Guest post by Karey Harwood, Ph.D. (Department of Philosophy and Religious Studies, NC State University)
Jennifer Whalen, the 39-year old mother who has been jailed in Pennsylvania for procuring an abortion-inducing medication (formerly called RU-486) for her 16-year old daughter, faced a version of what people familiar with the work of Lawrence Kohlberg will remember as the Heinz dilemma.
In the original Heinz dilemma, a thought experiment, a man named Heinz must decide whether to steal a drug that his dying wife desperately needs. The druggist is charging an extortionate fee for the drug but Heinz has no other source for obtaining it. According to Kohlberg’s theory of moral development, a person at the highest stage of moral reasoning will rationalize what to do not in terms of mere self-interest or even following the law, but in terms of human rights and universal ethical principles. In other words, if Heinz decides to steal the drug, and if he is operating at the highest level of moral reasoning, he will offer a justification that privileges life over property rights, or life over obedience to an unjust law.
Of course, Jennifer Whalen’s daughter wasn’t dying, she was pregnant. But, like Heinz, the mother’s (and daughter’s) options were severely limited and limited in ways that are arguably unjust. Pennsylvania law requires women to receive counseling and wait 24 hours before receiving an abortion. However, the closest abortion clinic to the Whalens was 75 miles away. Given this reality, the waiting period created an insurmountable obstacle to a family that lacked the time, transportation, and financial resources to make an extended trip for the needed medical services. It is worth noting that the scarcity of abortion clinics in states like Pennsylvania is no accident, but rather the direct and intended outcome TRAP laws (Targeted Regulation of Abortion Providers), which impose impossibly high standards on abortion clinics, forcing many to close.
Wanting to help her daughter, Ms. Whalen did what many desperate mothers would do if faced with a similar dilemma: she looked for alternatives. Ms. Whalen says she was unaware she was breaking the law when she placed an online order for the abortion medication, a combination of mifepristone and misoprostol used around the world to induce miscarriage. But even if her purchase was done in full awareness of the legal consequences, the moral reasoning that justified her decision seems to have gone something like this: the life chances and well being of my living 16-year old daughter are more important than submission to a set of circumstances and laws that are effectively depriving women of their legal and moral right to an abortion.
As with all dilemmas, it’s tempting to try to imagine a third way, to extricate oneself from the dilemma’s horns. For example, if the abortion medication could have been purchased legally with a doctor’s prescription, why didn’t she simply obtain a prescription? But there was likely an obstacle to that path as well. The New York Times reports that the family lacked health insurance for their daughter and that when the mother called a local women’s center on her daughter’s behalf, she was told no one there could help her.
The bottom line is the mother made the best choice she could make from severely limited options. What is most appalling about the fact that she is now serving time for her choice is not merely the realization that we are witnessing the re-criminalization of abortion. That is appalling enough. It is the choices of individuals, most notably the district attorney, Rebecca Warren, and the judge, Gary Norton, who, when faced with a moral dilemma of their own — show the mother mercy or take advantage of the opportunity to set an example — utterly failed to rise above the most craven political self-interest.
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[Jennifer Whalen’s] situation is very scary legally, because we are seeing the number of clinics dwindle,” Elizabeth Nash [a researcher at the Guttmacher Institute] 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?
The grim answer was yes for Jennifer Whalen because of a series of choices made by officials who had the discretion to respond differently. Hospital authorities decided that they were mandated to report Whalen, according to the district attorney, because they made a judgment call that what she did was “suspected or actual child abuse.” Warren, the district attorney, could have declined to press charges. And Norton, the judge, could have refrained from sending Whalen to jail.
No one in his right mind would call what this mother did for her daughter child abuse. But I do consider the judge and district attorney’s protestations that “this case is not about pro-life or pro-choice” to be implausible at best. Their law-and-order justifications for throwing the book at Ms. Whalen are no better than the disingenuous claims of TRAP bills, promoted in the name of women’s health when nothing could be further from the truth.
Contact: karey_harwood@ncsu.edu
