Rebecca Zietlow

The United States Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, rejecting a constitutional right to choose an abortion, has laid bare the landscape of the inequality in reproductive rights and health care in this country. In Fetal Life Hypocrises, Jill Wieber Lens questions the foundational justification for state bans on abortions, that banning abortions will promote fetal life. Lens argues that both the antiabortion and proabortion movements have failed to recognize the millions of fetal deaths that are not caused by abortions. State bans on abortion are unlikely to significantly reduce the number of abortions nationally. However, they will likely increase fetal deaths, the legal term for miscarriages and stillbirths, pregnancy losses before and after 20 weeks, respectively. Moreover, the women who are most likely to lose their pregnancies are those who had the least protection under the previous Roe/ Casey regime—people of color and poor people of all races. The Dobbs ruling forces advocates for reproductive rights to re-theorize constitutional claims for rights and provides an opportunity for a widespread campaign for reproductive justice.

As reproductive justice advocates have been arguing for years, even before Dobbs millions of people lacked control over their reproductive lives. The individual liberty based right to choose an abortion identified by the Court in Roe was woefully inadequate to achieving reproductive rights for many people, especially women of color and low-income women of all races. Most notably, the Supreme Court held that neither the states nor the federal government were obligated to pay for abortion services, so that people who are dependent on the state for their health care lacked access to abortions well before Dobbs. Advocates in the reproductive justice movement point out that throughout our history, people of color have lacked not only the right to choose not to have a child, but also the right to choose to have a child, and to raise that child and parent her with dignity.

Since Dobbs, state bans on abortion are presumed to be constitutional on the grounds that they further the state’s interest in protecting fetal life. The Court has taken this for granted since its decision in Roe v. Wade, which found a fundamental right to an abortion but recognized the countervailing state interest of protecting fetal life. When litigating Roe v. Wade, Roe argued that banning abortion does not advance the state interest in protecting fetal life. However, the abortion rights movement abandoned that argument after Roe, as the Court ruled that the state’s interest wasn’t strong enough to ban abortion until after viability.

Since Roe, Lens points out that both abortion rights advocates and opponents take a binary approach to pregnancy and assume that all pregnant people who do not obtain abortions will eventually give birth. Abortion, however, is not the only reason, and by far not the most common reason, for fetal deaths. To the contrary, Lens points out that “hundreds of millions of unborn lives end long before live birth and not because of abortion”—but because fertilized eggs do not implant in the uterine wall, result in miscarriages, or are stillborn. Reproductive justice advocates recognize that the inability to bear a wanted child is a harm that women of color suffer disproportionately, either because they have been forcibly sterilized or because they have inadequate access to health care. Indeed, Lens points out that the risk of stillbirth is double for women of color, and for poor women of all races. Black women are also more likely to suffer late miscarriages and to die in childbirth.

States like Alabama, Mississippi, and Arkansas enthusiastically banned abortion after Dobbs to protect fetal life, yet they consistently have the highest fetal death rates in the nation. Other high-income countries have dramatically decreased their stillbirth rates. The U.S., which has one of the highest stillbirth rates among high-income countries, could do the same. The U.S. could focus on providing preventative prenatal care, by expanding access to Medicaid and ensuring access to skilled medical professionals. Yet the very states that have the most restrictive abortion laws, including Mississippi (where the Jackson clinic is located) do the least to prevent (non-abortion) fetal deaths. Those states are the least likely to have adequate health care, especially for low-income people. The states with the most restrictive abortion laws, including Alabama and Mississippi, have refused the Medicaid expansion made available to states by the Affordable Care Act. Abortion bans are compounding the healthcare crisis in those states. Many doctors argue that restrictive abortion laws make it impossible for them to practice medicine effectively. Some of them are leaving states with restrictive abortion laws, further compounding the lack of prenatal and birth healthcare, especially in rural areas. Therefore, it is likely that fetal deaths will increase, not decrease, in states that ban abortions. Indeed, according to Lens infant mortality has increased by 11.5% in the state of Texas since the Dobbs opinion enabled the state to enact an almost total ban on abortions.

Lens argues that the failure of antiabortion advocates to recognize other fetal deaths is hypocritical and inconsistent with valuing fetal life, undermining the argument that abortion bans rationally serve a legitimate government interest. Lens thus advocates for a more blatant inclusion of pregnancy loss prevention efforts within the reproductive justice framework and abortion rights narratives. Legal challenges based on fetal life hypocrisies would be subject to rational basis review and courts are highly deferential to state legislatures that restrict abortion rights. Yet even rational basis review requires a legitimate government interest to justify the legislation. Lens claims that the lack of concern for protecting fetal life exhibited by states that restrict abortions undermines their claim that they have an interest in protecting that life. Lens also argues that the states’ comfort with the high rate of fetal death reinforces arguments that abortion bans are intertwined with gender and motherhood stereotypes, adding force to the claim that abortion bans violate Equal Protection.

Most importantly, uncovering the fetal life hypocrisy of states restricting reproductive liberty turns the tables on opponents of abortion rights, putting them on the defensive, and abortion rights proponents on the offensive. After Dobbs, abortion rights advocates must lean into reproductive justice, advocating a holistic approach to reproductive rights in the future. Lens’s Fetal Life Hypocrisies makes an important contribution to this effort.