The demise of Roe v. Wade causes harm far beyond abortion patients. In places where abortion is severely restricted, women with ectopic pregnancies and those who experience unavoidable miscarriages have reported delays in care that put their health, life and future fertility at risk. Some have trouble getting drugs to treat miscarriage because those drugs are also used for abortion.
The line between abortion and pregnancy loss has always been blurred. But in recent decades, the anti-abortion movement has forged a culturally clear line between the two experiences, promoting dueling stories of “bad” mothers voluntarily causing fetal death, versus “good” mothers mourning an inevitable pregnancy loss.
These stories are often steeped in harmful stereotypes: Black and poor women are often blamed or even persecuted if they miscarry, while white women of economic means are believed to be victims of a physical process beyond their control.
The abortion rights movement has at times widened the gap between abortion and pregnancy loss by minimizing the focus on the fetus, to ensure that the interests of the pregnant woman never outweigh. That has enabled many in the movement to avoid the difficult question that pregnancy loss raises: What was lost?
This minimization can be shocking to women who think they have lost their child in the womb. As abortion rights advocates evaluate how to rebuild their movement after Roe, they should rethink their approach to this issue. This could help them form alliances in the future.
Pregnancy loss and abortion have more in common than many people realize. The physical experiences are often almost identical. Early abortion with medication mimics the experience of a miscarriage, and early miscarriage care often involves the same medications or procedures used for an abortion. Subsequent pregnancy losses and abortions, both of which are rare, often involve the same procedures or induction of labour.
The stigma and isolation many experience after both events are similar and often revolve around perceived failure in motherhood. The same groups – poor women and women of color – are more likely to experience both events. And while the emotional response to abortion and pregnancy loss can be very different, especially when a patient terminates a desired pregnancy, the grief felt can be quite intense.
Abortion and miscarriage are both common. In 2020, about one in five pregnancies that did not miscarry ended in an abortion. The miscarriage rate is estimated at one in five known pregnancies. And about one in 160 births is a stillbirth, that is, pregnancy loss at or after 20 weeks.
The ambiguity between abortion and miscarriage was historically more apparent, including at the time of the ratification of the 14th Amendment, the period that majority opinion in Dobbs v. Jackson Women’s Health Organization found particularly relevant to whether the right to abortion exists. There was little moral guilt among women who took steps to terminate a pregnancy; rather, this was a respected method of postponing pregnancies so that a mother could care for her children. Regardless of what the laws might have said, doctors and women often thought the distinction between miscarriage and abortion didn’t matter until they accelerated (the point in a pregnancy at which a woman can feel the fetus move).
Today, however, abortion and pregnancy loss are generally seen as two different things, at least in part because of the anti-abortion strategy. Decades ago, the anti-abortion movement realized it could use grief after the loss of a pregnancy as a weapon to suggest the callousness of abortion and promote the concept of fetal personality. While that movement moved aggressively to give fetuses rights in various legal contexts as a way to undermine abortion rights — again, often taking advantage of grief after pregnancy loss — the abortion rights movement reflexively opposed these measures.
At times, abortion rights advocates have gone too far in opposing measures that could actually help those experiencing pregnancy loss — such as stillbirth birth certificates, a measure requested by women seeking recognition of the birth of their stillborn child. The abortion rights movement did this out of fear of a slippery slope that would undermine abortion rights; the same fear prompted the movement to avoid the topic of pregnancy loss or to refer to a fetus or embryo as “a clump of cells.” Any concession to fetal value could be used to tear down abortion rights, it was thought.
While these concerns are valid, it is possible to recognize the loss in pregnancy loss without sacrificing abortion rights. It doesn’t hurt the movement to admit that some people become attached to their children in the womb and that attachment has value. Even Roe v. Wade found no inconsistency between the right to an abortion and having a parent’s legal claim if, for example, their child was born dead for negligent behavior.
Denying fetal attachment, implicit or explicit, makes abortion rights supporters numb and doctrinaire. It also alienates the countless people grieving after a pregnancy loss who still strongly support abortion rights.
But attachment is entirely subjective; it develops for different people at different rates depending on their circumstances. And crucially, it may never develop. The same person who may have an early miscarriage after months of trying to conceive may have an emotionally uncomplicated abortion at another point in her life. If we base fetal value on the attachment of the pregnant woman and work to defend her conception of pregnancy, we can recognize loss without compromising abortion rights.
This view of subjective fetal value fundamentally contradicts the anti-abortion concept of fetal value, which equates a fertilized egg with a breathing baby from the moment of conception for each pregnancy. Fetal value erases the pregnant person’s perspective. We need to offer an alternative based on real experiences with pregnancy.
An abortion rights movement that talks about the fetus and woman together — as the anti-abortion movement has done for decades — has a better chance of winning hearts and minds. It also opens the door for the movement to more fully embrace reproductive justice, a framework created by women of color that recognizes the right not to have children in addition to the equally important rights to have children and raise them with dignity.
Many people experience abortion, pregnancy loss and the birth of a live child in one lifetime. The post-Roe Abortion rights story should embrace this reality. The abortion rights movement needs allies, and the pregnancy loss community — which also suffers greatly without abortion rights — could be a formidable one.
Greer Donley is an associate professor at the University of Pittsburgh Law School, specializing in abortion law. Jill Wieber Lens is a professor and associate dean of research and faculty development at the University of Arkansas School of Law specializing in stillbirth law. They are the authors of the forthcoming law review article “Abortion, Pregnancy Loss and Subjective Fetal Personhood.”
The Times is committed to publication a diversity of letters to the editor. We’d love to hear what you think of this or any of our articles. Here are a few tips. And here’s our email: letters..
Follow DailyExpertNews Opinion section at: Facebook, Twitter (@NYTopinion) and Instagram.
