For the Defense - Vol. 7, Issue 4 - 15

Governor Wolf's term is up at the end of 2022. Thus, as of this writing,
it's difficult to predict what the political and legislative landscapes
will be in 2023.
Nonetheless, in our continuing effort to ensure that criminal
defense attorneys across the Commonwealth are fully equipped to
serve every accused person at the highest level, this article will review
what we know now about abortion law in Pennsylvania in light of
Dobbs. Because change is occurring quickly, we will also review what
we don't know and attempt to alert you to what appears to be on
the horizon in 2023.
Abortion is Still Legal in Pennsylvania
Post-Dobbs, the law in Pennsylvania has not changed; at least not
yet. The Abortion Control Act6
( " the Act " ), which was amended in
1988 and 1989, remains the law. The law provides that no abortion
shall be performed except by a physician and imposes a third degree
felony if violated.7
Pursuant to the Act, abortion is prohibited at 24
weeks and provides exceptions for abortions " necessary to prevent
either the death of the pregnant woman or the substantial and
irreversible impairment of a major bodily function of the woman. " 8
Any person who violates this section commits a felony of the
third degree.9
The physician performing the abortion under the
" exceptions " clause must abide by exacting written confirmation
and consultation with another physician.10
Any person who violates
these subsections commits a misdemeanor of the second degree
for the first offense and a misdemeanor of the first degree for
subsequent offenses.11
Pennsylvania also requires " informed consent " before an abortion
is performed. In this context, informed consent means that the
patient seeking an abortion must be orally informed by a doctor
of alternatives to abortion and the risks associated with childbirth12
as well as statutory enumerated, rather paternalistic, information
meant to discourage the patient from having an abortion.13
After
the information is provided to the patient, the law imposes a
waiting period of 24 hours before an abortion can be performed.14
Parental consent is also required by the statute if the patient is a
minor under the age of 18.15
The law provides for a " judicial bypass "
where, in case the parent or guardian refuses consent or the minor
does not want to involve a parent, a court of common pleas judge
may decide that " the pregnant woman is mature and capable of
giving informed consent. " 16
Alternatively, a judicial bypass order can
issue upon a finding that an abortion is in the minor's best interest.
Failure to comply with either informed consent or parental consent
requirements subjects the physician to professional discipline.17
The gestational age of the fetus has become a flash point for
legislators attempting to restrict and criminalize abortion. Similarly,
legislation requiring physicians to conduct a physical examination,
usually by ultrasound, to determine if there is a " fetal heartbeat "
has been introduced in states throughout the country, including
Pennsylvania.18
medical or biological term. It is true that electrical activity in the
embryonic cells can be heard as early as six weeks gestation, before
most women know they are pregnant and before heart valves have
formed in the fetus. However, the consensus among most medical
experts is that the electrical activity heard on an ultrasound at six
weeks is not the sound of a heart beating and does not guarantee
a live birth.19, 20
criminal penalty shall apply to pregnant women who violate the
statute nor who undergo abortions.21
Yet, it has been reported that
when interviewed about the fetal heartbeat bill, Senator Mastriano
stated that pregnant women who violate his proposed legislation
should be charged with murder.22
Thus, if this bill or a similar bill
is passed, criminal penalties may be enhanced to encompass the
pregnant patient as well.
As trial lawyers confronting new criminal statutes, we have never
been afraid to consult experts to aid in interpretation of terms and
possibly act as expert witnesses at trial. In fact, we may be ineffective
if we fail to do so. Therefore, as we navigate uncharted legislative
waters in the future, the best advice we can offer is this: always
consult an expert, as abortion policy is often not grounded in science.
Policing Pregnancy in Pennsylvania
As many as one in four pregnancies end in miscarriage. The
reasons for this are varied and most often do not involve violence
or substance abuse. But the dissolution of female bodily autonomy
ushered in by the end of federal constitutional protections in Roe
will begin a new scrutiny of pregnancy outcomes where abortion
is criminalized. How will prosecutors view an " unexplained "
miscarriage? Will medical personnel be forced to report suspicious
reproductive/pregnancy conditions? Will all pregnant patients using
illegal drugs be reported to the police? Will family members helping
a loved one seeking an abortion be charged with a crime?
One 2014 Pennsylvania case stands out. In Commonwealth v.
Jennifer A. Whalen,23
Ms. Whalen learned that her 16-year-old
daughter was pregnant and wanted an abortion. She found that
there were no abortion providers anywhere near Montour County
where they lived. At her daughter's request, Whalen mail ordered
abortion medications from an online website. Her daughter took
a pill and later inserted two pills intravaginally and ended her
very early pregnancy. Her daughter was alarmed at the bleeding
and cramping, so Ms. Whalen took her to the local hospital and
truthfully answered questions about the abortion. The daughter
was discharged from the hospital without incident. However, the
hospital contacted child protective services, which, in turn, contacted
the police. The next day, the police arrived at the Whalen residence
with a search warrant and found the empty box that had contained
the mail-order abortion medication.
Ms. Whalen was charged with violating a provision of the Abortion
The proposed Senate bill, championed by State
Senator Doug Mastriano, would amend the Abortion Control Act
to prohibit abortion if a fetal heartbeat is detected. This proposed
legislation is striking because the term fetal heartbeat is not a
Control Act for providing an abortion without a medical license, in
violation of 18 Pa. C.S. § 3204(a)(1), a felony of the third degree. She
was also charged with unlawful acts/not licensed as a pharmacist in
violation of 63 Pa. Stat. § 390-8 (2), an ungraded misdemeanor; child
endangerment for endangering the life of her pregnant daughter,
Vol. 7, Issue 4 l For The Defense 15
It should be noted that the Act provides that no
For the Defense - Vol. 7, Issue 4

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