Miscarriage Treatment is Not an Abortion in Texas

Read our updated piece here.

The Texas Heartbeat Act began saving babies with a detectable heartbeat from abortion in September of 2021. Thanks to this law, an estimated 20,000 babies have been spared from abortion in Texas. 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 idea that Texas law prevents care for women suffering miscarriage. 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 even 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 cursory reading of recent bills like the Texas Heartbeat Act and Senate Bill 4 (which prohibits chemical abortions after 7 weeks). 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 up for interpretation. In reality, however, these terms are actually very well defined in Texas law and have been 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.

This is the current definition of abortion under the Texas Heartbeat Act. When the Supreme Court of the United States reverses Roe v. Wade and Texas can prohibit all elective abortions from the moment of fertilization, this will continue to be the definition of abortion in Texas. Miscarriage will continue to be explicitly excluded from what legally constitutes an abortion in the Lone Star State.

Miscarriage is undeniably one of the most tragic events that any woman and family can face. It is something spontaneous which can’t 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 or using some sort of surgical intervention.

There are also concerns around 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 the Texas Heartbeat Act 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. Misconceptions 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. If you or someone you know is grieving a miscarriage, 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.