Pregnancy Loss, Abortion and Fetal Personhood
Jill Wieber Lens: Thanks for having me.
MM: Back in 2020, a couple of years ago, you published a seminal article arguing that women have a right to know about the risk of stillbirth. Can you talk about this research? Maybe starting with some basic statistics about stillbirths and a little bit of background.
JWL: Yeah, sure. Stillbirth is a pregnancy loss, but it’s sort of the lesser-known pregnancy loss. Most people are familiar with miscarriage, and a lot of people think every pregnancy loss is a miscarriage, but technically medically the definition is the miscarriage is a pregnancy loss in the first 20 weeks of pregnancy, and then it’s called a stillbirth, if it’s after 20 weeks. Miscarriage is way more common, which is another reason people are more familiar with it, but still, they do still do happen. They happen even in high income countries. It’s about one in 160 pregnancies ends in still birth, so it’s very rare. It’s very rare. But when you translate that to how many pregnancies, we have, that’s still a lot of stillbirths. It’s usually about 23 or 24,000 a year in the United States, even though you don’t really hear about it. And really, that was the purpose of my article, because I mean so many studies show that no one knew that still birth was still a thing, like that still happened until it happens to them, right, and as if the experience isn’t traumatic enough, you also have to deal with like the initial shock of like wait, what, this still happens, like in 2020 too, right, in the United States. So, the article was really focusing on sort of informed consent law, which is about empowering patients to make decisions. And I used a similar framework to argue that we should be notifying pregnant people. We should be warning people. Well, we should be disclosing that this risk exists. And I’m not trying to scare anyone, but…
MM: You said that the risk exists, yes?
JWL: That the risk exists, yes. I’m not trying to scare pregnant people. It’s still a very, very low risk. Just by comparison, most everyone knows about the risk of SIDS, right, Sudden Infant Death Syndrome? Stillbirth is 10 times more, 10 times more common than stillbirth. So, it’s very rare. That’s a strange disconnect to me that no one knows about stillbirth, even though it’s 10 times more common than SIDS. And also what the article does is look at what other countries are doing, because there are other countries that are successfully reducing their stillbirth rates. England, Scotland now Australia is trying to do something. And part of what they’re doing includes education. It includes education about their risk. It includes education about the connections between smoking and stillbirth. It includes education about paying attention to how the baby’s moving in their… in their body… and your… and your belly is what I was going to say. So being aware, and that’s helping other countries reduce their stillbirth rates. So arguing that we should be thinking about something similar here.
MM: A little bit in the background… What were some of the reasons for there not being informed consent or just more information for the patient?
JWL: It’s not a perfect, it’s not a perfect analogy, because really informed consent is more about like when you’re making a specific decision, like about a procedure. But I argued for more… like a broader picture of just what pregnant people should be aware of, like what is happening in their bodies and what and what can happen. Why don’t we talk about it. No, my goodness, that’s a question. A lot of us would like to know. I think it’s because it’s so rare, right, and there’s this sort of… this thought of like why scare people when it’s probably not going to happen. Which is true, right? But I also quibble with the idea that, like, pregnant people are going to fall apart if they learn about this low risk.
MM: One of the things I remember from the from the article was this kind of= sense of paternalism in medical profession.
JWL: Yeah, there’s a sense that you don’t need to worry about this, and that’s a doctor and a doctor deciding that patients don’t need to… You don’t need to know, you don’t need to worry about that, and it’s a very paternalistic thought. I mean, that’s exactly what we’ve moved away from, from consent law, because it’s not doctors making decisions and choosing what patients need to know. And I argue that the same thing should happen with within… sort of like within the stillbirth context.
MM: So, this pregnancy, sorry, this research about pregnancy loss has for you naturally led to addressing abortion… What I’m finding out are the many intersections, through your work, actually, many intersections between abortion and pregnancy loss. So, what I’d like to start with then first is just a basic question. What are the rates of abortion and pregnancy loss, which includes miscarriage and stillbirths?
JWL: It’s a difficult question to answer because we don’t have good… well, I don’t think we have good data on stillbirths either, but we really don’t have good data on miscarriages. I mean, you could have a miscarriage and not even know, right? You can just mistake it for a late period. That happens. That happens a lot, and so… And we don’t actually try to collect any, like nationally, we don’t collect data, and certainly there’s studies about how, how common miscarriages and it is… it’s like one in four pregnancies. But we don’t have good national data. I mean, it probably translates to, you know, a million miscarriages a year about if you add in the stillbirth, we’re at like million and 24 thousand. We do have data, I think it was back from like 2014, that it was roughly the number of miscarriages is equal roughly to the number of abortions that were happening in this country, so it’s…
MM: One-fourth.
JWL: It was, yeah it was close. Yes, it was close to like 20, 25 percent. They were, they were even. And I’d have to go back and look at that study to see how they define miscarriage to whether it included pregnancy with… whether it included stillbirths too. But the point is, we have we just a similar amount of pregnancy losses as we do abortions every year, because you really wouldn’t think that, right, and you think the emphasis, the all the emphasis that is on the number of abortions that happen. And of course that’s going to flip now, right, now that abortion is increasingly illegal in numerous states. We’re going to have fewer abortions, especially recorded abortions, obviously, but a few illegal abortions, I should say. And we have a lot… We will have more pregnancy losses. We are… that’s something that kind of gets lost in this debate quite a bit. You know there’s this idea that now that abortion can’t happen, that a baby will be born, and that’s just not true right? Yes, the chances of the baby being born are higher than the chances of the pregnancy ending early. But still we’re going to have more pregnancy losses. You have more pregnancies, you have more pregnancy losses and especially, actually, with respect to stillbirths too, if there’s… Not too many stillbirths are due to abnormalities, but there are some, now if there’s no ability to terminate once you learn of those abnormalities, we’re going to have more stillbirths also.
MM: So, you mentioned different states and the laws in different states. So that leads me to my next question, and you have already sort of invoked it, but everyone knows about Roe vs. Wade, so that’s the landmark 1973 Supreme Court decision legalizing abortion. But what I found out, about after it was overturned, is that it seemed like most people didn’t fully understand all of the nuances of what it meant in terms of the federal constitutional right to abortion versus the power various states have. So, can you explain that, and then can you help our listeners understand the full meaning of Dobbs vs. Jackson Women’s Health Organization, the decision that overturned Roe?
JWL: Yeah, what Roe did was… Before Roe we had numerous states, I think we had numerous states that banned abortion at a certain, whether it be at a certain point or whatever, but the states had control. And what Roe said is no, there’s a federal constitutional right to abortion, up to viability, which meant the states had to legalize, right? What Dobbs did when it overruled Roe was just say, no, there is no federal right? Which then translates back to states being able to control, right?
MM: So, simple as that?
JWL: Simple as that. Now states get to pick whether abortion is legal or illegal, and there’s some states that haven’t been it yet, that we fully expect will, like Nebraska is one. There’s other states like ours that it was immediately illegal because we had what’s called a trigger law. When all the dust settles and the states that we expect will turn, that just haven’t yet, it’s going to be about half and half.
MM: The blue/red divide?
JWL: It’s going to be about half and half. Yes, blue and red but also, Kansas, for example, I don’t know if I’d called them blue or red, but Kansas just had a referendum that the voters rejected. And this is actually a good point for the feds versus states, also. Kansas’s state constitution… the Kansas Supreme Court had interpreted Kansas state constitution to guarantee the right to abortion, and then the legislators tried to get the voters to overturn that, and the voters said no. So that’s another option, even if there’s no federal right, there might be a stateright? So that’s another way states are, you know, controlling this now.
MM: This year, in August, you published an opinion piece in the New York Times, and you have a forthcoming article to be published in Vanderbilt Law Review, and the latter is titled “Abortion, Pregnancy Loss and Subjective Fetal Personhood.” So, in both pieces you mentioned that the line between abortion and pregnancy loss has always been blurred or blurry. Can you explain this? How has the rhetoric of the abortion debate affected pregnancy loss?
JWL: Okay, I’m going to separate those two. Let me do the blurriness first. And I need to give a shout out also to my co-author, Greer Donley at University of Pittsburgh School of Law, and she is a wonderful scholar and a wonderful friend.
MM: Is she your co-author on the article and the Times piece?
JWL: Yes, yes, we’ve done both.
MM: Sorry about that.
JWL: Oh no, you’re fine. Well, the blurriness first. There’s a lot more overlap between the two than I think is commonly thought. Some of the similarities we ran into… I mean, first off, it’s a pregnancy ending without a live birth, right. I mean they, they are very like plainly similar in that sense. Other similarities we ran into is race and class. Black women, black pregnant people disproportionately had access to abortion care when there was still good law. They also face a higher risk of stillbirth and a higher risk of late miscarriage. Right, that’s double. They double the risk of stillbirth.
MM: That’s more of a public health issue. Can you explain why? I mean, why is that? Why is that the case, access to good health care?
JWL: It’s access to health care, it’s insurance disparities, it’s racism within the healthcare, right? It’s the individual racism, it’s the structural racism. I mean, it’s the same reason why the black maternal mortality rate is so much higher and the black infant mortality rate is so much higher. They’re all… it’s all the same reasons. Another thing that’s similar about abortion and pregnancy loss is like the physical experiences. Whether it’s an early… I mean, it depends on the time and the pregnancy, right? But most most abortions are very, very early, and most miscarriages are very, very early, and like what happens physically is the same thing. And if we’re later in pregnancy, like the surgeries or the procedures, it’s the same. It’s the same thing.
MM: I think you mentioned one of the medications.
JWL: Yes, well, medication abortion. Those are the same drugs that are actually used that are prescribed, well they were prescribed, I should say, for if it’s like a missed miscarriage. So, unfortunately, if you go in at eight weeks, and then the baby stopped developing but the heartbeat is still going, what doctors prescribed. Which is wrong. We shouldn’t call it medication abortion because it’s for other things. It’s for miscarriage management. We call it so it’s this. It’s the same medication, but now doctors can’t do that in certain states, including ours. As long as they’re still a heartbeat.
MM: That’s fascinating, it’s called miscarriage management.
JWL: We call it miscarriage management. We tend to have euphemisms medically for things that are abortion, but we don’t call it that. True, we call it miscarriage management. We call it ectopic-pregnancy treatment. We call it selective reduction. All of those mean abortion, but we’ve developed euphemisms in those contexts.
MM: Depending on the context, yeah.
JWL: Yeah, and another thing, I just want to say about the blurriness about abortion and pregnancy loss is some of the stigmas. I was amazed at some of the stigma. You know, there’s a silence around all of it. We’re not supposed to talk about it, right. And it’s all rejecting some of this like paternalistic, not paternalistic, patriarchal… a motherhood right? Whether you failed naturally, within pregnancy loss, or you failed because you chose to fail with an abortion. And then there’s so much overlap. You’ll read this literature about like a person who’s had so many miscarriages. And they describe themselves as a baby killer, that’s so much of that stigma has just sort of overlapped, and it’s so sad to see. As far as rhetoric about the abortion debate, this is something I can talk about for a long time. Something that’s really frustrating me about the abortion debate for a long time is that pregnancy loss is not in the picture, right. And that’s from both sides. Because the anti-abortion side wants us to believe that every pregnancy not terminated will end up with a living baby. And the abortion-rights side wants us to believe that every pregnancy not terminated will end up in forced parenthood. The millions of pregnancy losses that happen every year are just erased, like they just don’t happen.
MM: Not discussed.
JWL: Not discussed. There’s this binary, right, like abortion or living baby and it’s, it’s not true. Millions of us know that that’s not true. Another thing that I think is really affected the experience of pregnancy loss is it is some of the anti-abortion rhetoric about whether life begins at conception. Well, if that’s been drilled in your head for four decades and you miscarry at eight weeks. But that’s a very different experience than had you not heard that for four decades, right? And on the other side too, the choice rhetoric. Choice implies control, right? My choice, that implies you have control. But so little about reproductive life is actually able to be controlled, and I think that increases some of the self-blame that people can experience with pregnancy loss. So, you know, they tend to be like separated, like these are two different things, which is silly because a lot of people experience both, right? So even that separation is silly, but we also like forget to look at how things from the abortion debate has also affected pregnancy loss.
MM: So, what I thought was interesting is in the Times or opinion piece, which is based on your article, that you proposed a solution. So, can you talk about that? It’s a different model for recognizing the life of the fetus, while not necessarily offending the abortion-rights advocates.
JWL: Yeah, the purpose of what Greer and I wrote… There’s been a longstanding hesitance on the abortion-rights side to really talk about pregnancy loss. And it’s not difficult to understand because it’s… Well, if you acknowledge the loss in pregnancy loss, right, and just think about it, like we lost the baby. Well, as soon as you say we lost the baby, you know that’s something the abortion-rights side has just tried to avoid, right. And actually, historically, they’ve sort of opposed things about pregnancy loss, but these days they’re just trying to avoid as much as possible.
MM: Because they don’t want to acknowledge it as a baby at that point?
JWL: They don’t want, you know, there’s, it’s not a baby. I don’t know what it is, but it’s not a baby, right? It’s sometimes you hear like it’s just cells or tissue or something, but it’s not a baby. But so many of us know that, like you know, at some point in pregnancy it becomes a baby. So what Greer and I were really trying to focus on is that you can acknowledge the right to abortion and also still acknowledge that people suffer pregnancy loss and grieve. And to them it was a baby, right? And really, the whole answer of what Greer and I were focusing on is to them, right, it’s subjective. What we want to propose is like we can recognize pregnancy loss, right? And we can recognize that those people think that maybe they lost a baby. But that doesn’t all of a sudden mean that, like every pregnancy, is a person from conception, and those are two separate things. We’re trying…
MM: Because to be a little bit more comfortable with the ambiguity, I guess.
JWL: Yeah, yes. And I think common sense, we kind of all are comfortable with the ambiguity, that the abortion debate is not comfortable with the ambiguity, right? And what Greer and I were trying to argue is that just because someone you know had to still be with the 28 weeks and thinks that’s a baby does not mean every fertilized egg is a person from conception. And we can validate that pregnant person’s view. Or we can recognize that pregnant person’s view. But that doesn’t mean that legally all of a sudden every fertilized egg is a person, right. And that’s probably where we’re going next on the abortion front. We got one of the feedbacks we got from the New York Times op-ed. A woman wrote a story about how she had a 10-week miscarriage and how we were supposedly denigrating her loss, right, by even talking about how miscarriage and abortion in the same sense, and that’s, no… I fully support that you lost your baby at 10 weeks, and I apologize and that’s awful. It’s just that. We don’t think that that necessarily means that every fertilized egg is a baby, is a person as of conception.
MM: Well, I think that’s all we have. Jill, thank you very much for being here with us today.
MM: Short Talks from the Hill is now available wherever you get your podcasts. For more information and additional podcasts, visit arkansasresearch.uark.edu, the home of research and economic development news at the University of Arkansas. Music for Short Talks from the Hill was written and performed by local musician Ben Harris.
