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Several states have recently passed or considered strict limitations on abortion. Some of these laws are crafted in a way that misunderstands the nature of pregnancy and the risks of miscarriages. These laws leave room for women who have miscarriages to be investigated or even prosecuted for murder.

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Georgia's much discussed new law on abortion is one of the most restrictive in the nation. Abortion will be banned as early as six weeks into pregnancy, before many women even know that they are pregnant. The law goes even further, though. Although the intent of the law is to block abortion, it's open to vigorous debate about whether women who miscarry could be questioned or even prosecuted for murder. That's the topic of this week's Healthcare Triage.


The new law, which goes into effect January 1st, gives a six-week-old fetus the legal status of a human being. One definition of second degree murder in Georgia includes cruelty to children during which "he or she causes the death of another human being irrespective of malice." This raises the question of whether a woman who miscarries because of what is perceived to be her conduct could be held liable for that conduct.

I talked with Eric Segall, a law professor at Georgia State University and a supporter of abortion rights. He said that while he believes the law will most likely be struck down in lower courts, it suggests that women who cause the death of a fetus, with or without malice, could be charged with second degree murder. Even if the Supreme Court reverses course on abortion, law enforcement authorities with scarce resources may not investigate women this way. One would hope, Eric said, that there would be a political cost if they did. But, he noted, given the ambiguities in the new law and its complex interactions with other Georgia statutes, prosecutors would have a lot of discretion, and it would be completely up to them.

Other Georgia criminal statutes may still protect women from prosecution for ending their pregnancies or for miscarrying. Even if that winds up being true, the new law says doctors who perform abortions will be prosecuted, and that could still have an impact on women.

Staci Fox, president of Planned Parenthood Southeast, told The Washington Post she didn't think that the Georgia law could be used to successfully prosecute women, but that a woman who miscarried could be pulled into an investigation looking at whether someone performed an illegal abortion on her.

It would be helpful, of course, if legislators, and judges, and prosecutors understood the basics of miscarriage. Early pregnancy loss is not uncommon. It occurs in about 10% of recognized pregnancies. Four out of five cases occur in the first trimester. Many women miscarry before they know they're pregnant. About half of miscarriages are because of abnormalities in the fetal chromosomes. These defects are usually incompatible with life, and spontaneous abortions occur. The chance of an early pregnancy loss rises with age. While it is less common in younger women, about 80% of pregnancies in 45 year old women can end this way.

Without randomized controlled trials, which really aren't possible here, we can't really know for sure what is causing many miscarriages not involving chromosomal abnormalities. We have a great deal of information about what is associated with them, but that is not the same.

A woman who has health problems in general is more likely to suffer early pregnancy loss than one who does not. Women who have high blood pressure, diabetes, and thyroid disease are at higher risk. So are those who have hormone problems, immune disorders, or infections.

Circumstances at work can be associated with miscarriages. A 2013 systematic review found that working nights was a risk factor, as were things like working in a three-shift schedule, working 40 to 52 hours per week, and standing for 6 to 8 hours per day.

Smoking has been associated with an increase risk of miscarriage, according to a meta-analysis that included 98 studies. Obesity has been linked to recurrent miscarriage as well.

To be clear, there is no evidence that any of the factors I've mentioned causes a miscarriage. All of these data arise from observational studies that investigate associations not causes. It's easy to make an erroneous leap from one to the other, though.

Smoking, obesity, and night-shift work are each associated with being poorer and having fewer resources for health. That probably won't stop some people from quickly blaming women for their choices rather than considering their socioeconomic status. 

Ask almost any medical professional what caused a specific miscarriage, especially one early in pregnancy, and, other than chromosomal abnormalities, they will say that we do not know. If medical professionals cannot make that determination, it's hard to understand how someone in law enforcement might.

A bigger concern is that a fear of becoming part of an investigation may cause women to avoid medical care. Women who are bleeding or are heading towards septic shock may not come to the emergency room or office. They could die. This would only increase America's maternal mortality rate, which is already much higher than that of most other advanced nations. 

A state representative in Ohio recently sponsored a bill that would also how pregnant women with unsustainable pregnancies are treated. He suggested the ectopic pregnancies, which are not viable, should in part be handled by, and I'm quoting him, removing the embryo from the Fallopian tube, and then reinserting it in the uterus, so that's defined as not an abortion. This procedure is not possible. It's not clear that those who are writing many of these bills understand how pregnancy works.

We do know some things about how miscarriage works. It's a common, natural, and unavoidable health outcome for many heartbroken people. Inserting politicians and the criminal justice system into the grieving process seems as if it could only cause further pain.


Hey did you like this episode? You might enjoy this other Healthcare Triage News episode on how our abortion rates are down in the United States.

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