Before the United States Supreme Court overturned both Roe v. Wade and Planned Parenthood v. Casey in its 2022 decision on Dobbs v. Jackson Women’s Health Organization, prosecutions of pregnancy loss in U.S. had already been rapidly rising. As NPR reports, a joint study undertaken by National Advocates for Pregnant Women (NAPW) and Fordham University charted approximately 400 cases of pregnancy and pregnancy loss being used in criminal investigation and prosecutions post-Roe (decided in 1973) and prior to 2006. In contrast, from 2006-2020, less than half the previous time window, the report found almost 1400—or three and a half times—as many cases of what NAPW call “pregnancy-related criminalization.”
While the Dobbs decision clearly opens the doors for the criminalization of abortion, legal experts and advocates are anticipating the numbers of those persecuted for pregnancy loss due to stillbirth and miscarriage to grow by staggering proportions in the coming years as well. For, as legal scholars Green Donley and Jill Wieber Lens explain, in the absence of lawful access to abortion care, many will resort to privately managing their own abortions at home, relying heavily on the drug misoprostol which is often prescribed for miscarriage management as well as for medical abortions. As the same drug will frequently be involved and because the complications of miscarriage and elective medical abortion are often indiscernible, pregnancy loss is likely to become all the more subject to legal scrutiny and potential criminalization in a post-Dobbs world. Additional harm is projected to befall pregnant people as they avoid seeking medical treatment for both abortion and pregnancy loss in the face of such criminalization.
While the trials and tribulations of elective abortion and pregnancy loss due to miscarriage or stillbirth are clearly linked—now perhaps more closely than ever, the political struggle to ensure and uphold the right to abortion has often been set at odds with the lived experiences of those who mourn and grieve pregnancy losses due to miscarriage, stillbirth, or even abortion itself (electing to have an abortion does not necessarily mean that one is not pained over the loss nor that one does not mourn for the life that could have been had one’s circumstances been different). Following the emergence of the ultrasound, first used to gauge fetal development in the late 1950s in Glasgow, the notion of ‘fetal personhood’ quickly took fire amongst anti-abortion activists in their efforts to stymie abortion access. The enlistment of the concept of fetal personhood in these efforts has made it deeply fraught for many of those who mourn and grieve pregnancy losses to freely and openly do so in a language that reflects their own experiences without fear of adding fuel to the fire of anti-abortion efforts or alienating themselves from the larger community of advocates for the right to abortion.
A relational approach to pregnancy may be able to help in overcoming this divide, uniting advocacy for abortion rights with respect for and appreciation of the pain, mourning, and grief so many people experience following pregnancy loss. Hilde Lindemann’s “…But I Could Never Have One,” highlights a relational activity she names “calling the fetus into personhood.” Lindemann argues that the value of a fetus lies in its potential to become a person, which, on the one hand, has a biological basis (neither “acorns or puppies” have the potential to become persons in the sense she has in mind), while, on the other, also depends on the pregnant person exercising their own agency in a heralding relationship that carves out a place for the developing fetus in one’s heart and home and welcomes it into the world. Importantly, however, the pregnant person can choose whether or not to undertake this activity, giving them the power to bestow unique meaning and value on the potential life nested inside them through their own relationship to it.
Every relationship, moreover, takes two. Just as the fetus may be “called into personhood” through the agency of the pregnant person, Bryon J. Stoyles’s “The Value of Pregnancy and the Meaning of Pregnancy Loss,” appearing in the open-access special edition of Journal of Social Philosophy dedicated to the topic of pregnancy loss, highlights how the pregnant person can also be ‘called into parenthood’ by the growing fetus, developing as it does in biological complexity and capacities as time passes, and insofar as the pregnant person finds their own investment in that growing fetus as well as their sense of responsibilities towards it and commitment to safeguarding its development and potential future transforming in ways they cannot fully anticipate or control. Here, too, however, it remains within the agentive power and control of the pregnant person as to whether and how to respond to such a call, which in turn conditions whether a pregnancy loss will be mourned as well as the full meaning and value ascribed to that loss.
Another relational approach to pregnancy loss is voiced by Jemma Rollo in “A Relational Ethics of Pregnancy.” As shared in her interview about the piece for FAB Gab, Rollo’s experience as a psychologist and non-directional pregnancy counselor led her to the position that the relational connection between a pregnant person and a fetus is one of the most important factors in determining the fetus’s moral status, especially in the early stages of pregnancy. She argues that a fetus has moral significance even during the very earliest stages of gestation if given that significance through the relationship the pregnant person has to it. In converse, the pregnant person may rightfully exercise their freedom to form a fundamentally different relationship to the fetus early in gestation, one that does not regard it as an object of love or even consent to a relationship with it at all. For Rollo, like Lindemann and Stoyles, there are two strands of value surrounding fetal life, one relational and one biological. Thus, someone for whom a pregnancy was unwanted might still mourn its loss in the late stages of the process, recognizing that something of value has been lost from the world, yet also feel a personal sense of relief.
Such relational arguments have among their merits the potential to acknowledge, understand, and honor the experiences of suffering and grief that attend so many experiences of pregnancy loss. Importantly, such relational approaches also allow for an understanding of why mourning and grief do not follow all pregnancy losses, for just as one can mourn and grieve an elective abortion one can also experience relief over a miscarriage when the pregnancy is unwanted by the one carrying it. A relational ethical framework validates the fundamental freedom not to consent to a relationship with a fetus while also recognizing the way in which fetal life grows in significance and import as pregnancy progresses into its late stages. Likewise, this framework recognizes and validates the equally fundamental freedom to willfully engage in a chosen relationship of love, care, and intimate connection with a fetus at even the very earliest stages of pregnancy, bestowing significant value on the fetus through this relationship itself. In this way, a relational approach to determining a fetus’s moral status validates not only the right to abortion but also the grief and mourning that surrounds many experiences of pregnancy loss, paving a path toward better acknowledging the pain and hardship of pregnancy loss while also advocating for the upholding of abortion as a fundamental human right.
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Katharine Wolfe
Katharine Wolfe is an Associate Professor of Philosophy at St. Lawrence University, a small liberal arts college perched just north of the Adirondack mountains. Her work considers contemporary topics in environmental ethics, bioethics, and more from a feminist and relational approach and often blends analytic and continental approaches.
