As Republican legislatures race each other in the mad dash to outlaw abortion even before the Supreme Court overturns Roe v. Wade, experts are warning that a whole other group of people will be hurt by the broad, vague and draconian restrictions beyond those seeking an abortion.
Women who suffer from miscarriages and pregnancy loss are often treated using similar procedures, with the same drugs, usually in the same place as those undergoing abortions. The medical terminology is even similar, with some patients who experience miscarriages expressing shock to see the word “abortion” on their documentation.
So when legislatures heavily restrict the distribution of those medications, when they ban procedures using non-clinical language, when they shutter clinics and make training for providers harder to obtain, they’re also limiting options for people already dealing with the often traumatic experience of losing a wanted pregnancy.
“There is a lot about medicine that legislators don’t know, and much of it is related to the language they use, which is not clinical terminology,” Alina Salganicoff, director of women’s health policy at the Kaiser Family Foundation, told TPM. “They also don’t understand the implications of these bans on abortion and what they mean more broadly for pregnant people. There is ignorance around what the medical standard of care is, and, in many cases, there is an overwhelming mission to ban abortion at all costs.”
Shuttering Clinics, Restricting Training
“You have clinics that provide care for abortions and miscarriages — if you restrict or defund or close those clinics, you restrict access to care for miscarriages and pregnany loss too,” Dr. Stephanie Rand, an OB-GYN in New York and Fellow with Physicians for Reproductive Health, told TPM.
That’s a glaring problem in places like Kentucky, with its one abortion clinic to serve the entire state.
Physicians in states laden with abortion restrictions may struggle to get the necessary training, which is critical for those working in health care settings where they might have to treat emergency miscarriages.
“If there’s not abortion training as part of the practice, they don’t get as much training around miscarriage management,” Salganicoff said. “In many cases, states ban state employees from providing abortions — say, in hospitals with state funding — so there are a lot of limitations.”
There’s also a chilling effect on physicians as tranches of restrictions seek to punish them for providing abortions. That concern is enhanced by legislation that often uses political messaging language rather than clinical terminology, making it hard to understand exactly which procedures are banned or restricted.
In Texas under SB 8, for example, doctors have reported being told not to treat miscarriages until the fetus’ cardiac activity stops, which can put the woman’s life in danger.
Oklahoma’s new law, set to go into effect in August, would make it a felony for a provider to perform an abortion at all, point-blank. It’ll likely be challenged and potentially blocked in court before it takes effect, but the thrust of the flurry of similar legislation is clear: physicians who provide the service are putting themselves at risk.
Banning The ‘Abortion Pill’
Part of the reason that abortion clinics often serve dual purposes is the difficulty in obtaining and distributing mifepristone, a drug used in both early-term abortions and miscarriages. While it’s usually used in combination with misoprostol, only mifepristone is shackled by restrictions due to its reputation as the abortion drug. Misoprostol, also used to treat ulcers, can be readily obtained at any retail pharmacy.
Several red states have introduced bills to ban medical abortions this year, joining states like Oklahoma and Texas that already have restrictions on the books. They’re building off of the work already done by the federal Food and Drug Administration (FDA). The FDA instituted a mifepristone Risk Evaluation and Mitigation Strategy (REMS), a measure meant to limit access to potentially dangerous drugs — despite the fact that major medical groups including the American Medical Association and the American College of Obstetricians & Gynecologists all agree that the drug is safe and effective.
The REMS means that, prior to the Biden administration, mifepristone could only be administered by a “certified provider” in person, and not distributed by pharmacies. Women needing treatment for a miscarriage within the first ten weeks — most miscarriages occur in the first trimester, before 12 weeks — usually had to go to an abortion clinic where the providers are certified to distribute the drug.
That barrier leaves huge swaths of normal health care settings — hospitals, general providers, emergency rooms — without the ability to distribute the medication. Women seeking care there often have to opt for misoprostol alone, which is less effective, or choose a different treatment, like surgery.
“It’s less effective and not the standard of care we should be providing folks, and it’s purely because of access,” Rand, who consults for emergency rooms that lack mifepristone certification, said of using misoprostol alone. “It all comes back to the barrier created by abortion restrictions.”
The Biden administration knocked down the in-person distribution requirement, and announced that it intends to let “certified” pharmacies distribute the drug, though it has yet to release details on what the certification will entail.
Pregnant Women As Potential Criminals
Abortion restrictions, usually accompanied by legal penalties, also can create a cloud of suspicion around women dealing with pregnancy loss and miscarriages.
“After Roe, the first feticide statutes emerged,” Farah Diaz-Tello, senior counsel and legal director at If/When/How, a nonprofit network of lawyers advocating for reproductive justice, told TPM. “The thinking was ‘if we can charge somebody else criminally for harming a fetus, why can’t we charge the pregnant person?’”
People are already suffering from just the whiff of criminality.
Last weekend, a 26-year-old woman in Texas was imprisoned and charged with murder for self-inducing an abortion after she miscarried. She was reported by hospital staff when she came in for treatment.
The county district attorney dropped the charges, admitting that she hadn’t actually committed a crime — after her name and mugshot were plastered across social media, and only after the case attracted national attention.
“Now, abortion is considered suspicious and subject to a lawsuit by anyone at any time if they don’t like it,” Diaz-Tello said. “This atmosphere of tension, suspicion and surveillance leads to a situation where someone comes in with a self-managed abortion or pregnancy loss and can’t explain it to sombody else’s satisfaction, you get hospital staff erring on the side of making the report.”
Examples of women being criminalized after pregnancy loss are many and the scapegoats familiar. In one particularly gruesome case, an Alabama woman named Marshae Jones was charged with manslaughter after she was shot in the abdomen and suffered a miscarriage. Police argued that it was her fault for arguing with the woman who shot her, and that the fetus was the only innocent victim. The case was ultimately dismissed.
“Women will be charged and afterwards it’ll become incidental and charges will be dropped, but not before this woman in Texas spent the weekend in jail after suffering a pregnancy loss,” Salganicoff said. “We’re likely going to see a lot more situations like this one.”