Growing up in the US after Roe v Wade, abortion was never at the forefront of my mind; that is, until my infant son’s death in 2017. As a woman of childbearing age, I thought about abortion in an abstract way and labeled myself as pro-choice, although I never had one myself. Then my son died. He died unexpectedly at the end of a forty-week healthy pregnancy. And suddenly the debates around abortion became more meaningful to me.
Before my son died, I ascribed to the powerfully dominant belief system that most aspects of our lives are under our control. I believed that stalwart American belief that if you dreamed enough, and worked hard enough, that you could achieve anything at all. This form of bootstrap idealism has dovetailed in contemporary times with the so-called “crunchy” movement: an organic diet can magically keep us healthy for our entire lives, building up our immune systems means we will never get a potentially deadly virus, staying away from the unnecessary interventions of OBGYNs can help us to better appreciate childbirth. In fact, I refused to go to the hospital when I was pregnant with my first son until my husband forced me into the car. My doula, at the time, still didn’t think I was ready to go. My husband was right in the end; I had my son shortly after our arrival at the hospital and didn’t have the time for an epidural.
That’s not to say that so-called “natural” childbirth was not an empowering and awe-inspiring experience. But I was beholden to it; perhaps as a way to show how women’s bodies did not need to be controlled by modern medicine, that we knew how to do things all by ourselves. Four years later, on my due date, when I started feeling those contractions again, I sat on my physio-ball and took deep breaths as I was taught to do. I chopped vegetables for dinner, took a slow walk around the block, and tucked my four-year-old into bed before heading into the hospital. Everything was as it should be — and I felt deliriously happy at how my life was unfolding according to plan.
An hour later, after I had labored for twenty minutes or so without a heart rate monitor, the midwife on call checked for my baby’s heart rate and couldn’t find it. She broke my water, which was a swamp-green color from meconium, and inserted an internal monitor that measured my baby’s heart rate from his scalp. It was in the sixties and crashing. A flood of doctors and nurses came into the room and I was whisked away to the OR to be put under general anesthesia. Our son was gone by the time I woke up, despite the desperate attempts by the neonatologists who worked on him for forty-five minutes. He died from what would be classified as an intrapartum cord accident. When I woke up, a line of doctors and nurses stood against the tan wall across from my bed. My husband told me our son died. I will never forget the guttural scream I heard in that room and then the realization that it had come from deep within me.
I felt so deceived in those weeks and months after my child’s death. During childbirth classes, I had been taught that women’s bodies knew what to do when it came to giving birth — but my body hadn’t. And, so, it was my fault — my body’s fault — that my son had died. I repeated this over and over as images from the night of his birth — and his death — flooded over me. In especially dark moments, I allowed myself to think the exact opposite: maybe this was all due to chance and I had no control over anything at all. That was even scarier still.
“Personhood” is an incredibly complex term. Personhood denotes that an individual has certain legal and moral protections that are not extended to non-living or other living creatures. The sixth-century philosopher Boethius linked personhood with rationality, an idea that would prove foundational amongst the Enlightenment philosophers of the late seventeenth and eighteenth centuries. Through most of these philosophical musings, personhood was a zero-sum game; you were either a person entitled to rights or not. There could be no in-between. In US law this is called a “natural person” — someone who is subject to the law of the state.
For US abortion rights activists, the issue of personhood was always a fraught one. If a woman had the right to get an abortion until viability, as stated under the Casey opinion authored in 1992, then the fetus could not be considered a natural person with entitled rights. The “pro-life” position that life begins at conception (which is not a scientific belief but a spiritual belief) requires the embryo and then the fetus to be considered a natural person. Pro-choicers poised themselves on the other side — a phenomenon known as schismogenesis. Thus the Unborn Victims of Violence Act, signed into law by then President Bush in 2004, was viewed by many progressive organizations, including the ACLU, as a subrogation of the abortion rights enshrined by Roe v. Wade because it separated the value of the life of the fetus from that of the mother. (The ACLU did provide a nuanced statement arguing against the separation of the rights of the mother and fetus while also arguing for “penalty enhancements [that] appropriately punish criminal behavior while embracing that unity [between the pregnant woman and fetus].”)
But after holding my son’s body, after kissing his ski-slope nose and then handing him to nurses to wheel him down to the morgue, I could no longer believe that he wasn’t his own person, his own individual. How else could I make sense of my loss? He had been entitled to live — oh, how I had wanted him to live — and his life had been snatched away by the equivalent of winning a medical lottery that no one would ever want to play. It wasn’t just unfair to think that some people wouldn’t view my son’s life as having any value; the fear that his short life wouldn’t be valued or acknowledged shook me to my core.
My son was not born breathing. He had a heartbeat three minutes before he was forcibly cut from my womb but no heartbeat was detected once he was outside of my body. Because of this, he was never issued a birth certificate. Instead, a kind social worker placed his feet in ink and pressed them to a certificate of stillbirth she had printed from the internet. “I’m so sorry,” she told my husband and me. “I’m so sorry we can’t give you a real birth certificate.”
The distinction that was drawn within those three minutes always seemed strange to me. If he had been born three minutes earlier, he would have received a birth certificate. But three minutes later and he did not. There is no record of his existence under the law; just my medical records, which record his death as “spontaneous fetal demise.” His name isn’t there, of course, although it is imprinted within me: Alexander.
Another zero-sum game. Another frontier and border to categorize our rights (or lack thereof). My son’s death showed me how strange these limits are precisely because of what we cannot know and what we cannot control. We organize ourselves scientifically and legally based on these categories; they organize our very lives and they are necessary. But, following my son’s death, I couldn’t envision that life or birth or death could ever be delineated so simply.
My deeply held belief in my son’s personhood might have made me anti-abortion; instead it made me grasp the complexity of both pregnancy and childbirth in a way I never had before. They are medical events that are not fully under our control and that must be under the guidance of medical professionals who have the training to deal with the unexpected. After Alexander’s death, pregnancy and childbirth felt to me like the risky business it had always been in history — and not guaranteed to end in the health or survival of either baby or mother.
In the months following Alexander’s death, I surrounded myself with other women who had experienced perinatal loss — who had lost children who were dear to them before, during, or just after they were born. First, I was the counselee; soon I would become the counselor. I would utter a refrain to them, particularly to women who felt shame at the depth of their grief over the “miscarriage” of their child: “It doesn’t matter how far along they were; they were your child and you are grieving the loss of your child.” This is true and I don’t believe it useful to compare one another’s grief as we would compare height or shoe sizes. There were women who had to terminate desired pregnancies for medical reasons; women who had twin-to-twin transfusion syndrome and had to “selectively reduce” one twin only to have the other twin die as well; women who went to the hospital to give birth only to find out that their baby’s heart was no longer beating. There was no comparison to the horror they all experienced in these different ways.
But the truth is that, as a society, while we cannot classify our grief over the loss of our children of any age, most people do classify a six-day-old embryo as existentially different than a six-month-old fetus. Roe’s focus on trimesters forbade states from regulating abortion during the first trimester and only allowed later abortions to protect the mother’s health or life. Casey’s focus on viability was a compromise of sorts, limiting the legality of abortion through the framework of viability rather than through trimesters. Prior to viability, states could not place undue burdens on a woman’s right to an abortion; afterwards, attempts would be made to save the life of the baby as well. This ruling acknowledged both the right to have an abortion as well as the state’s “important and legitimate interest in potential life.”
The state’s interest in potential life is key in the ruling. Roe’s right to privacy makes sense in terms of women’s need for control over their own medical history. But it makes less sense in terms of the potentiality of life that is separate from her own and that she harbors within her. Some people who argue for reproductive justice argue that, instead, rights to abortion could be understood in terms of the Thirteenth Amendment and that being forced to carry a pregnancy to term is equivalent to “indentured servitude,” which is therein proscribed.
Having experienced the extremes of life and death in childbearing, I don’t think there is any legal equivalent to women’s ability to carry and give birth to children. But I also believe that most people understand this. According to the US Centers for Disease Control and Prevention, abortions after 21 weeks make up approximately 1.3 percent of all abortions; unfortunately, the reason for nearly all of these later abortions is due to issues with maternal health or a life-threatening fetal diagnosis. Many of these conditions are not diagnosed until the twenty-week scan — or even later. Serious medical emergencies for the mother, such as pre-eclampsia, can occur prior to viability or just at viability; since the only way to save the mother’s life in this circumstance is to deliver a pre- or peri-viable fetus, this would be considered an abortion procedure. Scrupulous medical providers would not provide an abortion on demand later in pregnancy without a stringent review process based on medical evidence, even in states that are liberal in terms of abortion regulations, such as New York.
Abortion has become so politicized that inflammatory rhetoric that has little to do with the actual necessary medical procedure is often bandied about. OBGYNs have courageously voiced their concerns about so-called exceptions for saving the life of the mother, asking questions such as: What is the percentage risk of death that would allow doctors to perform an abortion? Would the threat to the woman’s life have to be immediate and would doctors not be able to perform abortions if maternal death is probable at a later point? These questions point to the complexity of the issue — and why providing abortions should not be criminalized. Even more worrisome, the lack of nuanced response to these questions shows that the majority of “pro-life” politicians have not fully understood what it is they are legislating.
In the wake of Dobbs, we must return to common-sense regulations rather than inflammatory political rhetoric. This could be similar to what most other industrialized nations have instituted: first-trimester abortions on demand, with second and third trimester abortions only allowed, at the discretion of medical professionals and the women treated, due to medical need. Medical need can include not only the woman’s life at risk, but also her health. As Dr Marta Perez, a maternal fetal medicine specialist, recently wrote in The Hill, “pregnancy is not a health-neutral event.” Pregnancy not only changed my body permanently, but living through the health risks of pregnancy (and losing my son to these same health risks) made me understand the real danger that women face when their right to healthcare is based not on medical expertise but on political talking points.
The focus on the value of family life and children — if women are asked to give up the right to privacy offered under Roe — must also come with real structural changes. The United States is one of the only developed countries in the world that lacks comprehensive maternity leave and many women are forced back to work before they have even recovered physically from childbirth, let alone have had the chance to breastfeed and bond with their newborns. If women are expected to carry the burden of bearing children, they should receive child tax credits from doing so and men should have more of an interest in raising the children as well, including federal paid paternity leave. If abortions are restricted past the first trimester, there needs to be more prenatal care and not less, more access to sex education, and more access to birth control. This access should not be costly and should preferably be free.
We can agree that women deserve equal protection under the law while also agreeing that there is a value within the potentiality of the life of the fetus. There are no neat lines to draw but there is common sense, which political discourse has been lacking — as it so often does.
My son’s death taught me not only the value of his life but to understand the medical and emotional risks inherent in pregnancy and childbirth, and he continues to teach me.