In January 2012, a 16-year-old girl living in central Pennsylvania discovered she was pregnant. She wanted to end the pregnancy, but didn’t know where to go. She lived in Montour, the smallest county in Pennsylvania, which, like 97 percent of all non-metropolitan counties in the country, doesn’t have an abortion provider.
Pennsylvania mandates that people under 18 get parental approval before receiving an abortion. In this case, the girl did what the state wants teens in her situation to do: She turned to her mother.
Her mom, Jennifer Whalen, allegedly ordered abortion pills off the Internet.
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Whalen couldn’t find a local abortion clinic, and she didn’t want to take her daughter out of state. Whalen found an overseas drugstore online that sold abortion drugs, so she ordered a package for about $45.
Whalen did not obtain a prescription because she didn’t know one was needed. One drug was to be taken orally, while the other was to be used vaginally 24 hours after the first drug. Upon taking the second drug, the girl immediately began menstruating.
Two weeks later, the girl experienced “severe abdominal pain.” Whelan took her to the hospital, where she was treated for incomplete abortion and a UTI.
Whalen’s reasoning about traveling out of state indicates that perhaps she wasn’t aware that she had any options in Pennsylvania. The closest clinic to her home was in Harrisburg, about 75 miles away. A state-mandated 24-hour waiting period would mean Whalen and her daughter would have had to make the drive twice, or they would have had to stay overnight in the Harrisburg area.
Almost one-third of Pennsylvania’s abortion clinics have closed since 2012, when conservative state lawmakers passed abortion clinic regulations mandating expensive architectural changes, despite the protests of relevant medical groups in the wake of the Kermit Gosnell case.
While the Gosnell grand jury report indicated that the rogue provider was able to operate undetected as a result of lawmakers treating abortion as a political issue rather than a public health one, the response of the state legislature was to further politicize abortion.
We already know that the more anti-choice politicians—many of them higher-income men—treat abortion as a partisan litmus test and a “family values” signifier, the more women who need safe abortion service suffer.
The Whalen case reveals we’re at a tipping point in Pennsylvania: The politicization of abortion ultimately means the criminalization of pregnancy.
According to reports, two weeks after Whalen’s daughter, now 18, took the pills, she experienced severe abdominal pain. They went to the local hospital to be examined. According to the district attorney, both Whalen and the teen admitted the teen took the pills.
A doctor at the hospital called the police, setting in motion a case that would lead to her eventual arrest, in December 2013.
Study after study shows that restricting access to safe, legal abortions by outlawing the procedure or, as is the preferred method in the United States, implementing geographic, logistical and financial barriers, doesn’t result in fewer unplanned pregnancies or abortions.
Neither strategy reduces the need for safe abortion. They both result in women seeking abortion through other, unregulated and often unsafe means. That is one of the main reasons pre-Roe pro-choice advocates argued for regulations.
Before Roe v. Wade in 1973, a black-market abortion meant a back-alley abortion. Today, women who need an abortion but can’t access one don’t have to make appointments with illegal providers. Abortion pills can be ordered online 24 hours a day and discreetly shipped from overseas pharmacies to your door. Modern black-market abortions take place at home.
Though it may be scary, swallowing pills ordered online is arguably less terrifying than allowing a stranger to insert metal tools into your body. It’s cheaper, too: Whalen purchased her pills for $45.
While no one knows how many online outlets sell these pills—usually a mix of misoprostol and mifepristone—a 2011 Newsweek article about Jennie Linn McCormack, an Idaho woman who was arrested for self-inducing an abortion with pills purchased online, noted that “the proliferation of sites providing the drugs coincides with the pro-life movement’s highly effective protests and attacks on physicians, clinics and healthcare groups that offer abortions.”
The “pro-life” movement has indeed been highly effective in Pennsylvania. The virulently anti-choice Americans United for Life consistently praises Pennsylvania lawmakers for “[leading] the way for other states.” After watching similar legislation close one-third of Texas’ clinics, Reps. Brian Cutler (R-Lancaster) and Bryan Barbin (D-Cambria) re-introduced an admitting privileges bill in Pennsylvania.
While state politicians follow Texas’ blueprint, there’s every reason to believe that Pennsylvania women will follow Texans’ footsteps. Anecdotal evidence indicates that women in Texas travel to Mexico for abortion pills, which also have been sold at local flea markets.
There’s no way to know how many women are already ordering abortion pills—or self-medicating through insulin or psychiatric meds for that matter—online. The sales are by definition unregulated. We are, however, starting to see how
women will be punished when they self-induce—or, as in this case, if they order abortion-inducing pills for someone else.
New Legal Territory
The Whalen case ventures into uncharted legal territory: Rebecca Warren, the Montour County district attorney, spent nearly two years reviewing state statutes to figure out what charges to bring in the case.
Whalen has been charged with medical consultation, unlawfully dispensing medicine, endangering the welfare of a child, and simple assault. Medical consultation is a third-degree felony. “The allegations are that she performed an abortion,” Warren told Rewire.
The county applied an assault charge, because Whalen “attempted to cause or intentionally knowingly or recklessly cause bodily injury to another.” The bodily injury, Warren explained, was the abdominal cramps.
“However wise or unwise the particular course of action may have been, it’s just bad for families and bad for health to address this through the criminal justice system,” said Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women. “This prosecutor has discretion, and it should be used not to try to find a way to arrest this family, but to … say, ‘Why would a family not go to health-care providers?’”
Paltrow views the Whalen case as an “attempt to try to find a way to use the courts to expand the power of police and prosecutors to surveil and punish women and families in a context in which they have less and less access to the health care they need.”
Though formal attempts to outlaw abortion have historically focused on arresting abortion providers, the logical outcome of the incremental strategy is arrests of pregnant women (and the people who try to help them): Coerce women into the black market by reducing the number of legal abortion providers, and then leave them to the prosecutors.
Will the arrest have a cooling effect on women who seek medical care after taking pills?
“I would hope it would not,” said District Attorney Warren. “And obviously there are ways to secure an abortion that are safe and legal in Pennsylvania.”
It’s just that there are increasingly fewer and fewer ways.
If convicted on all counts, Whalen could face up to 15 years in prison.