Even so, sending Gosnell to his death on the basis of this argument would seem problematic under the current legal abortion regime, for at least three reasons.
First, it ignores the fact that there have been many such killings over the years. In the 1970s and ’80s, it was not uncommon for newborns to survive saline abortions. These babies were badly burned by salt solutions and often died untreated. What made Gosnell different was volume—he killed abortion survivors far more often than any known predecessor. But he might have reasonably concluded that the act itself of killing abortion survivors was not remotely akin to murder. It had been done before, even in state hospitals, without so much as a fine.
Second, the protection of babies who survive abortions remains a subject of controversy, not a matter of settled law or even morality. While 27 states including Pennsylvania have laws protecting such infants, another 23 states and the District of Columbia do not. Indeed, a Planned Parenthood official recently testified in court that in cases of “botched abortion” the decision to kill the newborn should be left to the “patient and the health care provider.” Planned Parenthood representatives later reversed this position as a result of political fallout from the testimony, but their private view is clear. And many politicians share it. Barack Obama repeatedly refused to support a bill protecting abortion victims born alive when he was a state senator in Illinois…
Third, the liberal position on killing abortion survivors makes a bizarre kind of moral sense. After all, what is the moral difference between killing an 8-month-old human being in the womb and killing it in the bright light of an operating room? And if there is a difference, can it bear the moral weight of the death penalty? If Gosnell is executed for his abortion practices, it would seem to be because he didn’t pump enough lethal digoxin into the hearts of his victims before they were born.