Miscarriage Treatment is Not an Abortion in Texas

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Now that Roe v. Wade has been overturned, abortions from fertilization are prohibited in Texas immediately under a Pre-Roe law that was never repealed. Thirty days after the judgment of Dobbs v. Jackson is released, a trigger law with additional penalties for abortionists who perform abortions will go into effect.  Media outrage at the law is ongoing, with no end in sight. Now, in order to keep the flames fanned, the media is latching harder than ever onto the false talking point that Texas law prevents care for women suffering miscarriage or ectopic pregnancy. This is patently false.

Major news outlets such as NPR, NBC, and others are reporting that, since miscarriage care often involves similar drugs and procedures to abortion, those forms of care could be considered as prohibited under Texas law. The misinformation surrounding what Texas law actually entails could cause physicians to hesitate before performing any sort of procedure that may look like abortion even if it is clearly not an elective abortion. Unfortunately, this could cause women who need that critical medical attention to be turned away.

Their misunderstanding arises from a misinformed reading of recent bills like the Texas Heartbeat Act and Senate Bill 4 (which prohibits chemical abortions after 7 weeks), and House Bill 1280 (the trigger law that prohibits abortions from fertilization).  These bills do not themselves define the terms “abortion” and “medical emergency” but instead refer to those definitions elsewhere in Texas law. This has led to the mistaken belief that these terms are open for interpretation. In reality, however, these terms are actually very well defined in Texas law and have been in place for years.

According to the Texas Health and Safety Code, a procedure is legally considered an abortion if it is done “with the intent to cause the death of an unborn child of a woman known to be pregnant.” The definition further clarifies, “[a]n act is not an abortion if the act is done with the intent to…remove a dead, unborn child whose death was caused by spontaneous abortion.” This means that, if a procedure is done to remove a deceased child who passed away by spontaneous miscarriage, there was no intent to end that child’s life, and it is therefore not defined as an abortion. Also, this does not prohibit removing a living child with the intent to provide treatment to the child or to save the life of the mother, such as in an early induced delivery.

Even the older language of the pre-Roe statute that prohibits abortions from fertilization defines abortion as an activity where “the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.” This clearly does not apply to any medical intervention done in response to a condition where the child is no longer alive.

Miscarriage is undeniably one of the most tragic events that any woman and family can face. It is something spontaneous which cannot be controlled or undone and leaves families mourning the loss of their child or children. Sometimes, after the child passes away in the womb, the mother’s body will naturally deliver the child. Other times, however, the mother’s body does not recognize that the child has died, so the body of the child remains in the uterus and must be removed. If the mother is not treated appropriately, she could experience extremely dangerous medical complications.

In these cases, a procedure resembling an abortion, that is not actually an abortion, must be performed. This might involve prescribing mifepristone and misoprostol (the drugs used in chemical abortion) or using some sort of surgical intervention. But unlike in an elective abortion, the interventions in the case of a miscarriage are not aimed at the death of a child. 

There are also concerns about the pharmacy being willing to fill a prescription for the medications listed above when they are prescribed for a patient who has a miscarriage, given that the pharmacist wants to ensure they are not participating in an abortion. Clear communication between the doctor and the pharmacist is the simple solution to this to ensure that patients get the care that they need for treatment of a miscarriage.

The purpose of Pro-Life laws in Texas is to protect preborn children and their mothers from the violence and tragedy of abortion. In the case of miscarriage, the child is tragically no longer alive. Morally, removing the deceased child is not at all the same as actively and purposefully taking that child’s life. This is why Texas law is explicit about what actually constitutes an abortion and what does not.

Texas law is clear – the removal of a miscarried child is not an abortion. The law does not need to be amended. Some of the misconceptions being spread about how miscarriage is treated under Texas’ Pro-Life laws are merely attempts by pro-abortion advocates to further discredit life-saving laws and the Pro-Life movement’s concern for women. The law as properly understood and followed already addresses how miscarriage should be treated in Texas and empowers doctors to provide the best life-affirming pregnancy care possible.

Many also have concerns that Texas law prevents doctors from treating an ectopic pregnancy, a condition wherein the embryo implants somewhere other than the lining of the uterus.  If an ectopic pregnancy is left untreated, the unborn child’s death is certain and the mother’s death is likely.  Current technology does not allow us to save the preborn child. Additionally, if the condition goes untreated, the mother will most likely not live long enough for the child to become viable. Therefore, while there is no likely way to save the child, we can save the mother by removing the preborn child from the mother’s body. This can be done without directly killing the baby but instead allowing the baby to die naturally once removed, which would have likewise occurred had the baby stayed put. Although this does result in the devastating death of the child, this is not legally or ethically an abortion. Ethically, treating ectopic pregnancy is categorically different from abortion since the death occurs indirectly and the physician’s intention was to save the mother’s life.

Texas law reflects this important distinction. Pro-Life policies in Texas do not prevent doctors from treating an ectopic pregnancy.  The definition of abortion in Texas Health and Safety Code explicitly states an act that is done to “remove an ectopic pregnancy” is not defined as an abortion. Doctors can clearly legally save a woman’s life without incurring any criminal or civil penalties associated with Pro-Life laws in Texas. If you or someone you know is grieving a miscarriage or has experienced an ectopic pregnancy, please reach out to your local pregnancy resource center for loss counseling or call Texas Right to Life and we will help connect you to resources. You do not have to go through this pain alone.

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