Women Who Experience Miscarriage Or Abortion Need Compassion, NOT Judgment And Fetal Burial Laws

About eight years ago, I suffered a missed miscarriage, otherwise known as a missed abortion. After several ultrasounds (each showing a decreasing fetal heartbeat) and weeks spent waiting to find out if everything would be okay (it wouldn’t), my doctor recommended getting a D&C (or a dilation and curettage) to remove the fetus.

It happened on a Thursday. And trust me, when life shifts on its axis and the earth slips out from under your feet, you don’t forget details like the day of the week you decide to scrape out your uterus so you don’t end up bleeding out on your bathroom floor.

When I made the appointment for the following Monday, the doctor warned me that there was a chance the miscarriage might not be complete by then. In other words, the fetus might not be completely dead. “If the heartbeat is still there, but weak, you’ll need to decide if you still want to go through with the procedure,” she said softly. In other words, I might need to decide whether to have an abortion.

Come Monday morning, there was no heartbeat at all. I walked into the hospital dressed in comfortable clothes carrying a dead fetus in my womb, and on Monday afternoon, I walked out with an empty uterus. I didn’t need to decide whether to abort a nearly dead fetus, but if I had, I have no doubt I still would have gone through with the procedure that morning. There are limits to the emotional agony the human heart can sustain, and I had reached mine. More time, more waiting, more tests would have broken me even more than I was already broken, and I had a 2-year-old son to look after. In other words, in medical terms, I would have had an abortion.

My doctors were caring and compassionate. My husband was understanding and supportive. The procedure was handled with dignity, and I was treated with respect.

Unfortunately, not everyone has the same luxury. This summer — just four days after the U.S. Supreme Court struck down a Texas law restricting abortions — a new rule was proposed in Texas requiring women’s health clinics to bury or cremate embryonic and fetal tissue from abortions, miscarriages, or ectopic pregnancy surgery, regardless of the woman’s wishes or the duration of the pregnancy. Lawmakers approved the proposed law, and the regulations were set to take effect December 19 — that is, until a lawsuit was filed earlier this month by several Texas women’s health clinics seeking to put an end to the regulations.

As the plaintiffs state in their complaint: “[T]he Regulation burdens women seeking pregnancy-related medical care. It imposes a funeral ritual on women who have a miscarriage management procedure, ectopic pregnancy surgery, or an abortion. Further, it threatens women’s health and safety by providing no safe harbor for sending tissue to pathology or crime labs. It also forces health care providers to work with an extremely limited number of third-party vendors for burial or scattering ashes, threatening abortion clinics’ provision of care and their long-term ability to remain open, as well as cost increases for women seeking pregnancy-related medical care. […] [T]he Regulation has no public health benefit. It does nothing to improve public health or safety, as[the Texas health agency] alleges; rather, it is a pretext for restricting abortion access.”

On December 15, U.S. District Judge Sam Sparks granted a temporary restraining order blocking the Texas Department of State Health Services from imposing the requirements until the temporary injunction hearing on January 3 and 4, with a decision expected by January 6. If the judge grants the temporary injunction, the law would be suspended until a final permanent injunction decision is reached, which would be decided only after a full trial on the merits. In other words, the plaintiffs’ victory on December 15 was just the first step in a multi-phase process.

Although Texas health officials say the rules are designed to protect the “dignity” of the unborn and will stop the spread of communicable disease, the women’s health groups aren’t buying it.

“This isn’t about health and safety as the state claims,” Jan Soifer, an attorney serving as co-counsel for the plaintiffs, told Scary Mommy. “The law treats embryonic and fetal tissue differently than other human tissue, such as appendices and amputated body parts, without any justification other than to ensure ‘respect’ and ‘dignity’ for ‘the unborn.’ Yet the state suggests that abortion providers could freeze all embryonic and fetal tissue and have a mass cremation. How this is more dignified than current methods defies understanding.”

In the lawsuit, the plaintiffs say the rules conflict with the U.S. Supreme Court’s ruling saying restrictions cannot impose burdens on a woman’s right to access abortion care without providing any medical benefit. Additionally, there is “widespread objection” to the law from medical organizations and legal experts, who say they “offer no public health or safety benefit,” and increase the shame and stigma surrounding abortion. Even the funeral industry is concerned about the law and what it means for them.

What’s more, the new law is also dangerous. Because its goal is to increase the cost and difficulty of obtaining an abortion, the law would likely cause several abortion providers to shut down or prevent women from getting the medical attention they need. Women who can’t afford the additional costs of burial may choose to miscarry or abort at home, which can lead to disastrous (or deadly) results.

Quite simply, “the law imposes an undue burden on women and is unconstitutional for that reason,” said Soifer.

Unfortunately, women’s health rights will likely face similar uphill battles with the incoming Administration. Donald Trump has expressed a commitment to nominate anti-abortion Supreme Court justices, defund Planned Parenthood, ban abortions after 20 weeks, and make permanent the Hyde Amendment which bars low-income women from using Medicaid funds for abortions. We can no longer take for granted even the most basic reproductive health care rights, much less be protected from additional burdens — especially since anti-abortion groups orchestrate attempts around the country to propose laws designed to limit access to safe abortion care.

“People need to speak out,” Soifer said. “Put pressure on your elected officials, and make sure that your voices are heard.”

In addition to the financial burdens placed on women, there are also the emotional burdens to consider as well. Under this Texas law, my own missed miscarriage would have been subjected to the fetal burial regulations. I survived my own D&C and the miscarriage itself (one of several miscarriages, unfortunately) and healed largely because I was able to recover in my own way and on my own timeline. No one dictated how I should feel or cope or grieve.

Something inside me broke that day. Had I been forced to go through some kind of burial or cremation procedure, had I been subjected to additional scrutiny or judgment…well, I’m not quite sure the break would have been as clean or healed as well as it did.

Regardless of how you feel about abortion, and whether you call the procedure an abortion or a D&C, make no mistake: No one makes the decision to have her uterus scraped of a fetus lightly. No one. There are a multitude of reasons someone might end a pregnancy or remove a fetus — the validity of which are no one’s business but the woman whose uterus is being scraped. Anyone who doesn’t understand this hasn’t known the agony of going through a miscarriage or abortion.

Being pro-life means caring about all life, including the life of the person lying on the hospital table. These dark hours need compassion and love, not judgment or additional hurdles. Anything less isn’t just unconstitutional, it’s inhumane.