Not Just Abortion: How Criminalization of Pregnancy Also Impacts Miscarriage Care

Use quotes to search for exact phrases. Use AND/OR/NOT between keywords or phrases for more precise search results.

Analysis Maternity and Birthing

Not Just Abortion: How Criminalization of Pregnancy Also Impacts Miscarriage Care

Caroline Reilly

Abortion and the management of pregnancy loss, combined with the risk posed by criminalization of adverse pregnancy outcomes, only hurts pregnant people.

For more on the criminalization of pregnancy, check out our special edition.

“She gave me the pills—I think about this all the time—in an unmarked manila envelope and told me what to do with them when I got home,” said Kate, who received misoprostol for a missed miscarriage in the first trimester of her pregnancy in 2017. At her ten-week checkup, she had a negative pregnancy test. At an ultrasound appointment a few days later, her doctor explained it was a blighted ovum, a miscarriage of an embryo that had stopped developing.

“I remember clearly that my doctor never used the word ‘miscarriage,’ she called it a ‘bad’ pregnancy,’ which made me wonder if what I was experiencing was a miscarriage at all. It was a few weeks before I realized it was really a miscarriage, and before I owned it and called it that,” Kate said. (Kate, like other patients referred to with only a first name, is a pseudonym used for privacy reasons.)

Kate’s doctor explained her options: She could wait and let the miscarriage complete on its own, she could take medicine to complete the miscarriage, or she could undergo a dilation and curettage (D&C) procedure. Kate opted to manage the miscarriage with medicine, saying she had just started a new job and didn’t want to take the time off. Her doctor gave her misoprostol, one of two drugs used in a medication abortion.

Roe has collapsed and Texas is in chaos.

Stay up to date with The Fallout, a newsletter from our expert journalists.

SUBSCRIBE

Kate’s story is one of many shared with Rewire News Group that reflects the explicit intersection of induced abortion and the management of pregnancy loss, and by extension, the risk posed by criminalization of adverse pregnancy outcomes.

“This may just be a story I tell myself,” Kate said, “but it felt really significant that she did not send me to the pharmacy for them, in a way that just made me think, ‘Oh, she doesn’t want her patients to have a hard time accessing abortion medication.’ I felt so much righteous rage about this, but maybe she just had them on hand for in-office procedures, I don’t know.”

Kate was sent home, and her doctor told her to watch for a gray clot—the egg sac—as a sign that she was passing the pregnancy, but it never happened. Days later she was back in the clinic for a D&C.

“Trying to do the medical miscarriage and then having the surgery felt like having two miscarriages,” Kate said.

When pregnancy loss becomes a jail sentence

Anti-abortion advocates have long relied on the false promise that no matter how many abortion restrictions they enact, they’re not targeting the people who have abortions—they only want to incarcerate providers and, as is the case under Texas SB 8, anyone who “aids and abets” someone having an abortion, (That could be someone who drives their friend to an abortion appointment, someone who works at an abortion fund, or the person at the front desk at a clinic.)

But even a cursory observation of the ways enforcing any abortion restriction work makes clear that this will inevitably lead to the criminalization of adverse pregnancy outcomes. That’s because of the inherent assumption all abortion restrictions have at their core: the gendered and ableist belief that failing to carry a pregnancy to term for whatever reason warrants derision, judgment, and punishment.

What’s more, as self-managed abortion becomes increasingly essential with the ever-rising assault on access nationwide, lawmakers will set their sights on further criminalizing this too. This means patients seeking care for fetal loss, which is often indistinguishable from an induced abortion, will be subject to scrutiny and even prosecution.

We can’t take at face value anti-abortion lawmakers’ claims that their abortion bans do not target pregnant people. Overzealous prosecutors have their sights set on incarcerating pregnant people, just through other means.

The future of criminalization is here

Earlier this year a Native woman in Oklahoma was sentenced to four years in prison after losing a pre-viability pregnancy. The prosecution argued that the cause of fetal demise was Brittney Poolaw’s drug use despite insufficient evidence to show cause.

Advocates working on Poolaw’s case told Rewire News Group that while litigation regarding the criminalization of adverse pregnancy outcomes largely involves substance use disorder and drug use, increasingly they’re seeing the circumstances subject to criminalization expand.

Dana Sussman, the deputy executive director of National Advocates for Pregnant Women, drew a direct line from the ever-increasing attacks on abortion to the criminalization of pregnancy loss.

“Much of this is premised on the war on drugs, but it’s also premised on this false notion that everyone can guarantee a healthy pregnancy,” she told Rewire News Group in October. “And that it is somehow your failure, your incapacity, your fault, your failure, something you did or something you didn’t do, that caused the pregnancy loss.”

NAPW has been tracking cases involving the criminalization of pregnancy loss for decades, and what they’ve found is startling: a rapid escalation of criminalization that is being weaponized against the most marginalized pregnant people.

“When we look at all the cases involving criminalization of pregnancy—and we’ve been able to identify over 1,600 in the past 38 years—it’s about pregnancy loss and it’s about even healthy pregnancy outcomes,” Sussman said. “I think only 20 to 21 of those cases involved abortion. So, if we’re looking at what the future holds, the future is here.”

This will soon include the use of abortion-inducing medications and procedures, essentially closing the loop—while providers are subject to criminalization through laws like SB 8, patients will become more vulnerable as states move toward embracing fetal “personhood” and the criminalization of adverse pregnancy outcomes.

The American College of Obstetricians and Gynecologists estimates that as many as a quarter of all pregnancies end in a miscarriage. According to the Guttmacher Institute, roughly 20 percent of pregnancies end in an elective abortion. A world in which a large portion of all pregnancies are subject to criminalization is not a fiction but rather an imminent threat to all pregnant people—and most significantly, to Black women, disabled pregnant people, and lower income pregnant people.

“As a provider of complex obstetric care, I am highly sensitive to the fact that any limitation or criminalization of abortion puts the health and well-being of all patients at risk,” said Dr. Anna Whelan, a maternal-fetal medicine specialist in Rhode Island and a fellow with Physicians for Reproductive Health.

Abortion by another name

Clinically, a miscarriage is called a spontaneous abortion, and patients who choose to manage their pregnancy losses medically are receiving abortion care. And despite the widespread omission of these abortions from the larger discourse around access in the United States, firsthand accounts from patients and providers illustrate that they are very much inextricable.

“The word abortion is so stigmatized and that is what makes people upset when they come to have miscarriage management and receive paperwork that says abortion,” Dr. Gabriela Aguilar, an OB-GYN and a fellow with Physicians for Reproductive Health, said. “Or if they’re given a discharge or after-visit summary that says abortion, or [it’s] physically in an abortion clinic where they’re managing miscarriages in high volume. They’re uncomfortable being there.”

It’s a reality that patients don’t often realize until they’re in the middle of losing a pregnancy: Some providers outright refuse to manage miscarriages with medication or procedural abortions.

In an upcoming article for the Cornell Law Review, Greer Donley, an assistant professor of law at the University of Pittsburgh Law School, explores the implications of the Food and Drug Administration’s Risk Evaluation and Mitigation Strategy (REMS), a drug safety program that can be required for certain medications with what the FDA calls “serious safety concerns.” One of those drugs is mifepristone.

Patients “suffering from a missed or incomplete miscarriage, for instance … have less access to the drug because of the REMS, even though a combination of mifepristone and misoprostol is safer and more effective at managing these miscarriages than misoprostol alone,” Donley writes in the article.

When patients choose to manage a miscarriage with medication, “they are typically only given misoprostol, even though recent research suggests that the combination of mifepristone and misoprostol is more effective,” Donley writes. “But because the REMS requires certification to prescribe mifepristone—and most OB-GYNs are not certified—it is impossible for this regimen to be adopted into regular clinical care, harming women experiencing miscarriage as well as those who need abortion.”

While a recent study indicates the use of misoprostol alone may be as effective as using it in combination with mifepristone to induce an abortion, the American College of Obstetricians and Gynecologists recommends the use of both misoprostol and mifepristone to medically manage early pregnancy loss. But providers might not follow that protocol—like Kate’s doctor, who only provided her with misoprostol. This lowers the efficacy of the medication abortion and might be why she later required a D&C to complete the miscarriage.

Misoprostol is less regulated and more readily accessible than mifepristone because it has other medical uses. We spoke with providers who use misoprostol alone to avoid the hurdles of accessing mifepristone both for themselves and for patients.

“We don’t really have a lot of access to the mifepristone,” said Dr. Kristen Cain, an IVF provider in Georgia who helps her patients manage pregnancy losses. “So we use just misoprostol because our patients usually get less blowback from the pharmacist about that.”

As the legal landscape surrounding abortion shifts, especially in states where restrictions are creeping earlier and earlier, some providers are growing hesitant to manage miscarriages at all. Dr. Ghazaleh Moayedi, an OB-GYN and board member of Physicians for Reproductive Health, recently shared with Rewire News Group that in Texas, where SB 8 has banned abortion at the point embryonic cardiac activity detected, doctors are being told to delay treating miscarriage patients until they become nearly septic for fear of being sued under the law.

Patients in the crosshairs

One patient, Sam, told Rewire News Group that when she found out she was miscarrying about six weeks into her pregnancy, she was given two options: see if it will complete on its own, or have a D&C. Since she worked at an OB-GYN and family planning clinic, she knew she also had the option to manage her miscarriage with a medication abortion.

“I was told they ‘didn’t prescribe abortion pills’ there and I would have to find ‘someone else’ to do that,” Sam said. “She said they were affiliated with a Catholic hospital and that was not an option.”

Lisa learned at her 12-week checkup that her pregnancy had stopped progressing soon after the six-week mark, and she initially settled on what’s called “expectant waiting” with her provider, essentially letting the miscarriage complete on its own. When that didn’t happen, she was given the option to take misoprostol and mifepristone or to have a D&C.

“I felt like I was already two weeks into this nightmare and wanted to be done,” Lisa said. “So I went with the vacuum aspiration, the D&C option. It was obviously a hard moment but I’m so incredibly glad it was an option.”

Like many of the patients who spoke to Rewire News Group, Lisa’s provider didn’t ever use the word abortion to describe the care she was receiving—in fact, most only heard their care referred to as an abortion on the hospital or insurance paperwork.

“One thing I remember clearly,” Lisa said, “was that the doctor—a white man in his 50s or 60s—offhandedly was like, ‘Yeah, for abortion patients I usually recommend a round of treatment for chlamydia, but that’s a higher risk population so I don’t think you need it.’ Which … felt inappropriate!”

Progressive providers weigh in

There is little reporting about the intersection of miscarriage management and abortion care. Despite the fact that medically managed miscarriages are abortions, it’s unclear if these procedures are even counted among the national abortion statistics. The stigma and taboo around these topics informs the care patients receive. Providers said they see this firsthand.

“At Planned Parenthood of the Pacific Southwest, it is part of our medical protocols to administer both mifepristone and misoprostol for miscarriage management,” said Dr. Toni Marengo, an OB-GYN in California and chief medical officer at Planned Parenthood of the Pacific Southwest. “This is evidenced-based medicine and ACOG has released this as best practice through one of their Practice Bulletins.”

“Despite this,” Marengo added, “I believe that many health-care providers have not adopted this best practice due to unfamiliarity with mifepristone, stigma related to mifepristone as an ‘abortion medication,’ or other obstacles placed upon them by their practice, hospital, or pharmacy.”

Marengo said it’s critical for patients to receive the full spectrum of miscarriage management options including expectant waiting, medical management, and procedural management, especially considering the emotional implications of pregnancy loss.

“In practice, I find some patients who just want the experience to be over and will immediately ask for an aspiration procedure,” Marengo said. “Many other patients need some time to sit with the news of the pregnancy loss, and choose expectant management to grieve and have time to consider their options.”

In addition to miscarriage management, maternal-fetal medicine specialists perform a procedure called a selective reduction, which patients undergo to reduce the number of fetuses in a multifetal pregnancy—typically triplets or more, or in pregnancies where one fetus presents with a fetal anomoly.

“Selective reduction of pregnancy is a medical procedure to end a pregnancy, yes, it is a form of abortion,” said Whelan, the maternal-fetal medicine specialist.

Whelan said she has also used mifepristone and misoprostol for miscarriage management, adding that the ways in which medication abortion is restricted is a clear illustration of the widespread harm of laws regulating abortion.

“This is a great example of how abortion restrictions impact all pregnant people,” Whelan said. “And people who claim they don’t care about access to abortion because it will never impact their life should reconsider if they or their loved ones may need access to the same medications used for medication abortion to manage pregnancy loss.”

Toward a universalized understanding of pregnancy loss

“Everyone is going to have just a myriad of reproductive needs in their lifetime—compartmentalizing the care doesn’t make sense,” said Brooke Thomson, who experienced two pregnancy losses and works in reproductive health care. “Not talking about this variety of needs doesn’t make sense. All this does is lead to all of these things. It’ll lead to this criminalization of things that people don’t have control over.”

Abortion care and miscarriage management each exist in a tenuous space, one mired in sexism, racism, classism, and eugenics. What results is a culture that undermines the ability of all pregnant people to engage in self-determination, and the treatment of patients who use abortion to manage their miscarriages is a clear illustration of that. The way in which abortion care and miscarriage care are siphoned off from each other is the result of pervasive stigma, taboo, and secrecy that afflicts both topics.

None of this is to say that the fight to protect abortion access is more urgent because miscarriage patients are being impacted. Rather, it’s a call to consider how universal the experience of receiving abortion care is, and how many are at risk of criminalization. As Thomson points out, it’s the patients who suffer from these harmful laws and policies, and it’s the patients who would benefit from a greater understanding of the full spectrum of reproductive care—in which abortion is understood as something normal, life-saving, and life affirming.

“We stigmatize miscarriage so much, and we stigmatize the word abortion so much that no one has anywhere to go with two of these things that an enormous amount of people experience in their lifetimes,” she said.