Miscarriage as a Crime
Miscarriage is defined as the loss of a pregnancy before 20 weeks gestation. Criminalization of abortion will result in further criminalization of miscarriage. I say “further” because miscarriage has been criminalized in the U.S. for a very long time, and there has been a marked uptick in the past twenty years. It is increasing in the wake of Texas’ SB-8, and will only continue to grow under copycat laws in other states..
The way it happens is this: a woman has a miscarriage in a state where abortion is illegal at whatever stage of pregnancy she was in. This will be ALL stages in many states, and possibly nationally, soon. When she goes for medical help, she gets grilled on how she caused the miscarriage. If her answers don’t satisfy the medical provider, the police, and then the courts, get involved. She then gets to spend an unspecified amount of time (which could feasibly be years), while she is dealing with the physical and emotional aftermath of the miscarriage, under threat of going to jail – navigating the legal system, paying a lawyer (if she can afford one), trying not to lose the rest of her life because she lost a pregnancy. This is not hypothetical. This is happening now and will continue to happen with increasing frequency in the new reality that SB-8 and other anti-women legislation creates. Because let’s call a spade a spade. It’s not anti-abortion legislation – it’s anti-WOMEN legislation.
Brittney Poolaw, a Native American woman, was convicted of first-degree manslaughter in October 2021 – SIX MONTHS AGO – for a miscarriage. The fetus had congenital abnormality and placental disruption, either one of which will independently cause miscarriage, but Ms. Poolaw is also a drug user. So despite the fact that there was no evidence that the drug use was what caused the miscarriage, she was convicted of manslaughter and is in an Oklahoma prison.
Up until SB-8, most of the women who had to fear prosecution in the wake of a miscarriage were poor, of color, often drug users. So, because we as a society ignore the rights of women, especially if they are poor, of color, or in the “criminal justice” system, the issue has mostly flown under the radar. That is not just wrong, it’s disgusting. And that is why women like Ms. Poolaw are in prison.
Even now that all women are in danger of losing everything because they had a miscarriage, I’m not seeing mainstrean discussion of the issue, and I just don’t understand it. This is a direct result of the attacks on women’s autonomy that are leading to the overturn of Roe v. Wade.
Depending on the demographic, as many as 50% - 75% of all pregnancies end in miscarriage (March of Dimes, National Center for Biotechnology Information).
Before 12 weeks gestation, most pregnancy loss is due to chromosomal abnormalities. However, maternal habits and health can increase the risk of miscarriage, including: intake of caffeine, smoking, alcohol use, being under- or overweight, high blood pressure, German measles, mycoplasma (a bacterial infection), uncontrolled diabetes, cervix and/or uterus problems, thyroid disease, kidney disease, Lupus, fibroids, poor muscle tone in the womb, being over 35 years old, exposure to certain medications or chemicals, history of ectopic pregnancy - the list goes on and on.
What criminalized abortion, and therefore criminalized miscarriage, means is that every woman of childbearing age – and remember, the median age of menarche in the U.S. is 11.9 years – had better be the perfect vessel for carrying a pregnancy. If she’s not – and how many of us know whether we have “poor muscle tone in the womb”? – she risks miscarriage and the threat of jail.
Where does the control stop? Will women be banned from drinking coffee? From trying to get pregnant if they have a poor history or if they have ever been in an environment that might have exposed them to medications or chemicals that could cause miscarriage? Where does the slippery slope end? We need to speak up, for women like Brittney Poolaw NOW, and for every woman in the future. We need to make this issue known in the mainstream. We need to stop this madness.
Pregnancy outcomes should be the province of the woman and the woman alone. Women should be able to seek health care and discuss their pregnancy histories while getting that care without fear of prosecution. It is not the place of government, law enforcement, neighbors who suspect a woman may be pregnant, not even the man who caused the pregnancy, to make the decision. Pregnancy itself is life threatening. No woman should ever be forced to bring a pregnancy to term against her will or to risk jail if she ends or loses a pregnancy.
What To Do
This is not just about abortion access, it affects everyone. The only way to change this situation is to make your voice heard. Even if you believe your state is a safe haven from these issues, even if you are confident your representatives in the state capitol and D.C. will vote in a way that reflects your wishes, contact them.
Remind them that they are answerable to their constituents, and of what you, their constituents, want and need. Inform yourself. Then protest, communicate, educate, make sure everyone you know is aware of what is at stake. Then VOTE. In every election at every level, every time. It all matters.