by Mark Hemingway
Democrats have run hard on abortion this election cycle. Since the Supreme Court in June overturned the Roe v. Wade ruling finding a right to abortion in the U.S. Constitution, Democrats have spent $320 million on midterm campaign ads favoring abortion rights, 10 times the $31 million they’ve spent on ads related to inflation, which was consistently rated as voters’ top concern.
They have used those ads and public appearances to advance a legal interpretation of abortion as including miscarriages and other problem pregnancies to suggest —– misleadingly, abortion foes say —– that under Republican restrictions women would run afoul of abortion law for the care they receive for common but serious and even life-threatening prenatal complications.
During the October 30 Georgia gubernatorial debate, Democratic challenger Stacey Abrams claimed that the LIFE Act signed by Republican Gov. Brian Kemp, which outlaws abortion after the sixth week of pregnancy, means “women can be investigated for miscarriages and other pregnancy losses.”
While advocating for California’s Proposition 1, which would enshrine the right to abortion in the state’s constitution, Hillary Clinton also conflated abortion and miscarriage. “No matter where a person lives or how much money they have, women — not politicians — should be able to make decisions about their own lives,” she tweeted October 18. “That includes abortion care and miscarriage management.”
And a popular liberal influencer with 464,000 followers on TikTok who goes by the moniker PoliticsGirl stated on October 27 that the election was about whether Republicans pass laws that determine “if you get to live or die during an ectopic pregnancy.”
But no abortion law on the books in the United States regulates medical treatment for miscarriages or ectopic pregnancies. A miscarriage generally is when the fetus has already died of natural causes before the 20th week of pregnancy — a situation distinct for legal purposes from the deliberate termination of a viable pregnancy caused by a surgical procedure or abortion drug.
An ectopic pregnancy occurs when the fertilized egg is implanted outside the uterus, most commonly in a fallopian tube. Not only will the fetus not survive long-term, but “eventually, it ruptures the tube and the tube doesn’t have the ability to contract like the uterus does to shut off the flow of blood, and so it keeps bleeding and bleeding,” says Dr. Ingrid Skop, an OB-GYN in Texas, affiliated with the anti-abortion Charlotte Lozier Institute. “And many women have died from ruptured ectopic pregnancies. It’s the number one cause of maternal death in the first half of pregnancy.”
Every state with laws restricting abortion has a clear exemption for treatments to save the life of the mother, and such exemptions cover ectopic pregnancies.
But by pushing for a more expansive definition of “abortion,” Democrats evidently hope to raise alarm and make it harder for Republican lawmakers to justify and win political support for abortion restrictions.
The debate over the meaning of the term abortion has been given prominent media coverage. In July, both the Washington Post and New York Times ran long stories on the issue just days apart that suggested that, despite the laws, many medical providers have also embraced an expansive definition of the word.
“Surgical procedures and medication for miscarriages are identical to those for abortion, and some patients report delayed or denied miscarriage care because doctors and pharmacists fear running afoul of abortion bans,” said the Times.
The Times article reported in detail on the story of a woman named Amanda from Texas who suffered a first trimester miscarriage after it was determined her fetus had no heartbeat. After the miscarriage, she was denied a surgical evacuation procedure called dilation and curettage (D&C), even though she had availed herself of that procedure at the same hospital after a previous first-trimester miscarriage. The denial of the D&C forced her to experience exceptionally painful cramping and bleeding at home that might have been avoided if she had been given the procedure. The Times report was careful not to definitively claim Amanda was denied the procedure because of Texas’ abortion laws, but since the D&C is often used in elective abortions, the article speculates that fear of the violating the law was a likely reason Amanda was denied the treatment.
A Washington Post article on the issue – “Woman says she carried dead fetus for 2 weeks after Texas abortion ban” – published just three days after the New York Times’ report, contained similar details. It reported on a woman from Texas named Marlena Stell, who was also denied a D&C following a miscarriage. Once again, Stell had previously received the same procedure following a previous miscarriage. “My doctor had said that since the heartbeat bill had just passed, she didn’t want me to do a D and C. And she asked that I try to miscarry at home,” Stell told The Post. The Post also reported that before being denied a D&C, Stell was told “the fetus did not have a heartbeat and she no longer had a viable pregnancy.”
Yet to judge from the articles, neither the Washington Post nor the New York Times talked to public officials in Texas about whether the state’s law would stop women from receiving a D&C following a miscarriage. The answer, according to the Texas attorney general, is that it does not.
The Texas AG’s office declined to comment on the individual claims made in these Times and Post articles, but it directed RealClearInvestigations to a legal advisory that the AG’s office put out on July 27, shortly after they appeared. The advisory specifically reaffirms that Texas abortion law does not govern procedures used to “remove a dead, unborn child whose death was caused by spontaneous abortion.” (“Spontaneous abortion” is the clinical term for miscarriage.)
In fact, other Republican AGs have taken steps to issue additional legal guidance or otherwise clarify that abortion laws do not cover miscarriages and ectopic pregnancies. Anti-abortion advocates say there’s been little interest on the part of media to amplify this message.
Abortion-rights advocates cheered this year when voters in conservative Kansas decided not to invalidate judicial language asserting a right to abortion under the state constitution. Elizabeth Kirk, a Kansas attorney and Director of the Center for Law and the Human Person at Catholic University, notes that the intense debate over the voter initiative in Kansas was rife with misinformation about abortion laws affecting miscarriages and ectopic pregnancies.
“The state attorney general of Kansas, issued an opinion letter interpreting the Kansas code … making clear that treatment for those conditions was not, did not constitute an abortion,” she says. “And that didn’t get any [news] coverage. Nobody covered the state attorney general’s opinion.” Kirk says she’s grateful that one of the bigger newspapers in the state, the Kansas City Star, eventually let her write a few op-eds trying to challenge some abortion-rights myths, but her lone voice did little to clear things up.
Dr. Christina Francis, the incoming CEO of the American Association of Pro-Life Obstetricians and Gynecologists, admits that confusion immediately following the repeal of Roe has been a problem. “But it’s not the fault of the laws that are being tasked with the intent of protecting human lives,” she says. “It’s the fault either of physicians who are not taking the time to understand what their state law says, or more what I’m hearing, it’s the fault of hospital systems and hospital lawyers who are incorrectly interpreting the law.”
Skop said one reason doctors and hospitals may be misinterpreting or failing to understand the law is that many relevant medical organizations that usually step in to clarify these matters are thoroughly politicized. “I think the problem is that the organizations that provide doctors with guidance, such as the state medical boards and ACOG [American College of Obstetricians and Gynecologists], when these laws went into effect, they should have provided guidance to physicians,” she says. “They should have said, ‘Hey, here’s what the law says, don’t worry, you can still practice according to the standard of care.’ And they didn’t, they remained silent, and I think they did that for political and ideological reasons.”
ACOG is often presented in the media and elsewhere as the institutional voice of America’s OB-GYNs. But the organization has declared “Abortion is essential health care” and has even staked out debatable positions on the issue, such as claiming that Crisis Pregnancy Centers run by churches and anti-abortion groups “endanger public health.”
Asked to respond to the criticism they that it should have done more to clarify what standard of care was permissible under new abortion laws, the group denied having acted with political intentions. “ACOG’s positions are based on medical evidence, not political bias,” a spokesperson told RealClearInvestigations.
The group did not respond directly to a request to explain how abortion laws would affect how doctors treat miscarriages or ectopic pregnancies. Instead, it pointed to a fact sheet the organization has produced, “Understanding and Navigating Medical Emergency Exceptions in Abortion Bans and Restrictions.” That fact sheet states: “The specific language used in many of these [abortion] laws to describe exceptions is often confusing and unclear.” But it provides no specific examples of how the supposed lack of clarity in abortion legislation might interfere with treating miscarriages or ectopic pregnancies and argues that physicians should instead have broad freedom to “intervene when they feel it is medically necessary and provide abortion care before a patient is critically ill.”
They also pointed to an interview with Dr. Jennifer Villavicencio, the “lead for equity transformation” at â€¯ACOG. In that interview, Villavicencio stated, “Anecdotally, we are hearing that obstetrician-gynecologists and other involved specialists are facing questions and uncertainty about whether the care they are providing to their patients is exposing them to potential legal action.” Villavicencio, however, provided no specific examples of doctors being unable to provide care for miscarriages or ectopic pregnancies as a result of existing abortion laws.
In the case of the Washington Post story about the woman who reportedly had to carry a dead fetus for two weeks, ACOG leader Dr. Francis said she is horrified by what happened. “If that doctor withheld treatment, that’s medical malpractice, and in that situation, that does put her at risk if her baby has already died, and she doesn’t receive treatment in a timely fashion. And it can put her at risk for complications, like infection and bleeding,” she said. “If it was that it … was a misunderstanding on the part of the doctor, or whether that was direction by the hospital lawyer, then the result is the same. It’s not the fault of the law. It’s the fault of misunderstanding of the law.”
With states hashing out new abortion laws for the first time in 50 years in the middle of one of the most polarizing elections in generations, some Republicans have spoken out forcefully about misinformation surrounding abortion laws. Claims like Clinton’s on “miscarriage management … in the wake of Dobbs are easily disprovable lies,” said Alabama Attorney General Steve Marshall, referring to the Supreme Court decision that overturned Roe v. Wade. “No state in the country has banned anything other than the practice of elective abortion.”
Still, the issue of abortion post-Roe is so raw that a number of anti-abortion Republicans politicians didn’t respond to requests for comment on this article for fear of stirring up election-season controversy. If the claims of Democratic politicians are “easily disprovable lies,” they’ve been largely uncontested either by Republicans or the media.
For her part, Francis is adamant that the truth needs to come out, because more restrictive abortion laws aren’t going away now that Roe has been repealed, and the health and safety of American women depends on being honest about what these new laws say.
“Every physician across the country should understand and know that no state law currently on the books or being proposed, restricts the treatment of miscarriage or restricts the treatment of ectopic pregnancy or restricts our ability to intervene in situations where the mother’s life is in danger from any kind of complication of her pregnancy,” she says.
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Mark Hemingway reports on the key institutions shaping public life, from lobbying groups to federal agencies to elections, for RealClearInvestigations. His writing has appeared in USA Today, Wall Street Journal, MTV.com, and The Weekly Standard.
Photo “Abortion Protest” by Legoktm. CC BY-SA 4.0.