The following originally appeared on The Upshot (copyright 2019, The New York Times Company).
Georgia’s much-discussed new law on abortion is one of the most restrictive in the nation. Abortion will be banned as early as six weeks into pregnancy — before many women even know they are pregnant.
This law goes even further, though: Although the intent of the law is to block abortion, it has opened a vigorous debate about whether women who miscarry could be questioned or even prosecuted.
The new law, which goes into effect Jan. 1, gives a 6-week-old fetus the legal status of a human being. One definition of second-degree murder in Georgia includes cruelty to children during which “he or she causes the death of another human being irrespective of malice.” This raises the question of whether a woman who miscarries because of what is perceived to be her conduct could be held liable for that conduct.
“This suggests that women who ‘cause the death’ of a fetus, with or without malice, could be charged with second-degree murder,” said Eric Segall, a law professor at Georgia State University, and a supporter of abortion rights. He said the law would most likely be struck down in the lower courts.
Even if the Supreme Court reverses course on abortion, law enforcement authorities with scarce resources may not investigate women this way. “One would hope,” he said, “that there would be a political cost if they did.” But, he noted, given the ambiguities in the new law and its complex interactions with other Georgia statutes, prosecutors would have a lot of discretion, and it would be “completely up to” them.
Other Georgia criminal statutes may still protect women from prosecution for ending their pregnancies or for miscarrying. Even if that winds up being true, the new law says doctors who perform abortions will be prosecuted, and that could still have an impact on women who miscarry.
Staci Fox, president of Planned Parenthood Southeast, told The Washington Post she didn’t think that the Georgia law could be used to successfully prosecute women, but that a woman who miscarried “could be pulled into an investigation looking at whether someone performed an illegal abortion on her.”
It would be helpful, of course, if legislators and judges and prosecutors understood the basics of miscarriage. Early pregnancy loss is not uncommon. It occurs in about 10 percent of recognized pregnancies. Four out of five cases occur in the first trimester. Many women miscarry before they know they’re pregnant.
About half of miscarriages are because of abnormalities in the fetal chromosomes. These defects are usually incompatible with life, and spontaneous abortions occur. The chance of an early pregnancy loss rises with age. While it is less common in younger women, about 80 percent of pregnancies in 45-year-old women can end this way.
Without randomized controlled trials, which really aren’t possible here, we can’t know for sure what is causing many miscarriages not involving chromosomal abnormalities. We have a great deal of information about what is associated with them, but that is not the same.
A woman who has health problems in general is more likely to suffer early pregnancy loss than one who does not. Women with high blood pressure, diabetes and thyroid disease are at higher risk. So are those who have hormone problems, immune disorders or infections.
Circumstances at work can be associated with miscarriages. A 2013 systematic review found that working nights was a risk factor, as were things like working in a three-shift schedule, working 40 to 52 hours per week, and standing for six to eight hours per day.
To be clear, there is no evidence that any of the factors I’ve mentioned causes a miscarriage. All of these data arise from observational studies that investigate associations, not causes. It’s easy to make an erroneous leap from one to the other. Smoking, obesity and night-shift work are each associated with being poorer and having fewer resources for health. This probably wouldn’t stop some people from quickly blaming women for their choices rather than considering their socioeconomic status.
Ask almost any medical professional what caused a miscarriage, especially one early in pregnancy, and — other than chromosomal abnormalities — they will say that “we do not know.” If medical professionals cannot make that determination, it’s hard to understand how someone in law enforcement might.
A bigger concern is that a fear of becoming part of an investigation may cause women to avoid medical care. Women who are bleeding or are heading toward septic shock may not come to the emergency room or doctor’s office. They could die. This would only increase America’s maternal mortality rate, which is already much higher than that of most other advanced nations.
John Becker, a state representative in Ohio, recently sponsored a bill that would also change how pregnant women with unsustainable pregnancies are treated. He suggested that ectopic pregnancies, which are not viable, should in part be handled by “removing the embryo from the fallopian tube and then reinserting it in the uterus so that’s defined as not an abortion.”
This procedure is not possible. It’s not clear that those who are writing many of these bills understand how pregnancy works.
We do know some things about how miscarriage works: It’s a common, natural and unavoidable health outcome for many heartbroken people. Inserting politicians and the criminal justice system into the grieving process seems as if it could only cause further pain.