The demise of Roe v. Wade is causing harms that extend well beyond abortion patients. In places where abortion is heavily restricted, women with ectopic pregnancies and those experiencing inevitable miscarriages have reported delays in care that have risked their health, life and future fertility. Some have struggled to get medications to treat miscarriage because those drugs are also used for abortion.
The line between abortion and pregnancy loss has always been blurry. But over the past few decades, the anti-abortion movement has forged a cultural bright line between the two experiences, promoting dueling narratives of “bad” mothers who voluntarily cause fetal death versus “good” mothers who grieve unpreventable pregnancy loss.
These narratives are often steeped in harmful stereotypes: Black and poor women are often blamed or even prosecuted when they miscarry, while white women with economic means are assumed victims of a bodily process outside of their control.
The abortion-rights movement has at times widened the divide between abortion and pregnancy loss by minimizing focus on the fetus, to ensure that the pregnant person’s interest can never be outweighed. That has allowed many in the movement to avoid the difficult question that pregnancy loss raises: What was lost?
This minimization can be jarring to women who believe they lost their child in utero. As abortion-rights advocates evaluate how to rebuild their movement post-Roe, they ought to reconsider their approach to this issue. Doing so could help them form alliances going forward.
Pregnancy loss and abortion have more in common than many people realize. The physical experiences are often virtually identical. Early abortion with medication mimics the experience of miscarriage, and early miscarriage care often involves the same drugs or procedures used for an abortion. Later pregnancy losses and abortions, which are both rare, often involve the same procedures or induction of labor.
The stigma and isolation that many experience after both events is similar, many times revolving around a perceived failure at motherhood. The same groups — poor women and women of color — are more likely to experience both events. And though the emotional reaction to abortion and pregnancy loss can be very different, especially when a patient ends a wanted pregnancy, the grief felt can be quite intense.
Abortion and miscarriage are both common. In 2020, about one in five pregnancies that did not miscarry ended in abortion. The miscarriage rate is estimated to be as high as one in five known pregnancies. And about one in 160 births are stillbirths, meaning pregnancy loss at or after 20 weeks.
The blurriness between abortion and miscarriage was more apparent historically, including at the time of the 14th Amendment’s ratification, the period that the majority opinion in Dobbs v. Jackson Women’s Health Organization found particularly relevant to the question of whether the right to abortion exists. There was little moral blame placed on women who took steps to end a pregnancy; to the contrary, doing so was a respected method of spacing out pregnancies so that a mother could take care of her children. Regardless of what the laws might have said, doctors and women often did not think the distinction between miscarriage and abortion mattered before “quickening” (the point in a pregnancy when a woman can feel the fetus moving).
Today, though, abortion and pregnancy loss are generally perceived as two different things — at least in part because of anti-abortion strategy. Decades ago, the anti-abortion movement realized that it could weaponize grief after pregnancy loss to suggest the callousness of abortion and to promote the concept of fetal personhood. As that movement moved aggressively to give fetuses rights in a variety of legal contexts as a way to undermine abortion rights — again, often capitalizing on grief after pregnancy loss — the abortion-rights movement reflexively opposed these measures.
Occasionally, abortion-rights supporters went too far, opposing measures that could genuinely help those who experience pregnancy loss — like birth certificates for stillbirth, a measure requested by women who wanted recognition of their stillborn child’s birth. The abortion-rights movement did this out of a fear of a slippery slope that would undermine abortion rights; this same fear led the movement to avoid the topic of pregnancy loss or to refer to a fetus or embryo as “a clump of cells.” Any concession of fetal value could be used to chip away at abortion rights, the thinking went.
Though these concerns are valid, it is possible to recognize the loss in pregnancy loss without sacrificing abortion rights. It does not damage the movement to admit that some people become attached to their children in utero and that attachment has value. Even Roe v. Wade found no inconsistency between abortion rights and parents having a legal claim if, for instance, their child was stillborn because of negligent conduct.
Denying fetal attachment, implicitly or explicitly, makes abortion-rights supporters look unfeeling and doctrinaire. It also alienates the countless people who grieve after pregnancy loss and still very much support abortion rights.
But attachment is entirely subjective — it develops for different people at different rates, depending on their circumstances. And crucially, it may never develop. The same person who may grieve an early miscarriage after months of trying to get pregnant might have an emotionally uncomplicated abortion at a different time in their life. If we ground fetal value in the pregnant woman’s attachment, and commit to defending her conception of the pregnancy, we can recognize loss without threatening abortion rights.
This conception of subjective fetal value is fundamentally inconsistent with the anti-abortion concept of fetal value, which equates a fertilized egg with a breathing baby from the moment of conception for every pregnancy. Fetal value erases the pregnant person’s perspective. We must offer an alternative that rests on real experiences with pregnancy.
An abortion-rights movement that talks about the fetus and the woman together — as the anti-abortion movement has been doing for decades — has a better chance to win hearts and minds. It also opens the door for the movement to more fully embrace reproductive justice, a framework created by women of color that recognizes the right to avoid having children alongside the equally important rights to have children and parent them with dignity.
Many people experience abortion, pregnancy loss and the birth of a living child in one lifetime. The post-Roe abortion rights narrative should embrace this reality. The abortion-rights movement needs allies, and the pregnancy loss community — which is also suffering greatly without abortion rights — could be a formidable one.
Greer Donley is an associate professor at the University of Pittsburgh Law School, specializing in abortion law. Jill Wieber Lens is a professor and associate dean of research and faculty development at the University of Arkansas School of Law, specializing in stillbirth law. They are the authors of the forthcoming law review article “Abortion, Pregnancy Loss and Subjective Fetal Personhood.”
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