Photographs of the dead bodies of five very large and significantly developed fetuses—which had been found in a “medical waste” container outside a Washington, D.C., abortion center in late March—seem to indicate that some of the children may have died in illegal “live-birth” or “partial-birth” abortions.

The discovery prompted pro-life groups and legislators to call for an investigation into possible violations of two federal laws, the Born-Alive Infants Protection Act and the Partial-Birth Abortion Ban Act.

Medical experts who studied the photos agreed that the deceased children likely died after viability, late in the second or third trimester of their mothers’ pregnancies.

One child with a collapsed skull and wounds at the base of her neck may have died in a partial-birth abortion. Another child still enveloped in an intact placenta probably underwent labor induction that may have resulted in a live-birth abortion—one in which a viable child survives an attempted abortion, is born, and is then killed or left to die.

A third viable child was likely killed in a dilation and evacuation, or “D&E,” procedure in which her arms and legs were ripped off, her body decapitated, and her skull crushed—an abortion method legal throughout pregnancy in Washington and nationwide.

How often are abortionists prosecuted for violating either the Partial-Birth Abortion Ban or the Born-Alive Infants Protection Act? An exhaustive internet search has turned up not a single prosecution for violations of those laws, despite ample evidence that such violations occur.

In his excellent article “Children of a Lesser Law,” published in the Regent University Law Review, Roger Byron explains that while the U.S. Department of Health and Human Services is vested with authority to prosecute violations of the Born-Alive Infants Protection Act, it relies solely on complaints received.

In the case of a live-birth abortion, the child is highly unlikely to have an advocate among the witnesses to his or her live birth and subsequent death. After all, the point of an abortion is to kill a vulnerable child. 

Even if a violation of the federal partial-birth abortion ban is brought to the attention of the Federal Bureau of Investigation, it may choose to decline to investigate. If the bureau makes and forwards findings to the U.S. attorney where the alleged offense was committed, the U.S. attorney may choose to decline to prosecute.

Rather than exploring whether the recently exposed abortion deaths in Washington violated applicable laws, politicians who support unrestricted abortion have sought to deflect attention away from the deceased children—and the abortionist’s possible crimes—by attacking the “anti-abortion extremists” who discovered the children’s bodies.

Washington, D.C., Mayor Muriel Bowser, for example, declined to comment on the five children’s deaths but asked the U.S. Department of Justice to investigate and possibly charge the woman who exposed their deaths for “tampering with fetal remains.”

This is reminiscent of then-California Attorney General Kamala Harris’ strategy in handling investigative journalist David Daleiden’s release of legally obtained undercover videos in which Planned Parenthood officials admitted to harvesting the organs of children they aborted and selling them for upwards of hundreds of dollars apiece.

The video footage showed officials and abortion workers talking about infants born alive in clinics and vivisected for their organs, committing illegal partial-birth abortions, illegally changing abortion procedures without telling patients to allow them to harvest more intact organs, and more.

Harris refused to launch an investigation into Planned Parenthood’s documented criminal conduct. Instead, she ordered a raid of Daleiden’s residence, during which officers seized computers, hard drives, cellphones, and other personal property. Subsequently, Daleiden was charged with 15 felony counts for alleged “illegal taping” of conversations with Planned Parenthood officials.

Perhaps nothing can deter whistleblower witnesses to abortion-related crimes more effectively than the prospect of malicious prosecution and the potential jail time and bankruptcy from legal fees that could result.

Because state health departments are rarely proactive in investigating abortion facilities, violations of federal and state abortion laws rarely come to light unless the abortionist is (a) sued for a mother’s wrongful death or serious bodily injury or (b) investigated and prosecuted for breaking other laws, such as insurance, Medicaid, or tax fraud; or selling controlled substances.

For decades, Kermit Gosnell committed illegal live-birth abortions and gravely injured women with impunity until his crimes were exposed in the course of a federal Drug Enforcement Administration raid prompted by evidence of his selling opioids and blank, signed prescription pads.

Not even the numerous complaints made to Pennsylvania’s Department of Health concerning deaths and injuries to women had succeeded in prompting an investigation into Gosnell. Abortion facility inspections were cursory and rare.

Another obstacle to prosecution is that complaints are often heard initially by the state’s medical review board, members of which may be biased toward abortion “rights” or fail to support criminal prosecution of a fellow “MD,” believing that license revocation is punishment enough.

Lastly, pro-life group Operation Rescue prepared a sobering chart of all state “Abortion Facility Inspections” with data from January 2020 through July 2021. Far too often, inspections occurred only after a complaint was received, and they were confined to the subject matter of the complaint.

There seems to be a lack of political will to mandate and fund reasonably frequent, unannounced inspections of abortion facilities for the health and safety of women and to deter illegal activities.

The District of Columbia joins 19 states in exempting abortion facilities from even annual inspections. Abortion is not health care, but it has definite health impacts. If Washington’s government will not change its laws and policies, Congress should. Our common humanity requires it.

The Daily Signal publishes a variety of perspectives. Nothing written here is to be construed as representing the views of The Heritage Foundation. 

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