Miscarriages (of justice)

Bioethics was born as a result of debates about contraception and in vitro fertilization. The challenge was to explain why reproductive decisions belonged to individuals and not to the state. In the 1950s, research on oral contraception was illegal. Studies that eventually led to the pill had to disguise their purpose and be conducted offshore. Still, research went forward and led to both the development of safe and effective contraception and the articulation of a right to privacy and bodily autonomy in reproductive decisions. That’s all on the chopping block, now.

The controversy is about both politics and science. A lead editorial about abortion in the New England Journal of Medicine tries to disentangle the two. The editors accuse lawmakers of misunderstanding the scientific realities of human reproduction. They focused on three misunderstandings.

First, they addressed the claim that induced abortion is dangerous. The scientific reality is that it is fifty times more dangerous to carry a baby to term than to have a legal abortion. Illegal abortion, by contrast, is far more dangerous than having a baby, and can lead to infections that then can cause infertility, organ failure, and death.

Second, anti-abortion laws have implications for in vitro fertilization. In the US today, 2% of births result from IVF. That led to more than 73,000 babies in 2020. It would be ironic if laws that were intended to prevent abortion also prevented assisted reproduction. Echoing the divide between legislative efforts and biological realities, public support for laws that restrict IVF is much more tepid than public support for laws that outlaw abortion. For this reason, many state laws specifically exempt IVF from abortion bans. But there will still be embryos in freezers. What will be their fate or the fate of the people whose gametes created them or the doctors and nurses who assisted them?

Third, many state laws are ambiguous about whether either post-coital contraception or the use of an intrauterine device will be legally considered as abortion. The Journal notes that a single episode of sexual intercourse only leads to pregnancy about 2% of the time. In many cases, even if fertilization takes place, it is followed by a miscarriage. Post-coital contraception must be taken before it is possible to know whether fertilization has taken place or whether a miscarriage would have occurred. Thus, people who use post-coital contraception will not be able to prove that they were not pregnant, and so, if prosecuted, will be tried for a crime that, in all likelihood, never happened.

This third clash between science and law is the most troubling. We cannot know if a woman who takes a post-coital contraceptive is pregnant or not. All we can know is the odds and those odds make it overwhelmingly likely that she is not pregnant. It is not just a scientific misunderstanding but an insult to reason to claim that every use of post-coital contraception leads to a termination of pregnancy. It is a miscarriage of justice to conclude that the tiny possibility that an ovum has been fertilized should be sufficient for conviction. One must be considered innocent until proven guilty. Guilt can only be determined if a crime has taken place. In most cases, that will be impossible to prove.