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Abortion, Pregnancy Loss, & Subjective Fetal Personhood

Posted by on Tuesday, November 22, 2022 in Articles, Volume 75, Volume 75, Number 6.

Greer Donley & Jill Wieber Lens | 75 Vand. L. Rev. 1649

Long-standing dogma dictates that recognizing pregnancy loss threatens abortion rights—acknowledging that miscarriage and stillbirth involve the loss of something valuable, the theory goes, creates a slippery slope to fetal personhood. For decades, antiabortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate fetal 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 argues that this perceived tension can be reconciled through the concept of subjective and relational fetal value. The Article derives this concept from pregnancy loss research, which demonstrates that a pregnant person’s attachment to their fetus is based on myriad individualized factors. 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 America in which abortion and pregnancy loss are inexorably intertwined. Without legal abortion access, women will turn to self-managed abortion. But because complications from self-managed abortion are indistinguishable from miscarriage, investigation and criminalization of pregnancy loss will increase as a mechanism to enforce abortion laws. Further, restrictions on abortion will limit medical treatments for pregnancy loss. Looking forward, we argue that an abortion rights narrative that can join forces with the pregnancy loss community by acknowledging subjective fetal value will be less alienating to many Americans and reflect nuanced views on the meaning of pregnancy. Last, appreciating the blurriness between abortion and pregnancy loss will help normalize and destigmatize all pregnancy endings that do not result in a live birth—abortion, stillbirth, and miscarriage—benefitting all pregnant people.

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