Miscarriage And Abortion Laws: Understanding The Exceptions

Abortion laws vary across different states and countries. In the US, abortion is banned in 14 states, with many other states having attempted to ban or severely restrict access to abortion. While all of these bans have an exception to prevent the death of the pregnant person, some bans include other exceptions that fall into three categories: when there is a risk to the health of the pregnant person, when the pregnancy is the result of rape or incest, and when there is a lethal fetal anomaly.

In Texas, for example, treatments for miscarriages and ectopic pregnancies are still legal under the state's abortion ban. However, the statutes don't account for complicated miscarriages, and the confusion has led some providers to delay or deny care for patients. In some cases, pregnant people who are actively miscarrying may be denied care if there is still detectable fetal cardiac activity.

In other countries, such as the Philippines, abortion is illegal under any and all circumstances, and there are no exceptions provided by law.

The Health of the Mother Exception

The exception is intended to protect the life of the mother, but the language used is not rooted in science and fails to account for the fast-moving realities of medicine. For instance, the exception only applies when a patient is inarguably on the brink of death or facing "irreversible" harm. This leaves doctors facing a difficult decision, as they must balance their patient's medical needs with their own legal liability.

The penalties for mistakes are severe. In some states, violating abortion laws is considered a felony, punishable by large fines, and prison sentences ranging from 10 years to life. This has created a chilling effect, with doctors reluctant to perform abortions even in cases where the mother's health is clearly at risk.

The exception also fails to account for mental health, which accounts for 20% of pregnancy-related deaths in the US. Almost all states with health exceptions limit them to physical health conditions, with only Alabama including mental health concerns in its exception.

Ectopic pregnancies

In recent years, lawmakers have clarified that treatments for ectopic pregnancies do not count as abortions. However, the lack of clarity in abortion laws, coupled with the threat of jail time and hefty fines for medical professionals, has led to confusion and differing interpretations of the laws. This confusion has resulted in delays or denials of care for patients with ectopic pregnancies, even in states where such treatments are legal.

For example, in Texas, where abortion is banned, treatments for ectopic pregnancies are still legal. However, there have been reports of hospitals and doctors in the state denying or delaying care for patients with ectopic pregnancies due to fear of prosecution. In one case, a physician in Central Texas was allegedly instructed by a hospital to wait to treat an ectopic pregnancy until a rupture occurred, which can be life-threatening. In another instance, a patient in Texas with a tubal ectopic pregnancy was initially discharged from the hospital without treatment and later refused the standard medication, methotrexate, despite her doctor's orders. By the time she received treatment, the ectopic pregnancy had ruptured, and she nearly bled to death, ultimately losing her right fallopian tube.

The vague and unclear language in abortion laws regarding ectopic pregnancies has been criticized for creating fear, stigma, confusion, and added expenses, all of which increase barriers to care. Legal and medical experts have raised concerns that healthcare professionals may delay care for people with ectopic pregnancies due to the ambiguous legislative language. Any delay in treatment for an ectopic pregnancy can be dangerous, as ruptured ectopic pregnancies require immediate care to prevent severe bleeding and potential loss of life.

While abortion laws in some states, like Texas, explicitly allow for exceptions for ectopic pregnancies, the lack of clarity in the laws and the potential for differing interpretations can have life-threatening consequences for patients.

Miscarriage care

Miscarriage is the spontaneous loss of a pregnancy before the 20th week, usually in the first trimester, and often before 12 weeks. It is common, with around 10-20% of known pregnancies ending in miscarriage, and some studies putting the figure at 30%.

There are three main treatments for early pregnancy loss: expectant management, medication, and a surgical procedure called dilation and curettage (D&C).

Expectant Management

This involves letting the body pass the pregnancy tissue without medicine or a procedure. This is a more natural option but is less predictable than other treatments. Most women pass the tissue within 2 weeks, but it can take longer, and if it does, medication may be recommended to start the process.

Medication

Medication is faster and more predictable. It is absorbed through the cheek or vagina, and cramping or bleeding usually starts within a few hours. Most women pass the tissue within 48 hours and don't need further treatment. Medication allows more control over the timing of the tissue passing.

Dilation and Curettage (D&C)

D&C is the most predictable treatment. An ob-gyn passes a small tool through the cervix and into the uterus to remove the tissue. It is a faster, more certain treatment and is the safest option if the patient is already bleeding heavily.

Emotional Support

People have different emotional reactions to miscarriage. Some feel sadness or grief, others may feel relief, and some may feel a mixture of emotions. It is important to allow yourself time to process your feelings. Talking about these feelings with friends, family, or a mental health professional can help.

Physical Recovery

Physical recovery is usually quick, with most women resuming their regular activities a day or two after passing the tissue or having a D&C. To keep the risk of infection low, it is recommended not to put anything into the vagina for a week, including tampons, menstrual cups, or douching. Light bleeding or spotting can go on for 4-6 weeks.

Aftercare Instructions

• Call your care team if you have very heavy bleeding, a fever, or feel unwell.
• Take your temperature each day between 4 and 8 pm for a week.
• Slowly start normal activities, but avoid strenuous exercise for 2-3 days.
• Your breast may be tender or feel full, and they may leak milk. Use breast pads and ice packs to help with pain and swelling.
• Take acetaminophen and ibuprofen as needed for pain.
• Do not stimulate or pump your breasts, and avoid letting hot water fall on them in the shower.
• Eat a balanced, healthy diet and cut down on food and drinks containing sugar.
• Drink 6-8 glasses of fluid each day and limit caffeine and alcohol.
• Your first period will usually arrive about 2 weeks after any spotting or light bleeding ends, which is typically 2-3 months after passing the tissue or having a D&C.

Rape and incest

The majority of countries worldwide allow abortion in cases of rape and/or incest, either through explicit laws or by permitting abortion on request. However, the feasibility of accessing abortion care under these exceptions is often limited by various factors.

In the United States, the issue of abortion exceptions has come into sharp focus following the Supreme Court's 2022 ruling in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and eliminated the federal constitutional right to abortion. This has resulted in a rapidly shifting landscape of abortion access across the country, with many states enacting new restrictions and bans. As of October 2024, 41 states have abortion bans in effect with only limited exceptions.

Among the states with abortion bans or early gestational limits, there is a divide when it comes to rape and incest exceptions. As of August 2024, 11 states make exceptions for pregnancies resulting from rape or incest, while 10 states do not. Of the 14 states with total abortion bans, nine (Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Tennessee, and Texas) lack a rape or incest exception. The remaining five (Idaho, Indiana, Mississippi, North Dakota, and West Virginia) have exceptions for cases of rape or incest but limit these exceptions to the earlier stages of pregnancy.

The lack of provider availability, law enforcement reporting requirements, and early pregnancy gestational limits can make accessing abortion care extremely challenging for pregnant survivors of sexual assault. Most rape or incest exceptions require the involvement of law enforcement, which can be a significant barrier for survivors who are often afraid to report their experiences due to fear of retaliation or a lack of trust in the system. These reporting requirements can also delay care and create additional logistical hurdles for those seeking abortions.

The specific details of the rape and incest exceptions vary from state to state. For example, in Iowa, survivors of sexual assault must report the incident to law enforcement or a health agency within 45 days, while survivors of incest have up to 140 days to report. In West Virginia, the exception for rape or incest is limited to 8 weeks from the last menstrual period for adults and 14 weeks for minors.

The debate around rape and incest exceptions is highly contentious and often subject to political and ideological influences. While the vast majority of Americans support legal access to abortion for pregnancies resulting from rape or incest, anti-abortion advocates and politicians are increasingly at odds with public opinion on this issue. This divergence has the potential to shape election issues and influence political strategies.

Severe birth defects

Abortion laws in the United States vary from state to state, and the issue remains divisive. While abortion is banned in 14 states, the laws in these states do make exceptions to prevent the death of the pregnant person. However, these exceptions are often unworkable in practice and have prevented physicians from practicing evidence-based medicine.

Abortions due to severe birth defects are rare. Six states surveyed 2.44 million women over the period 1996-2020 who had abortions and found that only 0.69% chose abortion because of birth defects. However, this number is likely an overestimate, as many women are scared into abortions by doctors who exaggerate the extent of their unborn babies' handicaps.

The American College of Obstetricians and Gynecologists (ACOG) has determined that 16-year-old girls giving birth have a 1 in 570 chance of having a baby with a serious or fatal birth defect. In other words, 99.83% of their babies are born perfectly healthy. As the mother’s age increases, the incidence of serious or fatal birth defects rises, but still remains small. At the age of 35, pregnant mothers can expect a 99.48% probability of having a perfectly healthy baby, and at 40, the probability is 98.48%.

Abortion for severe birth defects is a contentious issue. Those who oppose it argue that a disability does not make a person any less human, and that abortion in such cases is a rejection of God's gift and goes against His plans for the unborn child. They also argue that severe birth defects are often overdiagnosed, and that children with disabilities can lead happy and fulfilling lives.

On the other hand, those who support abortion for severe birth defects argue that it is inhumane to allow a child to suffer and die in the loving arms of its parents when it could be spared that agony through abortion. They also argue that parents of disabled children often face gruelling obstacles and that society is increasingly finding it easier to dispose of the disabled.

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