The Health Law, Policy, Bioethics, and Biotechnology Workshop provides a forum for discussion of new scholarship in these fields from the world’s leading experts. Though the Workshop is typically open to the public, it is not currently, due to the COVID-19 pandemic. However, many of our presenters will contribute blog posts summarizing their work, which we are happy to share here on Bill of Health.
By Greer Donley and Jill Wieber Lens
In the summer of 2020, celebrity Chrissy Teigen shared her son’s stillbirth with her tens of millions of followers on social media, including photos of her agony at her son’s simultaneous birth and death.
Teigen and her husband, John Legend, are noted supporters of abortion rights. After Jack’s death, Planned Parenthood tweeted its condolences: “We’re so sorry to hear that Chrissy Teigen and John Legend lost their son, and we admire them for sharing their story.”
Backlash was swift, accusing both Teigen and Planned Parenthood of hypocrisy, questioning how one could believe abortion involves only a “clump of cells,” yet grieve a pregnancy loss.
This anecdote perfectly highlights the perceived conflict between pregnancy loss and abortion rights — that any recognition of loss in the context of stillbirth or miscarriage could cause a slippery slope to fetal personhood.
For decades, antiabortion advocates have sought legal status for fetuses outside of the abortion context, including after pregnancy loss, as part of a broader effort to create legal fetal personhood and end abortion. Worried about this potential, the reproductive rights movement has historically fought against legislative measures to support legal rights for expectant parents after pregnancy loss and ignored the subject in the public narrative.
Despite the perceived conflict, pregnancy loss and abortion have a lot in common, including that marginalized women are more likely to experience both, the physical experiences are remarkably similar, and a culture of secrecy and stigma surrounds both abortion and pregnancy loss.
The one area the two groups are assumed to diverge is their emotional connection — or lack thereof — to the fetus: women who experience pregnancy loss are bereaved parents, whereas women who terminate pregnancies are indifferent or hostile to their pregnancies.
These stereotypes, however, treat women as a monolith that is divorced from reality. Pregnancy attachment is not based on the mechanism of its ending, but on a variety of factors, including its degree of its wantedness, its length, the expectation that it will lead to a live birth, and its incorporation into families and communities. For this reason, women experiencing early miscarriage after an unintentional pregnancy may predominately feel relief, but women who terminate a wanted pregnancy in the second trimester after a relationship ends or a medical condition arises may feel profound grief.
Recognizing the possibility of post-pregnancy grief means admitting that something of value is lost when a pregnancy ends without a living baby. But there is a way to recognize fetal value without ceding ground on abortion rights. Pregnancy loss research describes that attachment in pregnancy is subjective and not based on biological facts like conception. It usually grows over time, but at different rates for different women based on a variety of individualized factors.
Tort law already recognizes this subjective reality. If a third party’s tortious conduct causes stillbirth, for instance, the woman is not guaranteed damages on the assumption that her fetus had an objective value. Rather, she must prove that she subjectively lost something — a relationship — when her baby died. This understanding of subjective, relational fetal value, which reflects women’s lived experiences, is fundamentally inconsistent with the antiabortion notion of legal personhood, a notion that is fixed and biological. Under that view, every pregnancy has maximum value starting at conception.
As the abortion war intensifies in the coming years, the antiabortion movement will certainly push for fetal personhood as a mechanism to end all abortion. But an abortion rights movement that can acknowledge a pregnancy’s possible subjective value will be better prepared for the fight ahead. Many legal scholars are preparing for a future where Roe v. Wade is gutted or overturned. In that likely scenario, roughly half of states will dramatically limit or ban abortion. History tells us that women will not stop needing or obtaining abortions; rather, they will be forced to travel to another state, if financially possible, or self-manage their abortion illegally at home, most likely by buying abortion medication online. Self-managed medication abortion is safe and effective in most situations, but incomplete abortions will happen in at least five percent of cases. These women will need to seek care at hospitals, and to avoid punishment for their abortion, they will likely feign pregnancy loss. As of today, there is no way to tell the difference between self-induction and miscarriage.
We know the likely outcome of this new reality: pregnancy loss will immediately become suspect for certain groups of women — poor women, women of color, and women who fail to manifest the “appropriate” grief response. In some states, this criminalization of pregnancy has already started.
Thus, in a post-Roe future, the pregnancy loss and abortion rights communities will need to come together to protect pregnant people. But there are already areas of overlap where these two groups can support one another: overly burdensome regulations on medication abortion are harming miscarriage management; bans on second-trimester abortion procedures are making it more difficult to treat late miscarriage and early stillbirth; and overly restrictive views on fetal viability delay treatment for both miscarriage and stillbirth. Antiabortion laws don’t exist in a vacuum — they harm other aspects of pregnancy.
The abortion rights and pregnancy loss communities can also work together to normalize and destigmatize all pregnancy outcomes. All women are harmed by the pervading single-path narrative that all pregnancies end in a healthy birth. The abortion debates have perpetuated this narrative. Abortion rights messaging assumes the burden of unwanted parenthood if abortion isn’t allowed, and antiabortion activists suggest that all terminated pregnancies end the life of a would-be child. Both these narratives erase the reality that almost a quarter of pregnancies end in neither abortion nor live childbirth, but loss.
Future messaging should focus on abortion as one way a pregnancy can end, alongside pregnancy loss and healthy birth. All are normal parts of a person’s reproductive life — these events may be traumatic, joyous, or something in between, but they are all normal. And supporting women through them all should be the goal of a holistic reproductive justice movement.