Ideas
June 24, 2022 12:24 PM EDT
Donley is an assistant professor of law at the University of Pittsburgh Law School.
Lens is the associate dean for research and faculty development and the Robert A. Leflar Professor of Law at the University of Arkansas School of Law

On Friday, the Supreme Court held that the Constitution no longer protects the right to an abortion, eviscerating nearly 50 years of precedent and opening the door for states to ban abortion at any point in pregnancy. This decision will have devastating effects for people needing abortion care, who will now be faced with a terrible choice: travel to a state that permits abortion (which many people cannot afford), self-manage the abortion at home (which may come with legal risks), or carry a pregnancy against their will (which has long-term financial and physical health risks).

But the coming devastation will not be limited to those seeking abortion. Overruling Roe will also harm those experiencing pregnancy complications and pregnancy loss. We are about to learn in real time that abortion is reproductive health care because without it, pregnant patients across the spectrum will suffer.

Read More: Anti-Abortion Pregnancy Centers Are Collecting Troves of Data That Could Be Weaponized Against Women

Texas provides a sad snapshot of what is to come. Starting in September, Texas’s SB8 effectively banned abortion after six weeks. Since then, some people have been denied treatment for miscarriages, ectopic pregnancies, and severe pregnancy complications–all because of the treatments’ relationship to abortion.

Medical interventions offered for missed or incomplete miscarriage—miscarriages where the body has not registered the pregnancy loss or has not fully expelled the tissue—involve the same medications and procedures used for abortion. The only difference is whether the fetal heart has stopped first. Physicians frequently offer these patients medication to start or intensify contractions to speed up the miscarriage process. Many patients prefer this to waiting, as it can take weeks or months for the body to do this on its own.

Supporters and opponents of abortion rights demonstrate outside the U.S. Supreme Court Building on June 23, 2022 in Washington, D.C.
Shuran Huang for TIME

After SB8, many Texas pharmacies stopped dispensing these medications because they are also used for abortion. Pharmacists don’t know whether the patient will use the drug for abortion or miscarriage and are therefore refusing to fill prescriptions. The concern is that if the medication is used for abortion, the pharmacy or its employees could be liable for “aiding and abetting” an abortion under SB8 or for failing to adhere to Texas’s onerous regulation of medication abortion under SB4. In other countries that ban abortion, we know that medical and surgical interventions for missed or incomplete miscarriage may not be offered until weeks or months have passed, prolonging the miscarriage, increasing the medical risks, and exacerbating the grief and physical side effects.

Read More: Meet the Pharmacist Expanding Access to Abortion Pills Across the U.S.

SB8 also caused some Texas providers to stop offering interventions for inevitable pregnancy loss. At least one patient with an ectopic pregnancy, in which the fertilized egg implants outside the uterus, has reportedly traveled 12 to 15 hours by car to access care in other states. Some Texas providers are afraid to treat an ectopic pregnancy when fetal cardiac activity is present because it would terminate the pregnancy, albeit a non-viable pregnancy that threatens the pregnant person’s life. Other patients suffering from premature labor in previable pregnancies, where abortion is often medically indicated to prevent infection, sepsis, and death in the pregnant person, have also traveled to other states in the middle of a medical emergency to access care. Pregnancy loss is inevitable in these situations. But because the fetal heart has not yet stopped beating on its own, pregnant people are left to suffer and potentially die waiting or travel out of state to access care. In other countries like Ireland and Poland, women have died waiting for the fetal heart to stop, even though their laws also contained an exception to save the life of the mother.

In states where abortion is illegal, patients should also expect increased scrutiny and potential criminalization over their pregnancy loss. There is no way to tell the difference between someone who induced an abortion with medication and someone who had a natural loss. And thus, every pregnancy loss is suspect.

Read More: The State of Abortion Rights Around the World

We already know that suspicion will be more likely with certain pregnant people—poor people and people of color. For decades, adverse pregnancy outcomes have been criminalized, and at least 75% of prosecutions for conduct during pregnancy are against women of color. Post Roe, this criminalization will grow exponentially. Those least likely to be suspected of abortion are those displaying the socially expected grief response and who have actively sought medical care before or during pregnancy. Due to structural inequity in the health care system, the people who have already sought medical care are much more likely to be insured, educated, and white.

Consciously or unconsciously, this scrutiny will affect medical care for pregnancy loss, and the standards of care may be set aside when causation is suspected. The quality of health care is very important within pregnancy loss. Clear communication and emotional sensitivity are vital. Studies confirm that negative treatment by medical practitioners adds to the trauma of loss. In light of this reality, standards of care exist, including allowing the parents to hold and spend time with their baby. But past examples, like Chelsea Becker, have shown that when physicians suspect a person of causing a pregnancy loss, the person might be denied proper care.

Read More: The World’s Most ‘Pro-Life’ Nations Offer a Grim Preview of America’s Future

Finally, just as the situation for pregnancy-loss treatment grows more dire, we can also expect more pregnancy losses to occur. Abortion bans mean more pregnancies, and more pregnancies mean more pregnancy losses. Up to 25% of pregnancies end in miscarriage, and that rate could easily increase once pregnancies that would have otherwise been terminated are continued. Without termination for fetal anomaly, late miscarriage and stillbirths will increase because many of those fetuses would not have been born alive. And many of these additional pregnancy losses will be within marginalized populations. Currently, Black women and poor women are more likely to seek abortion care. Those same marginalized populations also have higher pregnancy-loss rates. Black women face double the risk of late miscarriage (between 10 and 20 weeks) and double the risk of stillbirth.

Due to stigma, abortion care has long been siloed away from the traditional health system, creating the impression that banning abortion will affect only patients seeking abortions. But that’s incorrect. We’re about to see just how widespread the effects will be.

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