Laws that keep abortion legal but out of reach fail moral test

In January 2012, Jennifer Whalen purchased two drugs — mifepristone and misoprostol — without a prescription from an online pharmacy to help her 16-year-old daughter have an at-home abortion. Whalen was charged with a third-degree felony for violating Pennsylvania’s legal code, which allows only licensed physicians to perform abortions. On Sept. 5 she was sentenced to nine to 18 months in prison and received one year of probation for the misdemeanor of dispensing a drug without a pharmacist’s license.

Montour County District Attorney Rebecca Warren says her office had no choice but to press charges. Whalen “endanger[ed] the welfare of a child through the unauthorized practice of medicine and pharmacy,” she said. The district attorney is right: Whalen broke the law and endangered her daughter, so some punitive response is appropriate. But is her punishment morally fair?

Not obviously. Whalen did not receive the maximum allowable prison sentence for her offense, which is seven years. But, since Pennsylvania’s abortion regulations put her in a position in which she reasonably believed she had no choice, the state bears some responsibility for her actions. If a state enacts a policy that it can foresee will encourage its citizens to break the law, then morality requires that the state temper the punishment it imposes on an individual who breaks the law precisely because the policy leaves her no viable alternative.

The district attorney also said, “This case is not about pro-life or pro-choice.” About this she is not right. The case has everything to do with the utterly inadequate framework Americans use to discuss abortion and abortion access. Whalen’s crime and punishment serve to illustrate the public’s confusion over the moral issues they raise. 

Abortion is legal in Pennsylvania. But like the other 24 states that scored an F on NARAL’s 2014 report card on women’s reproductive rights, Pennsylvania has enacted a suite of criminal provisions regarding abortion: The procedure must be performed by a licensed physician, a 24-hour waiting period is imposed between a medical consultation and abortion, and minors must have a parent’s consent. A bill that would require abortion providers to have admitting privileges at a hospital within 30 miles of their practice awaits discussion and a vote.

Since 1992’s Supreme Court case Casey v. Planned Parenthood of Southeastern Pennsylvania, such regulations pass constitutional muster as long as they do not impose an “undue burden” on women’s access to abortion — and most current provisions meet this legal standard. Still, reflecting the spirit that animated it, determining whether an abortion regulation imposes an undue burden on a woman requires a moral inquiry, which in turn will help determine the fairness of punishments imposed on women who circumvent the regulation.

Pennsylvania lawmakers (and Gov. Tom Corbett, for that matter) would be the first to acknowledge that the state’s provisions stand in the way of what might be called abortion on demand — that is their point. With the Whalen case, Pennsylvania appears to be on safe legal ground, since there is no constitutional right to abortion on demand. (Even if there were, there is a legal difference between a state’s prohibiting the exercise of a constitutional right and failing to facilitate the exercise of that right.)

But consider the situation that the Whalens faced. Like 87 percent of U.S. counties, Montour County, where the Whalens lived, lacks an abortion provider. The nearest abortion clinic was 74 miles away, and the related travel and accommodation costs were beyond their means. A hospital procedure was also out of the question because Whalen’s health insurance did not cover her daughter. What the Whalens could afford was the $45 price tag of the drugs online. 

Pennsylvania’s abortion policy significantly increases the probability that its citizens will run afoul of the law. The state insists that its restrictions are necessary to protect women’s health and are thus morally unimpeachable. Lawmakers know better. They know that unwanted pregnancy is an inescapable fact of life and that without access to safe and affordable abortion, poor women, uninsured women and women in rural communities — actually, all women — will seek out less-safe alternatives, just as the Whalens did. If protecting women’s safety is really what is at stake, the state ought to avoid putting people like the Whalens in a position in which they will take personal and legal risks to avoid bringing an unwanted pregnancy to term. States like Pennsylvania that knowingly keep women in this position through restrictive abortion regulations are to some extent complicit in women’s illegal behavior. And they limit the scope of prosecutors’ and judges’ morally motivated discretion.

In 2011 state legislators across the country introduced more than 1,000 provisions like Pennsylvania’s. That fact, together with the ease with which the drugs used for medication abortions are available online, suggests that cases like the Whalens’ will become more common.

That outcome can be avoided, but only if we collectively recognize that a significant factor in our national inability to have a productive conversation about abortion and abortion regulation is the language we have at our disposal.

The terms “pro-choice” and “pro-life” do not mark out opposing opinions on a single continuum. “Pro-choice” best labels views about the legal status of abortion, whereas “pro-life” best labels views about the moral status of abortion. The strategic advantage of these terms is undeniable. Who wants to admit to be either against choice or against life? But the juxtaposition of the terms makes no sense. And by a kind of semantic fiat, that juxtaposition precludes reference to a view about abortion arguably shared by the majority of Americans — namely, that intentionally ending the development of a human fetus is a moral matter (only 23 percent of Americans deny this) and, simultaneously, that women ought to be able to access safe and legal abortion services (only 21 percent of Americans think that abortion should be illegal in all circumstances). The fact that over the past 20 years, polls framed explicitly in terms of “pro-life” vs. “pro-choice” have consistently shown Americans to be split 50-50 is not evidence of an irresolvable disagreement about abortion. It is evidence that respondents are being asked to provide a single answer to two very different questions.

Half a century ago, the protection of women’s health was the primary motivation of activists working to legalize access to abortion. No doubt some proponents of recent restrictive abortion laws can be fairly accused of cynically hijacking that concern for their own ends. But many people who support such regulations sincerely believe that it morally wrong for anyone to kill a human fetus. A good number of people who oppose such regulations might agree. This is what the polls suggest.

However, in eliding the very important distinction between the question of the moral permissibility of abortion and the question of how to address the inevitable public health problems associated with unwanted pregnancy, the “pro-life” vs. “pro-choice” framework provides no space in American public discourse for us to honestly disagree about the morality of abortion while honestly agreeing that the state has an obligation to protect women’s health.