The Miscarriage Boogeyman
The New York Times published a viral story over the weekend, detailing the case of an anonymous woman, “Amanda”, who was purportedly made to suffer humiliation and pain because her miscarriage was being treated differently now that Texas has banned most abortions.
Amanda said the hospital didn’t mention the abortion law, but sent her home with instructions to return only if she was bleeding so excessively that her blood filled a diaper more than once an hour. Hospital records that Amanda shared with The New York Times noted that her embryo had no cardiac activity during that visit and on an ultrasound a week earlier. “She reports having a lot of pain” and “she appears distressed,” the records said. “This appears to be miscarriage in process,” the records noted, but suggested waiting to confirm and advised a follow-up in seven days.New York Times, They Had Miscarriages and New Abortion Laws Obstructed Treatment (7/17/22)
Neither the hospital involved nor the doctors confirmed to The Times that “Amanda’s” treatment was impacted by the abortion ban in any way, but the headline leaves little room to draw any other conclusion: They Had Miscarriages and New Abortion Laws Obstructed Treatment.
The fact of the matter is that most miscarriages resolve without any procedures, which makes the purported medical advice from the Texas doctors perfectly reasonable. The Pro-Abortion UC Davis Medical Center, on their page on miscarriages states that “not all miscarriages ‘need’ treatment,” and state that “in an early miscarriage, with time, most women will pass the pregnancy completely.”
Contrary to what The Times implies, the Texas abortion ban contains broad protections on several levels for doctors who provide treatment to pregnant women in emergency situations to ensure they incur no liability under the abortion prohibition (more details on this below).
The Times fails to provide these helpful details, focusing instead weaving a highly suspect narrative about the hurdles that women now face because of the abortion bans.
While the laws are technically intended to apply only to abortions, some patients have reported hurdles receiving standard surgical procedures or medication for the loss of desired pregnancies.New York Times, They Had Miscarriages and New Abortion Laws Obstructed Treatment (7/17/22)
The pro-abortion Texas Medical Association, with uncanny timing, chimed in with a letter to the Texas medical board alleging women were being harmed and denied “care” because of the Texas abortion ban. As with The Times‘ story, no verifiable details were given to corroborate the stories.
Lastly, the legacy media picked up on the New York Times’ story and spawned hundreds of articles, none of them caring to actually investigate the law that was supposedly causing such human tragedy.
The Truth is Always the First Victim
The truth about the Texas law is that it includes clear and redundant guidelines which any person, and especially any doctor or hospital with a legal department can easily understand.
- The definition of the term “abortion” itself, in Texas law, is actually very narrow and includes the requirement of direct intent to kill the unborn child as well as providing explicit exceptions for treatment used to resolve an ectopic pregnancy, remove a dead baby, or for an attempt to preserve the life or health of a baby. Under Texas law, the definition of abortion even excludes birth control or oral contraceptives, even though some of those are abortifacients. In Amanda’s case, she is quoted by The Times as stating that “her embryo had no cardiac activity.” Clearly, the doctors could have removed the baby in whatever way they saw fit with no fear of liability or prosecution as “removing a dead baby” is an explicit exception to the abortion ban.
- Texas’ abortion prohibition also defines both the terms “pregnancy” and “unborn child” such that it only applies to a “living member of the homo sapiens species”. In many cases of miscarriages problems with the development of the baby have already caused the baby’s death and the Texas abortion law simply would not apply. Again, according to the NY Times’ uncorroborated account of Amanda’s case, the Texas abortion law would not have applied to her.
- But Texas’ abortion law goes even further than that; it also provides legal cover for doctors who cause “injury” or “death” due to “accidental” or “unintentional” actions. The definition of the culpable mental state is a crucial part in any criminal law. Texas law defines an act as intentional when it is the “conscious objective or desire to engage in the conduct or cause the result.” In other words, if doctors can prove that their objective was to save the life of the mother, to prevent serious injury to her, or in fact, any other intent other than to directly kill the child, then the Texas abortion ban would not apply to them.
- Even in the very rare, or nonexistent case, where doctors have to intentionally end the life of the developing baby due to some complication of pregnancy, Texas law creates an exception for doctors to avoid prosecution under the abortion prohibition. The main requirements for this exception are that the doctor use “reasonable medical judgement” to determine that the abortion is needed to treat a pregnant mother and that reasonable efforts are made to give the baby the best chance to survive. The law does prevent doctors from alleging self-harm as one of the life threatening conditions.
The prohibition under Subsection (a) does not apply if:(1) the person performing, inducing, or attempting the abortion is a licensed physician;(2) in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced;
Unintentional/Indirect Abortion Has Never Been a Crime
Beyond the case of Texas’ abortion law, in twenty years of researching the subject, I have not been able to find a single case where a doctor has ever been prosecuted for treating a miscarriage either under the common law of England and the colonies or after the founding of the United States.
And yet, stories like the one from the NY Times imply that valuing the right to life of pre-born children will inevitably lead to devaluing the life of the mothers. This imaginary binary choice is part of the abortion ideology but it is not reality and has never been the case.
Because all abortion laws include a requirement for intentionality, and because of the principle of double effect adopted in most life of the mother exceptions, the idea that abortion bans will criminalize miscarriages is nothing more than a scare tactic and a boogeyman.
The Problem With Professional Associations
Professional associations, such as the Texas Medical Association, which deceptively states it takes no position on abortion, but joined the suit to block Texas’ heartbeat bill are intentionally attempting to create a chaotic situation in states that have begun to protect the right to life of the unborn child.
While there are, and always will be, difficult ethical situations in the practice of medicine, it was only with abortion, that the medical community embraced the dehumanization and killing of one patient in order to serve another.
The legacy of Roe v. Wade on professional associations will require not just extirpation of the legal tumor but also a healthy dose of chemotherapy for these deeply compromised organizations. The scalpel should be used to remove abortionists from the family of legitimate medical practitioners immediately, while chemotherapy must be used to eliminate any hint of pro-abortion advocacy from the medical associations.
Just as state bar associations consistently influence the state judiciary to adopt liberal positions on social issues and seat liberal justices even in conservative states, state medical associations, like the Texas Medical Association influence the medical community by creating a false professional consensus in favor of their pet liberal social policies. Conservative state legislatures must not just undertake judicial reform but must also step in to regulate the medical profession to keep them from being used by ideologues as an arm of political agendas.
Footnote: My Experience With Losing a Baby in a Miscarriage
It was late in 2011, when I led the third attempt to get a Personhood Amendment on the Colorado ballot by the difficult process of a popular initiative.
My wife and I had just lost a child during an early miscarriage. We had two babies and were excited to welcome the third little one into our family, but it was not meant to be as my wife began to show symptoms of suffering a miscarriage. We went to the University of Colorado Hospital in Aurora and they determined that she was probably going to lose the baby. She was in pain and I was worried. The doctors, not knowing who I was, and with no pro-life law on the books to pressure them, suggested the exact same treatment that the New York Times’ anonymous woman was recommended. The suggestion was to wait to see if she would naturally lose the baby. They told us to be vigilant and come back if the pain became more acute or if she began to get a fever. If we had to come back, they would do an ultrasound and would suggest the next course of action, either a D & C or a cocktail of drugs to flush out the baby and the surrounding tissue.
Thankfully, we didn’t have to choose the course of action and instead nature took its course. We grieved the loss of our baby and I returned to my work of helping to bring equal protection to pre-born children.
Had we been forced to decide between a D & C, or a cocktail of drugs, we could have done so with a clear conscience though. Not only would we have made sure that the baby was not alive (something we could have easily done through an ultrasound) before doing anything to dislodge him or her. But if the choice had to be made at all, we would have understood that treatment intended to treat my wife could never be construed as possessing the same intent as the heinous crime of an intentional abortion.
And yet there I was, just days after losing my child, being accused by the abortion industry and their co-religionists in the pro-abortion press of attempting to criminalize miscarriages because of my work to protect pre-born babies.
This taught me a valuable, if cynical lesson: while there may be individuals who are genuinely concerned about real ethical issues that take place during pregnancy. In debating ethical issues surrounding abortion, the leftist press and politicians (which are now one and the same) want only thing, to dehumanize the baby as the only possible way to justify their almost religious belief in the “sanctity” of abortion.