For the Defense - Vol. 7, Issue 4 - 16

in violation of 18 Pa. C.S. § 4304 (a)(1), a misdemeanor of the first
degree; and simple assault on her pregnant daughter, in violation of
18 Pa. C.S. § 2701(a)(1), a misdemeanor of the second degree.
Ms. Whalen entered a guilty plea to violation of the Abortion
Control Act and the Pharmacy Act and on September 5, 2014, was
sentenced to 9 months to 18 months incarceration for helping her
daughter.
Times reporter Emily Bazelon.24
There was a national outcry over the case as noted by New York
The Montour County judge finally
granted a defense motion for early release after Ms. Whalen spent
30 days in jail.
The Whalen case stands as a stark example of what a post-Dobbs
future might look like in Pennsylvania, especially for families and
loved ones helping someone find abortion care.
As lawyers, we appreciate that words matter. Nowhere is this more
apparent than in the context of abortion and criminal law. When
enacting the Abortion Control Act, our legislature included statutory
language which connotes certain political and/or religious meaning.
For instance, the Act's definition section is quite overt in equating
and replacing scientific terms with partisan or inflammatory words.
For instance, the definition of the scientific term " Fertilization " is
conflated with the term " Conception " (as in the phrase " life begins
at the moment of conception " ) each to mean " the fusion of a
human spermatozoon with a human ovum. " 25
Likewise, the neutral
medical/biological term " fetus " is supplanted by the non-scientific
subjective term " unborn child. " 26
According to the statute, each
term shall mean an individual organism of the species homo sapiens
from fertilization until live birth.27
Thus, pursuant to the definition
section of the Act, the law in Pennsylvania already considers a
fertilized egg to be an unborn child. With Roe no longer providing
federal constitutional protection, we can only imagine how zealous
prosecutors might test the law to the limit in the event our laws
become more restrictive. Unfortunately, this is not an overreaction
as we have seen such tragic scenarios play out in other criminal
contexts.
The term 'unborn child " is peppered throughout the Act and
is also included in our homicide and assault statutes.28
Notably,
in Commonwealth v. Bullock, our Supreme Court held the statute
governing the offense of criminal homicide of an unborn child to
be constitutional.29
In reaching this conclusion, the Court recognized
the statute defined the death of an unborn child to include all
stages of gestation from fertilization to live birth.30
Rejecting
appellant's argument that such an interpretation violated Roe, the
Court simply stated " . . . the statutory language does not purport
to define the concept of personhood or establish when life as a
human being begins and ends; rather, it imposes criminal liability
for the destruction of a human embryo or fetus that is biologically
alive. " 31
In his concurring opinion, the late Chief Justice Max Baer
specifically rejected any effort to interpret the Court's holding " as
an attempt in any way to define, generally, a fetus as a life-in-being
or as endorsing the notion that the interruption of the reproductive
process is the killing of human life. " The Justice continued, " Roe and
16 For The Defense l Vol. 7, Issue 4
The criminal statutes for the offenses of homicide and aggravated
assault of an unborn child are subject to a " non-liability " provision
which prohibits criminal prosecution of " the pregnant woman in
regard to crimes against her unborn child. " 33
Although the language
of the non-liability clause is clearly written and avoids any ambiguity,
it took a trip to the Superior Court by our fellow PACDL member
and assistant public defender, Joe Smith,34
drop the charge against his client.35
before prosecutors would
In June 2017, Kasey Dischman
overdosed on opioids and went into cardiac arrest. She was 30
weeks pregnant at the time. An emergency Cesarean section was
performed at the hospital and the baby survived. Despite the noliability
clause, Dischman was charged with aggravated assault of
an unborn child, child endangerment, corruption of minors, and
drug possession. The trial court dismissed the aggravated assault
charge upon defendant's motion citing the non-liability clause of
the statute as authority.
The Commonwealth appealed and argued to the Superior Court
that Chapter 26 of the Crimes Code was enacted, in part, to protect
" unborn children " by extending victimhood to a fetus. It also argued
that the non-liability section as it applies to a pregnant woman is
" ambiguous " and is " absurd to prevent prosecution . . . of illegal and
reckless behavior such a drug use. " 36
The Superior Court disagreed and upheld the trial court's dismissal
of the fetal aggravated assault charge. Citing legislative history that
unquestionably demonstrated the legislature's intention to prohibit
prosecution of the pregnant women through enactment of the
clause, the court held that a pregnant woman cannot be held liable
under Chapter 26 for crimes against her unborn child.
In its discussion, the Superior Court referred to language in the
Bullock opinion for further support that, in the context of pregnancy,
Simply put, the mother is not similarly situated to
everyone else . . . . Under prevailing jurisprudence of the
United States Supreme Court, the fact of her pregnancy
gives her (and only her) certain liberty interests in
relation to the termination of that pregnancy the
Legislature could reasonably have sought to avoid
infringing by exempting her from criminal liability under
this particular statute.37
Recitation of the Bullock language here is chilling as we now
live in a post-Dobbs world where the " prevailing jurisprudence of
the United States Supreme Court " has removed a woman's federal
constitutional right to reproductive freedom to choose whether to
continue a pregnancy to term. Thus, to the extent that Roe provided
support for the legal rationales in Bullock and Dischman, which
upheld non-liability for pregnant women, the vitality of those cases
may now be in doubt. The Butler County prosecutor's zealousness in
Dischman, even where the non-liability clause was crystal clear and
its progeny remain the law in this nation and any attempt, based
upon the legislature's choice of language in the Act, to undermine
its constitutional imperative is unavailing. " 32
the Court's finding in Bullock.
Clearly, Roe informed
For the Defense - Vol. 7, Issue 4

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