped the necks of more than 100 babies who had survived abortion.

Gosnell’s clinic had not faced any oversight from the state of Pennsylvania from 1993 through 2010, when a federal drug raid at his facility uncovered blood-stained rooms and filthy equipment. The grand jury report faulted the administration of Gov. Tom Ridge, a pro-abortion rights Republican who later became Secretary of the Department of Homeland Security, for failing to oversee the clinic and address violations.

Wills said legislatures and state officials need to do more to scrutinize abortion clinics.

“There seems to be at the state level a lack of personnel overseeing abortion businesses, really any businesses in a state,” she told CNA. “I think it’s up to state legislatures to ensure that there really is oversight.”

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