Commentary Law and Policy

What My Miscarriage Taught Me About Texas’ Fetal Burial Legislation

Stephie Grob Plante

The very same anti-choice policies that antagonize women who choose to abort their pregnancies prey on those who pray for healthy pregnancies too.

The fight over fetal remains rages in Texas; it has for nearly a year now. I never imagined that, as someone trying to get pregnant, I might become ensnared in this fight too.

In July 2016, Texas’ Health and Human Services Commission quietly proposed new rules requiring burial or cremation after an abortion—rules that extend to miscarriages, or “spontaneous abortions,” occurring in a hospital or doctor’s office.

The rules were filed one week before the U.S. Supreme Court overturned two provisions in Texas’ 2013 omnibus abortion law, and published in the Texas Register three days after the decision.

Shortly after, Republican Gov. Greg Abbott touted his plan in a fundraising email made public by the Texas Tribune.

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“Will you contribute today,” reads his campaign letter, “as we turn the tides [sic] against the soulless abortion industry in Texas and unite in defense of life.”

Here’s a brief timeline of what happened next: There were two hearings; more than 35,000 public comments along with concerns raised by the Texas Medical Association, the Texas Hospital Association, and the Funeral Consumers Alliance of Texas; and, still, the Texas state legislature adopted the rules at the end of November. Although abortion rights groups sued the state and a federal judge blocked the rule from taking effect, lawmakers on Monday passed a bill that includes a fetal remains mandate. Similar measures passed in Indiana (signed by then-Gov. Mike Pence) and Louisiana; more states may soon follow.

And I had a miscarriage.

As a pro-choice Texan transplant, I’m against this underhanded attempt to shame women seeking abortions. Burying or cremating fetal remains bears no scientifically demonstrated public health purpose, places unnecessary burdens on health-care providers and women alike, and aims to restrict abortion access by any means possible. I know this from personal experience.

On November 11, my husband and I learned at our regular OB-GYN appointment that we’d miscarried our much-wanted baby at 11 weeks. A “missed miscarriage.” I soon underwent a dilation and curettage (D and C) surgical procedure—two weeks before the Texas state legislature approved the initial rules on fetal remains.

Enveloped in grief, a burial post-miscarriage almost made sense. “We lost the baby” is how we told our family and friends, even though we knew that a baby isn’t a baby until it’s born.

Pregnancy loss can feel confusing when you’re an advocate of reproductive rights. I followed the news on the fetal remains bill, and felt appalled that women might soon be subjected to that requirement, yet wondered if a funeral would give me any closure.

The four days between the bad news and the scheduled D and C felt interminably long and pointless. I’m carrying a dead baby, I thought. The words “dead baby” were stuck in my head, and my heart was broken. I hated that its inability to survive rendered it “nonviable,” a medical term devoid of emotion. I nodded when my mom assured me that I’d done nothing wrong, but I didn’t believe her. I cried and hurt, and couldn’t bring myself to delete what would’ve been the baby’s due date on my calendar.

And then I realized: I was the perfect target of the anti-choice movement. I’d almost fallen for its logic too. In beginning to imagine myself as a parent, I’d compromised my understanding that I wasn’t one yet.

Anti-choice laws, like the fetal remains requirement here in Texas, are a threat on all women, in part because they exploit vulnerability. Somewhere between 10 and 25 percent of pregnancies end in miscarriage. It took me mine to make me fully see that, on top of threatening a person’s right to choose and punishing women seeking abortions, such legislation intends to make sympathetic allies out of people trying to conceive.

“It goes without saying, if she’s given the option to cremate or bury she’s going to maybe wonder that this isn’t just some kind of blob of tissue,” says Mark Harrington of the anti-choice protest group Created Equal, as reported by NPR. “That this actually may be a child and she may choose not to abort.”

It’s a subtle manipulation, to allege that women don’t think hard enough about what abortion entails, to trick someone into believing that they’re burying a child. It’s mental torture that achieves no goal but more pain. It’s cruelty defined.

In some ways, I’d conned myself. My husband and I had decided on names and a theme for decorating the nursery. We’d told our families and made plans. I’d dedicated the majority of my waking thoughts to my pregnancy every day for three months, and I’ve found my thoughts wandering to its loss every day since. And each time, I’ve learned to resist how laws like the fetal remains bill attempt to recontextualize my grief at the expense of my beliefs.

Consider other restrictive laws in Texas and elsewhere: Requiring women to wait at least 24 hours after requesting an abortion; mandating that health-care providers falsely claim that abortion can cause infertility, breast cancer, and mental health problems; advising women that fetuses can feel pain at 20 weeks. As of April 15, 28 states uphold at least two abortion laws that bear zero scientific grounding; Texas and Kansas have the most, at eight restrictions each, according to the Guttmacher Institute.

Restrictions on providers and “personhood” bills translate into heightened probabilities of physical harm and inflated costs, particularly when it comes to women needing to travel long distances to find care, like in Kentucky, where the state’s sole abortion clinic is in danger of shuttering. The cost of emotional harm when it comes to all of these restrictive measures can’t be overlooked. What’s the point of the ultrasound law in Virginia, or the word choice (let alone the content) of the federal “heartbeat bill,” if not to guilt women out of their right to choose?

“I understand that they feel like that is their body,” Oklahoma state legislator, Rep. Justin Humphrey (R), told The Intercept in February of a bill he authored that would require written permission from male sexual partners for women seeking abortions. “I feel like it is a separate—What I call them is, is you’re a ‘host.'”

No. We are not.

True, I carried something inside of me during a pregnancy whose outcome, in part, depended on my choices and my ability to access what I needed to stay healthy. I limited caffeine and eliminated alcohol, cooked my eggs hard and ordered meat well done, avoided strenuous exercise and dealt with a cold sans medicine—because I am responsible for my body, and for everything that happens inside it. And just as my decisions and behavior and activity affected the fetus, its health affected my health.

I am more than a host. I felt sick to my stomach because the fetus inside me grew. I bled because it detached from my uterine wall. Its departure didn’t leave some anonymous vacancy, like someone checking out of a motel and leaving no trace of its stay. I bled, and bled, and mourned.

I grieve this loss, but I’m not grieving a whole life—I’m grieving what I hoped would one day live. My husband and I didn’t lose someone in November; we’ve lost loved ones before. This time, we lost an opportunity and a possible future.

There’s a big difference, and it should be up to us how we choose to grieve from that experience.

I’ve heard before that a miscarriage can redefine a person’s stance on abortion. As someone who saw a heartbeat on the ultrasound at 8 weeks, and nothing at 11, I can respect that. For me, though, my miscarriage reaffirmed my conviction that so-called pro-life rhetoric is antithetical to supporting life. The very same anti-choice policies that antagonize women who choose to abort their pregnancies prey on those who pray for healthy pregnancies too.

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