Have pro-life states outlawed miscarriage care?

In April, a Harvard Health Publishing article claimed new laws protecting babies from abortion “threaten safe, effective care for miscarriage in the U.S.” Since last year’s reversal of Roe v. Wade, media outlets have blamed new pro-life laws for reports of women who carried dead babies in their wombs after hospitals refused to remove their remains. But at least some confusion is avoidable, stemming from a misunderstanding of the differences between medical and popular definitions of abortion and miscarriage.

Isn’t the difference between an abortion and miscarriage obvious? Medically, an abortion is the end of a pregnancy not resulting in a living child. That can include both “spontaneous abortion” (the natural death of the unborn baby, known colloquially as miscarriage) and “induced abortion” (the intentional killing of the baby by drugs or procedures). In common speech, people use “abortion” to refer to induced abortions. Many doctors use the term “miscarriage” instead of “spontaneous ­abortion” when speaking to a patient whose baby has died unexpectedly.

How do pro-life states define abortion? Laws protecting unborn babies generally rely on the colloquial use of the term abortion. For instance, Texas law defines abortion as “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant.” Like many other states, Texas clarifies this doesn’t prohibit removing an unborn baby who died in a miscarriage, since the intent is not to kill the child.

What about states that don’t make that clarification? Some abortion advocates claim women in these states won’t be able to access the drugs and procedures needed to remove a dead baby because abortionists often use the same drugs and procedures to kill living unborn children in the womb. But other parts of state statutes provide clarity. Kentucky’s law, for instance, doesn’t mention miscarried babies but outlaws the use of drugs or procedures “with the specific intent of causing or abetting the termination of the life of an unborn human being.”

Is a baby always dead in a miscarriage? In medical terms, categories of miscarriages include incomplete, missed, threatened, and inevitable miscarriages. In incomplete and missed miscarriages, the baby is dead but parts or all of his tissue remain inside the mother. In threatened and inevitable miscarriages, the baby is still alive but faces ­possible or likely death due to poor conditions in the womb. Using drugs or procedures to intervene in the latter cases could mean ending the baby’s life, but such interventions typically fall under the exceptions in state abortion laws that allow a doctor to perform an abortion to save the mother’s life.