Medically reviewed by Sarah Hartwick Bjorkman, MD.
The U.S. Supreme Court’s decision to overturn Roe v. Wade means that abortion laws are now decided at the state level, which has resulted in stringent abortion restrictions across the country and all-out bans in at least 13 states—and counting. An inevitable, though likely unintended result of those bans? They carry major implications for how miscarriage and pregnancy loss care will be managed, too.
Because the procedures for miscarriage care after pregnancy loss (like a D&C, or dilation and curettage) are the same as those for abortion care, clarification on how those procedures are used is critical to avoid putting both providers and patients at risk of committing a crime. Now, the question of whether a D&C is an abortion may depend on if fetal heart tones are present before the procedure is performed. If they are, in some states, a D&C could be considered an abortion in that it results in the termination of pregnancy. That ultimately means that whether a D&C is an abortion may now depend on where you live.
In states where abortion is essentially banned, “There could be barriers and delays to getting a D&C that should not exist, but that now likely will,” says Sarah Hartwick Bjorkman, MD, a board-certified OB-GYN and Motherly’s Maternal Health Advisor, who practices in Iowa.
When doctors have to operate in a climate of fear, they are hindered in providing live-saving healthcare—the type of care they are bound to uphold. When patients are forced to endure unnecessary waiting periods while their doctors try to clarify whether the care they need is illegal, or when patients are outright denied that care, the consequences can be dire.
“When abortion is banned, all reproductive healthcare suffers because providers are chilled in providing care because they are afraid,” says Rabia Muqaddam, senior staff attorney at the Center for Reproductive Rights. “This could impact miscarriage management even where there is no fetal cardiac activity and even in emergencies. It is unclear under most ‘trigger bans’ what conditions would even qualify for life and health exceptions because they are exceedingly narrow.” And because doctors and hospitals are generally risk-averse, they may now avoid certain procedures altogether.
What is a D&C?
A D&C is a procedure that involves dilating the cervix and using a spoon/straw-shaped tool (a curette) to remove the tissue from inside the uterus. Medically, it can be used for a missed miscarriage or for an abortion. It may also be used to diagnose an ectopic pregnancy.
Is a D&C an abortion?
“A D&C is a procedure used to evacuate, or empty out, a uterus. If the D&C is done when there is fetal cardiac activity, you are effectively ending the pregnancy, thus it’s an abortion. If you are evacuating a miscarriage/pregnancy loss, it is just a D&C for a miscarriage,” says Dr. Bjorkman.
It’s the same procedure, but used in two different situations—which is why the difference between an abortion and a miscarriage is important. “Abortion is a medical intervention provided to individuals who need to end the medical condition of pregnancy,” states The American College of Obstetricians and Gynecologists (ACOG). A miscarriage is defined as the loss of a pregnancy before 13 completed weeks. It may also be called a spontaneous abortion, ACOG notes.
“That difference is what OBGYNs are leaning on to continue to take the best care of patients we can right now, under these difficult circumstances,” says Dr. Bjorkman.
D&C use may now depend on fetal cardiac activity
In states where abortion is now prohibited or restricted, using a D&C procedure to evacuate the uterus when there are fetal heart tones present—regardless of the condition it is used for—may be illegal (depending on the scope of the ban and gestational age), as it’s technically an abortion.
For a provider to be able to offer miscarriage care like a D&C in a state where abortion is restricted or prohibited, the crucial detail will be if there is fetal cardiac activity. (In very early pregnancy, it’s medically inaccurate to call it a “heartbeat”.)
The onus may be on providers—or patients—to now prove that a D&C used for a miscarriage was not an abortion, or that a D&C used after fetal cardiac activity was detected (as may be the case with a threatened miscarriage or incomplete miscarriage) was necessary because the condition was health- or life-threatening to the mother.
Overturning Roe means miscarriage care will suffer
Eroding a person’s constitutional right to an abortion also erodes their access to miscarriage management. Some states have taken steps to extend further protections to pregnant people, but in states where those protections don’t exist, the subsequent bans have caused an immediate freeze on a variety of reproductive health procedures, including D&Cs.
The ripple effects are far-reaching—experts now fear that some providers may never even learn how to do a D&C now that Roe is gone. “Managing miscarriages will always be a critical part of OBGYN training,” notes Dr. Bjorkman. “However, it is true that not doing D&Cs for abortions may decrease the amount of D&Cs that OBGYNs do in their training.”
It’s not just D&Cs that may be impacted: Medication abortion can also be used as a treatment for missed miscarriage. However, if abortion is banned in a state, it will not be lawful for anyone to fill a prescription for medication abortion in that state when there is cardiac activity, notes Muqaddam. “In any event, most states with trigger bans already prohibit the dispensing of medication abortion in such a way, so even for people who are experiencing a miscarriage with no fetal cardiac activity, they would be unlikely to be able to access such medications in a pharmacy.”
Post-Roe, the Biden administration has warned pharmacies that it is a civil rights violation to deny patients legally prescribed abortion pills, though some patients have been denied their prescriptions—even if they were prescribed the pills for miscarriage management and not for abortion, or were prescribed them for another condition altogether (misoprostol is also prescribed for severe stomach ulcers, for example).
Finally, because abortion clinics in states where bans have taken effect will now be forced to close, pregnant people in need of this type of reproductive healthcare will be required to travel long distances to access the care they need, increasing the risk of complications and threatening their safety the longer they are forced to wait, notes ACOG. Shuttered clinics will also increase demand for services at the clinics that remain, further contributing to longer wait times for patients, even in states where bans are not in place.
Still, it’s impossible to measure the full scope of the repercussions of the Roe decision. Time alone will tell.
Sarah Hartwick Bjorkman, MD, is a board-certified OB-GYN and Motherly’s Maternal Health Advisor, who practices in Iowa.
Rabia Muqaddam is a senior staff attorney at the Center for Reproductive Rights.
A version of this story was originally published on July 7, 2022. It has been updated.