In December, I wrote a newsletter with the headline, “Overturning Roe Will Make Miscarriage Care Worse.” I pointed out that because the options that doctors have to end a miscarriage that doesn’t happen on its own — medication or surgery — are the same ones involved in an abortion, outlawing abortion would have a chilling effect on medical providers, as evidenced by cases in countries such as Malta and Poland where abortion is severely restricted.
Doctors wind up being afraid to conduct any procedure that may be misconstrued as an illegal abortion, even when they’re treating patients who miscarry. Women can then wind up with little choice about how their miscarriages end, sometimes simply having to wait to miscarry “naturally,” which may take weeks and risk their health in the process.
But Roe v. Wade didn’t have to fall for a slew of anti-abortion bills to make their way through state legislatures: Texas’ ban on abortion after six weeks was the first to become law, in September. As my Times colleagues Kate Zernike and Adam Liptak explained a few weeks ago, “The Texas law, which several states are attempting to copy, puts enforcement in the hands of civilians. It offers the prospect of $10,000 rewards for successful lawsuits against anyone — from an Uber driver to a doctor — who ‘aids or abets’ a woman who gets an abortion once fetal cardiac activity can be detected.”
There are situations where fetal cardiac activity is detected, but the fetus would not survive outside the womb, or a continued pregnancy would put a woman’s life at risk. As I wrote last year, women in Ireland, Italy and Poland have died of sepsis in such situations. In the past few months, legislators in Florida, Idaho, Oklahoma, Mississippi, Missouri and Wyoming have either introduced or passed laws severely restricting abortion. As Zernike points out in a March report about these laws, “Most bills have provisions to allow abortion to save the life of the mother. But even on that, states are cracking down.”
An early draft of a Missouri bill seemed to outlaw treatment for an ectopic pregnancy, which happens when a fertilized egg implants outside the uterus; it read:
According to the Mayo Clinic, “An ectopic pregnancy can’t proceed normally. The fertilized egg can’t survive, and the growing tissue may cause life-threatening bleeding, if left untreated.” The Missouri bill has since been amended, and though the bill’s author told The Columbia Missourian that the original text was misinterpreted, the “muddy” nature of the language in some of these documents is part of what concerns women’s health advocates.
“Make no mistake, these laws have a chilling effect on the ability to practice safe obstetrics,” said Dr. Courtney A. Schreiber, the chief of the division of family planning in the department of obstetrics and gynecology at the Perelman School of Medicine at the University of Pennsylvania. “These laws put physicians in an impossible position of having to balance regulations that don’t take into account the complexity of pregnancy and an actual person’s urgent need to sustain their health,” she told me. When these laws must be applied “in real life to real doctors taking care of real women, the language doesn’t translate, the sentiment doesn’t translate. The level of confusion and fear is intense for physicians practicing obstetrics in states with these restrictions,” she added.
As The Associated Press’s Lindsay Tanner noted, medical students are already being affected by anti-abortion legislation. Abortion training is not available at medical schools in Oklahoma, and “bills or laws seeking to limit abortion education have been proposed or enacted in at least eight states,” Tanner reports. Since the surgical procedure that’s performed to end a missed miscarriage is the same as the one that’s performed in an abortion, fewer doctors trained to do this procedure, known colloquially as a D. and C., will mean fewer options for miscarrying women.
The Texas law and laws like it set up a situation where “anybody who experiences a pregnancy loss that they can’t explain to the satisfaction of law enforcement becomes suspicious,” Farah Diaz-Tello, senior counsel and legal director at If/When/How, a legal organization that works for reproductive justice, told me.
“This is a lawyerly point, but the idea that if it is a crime to have done something to have ended that pregnancy, that becomes a jury question. You have to put a person through a trial to determine whether a loss was ‘innocent,’” she added.
Diaz-Tello mentioned the confusing case of Lizelle Herrera, a Texan who recently “was arrested and charged with murder — over what local authorities alleged was a ‘self-induced abortion,’” according to The Washington Post. Texas’s law “explicitly exempts a woman from a criminal homicide charge for aborting her pregnancy,” as The Post notes. The charges were ultimately dropped and the county district attorney apologized, The Post reports, but what is clear is this woman was put through a painful and terrifying situation because of this new law.
I asked both Schreiber and Diaz-Tello what women who live in Texas and other states with restrictive abortion laws can do to protect themselves should they suffer a miscarriage. If you are fortunate enough to have a choice of obstetric providers, Schreiber recommended interviewing clinicians about how they handle miscarriages, and making sure to choose someone you feel could help you navigate the process in a way that respects your autonomy. Though no one wants to think about a wanted pregnancy ending in a loss, having as much information as possible, in advance, about what your treatment options might be is another important step.
But many women don’t have these resources — according to the March of Dimes, about 38 percent of rural counties and 58 percent of urban counties are considered “maternity care deserts,” which means they have no access to hospital-based obstetric services. Black women in rural areas are particularly vulnerable.
Diaz-Tello said that being informed about your rights is key. If you have, for example, taken pills to end a pregnancy when that is not legal, you are not required to tell a doctor that you have done so. If/When/How also has a free, confidential legal help line if you have questions about your rights.
It’s appalling to me that the onus should be on a woman who is experiencing a miscarriage to avoid potential prosecution, but that’s where we are. Politico recently published an article suggesting that many Americans are under-informed about the scope and speed of the changes already happening. According to the Guttmacher Institute, in 2022 legislative sessions, 33 abortion restrictions have been enacted in nine states, and a stunning 536 restrictions have been introduced in 42 states. A Democratic operative told Politico, “Most voters still haven’t connected the dots to the looming federal change and mistakenly think Roe is almost untouchable.” This misconception needs to be corrected right now.
Texas obstetricians told NPR in October that the anti-abortion law, known as S.B. 8, was already complicating medical care for women with unviable pregnancies. “We don’t want a patient to get sick for a pregnancy that is not going to progress, it’s not going to continue,” said Dr. Theresa Patton of Dallas. “Now, am I going to be in legal trouble for offering that termination now? Do I need to wait until she’s septic and imminently in danger herself before I offer that termination? These are all of the things that we have been struggling with what we should do.”
The Times’s DealBook reports that private companies such as Yelp, Uber and Salesforce say they will pay travel costs for employees to seek abortions out of state.
“Medication abortions — the most common method of ending a pregnancy — are growing significantly more expensive,” reports Shefali Luthra in The 19th. It’s unclear how this cost may affect miscarrying women, but in 2015 in Slate I reported on the cost of miscarriage, which isn’t always fully covered by insurance.
Parenting can be a grind. Let’s celebrate the tiny victories.
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