6 reasons equal protection laws can’t be enforced justly

First, a few definitions

When I use the term “pregnancy loss” it can refer to either miscarriage or abortion. The difficulty in distinguishing the two is a major theme of this article.

When I talk about “equal protection laws,” I’m referring to laws that would make it possible to charge women who get abortions with homicide. In this article I focus specifically on the enforceability of these laws in the first trimester. That’s because over 90% of abortions are obtained in the first trimester and many of the enforcement issues I outline here apply especially in early pregnancy (although they may also apply later).

When I talk about “abolitionists,” I’m referring to the proponents of these laws. When I talk about “incrementalists” or “incrementalist approaches,” I’m talking about laws against abortion that allow civil or criminal penalties in some form, but do not allow women who abort to be charged with homicide.

It’s good to critically analyze different strategies.

Abortion kills humans. It’s a human rights violation, and it should be illegal. We appreciate people who recognize this problem and want to see not only major cultural changes but also major legal shifts.

Abolitionists are quite good at critically analyzing incrementalist approaches. They ask for metrics of success, and for accountability when incrementalism falls short. They point out the stark differences between pro-life aspirations and real-world limitations, and they won’t let the larger pro-life movement sit complacently in optimism bias.

It appears to me, though, that abolitionists don’t tend to apply this kind of sharp analysis to equal protection laws.

Instead they prioritize discussing moral principles over real-world application. They have spoken at length about principles of justice and consistency. They give far less attention to the actual practice of law enforcement. But, like any legal approach, equal protection would come with tradeoffs, and that deserves a fuller discussion.

I’ve written before about a variety of reasons Secular Pro-Life opposes the equal protection approach. One of these reasons is the problem of investigating miscarriage. I think about this issue as a woman with a background in forensics who has miscarried two children. In this article I’ll detail my concerns, but here’s the key takeaway:

Equal protection laws can’t be enforced justly. That’s because enforcing equal protection laws would require detecting a significant number of illegal abortions. Detecting those abortions would require investigating an even larger number of ambiguous pregnancy losses. Abolitionists assure us no one would be investigated for pregnancy loss absent strong reasons to do so. If that’s true, it means most illegal abortions would go undetected, and most of the time the law wouldn’t be enforced.

Alternatively, abolitionist reassurances that the innocent have nothing to worry about may represent an oversimplified theory of our justice system. In practice equal protection laws could lead to many parents who miscarry facing criminal investigations.

Either way, treating abortion like any other homicide requires omitting factors unique to pregnancy and pregnancy loss. The simplicity of equal protection makes it appealing in theory, and unworkable in reality.

1. Law enforcement requires choosing between two types of error.

It’s hard to minimize Type 1 and Type 2 errors at the same time.

The criminal justice system is meant to punish the guilty and protect the innocent. It is, of course, not a perfect system, and it has an error rate. There are two broad types of errors:

• Type 1: treat innocent people as guilty
• Type 2: treat guilty people as innocent

We can design systems to minimize one type of error or the other, but it’s hard to minimize both at the same time.

For example, the Fifth Amendment says we can’t be compelled to be witnesses against ourselves; we can refuse to answer questions. This can minimize Type 1 error by protecting innocent people from being pushed to make false or misleading statements. But it can also increase Type 2 error by similarly protecting guilty people from having to explain suspicious circumstances.

On the other hand, generally it’s legal for police to lie during interrogations. This can minimize Type 2 error by pressuring guilty people to confess. But it can also increase Type 1 error by pressuring innocent people into false confessions.

As a society, we don’t consider the two errors equal problems; we consider Type 1 worse than Type 2. That’s why we argue people should be considered innocent until proven guilty. We would rather let guilty people go free than punish innocent people.

Which type of error would equal protection laws minimize?

Abolitionists describe themselves as such because, they argue, they are fighting for laws that will “totally abolish” abortion:

Abolitionists believe that abortion must be totally abolished through a law that makes preborn children equal under law.

Abolitionists Rising

I expect when they say “totally abolish,” they don’t mean these laws will eliminate literally every instance of abortion. No laws eliminate every single instance of the action they prohibit. That’s why we still have rape, murder, tax evasion, and littering.

But abolitionists do believe equal protection laws will substantially deter most women from getting abortions. As explained by Foundation to Abolish Abortion:

We know one thing that will happen, and that is [the equal protection law] will have an immediate deterrent effect. Immediately. Most women will either not abort their child from that day forward in that state, or they will go to another state to do it (which is another conversation). Most men and parents and others who otherwise would be encouraging or pressuring a woman to abort will stop doing that, since they could also be prosecuted for soliciting a murder.

Foundation to Abolish Abortion

I suspect part of the reason abolitionists don’t focus on enforcement is that they expect the main impact of equal protection laws to come from deterrence, before prosecuting violations is even an issue.

But in order for laws to have a strong deterrent effect, people have to believe those laws will be enforced. Abolitionists recognize this connection when it comes to incrementalist laws. Abolish Abortion Texas, for example, pointed out the total lack of deterrence in September 2025 when Texas AG Ken Paxton sent a cease and desist order to out-of-state abortion pill providers and they simply ignored it.

Abolitionists pay a lot of attention to the problems with enforcing incrementalist laws. They are less attentive to how equal protection laws would be enforced.

In order for equal protection laws to substantially decrease abortion, people have to believe the laws will be enforced. Enforcing them requires detecting illegal abortions. At some point, this means investigating ambiguous pregnancy losses to try to determine whether they are miscarriages or abortions. Here, again, there are two types of errors:

• Type 1: treat women who miscarry as if they aborted.
• Type 2: treat women who abort as if they miscarried.

Equal protection laws can be designed to minimize one type of error or the other, but it’s hard to minimize both at the same time. These laws can either be

• Consistently and regularly enforced through investigating enough pregnancy losses to detect a significant proportion of self-managed abortions, or
• Inconsistently and rarely enforced by avoiding investigation absent compelling evidence

Abolitionists have repeatedly insisted that equal protection laws would not require investigating miscarriage. They argue that no one would be investigated absent very strong reasons to do so. I would hope that is the case. But if that’s the standard, it would mean most illegal abortions wouldn’t be detected, calling into question the deterrent effects and overall impact of equal protection laws.

2. Miscarriage and abortion-via-pill look the same.

Over 90% of abortions are obtained in the first trimester, and in the post-COVID era, most abortions are done via abortion pills (mifepristone and misoprostol), which are meant to cause uterine bleeding, cramping, and expulsion of the embryo – the same process that happens in most miscarriages. 

Abortion-via-pill and miscarriage are ethically very different, but physiologically they’re almost indistinguishable.

In the United States each year there are up to a million miscarriages and at least a million abortions. What other scenarios involve both the innocent event (miscarriage) and the criminal one (abortion)

1. at such a large scale,
2. so evenly divided, and
3. with so little ability to distinguish them?

Some people have posited that this dilemma is similar to investigating sexual assault. Consensual sex and rape are ethically very different, but forensically often indistinguishable. 

This is a reasonable comparison, and it underscores my point: most sexual assaults are never reported (see Table 4 here). Of the assaults that are reported, most aren’t prosecuted. The proportion of sexual assaults ending in criminal conviction is so low that some argue sexual assault is effectively decriminalized.

The metrics would likely be worse for investigating pregnancy loss. In sexual assault, there is usually direct testimony from living victims. In abortion, there isn’t.

3. Investigating miscarriage wouldn’t be like investigating SIDS.

First, a terminology clarification: people often say “SIDS” when they are talking about SUID. 

• SUID is Sudden Unexpected Infant Death: the sudden, unexplained death of babies under a year old.
• SIDS is Sudden Infant Death Syndrome: an infant death that remains unexplained even after a full investigation.
• SUID includes SIDS, but also includes deaths listed as “undetermined,” which are infant deaths where there wasn’t enough information to do a full investigation.

When a baby unexpectedly dies, it’s standard practice to have a medical investigation. Depending on the findings, some subset of medical investigations rise to criminal investigations as authorities work to distinguish accidental deaths, natural deaths, and infanticide.

Inevitably, some parents who have just endured the loss of their babies have to then endure the stress of investigation. Our society accepts this cost in order to protect children and seek justice.

Some people point to SUID investigations as an analogy to miscarriage investigations. No one wants to compound the trauma of loss parents, but we don’t consider that reason enough to get rid of criminal penalties for infanticide. Why would miscarriage and abortion be any different?

Several reasons:

Unexplained infant deaths are rare; miscarriage is common.

• About 0.09% of infants die from SUID (39 deaths per 100,000 live births for SIDS, and SIDS is 44% of SUID)
• In 2022 there were 3.7 million live births and about 3,700 SUID deaths
• About 10–20% of known pregnancies end in miscarriage
• 5.4 million pregnancies a year means about 540,000-1,080,000 miscarriages (take the midpoint of 800,000)

Miscarriage is over 200x more common than SUID. We investigate SUID in part because it’s rare. Miscarriage is not.

To put this in another context, if we don’t count miscarriages and abortions, there are only a couple million deaths total – of all other causes – in the US each year.

I looked at 2018 numbers to avoid COVID effects: in 2018 there were 2.8 million deaths, and medical examiner and coroner offices investigated about 600,000 of them. 

When I raise the issue of the resources it would take to investigate miscarriage, some abolitionists argue that it’s unrealistic to think equal protection laws would require investigating every pregnancy loss. Instead, they argue, these laws would focus only on the pregnancy losses in which there was good reason to be suspicious (more on that below).

I agree that it’s highly unlikely laws would necessitate investigating every pregnancy loss. But miscarriage is common enough that, even if only 5% were investigated, that would be adding tens of thousands of medical investigations a year. Most of those cases would involve scrutinizing people who did nothing wrong in some of the most private and vulnerable points of their lives.

Unexplained infant deaths are investigated as standard protocol; pregnancy losses aren’t.

When seemingly healthy infants die unexpectedly, medical investigation is standard practice. In the subset of cases where the medical investigations uncover concerning findings, there may be a criminal investigation.

In contrast, it’s not standard to investigate unexplained pregnancy loss. In fact miscarriage is so common that parents are told to wait until they’ve had at least two consecutive miscarriages before getting tested.

In order to treat unexplained pregnancy loss the way we treat unexplained infant deaths, we would need to have medical investigations of most pregnancy losses.

Accurate infant death investigations are difficult; accurate pregnancy loss investigations would be close to impossible.

The 2025 paper Forensic pathology and infant deaths: A recent update summarizes the issue well (emphasis added):

The forensic investigation of infant deaths poses profound challenges that arise from the biological vulnerability of neonates, the subtlety of post-mortem findings, and the complex intersection of medical, legal, and social considerations. Unlike adult cases, where trauma, disease processes, and toxicological findings often leave discernible forensic signatures, infant deaths frequently lack overt anatomical or physiological evidence, complicating determinations of both cause and manner of death. This inherent ambiguity not only hampers the medico-legal process but also increases the risk of both underdiagnosing criminal acts and misclassifying natural deaths as suspicious.

Forensic pathology and infant deaths: A recent update, Legal Medicine, September 2025

In many cases of infant deaths, it’s difficult to tell the difference between natural deaths, accidental deaths, and infanticide. The forensic evidence is often similar, leading to “significant variability in legal outcomes” across jurisdictions.

The difficulties of investigating unexplained infant loss mean 72% of SUID investigations fail to find a cause of death. 

However uncertain the evidence is for infant death investigations, it’s even more limited for pregnancy loss. Causes of miscarriage are little understood, and there are little-to-no forensic investigative methods for first trimester losses.

Enforcing equal protection laws through pregnancy loss investigations wouldn’t be like enforcing infanticide laws through investigating SIUD.

Unexplained infant deaths are rare, the resources to investigate them are manageable, and still the investigations fail to produce definitive information in 7 of 10 cases.

Pregnancy losses are common, the resources to investigate even a fraction of them would be immense, and definitive evidence would be even rarer.

4. Hospitals have no test for detecting abortion pills.

Abolitionists sometimes argue that women who miscarry won’t be investigated because hospitals can distinguish miscarriage from abortion by testing women’s blood for the presence of abortion pills (mifepristone or misoprostol). They suggest that only when hospitals detect abortion pills would they contact police to further investigate.

First, please note that testing someone’s blood for drugs is legally a search requiring a warrant or consent. The argument that we can test women’s blood for abortion pills to determine if they should be criminally investigated is an argument that we can investigate women to determine if they should be investigated. This is legally incoherent. 

Second, and more importantly, hospitals can’t test blood for abortion pills. Hospitals don’t have such tests.

Proof-of-concept studies are different from real-world use.

In an early 2026 presentation, Foundation to Abolish Abortion said 

If anyone tells you that hospitals cannot detect abortion drugs, they’re not keeping up. Because researchers have identified methods for determining whether a woman has taken abortion pills. There’s two studies out of Europe on this.

Foundation to Abolish Abortion

There have been two Polish studies examining whether researchers can detect mifepristone or misoprostol in maternal or fetal samples using liquid chromatography–mass spectrometry. At SPL we did a detailed write up of the studies’ methods, but here’s the overview:

• The studies included small sample sizes: two women and two babies (each about 21 weeks).
• The analytical methods were resource-intense.
• The methods were time-limited:
  • Mifepristone was detected within 24 hours of the woman taking it.
  • Misoprostol wasn’t detectable two days after the woman took it.

There’s a difference between saying (1) there have been proof-of-concept methods tested and (2) hospitals can detect abortion pills.

Hospitals don’t routinely perform tests without specific clinical purpose.

Even if the above issues were resolved and testing became commercially available, hospitals don’t typically perform tests that don’t have a clear clinical purpose, especially not as a routine process.

Hospitals and physicians are not agents of law enforcement. If a test’s purpose is criminal investigation, investigators need a warrant to compel hospital staff to gather such information.

Hospitals cannot currently test for abortion drugs. It’s not clear they’d be able to anytime soon, they’d be willing to even if they could, or that they’d be willing to make it a routine test for women presenting for pregnancy loss.

5. Probable cause is unusually unclear in pregnancy loss cases.

Abolitionists sometimes argue that under equal protection laws, women wouldn’t be investigated for their pregnancy losses unless there was probable cause to investigate them. Here there are two key terms to understand: investigate and probable cause.

What counts as an investigation?

The Fourth Amendment outlines when authorities can search or seize people or their belongings. But not every investigation is legally considered a “search.” In law, an investigation counts as a “search” only when there’s a reasonable expectation of privacy or the government non-consensually intrudes on your property. Other than that, police don’t need to establish any particular level of suspicion to look into information we wouldn’t reasonably expect to be private.

So police can

• Interview you, your friends, family, coworkers, or whomever (as long as people feel free to leave). Examples:
  • Asking a patient about her timelines, symptoms, thoughts and feelings
  • Asking her partner if he knew about the pregnancy
  • Asking friends about her recent statements or behavior
• Look through your public social media posts,
• Look through trash outside your home or office,
• Ask for consent to search your property,
• Observe you in public places,
• Talk with you without disclosing they are police, or
• Work with informants

all without probable cause or any level of suspicion.

And it gets more complicated: research suggests many people who agree to warrantless searches believe either they can’t refuse or they will be punished for refusal, blurring standards for consent.

Saying police won’t “investigate” without probable cause only means they need probable cause for some actions. It doesn’t mean they need high standards of evidence before substantially digging into people’s lives.

How difficult is it for police to get a warrant?

Police are supposed to demonstrate certain levels of suspicion in order to search more private parts of your life, or to seize (detain) you. If the police wanted to non-consensually search someone’s home or vehicle for evidence of abortion pills, or require someone to come to the station for a formal interview about their prior pregnancy, the police would need to get a warrant. What does that process entail?

Foundation to Abolish Abortion explains it as follows:

If law enforcement does a preliminary investigation, they believe there’s probable cause to believe that this woman has committed abortion, they then have to go to a judge, convince the judge that there’s probable cause, and then the judge issues a warrant, puts their name on it, and then they can get access into private information like that. So there’s got to be quite a bit of due process before you can access private information.

Foundation to Abolish Abortion

This description is correct, but whether it constitutes “quite a bit of due process” is more controversial. Empirical research finds that the warrant review process is brief (median time of 3 minutes, with 10% approved in less than 1 minute), and 93% of warrants are approved on first submission.

This could simply mean experienced police are careful to submit only warrant applications that meet evidentiary standards, and experienced judges can fully evaluate relevant information quickly.

Or it could mean our warrant review systems aren’t really safeguarding people’s privacy rights. (The research cites, for example, a 2,700-word justification for a nighttime no-knock warrant that a judge approved in 46 seconds.)

But for the sake of continuing this article, let’s assume that judges review warrant applications carefully, and grant warrants only when there is sufficient probable cause.

What counts as probable cause?

Some abolitionists believe hospitals could establish probable cause by testing women’s blood for abortion pills. As I explained above, hospitals don’t have such tests, and even if they did, testing someone’s blood for drugs is itself a search requiring probable cause.

Absent this kind of clear forensic evidence of an abortion, what should qualify as probable cause?

Abolitionists argue for treating abortion like any other homicide, and they believe the same evidentiary standards that work for investigating homicides of born people will work reasonably well for investigating pregnancy loss. For example, Abolitionists United suggested the following would establish probable cause:

Evidence of abortion pills being ordered or possessed by an individual, reports by another individual of a woman having had an abortion, publicly discussing or revealing one’s abortion, improper handling of the remains of a deceased unborn child, etc.

Abolitionists United

Foundation To Abolish Abortion had a similar take:

What would trigger investigation? The same things that trigger it now: confession, witness testimony, physical evidence of intentional harm, medical findings inconsistent with natural loss, purchase of abortion pills with documented intent, etc.

Foundation To Abolish Abortion

Combining these answers in list form:

1. Contraband (evidence of abortion pills being ordered or possessed by an individual)
2. Confession (publicly discussing or revealing one’s abortion)
3. Witness testimony (reports by another individual of a woman having had an abortion)
4. Physical evidence of intentional harm
5. Medical findings inconsistent with natural loss
6. Improper handling of the remains of a deceased unborn child

I would add another category: (7) statements suggesting guilt. These fall short of direct confessions but can work as evidence by inference.

These types of evidence vary in frequency and quality, and in some cases don’t translate well from other crimes to the investigation of pregnancy losses.

Contraband

Abortion pills can be shipped from other states or countries, without (1) proper documentation or labels, (2) specific info about doctors or clinics, or (3) the cooperation with other state or international governments to enforce pro-life laws they don’t support.

Abolitionists point to the proliferation of unregulated mail order abortion pills as a major reason we need equal protection laws. They argue that laws against pill providers are largely unenforceable, so the only way to outlaw these abortions is with laws against pill users: the people ordering or taking the pills.

But the total lack of regulation around mail order abortion pills is a problem for equal protection enforcement too. When someone ships abortion pills, they don’t have to:

• Verify they’re shipping pills to the person who actually ordered them
• Verify the person ordering the pills is actually the one taking them
• Verify the person taking the pills is actually pregnant
• Prove they’re shipping the drugs they say in the quantities they say

We already know about cases of abusive men ordering pills in women’s names without their knowledge, before trying to pressure or trick their partners into taking the pills. We’ll probably never know how many women ingest abortion pills unknowingly, experience an abortion, and falsely believe they miscarried. 

This is another way in which investigating pregnancy loss would be uniquely difficult. Most illegal drugs don’t create incentives for a third party to both order the drug by impersonating the victim and then try to force the victim to take the drug. 

Suppose investigators have evidence that abortion pills were ordered to the home of (pseudonym) Mary Smith. In order to enforce equal protection laws, they’d still need to establish 

1. Mary was the one who took the pills
2. Mary was pregnant when she took the pills
3. Mary knew she took the pills

In other words, even in the relatively unusual cases where investigators have direct evidence of someone ordering abortion pills, only a subset of those cases would involve enough additional evidence to facilitate enforcement of equal protection laws.

Unregulated mail order abortion pills are a huge problem, but not just for pro-lifers promoting laws against abortion pill providers. They’re also a problem for abolitionists promoting laws against abortion pill users.

Confession

Confessions can be pretty straightforward, although not all confessions are equal. There are a range of factors:

1. Did the person confessing do so freely or under duress?
2. Did they confess something directly or imply it?
3. Did they say it directly to a police officer or record it in a way others can witness, or is a third party reporting they said it?

People have been known to falsely confess (confess to crimes other evidence proves they didn’t commit). This sometimes happens when police use high-pressure methods such as very lengthy interviews, false evidence, or promises of leniency.

(Side note: promises of leniency are also related to the 94-97% of defendants taking plea bargains, waiving their rights to fully defend themselves at trial before an impartial jury.)

Of course the risk of false confessions applies to all crimes, not uniquely to illegal abortion. But it’s important to understand that, in practice, the justice system doesn’t always prioritize protecting the innocent over punishing the guilty.

Witness Testimony

People tend to overestimate how reliable witness testimony is, but for the sake of this article, I assume witness testimony in the cases of illegal abortion is highly accurate. If a witness says they directly observed a woman taking abortion pills or having an abortion, that’s strong evidence.

Apart from direct observation, what kind of testimony might witnesses provide?

Consider the following scenarios:

• A woman goes to her OB for an unexpected pregnancy. She’s upset to be pregnant, and asks what her options are. Her OB tells her abortion is illegal. A few weeks later the woman tells her OB that she miscarried.
• A woman has an unexpected pregnancy. She’s upset and worried, but her boyfriend is excited and happy. They argue. Not long after she says she miscarried. 
• A woman goes to the ER for a miscarriage, and she doesn’t seem terribly upset about it. Her mother-in-law mentions to hospital staff that previously the woman had been considering abortion.

Should the OB, boyfriend, mother-in-law, or hospital staff contact the police? If so, should the police take that as reason to do an initial investigation (where a warrant isn’t required)? Should a judge consider these scenarios enough to grant a warrant for a more formal search?

Under equal protection laws, witness testimony also creates a social risk. Partners or family members could threaten to report a woman’s miscarriage as a suspected abortion, and use that threat as leverage in abusive relationships.

Of course anyone any time could threaten to lie to the police about someone else’s behavior, but in the context of illegal abortion, the ambiguity of pregnancy loss and society’s general ignorance about miscarriage create a particularly vulnerable situation.

Medical findings inconsistent with natural loss

As I explained above, miscarriage and abortion via pills are physiologically indistinguishable. There’s currently no test that hospitals can use to detect mifepristone or misoprostol in someone’s system. There’s little or no precedent in forensics for investigating cause of death for first trimester pregnancy loss, likely because there are already many reasons (maternal and fetal) someone may miscarry a genotypically normal baby. 

It’s not clear to me what medical findings abolitionists have in mind that would show inconsistency between first trimester abortions versus miscarriages.

Statements suggesting guilt

Statements suggesting guilt also cover a range of evidence quality, and interpretation relies on the knowledge and experience of the investigating officers. How might that play out when interviewing women who have just undergone pregnancy loss?

I’ve spoken many times about how little society understands miscarriage, including misunderstanding the physical realities and the emotional reactions. Even hospitals are (often) absurdly ill-prepared to serve this very common patient population. 

The reality is emotions regarding pregnancy loss are complex. I’ve personally experienced all of the following:

• Believing I was pregnant, learning I wasn’t, and feeling real grief over a child that never existed in the first place
• Losing a child in miscarriage and feeling angrily nihilistic, telling myself I don’t have to care about this
• For a time after miscarrying, feeling oddly normal, or emotionally numb and indifferent, only to have grief crash into my life later
• Ongoing grief mixed with moments of joy and humor and the rest of normal life experiences. 

All of my experiences involved grief at some point, but not everyone feels that way. People can miscarry wanted children and feel some sadness but mostly acceptance, or be surprised to realize they don’t feel that sad. 

There are also situations where women considering abortion miscarry first, and may experience deep grief surrounding their miscarriages. PRC directors have talked about women who enter their centers determined to abort, get an ultrasound, realize there’s no heartbeat, and burst into tears.

It’s normal for emotions around pregnancy and pregnancy loss to be layered and complex, but society often oversimplifies these experiences. Should we expect police officers, prosecuting attorneys, and judges to have a better grasp of the normal emotional reactions to pregnancy loss?

Last year I covered this interview of a West Virginia prosecutor Tom Truman talking about investigating and prosecuting women for improper disposal of embryonic and fetal remains. One of his statements especially struck me:

If you were relieved, and you had been telling people, “I’d rather get ran over by a bus than have this baby,” that may play into law enforcement’s thinking.

West Virginia prosecutor Tom Truman

Truman also recommended that women call and report their miscarriages to police to avoid suspicion. 

Fortunately, not long after Truman’s interview, the West Virginia Prosecuting Attorneys Association (WVPAA) issued a statement distancing themselves from Truman and emphasizing women do not need to report their miscarriages to police. Hopefully there will always be enough social pressure to defend loss parents, but equal protection laws may complicate this problem.

Again, probable cause ultimately comes down to whether police can convince a judge that their reasoning is sufficient for a warrant. If the judge agrees that a woman’s apparent emotional state after pregnancy loss is evidence she may have committed a crime, the judge can grant the warrant. 

Society little understands miscarriage, and that includes not understanding normal emotional responses. This misunderstanding can lead investigators to overestimate the evidentiary importance of emotional displays after pregnancy loss.

Improper handling of remains

In the context of first trimester pregnancy losses, how women handle embryonic or fetal remains will usually be poor evidence of criminal activity.

When people think of improper handling of remains, they think of stories like Celeste Burgess, who burned and buried her aborted third trimester baby’s body. I agree it’s horrifying to contemplate.

But in general, the public is almost entirely unaware of how women normally handle the remains of our first trimester miscarried children. 

There’s little legal guidance on disposition of remains in the first trimester, or generally before 20 weeks. Many women miscarry wanted children at home. It’s not always possible to distinguish the tiny embryonic or fetal bodies from other blood and tissue. Many of those women flush all of it, a brutal reality and often grief-stricken discussion in pregnancy loss recovery groups. Some women bury their children in their backyards. Some freeze the remains for months or years, not knowing what to do and not wanting to be separated from their lost children.

SPL has many resources related to this issue:

• SPL’s suggested hospital protocol: Fetal Remains Disposition & Patient Support Policy
• Livestream Recap: Personal Stories and Policy Gaps Around Miscarriage
• Why pregnancy centers should offer miscarriage kits: an interview with Chaney Gooley and Rachel Owen

It’s not clear to me what abolitionists believe improper handling of first trimester embryonic remains looks like, such that it should warrant criminal investigation.

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Pregnancy loss is uniquely difficult to investigate because it combines high frequency, biological ambiguity, limited forensic evidence, and inherently private behavior in a way few crimes do.

6. Criminal investigations of pregnancy loss would deter medical care and social support.

Some pro-lifers have objected that equal protection laws may mean women experiencing medical emergencies will hesitate to seek aid from a hospital. Foundation To Abolish Abortion responded to this objection as follows:

Yes, if someone aborted their child, it certainly could make them think twice about going to the hospital for care afterwards, just like other criminals may hesitate to seek care when they are shot or otherwise injured in the course of committing other crimes. … This person has murdered their own child. And sometimes people committing crimes get hurt in the process of trying to hurt other people.

Foundation To Abolish Abortion

Much of the debate among people who oppose abortion centers on whether women are “second victims” of abortion: to what degrees are women deceived or coerced into abortions, and how do those factors impact their culpability for abortion and our societal responses to abortion? Your thoughts on those questions will color how you feel about FAA’s response above.

But for this article, I’m setting aside the “second victim” debate. Instead, I listened to this response while thinking about the problems with enforcement of equal protection laws I’ve discussed here.

Some women would fear seeking emergency medical care.

The FAA response above seems to assume:

1. Equal protection laws would entail investigating only women who have willfully completed abortions.
2. And therefore only women who have willfully completed abortions would fear seeking medical care.

These assumptions are improbable. In addition to women who willfully abort, under equal protection laws some of the following groups would also fear seeking emergency medical care:

• Women who have miscarried but fear they’ll be falsely presumed to have aborted
• Women who have lost their pregnancies and are worried their partners gave them abortion pills without their knowledge
• Women who have taken mifepristone, changed their minds, and want to try abortion pill reversal

Some women would fear telling people they’re pregnant, or seeking support for their pregnancies.

The chilling effects wouldn’t be limited to deterring people from seeking emergency medical care. They’d begin earlier, especially with women in difficult relationships or circumstances who have unintended pregnancies. Some would be more hesitant to 

• share that they’re pregnant,
• receive documented confirmation of pregnancy through prenatal appointments
• express fear, doubt, or need for help with pregnancy resource centers or other sources of support

lest they miscarry after.

This connection makes it particularly fraught for people who work in the pregnancy help space to vocally support criminal charges against women who abort. As Heartbeat International says, “Pregnancy help organizations cannot both openly advocate for criminalizing women and remain safe harbors for them.”

Some people wouldn’t seek healing for pregnancy loss.

Chilling effects could also continue long after abortion or miscarriage is complete, in the sense that people would avoid seeking healing for traumas related to pregnancy loss.

Regarding abortion: post-abortion healing can also be abortion prevention. Almost half of women aborting have had at least one prior abortion. When women seek healing, they can find resources to address the emotional, social, and logistical factors that led them to seek abortion the first time, decreasing the chances of a repeat scenario. This phenomenon can also apply to men whose partners abort.

If seeking healing requires self-incrimination or incriminating a wife or girlfriend, we would expect fewer people to do so.

Regarding miscarriage: In my work with Secular Pro-Life, I speak openly about my miscarriages. I do this intentionally, from a place of confidence and healing, in the hopes of helping other loss parents feel seen and take steps to heal. I view miscarriage as the Great Muted Grief: incredibly common yet largely disenfranchised. It’s important to me that people who go through it know they aren’t alone and that they can get support.

It’s difficult to get people to feel comfortable talking about their miscarriages. It will be more difficult if some of them fear that acknowledging miscarriage could bring them up against erroneous criminal investigations.

Equal protection laws can’t be enforced justly.

Abolitionists are correct that the pro-life movement faces some very serious challenges, especially with respect to unregulated mail order abortion pills. But an objective analysis of competing strategies will also include a discussion of the very serious challenges abolitionists face.

If abolitionists were willing to acknowledge:

• Yes, equal protection laws would frequently go unenforced, and
• Yes, some subset of innocent people enduring miscarriage may be investigated, charged, or prosecuted, but
• These are costs society must be willing to pay for justice for unborn children

that would be a much more realistic assessment and even-handed starting point for a broader discussion of strategy.

The reality is that early pregnancy and pregnancy loss are unique in ways that aren’t amenable to treating abortion just like any other homicide. Pregnancy loss is common, ambiguous, and difficult to investigate. There are limited forensic tools available and probable cause standards don’t translate well from other types of criminal investigations. These factors combined make it particularly difficult to distinguish miscarriage from abortion, and to apply the law both justly and consistently. 

Equal protection laws could be enforced correctly in some cases, but enforcing them at a level that meaningfully reduces abortion would require accepting significant injustices in other ways. We want to defend and protect unborn children, and we want to be clear-eyed about the paths we take to that end.

SPL opposes charging women with homicide for abortions. We have long held this stance, and we stand by it. That said, we know smart, dedicated, and passionate anti-abortion activists who take a variety of perspectives on this question. Part of our mission is coalition building, which means we don’t have to agree on everything to work together where we do have common ground. If you want to help us advance secular arguments against abortion, create space for non-traditional pro-life people, and build a broader coalition to fight abortion, we welcome you.

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