Friday, July 1, 2022
Greer Donley (University of Pittsburgh), Jill Wieber Lens (University of Arkansas), Abortion, Pregnancy Loss, & Subjective Fetal Personhood, 75 Vanderbilt L. Rev. (Forthcoming):
Longstanding dogma dictates that recognizing pregnancy loss threatens abortion rights—acknowledging that miscarriage and stillbirth involve a loss, the theory goes, creates a slippery slope to fetal personhood. For decades, anti-abortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate personhood and end abortion rights. In response, abortion rights advocates have at times fought legislative efforts to support those experiencing pregnancy loss, and more recently, remained silent, alienating those who suffer a miscarriage or stillbirth.
This Article is the first to argue that this perceived tension can be reconciled through the concept of subjective and relational fetal value. The Article derives this concept of subjective fetal personhood from pregnancy loss research, which demonstrates that a pregnant person’s attachment to their fetus is based on myriad individualized factors. Importantly, attachment in pregnancy is neither fixed nor biological and therefore does not support the antiabortion concept of personhood-at-conception. We suggest that tort law offers a way forward: a model of recognizing subjective, relational fetal value that does not collapse into personhood-at-conception. Thus, abortion rights advocates can recognize and support those experiencing pregnancy loss without ceding ground on abortion rights.
Most importantly, this Article proposes that recognition of pregnancy loss within abortion narratives will better position the abortion rights movement for a post-Roe world in which abortion and pregnancy loss are inexorably intertwined. Without legal abortion access, women will turn to self-management. But because complications from self-managed abortion are indistinguishable from miscarriage, investigation and criminalization of pregnancy loss will dramatically increase as a mechanism of enforcing abortion laws. Furthermore, restrictions on abortion also create offshoot consequences that harm the treatment of pregnancy loss. Appreciating how connected these two experiences are will help to normalize and de-stigmatize all pregnancy endings that do not result in a live birth—abortion, stillbirth, and miscarriage. Finally, we argue that an abortion rights narrative that acknowledges subjective fetal value is less alienating and reflects nuanced views on the meaning of pregnancy.