Turning a mother into a criminal

September 25, 2014

Nicole Colson reports on the case of a Pennsylvania mother imprisoned for helping her daughter obtain an abortion in the only way the family could afford.

"I'M SCARED. And I'm hurt because I can't be with my family."

The reason that Jennifer Whalen won't be able to be with her family for the next 9 to 18 months--depending on the whims of the Pennsylvania injustice system--is because she helped her teenage daughter obtain an abortion.

In 2012, Whalen's then 16-year-old daughter came to her and told her she was pregnant and wanted an abortion. But because the family lives in rural Pennsylvania, in the town of Washingtonville, the closest clinic was 75 miles away. (As of 2011, 87 percent of Pennsylvania counties had no abortion clinic--and 49 percent of Pennsylvania women lived in these counties, according to the Guttmacher Institute.)

Adding to the dilemma was the fact that first-trimester abortions at a clinic cost between $300 and $600, and the Whelan family's budget was tight--Jennifer Whalen worked as a home health care aide, a job that pays little, and the family had no health insurance.

On top of that, Pennsylvania is a state that doesn't trust women to know their own minds--so it places an additional burden on women seeking abortion by requiring "counseling" and a 24-hour waiting period before a woman can have an abortion. That would have meant two trips to a distant clinic, or a stay in a hotel--and Jennifer Whalen and her husband had only one car that they shared to get to their jobs each day.

Judge Gary Norton who sentenced Jennifer Whalen
Judge Gary Norton who sentenced Jennifer Whalen

As a result, Whalen did what many women are increasingly doing: She turned to the Internet, and for $45 purchased the drugs misoprostol and mifepristone--otherwise known as "Mifeprex," "RU486" or the "abortion pill"--which induce a miscarriage in early pregnancy.

She had no idea that purchasing the drugs online was illegal.

DESPITE THE false claims of anti-choice conservatives, RU486 is safe and effective, even when taken at home. (According to the Guttmacher Institute, "Its 92-95 percent success rate is comparable to that of surgical abortion. It is also safe, as severe complications are extremely rare. Of the 1.52 million women in the United States who used Mifeprex between 2000 and 2011, 612 were hospitalized, most frequently because they required a transfusion due to excessive bleeding."

When her daughter complained of stomach cramping (a common side effect of the drugs), Whalen took her daughter to an emergency room--where she was checked and released without treatment.

According to the New York Times Magazine's Emily Bazelon, no one at the emergency room mentioned to Whalen that she had committed a crime--but they reported her to the state's child-protective services.

Soon after, Whalen received a visit from police, who had a warrant. They searched the family home and found the packaging the medication came in.

And then...nothing. For two years, the Whalen family heard nothing from police. Until December of last year, when Montour County district attorney, Rebecca Warren, charged Jennifer Whalen with a felony for offering medical consultation about abortion without a medical license, along with three misdemeanors, including endangering the welfare of a child, dispensing drugs without being a pharmacist and assault.

Initially, Whalen's lawyer attempted to arrange a plea to the three lesser charges in exchange for no jail time--but Whalen found out that a guilty plea to those charges would automatically lead to her dismissal at the assisted-living facility where she was employed.

Instead, Whalen chose to plead guilty to the felony charge--hoping for probation time instead of jail, given that she had a clean record.

But Montour County judge Gary Norton decided to send Jennifer Whalen to jail, arguing, "This was somebody taking life and law into their own hands."

NOW, JENNIFER Whalen's family, which was already struggling to get by, will lose their mother. Whalen's 11-year-old is left without a mother at home because of the desire of the state to make an example out of a desperate mother who did what she thought was best for her older daughter.

This is by design. "Family values" politicians have created a system that is tearing the Whelan family apart--all because a mother with limited options helped her child exercise a constitutionally protected choice to have an abortion.

As Emily Bazelon notes, while anti-choice conservatives like to claim that women are not punished for seeking even illegal abortions (because, they claim, anti-choice laws are about "protecting women and babies"), the truth is that women who skirt anti-choice restrictions are punished in the legal system. According to Bazelon:

In 39 states, it's against the law to perform an abortion if you're not a doctor. In some of the remaining states, you are still required to be a medical professional (a midwife, nurse or physician assistant). In New York, you can do your own abortion in the first two trimesters, but only if you're following a doctor's advice. About a quarter of states also still have old laws that make it a crime to help someone else with a self-induction. In a law passed in 1845, for example, Massachusetts calls for a sentence of up to seven years for assisting.

But what choice is left to women like Jennifer Whalen's daughter, when the right to abortion is fettered with so many restrictions that the hurdles to actually obtaining one are almost impossible to surmount?

As of July 1, according to the Guttmacher Institute, the following restrictions on abortion access were in place in Pennsylvania:

-- A woman must receive state-directed counseling that includes information designed to discourage her from having an abortion and then wait 24 hours before the procedure is provided.

Health plans that will be offered in the state's health exchange under the Affordable Care Act can only cover abortion in cases when the woman's life is endangered, rape or incest, unless an optional rider is purchased at an additional cost.

Abortion is covered in insurance policies for public employees only in cases of life endangerment, rape or incest.

The parent of a minor must consent before an abortion is provided.

Public funding is available for abortion only in cases of life endangerment, rape or incest.

Add to that the increasing scarcity of providers in the state, and the options for working class women and their families are whittled down to next to nothing.

OVER THE past several decades, conservatives have used such anti-choice restrictions as a way of placing abortion out of reach for women--chipping away at the right to choose a piece at a time. And it's been a successful strategy for them.

But the case of Jennifer Whalen should send alarm bells through the pro-choice community because, as Bazelon points out, Whalen's prosecution is perhaps the first recent case concerning the attempt to end a pregnancy in the first trimester--when nearly 90 percent of legal abortions take place. According to Bazelon:

What Whalen did in trying to help her daughter--order pills online--is probably an increasingly common response to the rising wave of abortion restrictions that has rolled across the states in the last four years. "Her situation is very scary legally, because we are seeing the number of clinics dwindle," Nash said. "If women don't have access to abortion clinics, some will turn to the Internet, and then, will they be charged with a crime?"

That possibility is a very real one. Jennifer Whalen's prosecution is intended to send a message to women seeking to take their health into their own hands and sidestep laws designed to curtail their access to abortion. Prosecutors and the judge are essentially saying, "Abortion is legal--but when you exercise that choice in a manner we deem unacceptable, we'll make sure it's as hard and traumatic for you as possible."

As the case of Whalen and her daughter shows, however, restricting abortion doesn't make it go away. Instead, it forces women to take unnecessary chances with their health. No woman should need to make the tough choice that Jennifer Whalen and her daughter did.

Instead of condemning Whalen and taking her away from her family, we should be asking why it is that women can have the theoretical legal right to an abortion but be totally cut off from the ability to obtain one in reality.

Abortion shouldn't be a right in name only. For it to be a real "choice" for women it must be accessible, cheap and safe. It must be made available to women, whether at home in early trimesters, or in the form of hospitals and clinics that can serve women, including poor and rural women, in the case of needed surgical abortions.

"Free abortion on demand" was a rallying cry in the years before the Roe v. Wade Supreme Court decision made abortion legal. It's time to make it one again so that women like Whalen and her daughter aren't punished by the system.

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