I had considered writing about abortion laws and their potential impact on infertility and miscarriage management long before last night’s news about the draft Supreme Court opinion overturning Roe v. Wade, but I’ve been afraid to open myself up to potential anger and criticisms. I don’t want to debate when life begins or the merits of pro-life vs. pro-choice, that’s not what this blog is about. However, those debates and resultant legislation have real and potentially serious implications for the infertility and pregnancy loss communities, and I think it’s important to discuss how. That’s what this post will focus on. If this is a non-starter for you, stop reading now. For the rest of you, I’ve broken this down into three areas. There are others, but these are the ones I’ve spent the most time exploring and which I feel would have directly impacted my own fertility journey. First is the issue of “personhood,” second is the legislation restricting access to the “abortion pill,” and the third is the question of fetal harm and maternal responsibility.
**Please remember that I’m not a lawyer nor a constitutional scholar. This is simply a summary of my own research and personal opinion on the subject.
- Personhood legislation could limit assisted reproduction
Several states have already introduced legislation stating that human life begins at the moment of conception/fertilization (“personhood legislation”). If passed, these types of laws could severely limit reproductive research as well as assisted reproduction procedures like IVF. As stated in RESOLVE: The National Infertility Association’s policy position (I encourage you to read the whole thing), “with personhood legislation, the legality of pro-pregnancy fertility treatments would be called into question: if microscopic fertilized eggs/embryos are full humans, anything that puts an embryo at risk could be a criminal violation.”
Were a personhood law to pass in my state, it would mean that my remaining frozen embryos were PERSONS, persons with rights. I have four embryos remaining – 400 cells.
Currently, the decision about what to do with them lies with me. I can use them to try and become pregnant, I can have them destroyed, I can donate them to science, or I can donate them to another couple or individual. But if my embryos were considered persons, my options become limited. I could try for more children. Although, given my pregnancy history and current maternal age, one might argue that a transfer into my uterus would be reckless endangerment. Or I could donate them to another couple, essentially giving my embryos up for potential adoption. I find neither of these appealing.
Personhood legislation could also limit scientific research. Already no federal funds can be used for research involving the creation or destruction of embryos. Personhood legislation could further restrict privately funded research as well, limiting potential advancements in both reproductive research and embryonic stem cell research.
- Restrictions on medicated abortions impact miscarriage management
Movies and TV shows often depict miscarriages as happening all at once – a woman wakes up and her bedsheets are soaked with blood. Sometimes it happens like this. But often, a woman finds out her pregnancy is no longer progressing before her body starts to physically miscarry. In these situations, there are generally three choices: (1) wait for the body to naturally pass the pregnancy, or “expectant management”; (2) undergo a surgical procedure called a dilation and curettage (D&C) to scrape the uterine lining and remove the pregnancy tissue; or (3) induce a miscarriage using medication.
Over the course of my six miscarriages, I have personally selected and experienced each of the above options. They all have pros and cons, and they all generally suck. Expectant management is unpredictable; you can wait for weeks for your body to pass the pregnancy and often you still need to have follow-up treatment to remove “retained tissue.” Medical management is more predictable but can also result in an incomplete loss and require retreatment. Surgical management is predictable and complete, but it is invasive and (for me) resulted in post-operative uterine scarring, twice. I should also note that these are the options for managing early losses, later pregnancy losses are handled differently.
The American College of Obstetricians and Gynecologists (ACOG) recommends a combination of two drugs to medically manage an early miscarriage – an oral dose of a drug called mifepristone followed by a vaginal dose of a drug called misoprostol. However, this is the same drug regimen that would be used to induce an abortion in the first trimester.
Several states have now introduced legislation limiting the availability and use of mifepristone, calling it the “abortion pill.” And while, it is possible for a miscarriage to be managed with misoprostol alone, the combination therapy is more effective, there is a lower possibility of retained pregnancy tissue, and thus a reduced need for further treatment (see the NEJM study here). What this means is that after already suffering the trauma of early pregnancy loss, women are now receiving less effective medical treatment for their miscarriage because of abortion laws that restrict doctors’ ability to prescribe mifepristone.
- Fetal protection laws risk criminalizing pregnancy loss
Fetal protection laws are similar but different to personhood. Fetal harm legislation already exists in many states, and while it is usually used when a pregnant person is the victim of a crime, it also has been used to prosecute pregnant women whose actions contributed to their pregnancy loss.
As stated in a Kaiser Family Foundation (KFF) policy brief, “by granting full rights to a fertilized egg, embryo or fetus, or by failing to provide sufficient exemptions to pregnant women in fetal harm laws, the rights and protections of the pregnant individual may inevitably decrease. Because the pregnant person and their developing pregnancy can be regarded by the law as two separate entities, if a person experiences a pregnancy loss and they are thought to be at fault in any way, they could be charged with a crime using fetal protection legislation.”
If you read that and groaned because you think it’s ridiculous, think again. That same KFF brief references this analysis which identifies numerous cases in which women who experienced miscarriage or stillbirth were charged with crimes because state prosecutors believed them to be responsible for their pregnancy losses.
You may examine those cases and find the prosecutors’ arguments reasonable. But what does that say about me? I transferred two pre-screened, top-notch embryos, and I lost them. At this point, neither my doctors, nor I believe I was responsible for my losses, but what if I was? What if down the road, it’s found that I have a genetic predisposition for miscarriage (this, by the way is not outside the realm of possibility). If I intentionally got pregnant with the knowledge that I would likely miscarry, would that constitute fetal endangerment? If I did miscarry, would it be considered feticide? Where do my rights end and the fetus’s begin? If I skied or hiked while pregnant and had an accidental fall which resulted in loss, could I be held responsible or deemed criminally negligent?
I recognize I’m being hyperbolic, but there is a slippery slope here, and laws like these can have serious unintended consequences. My father told me that overturning Roe would never happen and was simply a fear tactic used by the left to increase voter engagement leading up to elections, but here we are. You tell me what’s hyperbole. And, even if you are pro-life, even if you support all the aforementioned legal restrictions, I still think it’s important to recognize how such laws might affect the entire spectrum of family planning not just whether or not a woman has the right to choose.
I’ll close by saying that one might imagine after everything I’ve gone through in my efforts to have a child, I’d be offended by those who elect to terminate their pregnancies. In fact, it’s exactly the opposite. After enduring the physical and psychological trauma pregnancy loss and considering the virtues and vices of unanticipated (and often undesirable) fertility treatments, I feel more than ever that all women should have all family planning options available to them.
Thank you for this well researched article. I am pro choice and this reaffirms my opinion that women are the only ones who should have control over their own bodies. I cannot imagine holding any woman responsible for her miscarriage but obviously, you have documented that this has happened. I think it would be more likely to occur now, given the current political environment.
LikeLiked by 1 person
Thank you for taking on a thorny but critical topic that directly impacts women’s family planning, including fertility treatments. Well written, and I appreciate the links to your sources. I pray Roe stands, and women’s rights are affirmed.
LikeLiked by 1 person
Well said, Megan 💖
LikeLiked by 1 person