Jennifer Whalen is in jail for one simple reason: She took her daughter to the hospital. But as alarming as Whalen’s situation is, it is not an isolated incident. Rather, it is indicative of a broader, dangerous trend of medical professionals and law enforcement punishing women for making the apparent mistake of seeking health care.
In 2012, Whalen’s 16-year-old daughter was pregnant and did not want to be. After unsuccessfully trying to get her an appointment for an abortion, Whalen turned to the Internet for help, eventually obtaining miscarriage-inducing medications that are legal in the United States, safe, effective, and recommended by the World Health Organization. Not knowing exactly what to expect from the drugs, Whalen took her daughter to the hospital to make sure that she was OK. Her daughter was fine; even so, the institution still reported Whalen to the authorities. Now, two years later, she will spend at least nine months in jail.
The New York Times Magazine’s recent profile of Whalen correctly pointed out the changes in Pennsylvania law that have made accessing clinic-based abortion care incredibly difficult for a family facing financial and employment insecurity. The profile also noted that self-induction of abortion is likely to become more common with the current landscape of restrictions. These connections are critical to understanding the changing circumstances of reproductive care in the United States.
What the Times Magazine article did not do, however, was note how Whalen’s case resembles the way that hospitals, Child Protective Services (CPS), and law enforcement have historically responded to drug use during pregnancy, a topic I have been researching for a decade. Earlier this year, Tennessee became the first state to pass a law allowing criminal prosecution of pregnant women who use illegal drugs, but other states have been similarly punishing women for years. At least some of these prosecutions seem to have relied on charges of drug distribution and delivery as well as child abuse and neglect—ones similar to those filed by the district attorney in Whalen’s case.
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The most striking parallel among these cases, though, is the role health-care providers played in initiating the process that eventually led to the prosecutions. Officials at Whalen’s chosen hospital, for example, reported her to CPS after she brought her daughter in. In turn, this led to an investigation by law enforcement. But why was Whalen reported to CPS in the first place? After all, her daughter had not been mistreated. Although the hospital has not released a public explanation for its staff members’ actions, one of the most likely scenarios is that care providers there were following the institutions’ protocols for pregnant patients suspected of using drugs.
Hospitals often implement such policies to help them comply with laws like CAPTA, which mandate them to report incidents to CPS of newborns affected by prenatal illicit drug exposure. Sometimes, these policies also include legal drugs taken without a prescription, such as oxycodone. This would have been the case for Whalen’s daughter, who had used the abortion medication without a prescription while pregnant. (It is not fully clear why Whalen, rather than her daughter, was ultimately prosecuted; one possibility is that the original CPS report concerned her daughter, but the subsequent police investigation led to charges levied against Whalen instead.)
Regardless, if this was indeed why the hospital chose to report the Whalens, it is important to know that their story is far from rare. The language of CAPTA itself is unclear as to whether disclosures are required in all instances of pregnant women’s drug use, or only in those where infants display health effects. Still, though, the reports are common: One Northern California study showed approximately 1 percent of newborns reported to CPS for maternal drug use. Most reports do not result in prosecutions; instead, CPS generally stages investigations, sometimes temporarily or permanently removing the child.
My research shows that these potential punishments cause some pregnant women who use drugs to avoid prenatal care. One woman in my study told me, “I didn’t want to go in [for prenatal care] all drugged up … [I was afraid that the] urine tests would’ve came out positive … and that they would take the baby away. Call CPS right away.”
Another explained, “I missed a couple of appointments when I relapsed because, if my tests showed up dirty, then I’d have CPS involved, so I ended up not going to those appointments.”
As the American Congress of Obstetricians and Gynecologists has also pointed out, this fear of CPS and of being prosecuted creates mistrust and gets in the way of the provider-patient relationship; in turn, it can lead to women not receiving recommended health care. And research is clear that receiving adequate prenatal care is associated with improved pregnancy outcomes among women who use drugs. In short, we are effectively putting pregnant women at risk with these policies.
That is bad enough. But as the Times Magazine pointed out, as access to abortion care decreases throughout many parts of the country, more women may turn to self-induction with medications as an alternative. They, too, could be put in danger of being reported to the authorities for taking drugs without prescriptions—or, at the least, be apprehensive enough about such consequences to avoid seeking medical help if it becomes necessary. If these women, or their daughters, sisters, or friends, experience side-effects that worry them, don’t we want them to seek health care without fear of punishment? Even in cases where self-induction is not legal, don’t we want doctors to provide treatment and not function as law enforcement?
We do not want protocols for women who may have attempted self-induced abortion to look like the current, punitive hospital policies for responding to maternal drug use. Because many institutions do not yet have such protocols in place, we have an opportunity now to create standards ensuring that women can safely receive the health care they need without fear, even when clinic-based abortion care is not accessible.
It may be too late for Whalen, but we can and should take steps to confirm that no women—including women performing their own abortions and women who use drugs during pregnancies they continue—are punished for seeking health care.