An Ambiguity We Can’t Afford: How Abortion Bans Make Miscarrying Deadly

Written by Ingrid Holmquist
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​When Roe v. Wade was overturned in 2022, anti-abortion activists and legislators were quick to act. Before the ink dried on Justice Alito’s majority opinion, 13 states’ trigger laws went into effect, instituting near-total bans on abortion with limited exceptions for rape and incest, as well as to protect the health or life of the mother [1]. In emergency medical situations, however, these exceptions remain violently ambiguous and oftentimes prove to be deadly.

Texas was one of the first states to establish a highly restrictive ban on abortion after Roe fell, with its trigger law going into effect just afterward [2]. This ban criminalized health professionals from performing abortions unless the patient faced the risk of death or “substantial impairment of a major bodily function” without one [3]. The problem, however, is that the process of determining a patient’s risk of injury without an abortion isn’t as cut-and-dry as the law would like. That is precisely the reason 18-year-old Neveah Crain bled out in a Texas hospital bed instead of going home with her mother to open gifts for her baby shower [4].

Last October, Crain sought emergency medical care after she began experiencing headache and vomiting, unaware that she was miscarrying. She was evaluated and discharged from two hospitals with diagnoses of strep throat and a urinary tract infection, even though she was exhibiting signs of sepsis. Twenty hours later, Cain’s condition was still worsening and her mother drove her to the emergency room for a third time. Doctors confirmed there was no fetal heartbeat but still did not act to remove the infected tissue in her uterus. Writhing in pain while she bled both internally and externally, she was forced to wait for doctors to perform a second ultrasound. But before they could, she was dead. 

The essential questions arising from this story are pressing. Why was Crain turned away twice before doctors realized she was experiencing a miscarriage? Why were her sepsis symptoms ignored? And why, when she was in need of critical care, was she made to wait to receive ultrasounds while her organs failed? The answer to all of these questions lies within the lines of Texas’ lethal heartbeat ban, which actually sprung into effect long before the ruling in Dobbs v. Jackson Women’s Health. 

Over a year before the Roe v. Wade reversal, Texas instituted a highly controversial law, allowing plaintiffs to bring lawsuits against medical providers for performing abortions after a fetal heartbeat was detected [5]. This was able to stand under Roe through a loophole — it did not list state officials as enforcers but instead handed that power to Texans. Because Texas had no state officials or agencies enforcing this law, therefore, it was essentially immune to constitutionality. This heartbeat ban, in combination with the requirements laid forth in the Texas trigger law, created the conditions under which Cain died. While it remains unclear why exactly on her first visit to the hospital she was turned away without any examination of her pregnancy, many doctors have theories. In states that criminalize abortions, healthcare providers might diagnose other health issues before relating symptoms to a pregnancy, hoping not to intervene in a woman’s reproductive health for fear of legal consequences. These arbitrary bans, however, show horrific disregard for medical emergencies and create dangerous conditions for women experiencing miscarriages. 

The dilation and curettage procedure, known as D&C, is used to remove fetal tissue in the event of a miscarriage. While some miscarriages can occur safely without it, the procedure can spare a patient significant pain and can also become essential in treating and preventing cases of hemorrhaging and infection [6]. The legal issue originates from the fact that this procedure is essentially identical to a surgical abortion—in which fetal tissue is evacuated from the uterus [7]. Given the heartbeat ban in Texas, and the ones in numerous other states, medical providers are inclined to ensure a fetal heartbeat is absent before they perform a D&C. This is presumably why Cain sat waiting for two ultrasounds checking fetal heartbeat while she bled out. 

In many cases, even when there is no evidence of a fetal heartbeat, doctors will refuse to perform a D&C just in case it is misconstrued as facilitating an abortion. There are countless reports of women being turned away from hospitals and forced to wait out the passage of tissue at home in excruciating pain. This approach doesn’t even work on 20% of occasions, and women must later receive surgery or medication. Women are miscarrying in their beds, public restrooms, and the backseats of cars, all because doctors are fearful of legal repercussions. In Texas, one woman was forced to carry her dead fetus around in her womb for 2 weeks while she looked for a doctor that would perform the surgery [8]. 

The argument exists that these doctors are simply interpreting the law wrong–that of course women miscarrying are different from women seeking voluntary abortions. But this drastically ignores the gross ambiguity that lies within the laws that govern women’s bodies. The exceptions that exist in many state abortion bans use the language that a patient must face the risk of death for an abortion to be medically necessary. Furthermore, the detection of a fetal heartbeat makes the act an abortion (since the fetus is considered alive), while a lack thereof would make it simply a D&C procedure. But these rules ignore very important realities. 

Firstly, medicine is not a perfect field. Doctors may not always be able to diagnose an issue such as a miscarriage or an ectopic pregnancy immediately, and therefore may remain uncertain as to whether a pregnancy is a threat to a patient’s life. In a medical crisis, when things can change by the second, it is always better to act early. Waiting until a pregnancy complication constitutes a life-threatening emergency quite literally means waiting until a woman is dying to try and save her. Doctors’ top priorities should always be the health and safety of their patient. They should never be asked to weigh whether a woman’s life is worth them spending 99 years in prison [9]. 

Secondly, heartbeat laws fail to account for the fact that fetal cardiac activity can be detected while a person is actively miscarrying. In yet another horrific Texas case, Josseli Barnica miscarried from an infection for 40 hours until doctors could no longer detect a fetal heartbeat. Instead of removing the fetal tissue that was slowly killing her with bacteria, they waited [10]. They told her it would be a crime to remove the fetus. In doing this, they told her it would be a crime to save her life. 

From heartbeat to six-week bans, the law fails pregnant women. It fails those who want to have children, those who don’t, and those who simply want their already-dead fetuses to be removed from their wombs. We could say all kinds of things about the horrific stories I’ve outlined today. We could call it doctor’s misinterpreting the law or we could call it a tragic series of medical accidents. But at the end of the day, it is a failure on the part of the legislatures who crafted these laws. They did not account for the fast-paced and deadly medical crises women might face, nor did they consider the existence of a fetal heartbeat during a miscarriage. This is because they are not doctors. In the interest of women’s health across the country, nobody without a medical degree should be deeming a doctor’s determination of medically necessary care as illegal. If we had followed this standard, Naveah Crain would still be alive today. 

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.


Bibliography 

[1] CNN. "What Are Trigger Laws and Which States Have Them?" CNN, May 3, 2022. https://www.cnn.com/2022/05/03/us/state-abortion-trigger-laws-roe-v-wade-overturned/index.html.

[2] Texas Legislature. House Bill 1280. 87th Legislature (2021). https://capitol.texas.gov/tlodocs/87R/billtext/html/HB01280F.htm.

[3] Texas State Law Library. "Is Abortion Illegal in Texas?" Texas State Law Library FAQs. https://www.sll.texas.gov/faqs/abortion-illegal-texas/.

[4] Serrano, Krista M. Torralva. "Pregnant Texans Fear the State’s Abortion Ban Left Them to Suffer and Die. The Law Is Not So Simple." The Texas Tribune, November 1, 2024. https://www.texastribune.org/2024/11/01/nevaeh-crain-death-texas-abortion-ban-emtala/.

[5] Texas Legislature. Senate Bill 8. 87th Legislature (2021). https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf.

[6] Douglas, Angela, and Eleanor Klibanoff. "Texas Hospitals Grapple with Confusion Over Abortion Laws as Physicians Call for Clarity." The Texas Tribune, July 15, 2022. https://www.texastribune.org/2022/07/15/texas-hospitals-abortion-laws/.

[7] Belluck, Pam. "Abortion Bans Raise Questions About Care for Miscarriages." The New York Times, July 17, 2022. https://www.nytimes.com/2022/07/17/health/abortion-miscarriage-treatment.html.

[8] Shepherd, Katie. "Abortion Bans Lead to Denials of Miscarriage Care." The Washington Post, July 20, 2022. https://www.washingtonpost.com/politics/2022/07/20/abortion-miscarriage-texas-fetus-stell/.

[9] American Association of Medical Colleges. "Emergency Doctors Grapple with the Impact of Abortion Bans." https://www.aamc.org/news/emergency-doctors-grapple-abortion-bans.

[10] ProPublica. "A Texas Woman’s Death After Miscarriage Highlights the Impact of Abortion Bans." ProPublica. https://www.propublica.org/article/josseli-barnica-death-miscarriage-texas-abortion-ban.