These Five Words Are Hindering Early Miscarriage Care

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“to remove a dead fetus” — This phrase (or a derivative thereof) appears, as an exclusion, within high-control states’ definitions of abortion. For example, Tennessee law states: “‘Abortion’ means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, to terminate an ectopic or molar pregnancy, or to remove a dead fetus” (TENN. CODE ANN. § 39-15-213).

It sounds straight forward. A pregnant patient arrives at the hospital. The embryo/fetus is “dead” but the patient's body hasn't yet expelled that tissue (incomplete early pregnancy loss). Surely it is perfectly legal for the doctor to perform a quick aspiration to clear the patient's uterus of any remaining tissue, preserving the patient's health.

Unfortunately, it's not so simple to determine if/when an embryo or early fetus is “dead.” Not only is '“dead” not medical terminology in this context, but it also doesn't reflect the ways early pregnancy loss is determined and diagnosed.

“In some instances, making a diagnosis of early pregnancy loss is fairly straightforward and requires limited testing or imaging. For example, early pregnancy loss can be diagnosed with certainty in a woman with an ultrasound-documented intrauterine pregnancy who subsequently presents with reported significant vaginal bleeding and an empty uterus on ultrasound examination. In other instances, the diagnosis of early pregnancy loss is not as clear. Depending on the specific clinical circumstances and how much diagnostic certainty the patient desires, a single serum b-hCG test or ultrasound examination may not be sufficient to confirm the diagnosis of early pregnancy loss.”¹

Additionally, 2013 guidelines issued by the Society of Radiologists in Ultrasound Multispecialty Panel on Early First Trimester Diagnosis of Miscarriage and Exclusion of a Viable Intrauterine Pregnancy, which have been criticized by the American College of Obstetricians and Gynecologists, are unnecessarily conservative in their approach to diagnosing embryonic demise, “setting[] standards that went beyond cutoffs associated with 100% [certaintly in determining embryonic/fetal demise] in prior studies.”² Now navigating a post-Roe environment with steep criminal penalties, doctors are being extra cautious about diagnosing fetal/embryonic demise by delaying care while they gather enough evidence to defend themselves against possible criminal charges prior to terminating a pregnancy—even when it is firmly believed that the embryo/fetus has already expired (you can read more about this here).

In early pregnancy loss (EPL), physicians have reported that abortion bans have “compelled additional, sometimes unnecessary, confirmatory testing to demonstrate that a pregnancy was nonviable. This often required multiple ultrasonograms or serial measurements of β–human chorionic gonadotropin levels, even when clinical assessment was consistent with EPL. Physicians described delaying intervention despite clinical findings highly suggestive of EPL.”³

The ways in which abortion bans alter medical care “have heightened the need to decipher, beyond what is legal, [to] what is ‘likely,’” notes Penelope Deutscher, in “Revocability, Exception, Disqualification: Grammars of Power after Dobbs.”⁴ Abortion bans “operate[] through environmental deterrence or the management of behavior’s likelihood. In antirisk environments, providers avoid possible ambiguity by overimposing the law: the eight-week cutoff might be informally implemented as a seven-week cutoff. Medical practitioners might interpret conservatively the degree of life endangerment that would legalize their intervention unambiguously… A hospital’s legal advisers might assess the possibility of a malpractice suit before determining that denying care to a patient is preferable to the risk of prosecution for illegal abortion provision” (emphasis added).⁵ As the legal counsel of an Arkansas hospital stated, “We cannot rule out the possibility of an overzealous prosecutor.”

This is exactly what we see at play in the case of the determining embryonic demise in order “to remove a dead fetus” without fearing criminal prosecution.

Lastly, it's important to note that while removing a “dead” fetus (which is not medical terminology) is excluded from high-control states’s definitions of abortion, it is not excluded for the benefit the pregnant patient. Rather, it’s excluded for the benefit the embryo. — Specifically, this exclusion is designed to function as a restriction on when a patient may receive medical and procedural management for pregnancy loss.

The sole purpose of the exclusion is to benefit the embyo by delaying the delivery of miscarriage care until after embryonic demise has been so redundantly documtented that doctors, hospitals, and hospitals’ attorneys feel they are sufficiently protected from the ever-present risk of criminal prosecution.

1. ACOG Practice Bulletin No. 200: Early Pregnancy Loss. Obstetrics & Gynecology 132(5):p e197-e207, November 2018. | DOI: 10.1097/AOG.0000000000002899

2. Judge-Golden, Colleen MD, PhD; Flink-Bochacki, Rachel MD, MPH. The Burden of Abortion Restrictions and Conservative Diagnostic Guidelines on Patient-Centered Care for Early Pregnancy Loss. Obstetrics & Gynecology 138(3):p 467-471, September 2021. | DOI: 10.1097/AOG.0000000000004509

3. Landay S, Newton-Hoe E, Narasimhan S, Beasley A, Adkins J, Neill S. Abortion Bans and Pregnancy-Related Care Across Physician Specialties: A Qualitative Study. JAMA Netw Open. 2026;9(6):e2619644. doi:10.1001/jamanetworkopen.2026.19644

4. Penelope Deutscher; Revocability, Exception, Disqualification: Grammars of Power after Dobbs. Critical Times 1 April 2024; 7 (1): 66–93. doi: https://doi.org/10.1215/26410478-11082967

5. Penelope Deutscher; Revocability, Exception, Disqualification: Grammars of Power after Dobbs. Critical Times 1 April 2024; 7 (1): 66–93. doi: https://doi.org/10.1215/26410478-11082967