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Let’s talk about miscarriages and justice
SCOTT PIEPHO
Cases and Controversies
Published: April 22, 2016
Women taking part in the grassroots protest movement #PeriodsforPence are leaving excruciatingly detailed messages at the office of Indiana Gov. Mike Pence about their monthly cycles. The action protests a draconian new Indiana anti-abortion law that, among other things, requires that any tissue from an aborted or miscarried fetus be either cremated or interred. That and various other provisions in the law appear intended to make it more difficult and expensive to maintain abortion facilities.
The period protests points out a poorly thought out implication of the law. Miscarriages happen all the time, especially early in a pregnancy, often resulting in what looks like a late period. The women mock the law by proactively informing the governor that they shouldn’t be investigated because as far as they can tell, their bodies have not expelled any tissue from a miscarriage.
Proponents of the law may point out that by its terms, the requirements regarding miscarriages apply only to facilities that come into possession of fetal or embryonic tissue. But the state of Indiana recently prosecuted Purvi Patel for feticide for allegedly acquiring miscarriage-inducing drugs. The law under which she was convicted was intended to allow full prosecution of anyone who unlawfully causes the death of another person’s fetus. Watching a law that was passed ostensibly to protect Purvi Patel being used to send her to prison for two decades has understandably made women suspicious of Indiana’s end game.
More generally, despite the universal outcry even among pro-life activists when Donald Trump suggested that laws against abortion should include some penalty for a woman seeking one, that is in fact a logical conclusion to criminalizing abortion. A state which fully outlaws abortion will see cases in which the only actor who caused the abortion is the mother. It strains credibility to believe that the states that are currently working to regulate abortion clinics out of existence will remain hands-off in cases where a woman induces an abortion herself. And Patel’s case is not the only one in which women have been investigated following miscarriages. By including provisions directly addressing miscarried fetuses, the state of Indiana has taken a step toward a particular dystopian fear. When terminating a pregnancy becomes illegal, miscarriages become potential crimes. Happily, the ACLU has challenged the law and obtained a preliminary injunction.
Generally I find abortion a comfortably abstract issue. It certainly won’t affect me directly and most of my relatives and friends who might be affected have the means to find a way to work around whatever laws get passed.
But I find myself personally affronted by any hint of the state mucking about in cases of miscarriage just to round out its policing of abortion. When my wife Elizabeth and I began trying to have a baby, we knew that she was considerably past prime child bearing years. We were prepared for the possibility of not succeeding, but did not know how difficult the near successes would be. I have learned since that our story is typical of couples facing fertility challenges, including delayed periods that gave fleeting hope and an eventual miscarriage.
When Elizabeth first told me that she was actually pregnant, I could not stop smiling. I also could not stop telling people about it, despite warnings that you shouldn’t announce it until after the third trimester because so many early pregnancies end unexpectedly.
Then she experienced signs of trouble. Eventually we ended up at her doctor’s office where they diagnosed a blighted ovum—an amniotic sac had formed and implanted, but there was no embryo within. Despite plenty of indications to the contrary, I had still held out some hope. When we got the news, we hugged and cried.
Elizabeth and I were lucky. A year after her miscarriage she got pregnant again and we had a healthy baby who is currently finishing her freshman year of college. We also were lucky that we did not have the state telling us to treat our personal setback as a human death. We didn’t have to fill out a form about how to treat our “baby’s” remains or pay a bill with a line item for cremation. The miscarriage is something that I barely think about anymore, partly because of the knowledge that we never had an actual baby to lose.
But for millions of other couples, miscarriages, especially as part of a broader history of fertility challenges remain traumatic memories. At worst, laws like Indiana’s will encourage investigating women at a point of traumatic loss. At the least, they will make it harder to move on.