June 27, 2022

The end of Roe v Wade – the beginning of criminalising miscarriage?

By Catesby Holmes

Now the US supreme court has overturned Roe v Wade, patients who suffer miscarriages could get swept up in America’s anti-abortion dragnet.

“What we’re going to see is a lot of states that say any foetal loss after six weeks is suspicious – needs to be reported, needs to be investigated,” bioethicist and legal scholar Carmel Shachar of Harvard University, says.

For decades, the US guaranteed access to abortion up to the point of foetal viability – between 24 and 28 weeks – under the 1973 supreme court decision. But conservative justices on the nation’s highest court have now overturned that precedent, meaning half of all US states could ban or severely restrict the procedure. Abortion is already illegal in nine states, including Missouri, Kentucky and Lousiana, with 12 more likely to follow in the coming weeks. 

Miscarriages, also called spontaneous abortions, occur in about 15% of all known pregnancies; the risk increases dramatically with age. Around a million US women lose pregnancies each year.

The majority of miscarriages happen early in pregnancy, before week 13. They may be signalled by cramping and bleeding, but some people who miscarry have no symptoms, only learning that the pregnancy has ended when an ultrasound shows no foetal cardiac activity. This is called a “missed miscarriage” – and it’s one scenario that could put a person on a collision course with anti-abortion laws in the new, post-Roe US. 

Emily Scibetta, an obstetrician-gynaecologist in California, says that if the body does not eventually pass the foetal tissue on its own, missed miscarriage patients have two options. One is to take medication – the progesterone inhibitor mifepristone and the cramp-inducing misoprostol, aka “abortion pills”. The other is a dilation and curetage, or D&C – abortion surgery. Women suffering an “incomplete miscarriage”, meaning they bleed out some but not all fetal tissue, may both ultimately have to both use pills and get a D&C.

Because miscarriages and elective abortions often entail the same treatments, people seeking medical care for early pregnancy loss in anti-abortion states could face questioning from authorities.

“If you had a miscarriage at six weeks, eight weeks, ten weeks,” Shachar says, the question becomes: “Okay, did you have an impermissible abortion?”

Interrogation – and doctors’ fear of breaking the law – is more than uncomfortable for miscarriage patients. It can delay medical care. And while serious miscarriage complications, such as haemorrhage or serious infection, are rare – perhaps 1% to 2% of cases, according to the American College of Obstetricians and Gynecologists  – they require emergency care.

“It could be hours,” said Scibetta, of how quickly those conditions can kill a patient if left untreated.

In some cases of haemorrhage or sepsis, the foetus may still have a heartbeat, but the pregnancy is doomed – and so is the patient, if their uterus isn’t evacuated.

But for some anti-abortion medical personnel, a heartbeat in a miscarriage represents the same ethical or moral issue they have with abortion. Even in California, which has strong protections, Scibetta has run into this problem. She once rushed a pregnant woman with “massive blood loss” into surgery and was questioned by an operating room staffer who noted, “there’s still a heartbeat.”

“And I said, ‘Yes, there is – in my patient on the table,’” Scibetta says. She told the staffer there wouldn’t be one soon if she didn’t get the surgery.

In that case, the law ensured that Scibetta’s patient received life-saving surgery. Now, US states with total abortion bans will still technically allow the procedure to save the mother’s life, but critics say that exception is so narrow that doctors who fear legal liability may not invoke it.

Miscarriages could carry legal ramifications, too. Shachar foresees that in jurisdictions with a “very zealous anti-abortion prosecutor,” some patients who lose a pregnancy will be accused of inducing an abortion. Anti-abortion legislators in several states, including Kansas, have already tried to pass laws requiring medical officials to report miscarriages.

And a history of unequal law enforcement in the United States suggests some miscarriages are more likely to be deemed suspicious.

“People of colour, people who are struggling financially, residents of rural communities, immigrants, and trans, nonbinary, and gender-expansive people disproportionately face the risk of criminalisation for the outcome of their pregnancy,” according to a recent memo circulated by advocacy group Physicians for Reproductive Health, shared with Impact.

In some places, women are already being arrested for losing their pregnancy.

In April 2022, Lizzie Herrera was arrested and jailed in Texas  for “intentionally and knowingly causing the death of an individual…by self-induced abortion” after being hospitalised for pregnancy complications. This occurred even though Texas’s restrictive new six-week abortion law rules out punishments for women who get the procedure (it targets abortion providers instead). The charges were dropped.

There are precedents outside the US. El Salvador, where abortion is illegal, routinely charges women who suffer miscarriage or stillbirth with homicide.

Last year, the family of “Manuela”, a 33-year-old Salvadoran woman who was sentenced to 30 years in prison after a stillbirth, won a case in the inter-American court of human rights. The court ruled that El Salvador’s treatment of Manuela, who died in prison in 2010, violated various rights, including the right to health without discrimination, the right to privacy, and the right to equality.

The court ordered El Salvador to pay damages to Manuela’s family and “take the necessary measures to ensure comprehensive care in cases of obstetric emergencies”.  El Salvador must also publicize the judgement against it, informing all Salvadorans of the human rights its abortion ban violates.

“El Salvador is the ultimate example of why an abortion ban can lead to the wrongful prosecution of miscarriages,” says Juliet Sorensen, a professor of human rights at Northwestern University, who filed an amicus brief supporting Manuela’s family’s argument.

Sorensen says abortions bans “criminalise a personal, private choice related to bodily integrity that sweeps only those individuals who have the physical capacity to become pregnant into its ambit.”

As Salvadorans know, they are swept up on the basis of sex at a time of medical fragility and emotional vulnerability, and can wind up in prison just for losing a pregnancy. Americans may soon learn the same lesson, according to Shachar.

Now that Roe v Wade has fallen, she says, “you’re going to see some places where it is effectively illegal to have a miscarriage.” 

— Catesby Holmes is a freelance journalist based in the U.S.