Over the New Year holidays, my husband and I received the surprise of our lives: a positive pregnancy test. The pregnancy was unplanned but very welcome. Getting pregnant with our first two children was a huge undertaking, so the idea that I could just get pregnant was new to us. Two positive blood tests at my gynecologist’s office confirmed that the pregnancy was progressing as expected. For the entire month of January, my husband and I smiled wider than ever as we marveled at our surprise, miracle baby.
But a few weeks later, the first ultrasound erased those smiles. The baby was measuring behind and had no heartbeat. Our miracle baby had died.
Along with the miscarriage diagnosis came a new health condition for me: recurrent pregnancy loss. This baby marked my third miscarriage, and my doctor in Tennessee was concerned that I would never again be able to have a successful pregnancy without further investigation into what was going wrong in the womb. As such, my doctor recommended that I have a procedure called a dilation and curettage (D&C) to remove the pregnancy tissue. She would send it to pathology for further testing so she could better understand how I could get pregnant – and stay pregnant – in the future.
But performing a D&C was easier said than done. My doctor had thousands of hours of training in the procedure and could have done it in her office the same day. But the health care system she worked for now prohibited it without excessive documentation. Before she could schedule the D&C, I would need three ultrasounds in the next two weeks to prove my baby was still dead.
Thirteen states, including mine, had trigger laws that went into effect the moment the court overruled Roe. Since a D&C could be used to terminate a viable pregnancy, the procedure was prohibited. In some states, doctors who violate new laws can be convicted of a felony.
Post-Dobbs anti-abortion laws have gone far beyond mothers trying to voluntarily terminate pregnancies. They are also inhibiting access to health care for women like me who want to have a viable pregnancy. The political advocates responsible for the new laws claim to be protecting human life, but their laws can have the opposite effect.
These bans were rushed through and the end result is poorly drafted laws that are difficult for lawyers and courts to interpret. Because the consequences of violating them are so draconian, many healthcare systems and doctors are understandably avoiding all procedures and medications associated with voluntary termination of pregnancy, even if they are being used for another purpose.
Thus, the new laws, which effectively prohibit certain medications and procedures, have already generated inaccuracies and uncertainties. Prohibitions of this type are never the right approach in health care regulation. Procedures and medications can serve widely varying – and even opposing – purposes. Ozempic was developed as a medication for type 2 diabetes, but has gained popularity as a weight loss treatment. Misoprostol, one of the drugs commonly used in voluntary termination of pregnancy, also treats ulcers.
The D&C procedure, which can be used to terminate a pregnancy voluntarily, can also be used to help women like me—women who want a viable pregnancy but are unable to carry it to term. D&Cs can help women who have had an incomplete miscarriage or unexplained pregnancy loss. A delay in the expulsion of pregnancy tissue can cause health complications such as infections, and some women cannot have a successful future pregnancy without first having a D&C.
I never got a D&C. On the morning of my final ultrasound – after almost two weeks of waiting – I started miscarrying on my own. My doctor immediately prescribed hormones in an attempt to slow the progression of the miscarriage, but it wasn’t enough. When I went in for the procedure the next day, there wasn’t enough pregnancy tissue to collect. After a painful waiting period, my husband and I were left with no answers as to what went wrong with this pregnancy.
As my story illustrates, the consequences of these new laws go beyond the ban on abortion. They forced me to undergo unnecessary and expensive ultrasounds that took a huge emotional toll. I am now hesitant to get pregnant again as under the current legal regime history is likely to repeat itself and put me through the same traumatic experience.
In healthcare, drugs and procedures are almost never uniformly good or bad, and every patient’s situation is unique. Until state legislatures address these basic facts, new anti-abortion laws will continue to promote human suffering.
Jennifer Shinall is a professor of law at Vanderbilt University Law School. ©2023 Los Angeles Times. Distributed by Tribune Content Agency.
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