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Gone But Not Forgotten: The Legal Status Of Miscarriages.

Brendan W. Williams *

In her 2018 book Becoming, Michelle Obama shares the past experience of having a miscarriage:
   If I were to start a file on things nobody tells you about
   until you're right in the thick of them, I might begin
   with miscarriages. A miscarriage is lonely, painful, and
   demoralizing almost on a cellular level. When you have
   one, you will mistake it for a personal failure, which it
   is not. Or a tragedy, which, regardless of how utterly
   devastating it feels in the moment, it also is not. What
   nobody tells you is that miscarriage happens all the
   time, to more women than you'd ever guess, given the
   relative silence around it. (1)


According to the Mayo Clinic, a "[m]iscarriage is the spontaneous loss of a pregnancy before the 20th week. About 10 to 20 percent of known pregnancies end in miscarriage. But the actual number is likely higher because many miscarriages occur so early in pregnancy that a woman doesn't realize she's pregnant." (2)

As Katherine Martinelli wrote, "despite the fact that the Centers for Disease Control and Prevention estimates there are more than 1 million fetal losses ('the intrauterine death of a fetus at any gestational age') each year, we just don't have a script for dealing with this kind of bereavement." (3) She states that "[e]very woman who miscarries has a list of trite phrases not to say to someone going through it." (4)

Another writer notes that "silence surrounding miscarriage has led to widespread misunderstanding. A 2015 study of more than 1,000 American adults found that more than half of participants said they believe miscarriage is uncommon, and nearly a quarter said they believe that lifestyle choices are the most common cause of miscarriage." (5) She found that some women were finding comfort through social media: "Post by post, tweet by tweet, they are reversing centuries of stigma surrounding pregnancy loss, providing one another with both coping tools and the opportunity for some relief." (6)

One woman describes the trauma over her miscarriage as something even her husband couldn't understand:
   After all, I was told over and over again, I already had two kids.
   That I'd barely been 16 weeks. I could have another one, as if
   babies are replaceable. I was told, "It wasn't a stillbirth. You
   weren't full term. It was just a fetus. Stop being so sad!" (7)


How do you mourn a child that never was? Some have suggested that formal legal recognition of miscarriages can be comforting, but this approach runs into reproductive rights' tripwires.

In New York, for example, legislation introduced in 2018 "would require hospitals and doctors to inform women who miscarry at any gestational age of their right to a fetal burial permit." (8) According to a justification for the bill:
   [W]hen a fetal death occurs under 20 weeks' gestation
   as a result of a spontaneous miscarriage of pregnancy,
   the mother has no affirmative statutory right to be
   informed of her right to properly dispose of her baby's
   remains. This denies parents the ability to grieve for
   their lost loved one and to provide a dignified and
   respectful burial, entombment or cremation of their
   child's remains if this is what they choose. This
   legislation would give families this statutory right. (9)


While that sounds innocent enough, it would effectively confer personhood upon an unborn child, and the bill's prime sponsor was also strongly opposed to reproductive choice. (10) Given the risks to reproductive rights, how closely should we look beyond the plain language of such proposals into their proponents' motives?

Indeed, there has been an effort in states to exploit miscarriages as another weapon in the fight over the legality of abortion. This article explores state laws, and politics, addressing miscarriages, and recommends one state's approach that might navigate the political sensitivities around the issue.

Miscarriages under State Law

In 2016, Texas adopted what one critic described as "[o]ne of the stupidest antiabortion rules in the country--and that's saying a lot[.]" (11) The rule required the "cremation or interment of aborted or miscarried fetuses." (12) The rulemaking elicited charged testimony:
   Several women tearfully shared stories of miscarriages,
   and of being forced to choose between abortion or risk
   of death trying to give birth. But the shared grief
   diverged: Some women said they were concerned about
   what happened to the dead fetuses and didn't want
   them casually tossed away, while others said facing
   costs for cremation arrangements would have been
   emotionally tatting as they grieved. (13)


It was clear that the driving force behind the rulemaking was not concern over women with miscarriages:
   Joe Pojman, executive director for the Texas Alliance
   for Life, an anti-abortion group, said reproductive
   rights groups were "crying wolf" about the potential
   impacts on women. He said the costs would likely be
   minimal and partly why his group was suggesting
   abortion providers absorb the cost out of compassion
   for patients. He said the proposed rule was not about
   families being forced to have funerals. (14)


Regardless of one's views on abortion, is it sensitive to "life" to effectively equate abortions to miscarriages, atid subject those experiencing the latter to the censure you would direct toward those choosing the former?

The Texas rulemaking was blocked by a federal judge. (15) In hearing arguments for a preliminary injunction, Judge Sam Sparks, somewhat merrily, wrote: "'Tis the season as the litigation war between pro-life and pro-choice advocates renews with battles before this Court." (16) He observed that the rulemaking had immediately followed adverse court decisions on other Texas attacks upon reproductive rights, and that the amended rules would "eliminate four methods of disposal--including the most used and least expensive methods--for specific tissue resulting from miscarriages, elective abortions, and other gynecological procedures performed before the twenty-week gestational mark." (17) He noted that the state Department of State Health Services "admits the Amendments have no health benefits and the prior version of regulations governing tissue disposal induced no health problems. Instead, DSHS maintains the singular purpose of the Amendments is to promote respect for life and protect the dignity of the unborn while also claiming fetal tissue is not human remains." (18)

Judge Sparks acknowledged "some evidence in the record suggesting the Amendments could cause women grief and shame, possibly discouraging them from obtaining gynecological care, particularly abortions and miscarriage management, from a medical facility." (19) He determined that "the Plaintiffs satisfied their burden of establishing a likelihood of success on their claim the Amendments place an undue burden on women's right to an abortion in violation of the Fourteenth Amendment." (20) In September 2018, after a bench trial, Judge David Ezra found the Texas rules unconstitutional. (21) Importantly, he noted:
   Expert and witness testimony at trial reveals that the
   line between miscarriage and abortion can be less than
   precise. Also called a spontaneous abortion, a
   miscarriage is generally defined as the spontaneous loss
   of a pregnancy before viability. However, a miscarriage
   can be missed. Abnormalities in fetal development can
   occur rendering a fetus incompatible with life, but a
   woman's body nevertheless maintains the pregnancy.
   Alternatively, a woman may have an incomplete
   miscarriage where the pregnancy is terminated, but the
   uterus retains some or all tissue from the pregnancy.
   These situations require medical or surgical
   intervention. (22)


Judge Ezra also noted the overbreadth of the rules:
   A simple hypothetical illustrates the sweeping effect of
   the challenged laws. If a pregnant woman (anywhere
   from one week to twenty weeks pregnant) visits an
   ophthalmologist's office and miscarries while in the
   office due to a medical emergency, that office has a legal
   obligation to inter or scatter the ashes of the embryonic
   or fetal tissue in accordance with the challenged laws.
   While such a scenario is unlikely, it is likely that a
   woman experiencing pain due the onset of a
   miscarriage may well visit a healthcare facility that is
   unprepared to comply with the challenged laws. (23)


Accordingly, he noted, "the challenged laws potentially affect every pregnant woman in the State of Texas (notably including those opposed to abortion) who seeks health or medical care as well as the professionals who offer them that care." (24) He found that:
   the challenged laws intrude on the diverse personal
   beliefs women (and men) hold about the status of an
   embryo or fetus and the moral and spiritual
   implications surrounding an abortion or miscarriage.
   The challenged laws therefore impose burdens, such as
   a greater, amount of grief, stigma, shame, and distress,
   on those women whose beliefs differ from the
   viewpoint of the State. (25)


Beyond the unconstitutional imposition upon a woman's right to an abortion, Judge Ezra determined that:
   the evidence in this case overwhelmingly demonstrated
   that if the challenged laws were to go into effect now,
   they would likely cause a near catastrophic failure of the
   healthcare system designed to serve women of
   childbearing age within the State of Texas. This would
   not simply be a failure of the healthcare system serving
   women who seek to voluntarily terminate a pregnancy
   but also a failure of the system serving the thousands of
   Texas women who seek medical care for pregnancy
   complications and miscarriages. (26)


Also in 2016, Indiana, under Republican Governor Mike Pence, "passed a wideranging bill, making it a criminal offense to dispose of fetal remains in any other way besides burial or cremation, including in cases of abortions, miscarriages, and stillbirths." (27) As one writer noted, "Indiana may not legally be able to declare fetuses human in life. But in death, apparently, it can." (28) Another writer noted of the future vice president's effort that:
   since about half of miscarriages happen shortly after a
   fertilized egg is implanted, and occur at roughly the
   same time a woman would expect her period, many
   women could be having a miscarriage and not even
   know it--and thus, technically be violating the law if
   they didn't cremate or bury the resulting tissue. (29)


However, the Indiana law was also blocked by a federal judge. (30) Judge Tanya Pratt noted that "the State boldly contends that it is a 'biological fact' that embryonic fetal tissue is a 'human being'"--a conclusion she noted the U.S. Supreme Court had not reached. (31) Although the state cloaked its defense of its law in religious terms-an "obvious entanglement of church and state"--she wrote that prior law:
   ... allowed individuals ample leeway to vindicate their
   own relevant religious or cultural practices. A patient
   was permitted to take possession of the fetal tissue,
   whether the result of an abortion or a miscarriage, and
   dispose of it in whatever manner she chose, including
   in accordance with her particular religious or cultural
   beliefs. (32)


The U.S. 7th Circuit Court of Appeals upheld the decision, noting that "in its brief, Indiana maintained that it 'validly exercised its police power by making a moral and scientific judgment that a fetus is a human being who should be given a dignified and respectful burial and cremation.' (emphasis added)." (33) However, the court noted, "the Supreme Court has concluded that 'the word 'person,' as used in the Fourteenth Amendment, does not include the unborn.'" (34)

Typical of the politicization of cases involving abortion, this opinion then underwent a tortuous path, with its holding relative to the disposition of fetal remains vacated in an unpublished en banc decision, before the 7th Circuit came back and determined that the en banc decision was improper because a judge should have recused and, thus, "the judge had been ineligible to vote on the petition for rehearing en banc." (35) Writing for a now evenly-split court, Judge Diane Wood wrote that the first panel had "ably applied" its scrutiny and:
   I have little to add to its analysis except to wonder how,
   if respect for the humanity of fetal remains after a
   miscarriage or abortion is the state's goal, this statute
   rationally achieves that goal when it simultaneously
   allows any form of disposal whatsoever if the mother
   elects to handle the remains herself. It is not hard to
   hypothesize disposal methods that would be far less
   respectful than those presently used for biological
   materials in clinics. (36)


Judge Frank Easterbrook dissented, with a shocking analogy:
   Animal-welfare statutes are rational not simply because
   all mammals can feel pain and may well have emotions,
   but also because animal welfare affects human welfare.
   Many people feel disgust, humiliation, or shame when
   animals or their remains are poorly treated. We wrote
   in Cavel that a ban on slaughtering horses for human
   consumption is rationally related to the goal of reducing
   dismay at poor treatment of these creatures. Isn't that
   equally true of a statute about fetal remains? (37)


In his bizarre expression of concern for the fetal remains of abortions, Judge Easterbrook expressed no concern whatsoever for women who miscarried and would also be swept up under the same legal requirements. Would he suggest their miscarried fetuses had been subject to "poor treatment" like slaughtered horses?

Under Missouri law dating to 2004: "Within twenty-four hours after a miscarriage occurs spontaneously or accidentally at a hospital, outpatient birthing clinic, or any other health care facility, the facility shall disclose to the mother of the miscarried fetus, both orally and in writing, the mother's right to determine the final disposition of the remains of the fetus." (38) It was made clear that the law was not intended to preclude the ability to obtain a legal abortion. (39)

In Louisiana, fetal burial legislation passed into law in 2018, but applied to only surgical abortions. (40)

In Nebraska, a law passed in 2018 that provides that:

[a] health care practitioner licensed pursuant to the Uniform Credentialing Act who attends or diagnoses a nonviable birth or a health care facility licensed pursuant to the Health Care Facility Licensure Act at which a nonviable birth occurs shall advise a patient who experiences a nonviable birth that the patient may request a certificate of nonviable birth as provided in this section and, upon request by the patient, shall provide a letter certifying the nonviable birth to the patient. (41)

According to one account:
   The bill, called LB 1040, was supported by Jennifer and
   Andy Sommers, who suffered three pregnancy losses of
   their own and hoped the bill might be a way to help
   families heal. In Nebraska, official birth certificates are
   issued if a family suffers the loss of a pregnancy at or
   after 20 weeks. But before that, families don't receive
   any "official" paperwork about their loss. And as
   anyone who has knows, it can be a very isolating
   experience. Strangers and even family and friends might
   downplay the loss because it was "early," which can feel
   devastating to suffering families. (42)


While the law seems neutral on its face regarding abortion, and is permissive and not mandatory, it was supported by a group that opposes reproductive choice and that praised the bill for "recognizing the dignity and humanity of the unborn at the earliest stages of development." (43) Yet, again, do we risk looking too hard behind the curtain on an effort that brings comfort to those like the Sommers' family?

In Florida, state Rep. Rick Cortes was the prime sponsor of the "Grieving Families Act" which passed into law in 2017, allowing birth certificates in instances of miscarriage, and it was reported that "while a handful of states allow death certificates for miscarriages, Cortes' staff researched laws in the 49 other states and found none issued the equivalent of a birth certificate in such cases." (44) While the National Organization for Women opposed the bill as "an effort to advance the definition of when life begins" it was reported that "Democrats, who usually fight any effort, however small, to make abortion rights more restrictive, widely supported the bill. It passed unanimously in the Senate and with only one no vote in the House. Planned Parenthood was neutral on the bill." (45) The Republican sponsor, Rep. Cortes, emphasized that he worked to avoid abortion implications. (46)

Under the law, a '"Nonviable birth' means an unintentional, spontaneous fetal demise occurring after the completion of the 9th week of gestation but prior to the 20th week of gestation of a pregnancy that has been verified by a health care practitioner." (47) In the instance of any such "nonviable birth" the state "shall issue a certificate of nonviable birth within 60 days upon the request of a parent named on the registration of nonviable birth." (48)

In 2007 the New York Times reported that "[t]o thousands of parents who have experienced stillbirth, getting a birth certificate is passionately important, albeit symbolic." (49) A stillbirth is "generally defined as a naturally occurring, unintentional intrauterine death after more than 20 weeks of gestation." (50) As Representative Cortes had found, many jurisdictions allow for certificates of death in the cases of miscarriage or stillbirth. In New York, for example:
   The department, or in the city of New York, the board
   of health, shall establish a certificate of still birth. The
   registrar with whom a fetal death certificate is filed shall
   issue a certificate of still birth to the parent or parents
   named on a fetal death certificate issued in the case of
   a stillbirth, upon the request of such parent or parents. (51)


Does "death" imply the existence of "life"? That is a metaphysical question the law struggles with:
   For the purposes of this article, a fetal death shall be
   considered as a birth and as a death except that, for a fetal
   death, separate birth and death certificates shall not be
   required to be prepared and recorded, except as
   provided in section forty-one hundred sixty-a of this
   title. (52)


Oregon law, for example, provides for "a Commemorative Certificate of Stillbirth"--yet a "Stillbirth" is undefined. (53)

There is no doubt that this is a fraught area, where women who miscarry are at risk of being pawns in a larger political game. Professor Carol Sanger foresaw this with the rise of birth certificates in instances of stillbirth. (54) For one thing, she noted that "there has never been uniformity in what gestational period defines stillbirth. This has been especially problematic in the United States where each state determines the definition of stillbirth." (55) She expressed concern that stillbirth birth certificates "contribute to a thicker mix of cultural signs and coordinates in which fetal and embryonic life are claimed as full human persons, not just through specific pro-life legislation but through a wider range of signals and cues." (56)

I am not unmindful of this concern. Furthermore, there exists the possibility that some, in their fervor in opposing abortion, may effectively criminalize miscarriages, as one author notes: "[I]n 2014, Lynn M. Paltrow and Jeanne Flavin claimed to have identified over 380 cases where women faced criminal charges for miscarrying--with the charges ranging from 'attempted fetal homicide' for falling down the stairs to 'second-degree murder' for a spontaneous miscarriage in the first trimester." (57) Should the U.S. Supreme Court overturn Roe vs. Wadef which seems likely given attacks upon reproductive rights it has countenanced, in states where abortion is outlawed miscarriages may also be subjected to special scrutiny to confirm that they were not in fact, say, medically-induced abortions. Yet that is not an argument against legally recognizing miscarriages. It is an argument in favor of reproductive choice, and not having policymakers determine the value of a woman's personhood. Indeed, there may be a salutary public education effect to being more open about miscarriages. As one writer notes:
   Miscarriage needs to be integrated into our narrative of
   the pregnancy process so that sex education, biology
   and pregnancy education texts and websites give
   accurate information. Popular models of embryological
   development--from plaster models of fetal
   development in the Maternity Center Association's
   display at the 1939 World's Fair, to Lennart Nilsson's
   famous 1965 Life magazine photographic portraits of
   embryos and fetuses, to today's sex education
   textbooks--depict development as if a fertilized egg
   always becomes a baby. Instead, textbooks and
   websites should offer a more nuanced narrative of
   embryological development, one that acknowledges the
   frequency with which pregnancy does not result in live
   birth. (59)


In conclusion, there is nothing coercive about the Florida law, which is facially-neutral relative to abortions, and it seems a reasonable model for other states to follow to assist those whose grief can be eased by legal recognition of their miscarriages. (60)

* Mr. Williams is the President/CEO of the New Hampshire Health Care Association. He is a 1997 graduate of the University of Washington School of Law and previously clerked for the Washington Supreme Court.

(1) MICHELLE Obama, Becoming 188 (2018). The first pregnancy of Jacqueline Kennedy, in 1955, had also ended in a miscarriage. See Steven Levingston, Jackie Kennedy's Five Pregnancies--the Tragic and the Successful, HUFFINGTON POST (Jan. 23, 2014). Senator Tammy Duckworth (D., Ill.) is the first sitting senator to have a baby, but she has acknowledged that she also had a miscarriage. Id. See also Colby Itkowitz, Michelle Obama Is One of Millions Who Struggled with Infertility. Here's Why Her Broken Silence Could Matter., WASH. POST. (Nov. 9, 2018). In 2012, Ann Romney, the wife of Republican presidential nominee Mitt Romney, discussed her own miscarriage on national television. See Tim Mak, Ann Romney Tells of Miscarriage, POLITICO (Aug. 28, 2012). "One morning, Romney realized she was losing the baby and at around 6 a.m. told her husband to take them to the hospital. Before leaving, they told their sons that they were losing the baby." Id.

(2) Miscarriage, MAYO CLINIC (July 20, 2016), https://www.mayoclinic.org/diseasesconditions/pregnancy-loss- miscarriage/symptoms-causes/syc-20354298.

(3) Katherine Martinelli, Miscarriage Is Common. So Why Is It Such an Isolating Experience?, WASH. POST (Oct. 13, 2016).

(4) Id.

(5) Elissa Strauss, Sharing Stories of Miscarriage Helps Women Grieve, Eightfor Change, CNN (Feb. 22, 2018).

(6) Id.

(7) Soniah Kamal, The Face of Miscarriage, N.Y. TIMES (Mar. 31, 2017), https://www.nytimes.com/2017/03/31 /well/family/the-face-of-miscarriage.html. Adding to her grief, she had wanted to bury the remains of what would have been her son, Khyber, but "[i]n Islam it is believed a soul enters the body at 120 days of gestation (about 16 weeks) and since my miscarriage took place right around that time with no proof that a soul had indeed entered, Khyber could be considered only a soulless fetus." Id.

(8) Kristin Thorne, New York State bill seeks to amend law related to miscarriage and fetal burial rights, ABC7NY.COM (Nov. 27, 2018), https://abc7ny.com/politics/bill-would-amend-law-related-tomiscarriage-fetal-burial- rights/4774150/.

(9) See S.B. 7863, 2017-2018 N.Y. State S. (N.Y. 2018). When a fetal death occurs under twenty weeks' gestation as a result of an induced abortion, the remains are usually incinerated or transported and disposed of as regulated medical waste. S.B. 7863.

(10) See Editorial, Mr. Tedisco, reconsidered, TIMES UNION (Nov. 6, 2018), https://www.timesunion.com/opinion/article / Editorial-Mr-Tedisco-reconsidered13364804.php ("Mr. Tedisco now says, however, that he firmly opposes abortion and that the law should allow it only in instances of rape, incest, or if a woman's life--but not health--is in jeopardy.").

(11) L.V. Anderson, Texas judge Temporarily Blocks Fetal Remains Rule From Going Into Effect, SLATE (Dec. 15, 2016), http://www.slate.com/human-interest/2016/12/texas-judge-temorarily-blocksfetal-remains-rule-from-going- into-effect.html.

(12) Marissa Evans, State officials hear more testimony on fetal remains rule, Tex. TRIB. (Nov. 9, 2016), https://www.texastribune.org/2016/11/09/state-officials-hear-more-fetal-remain-rule-testim/.

(13) See id. (explaining mothers' reactions to requiring aborted or miscarried fetuses to be buried or cremated).

(14) Id.

(15) See Whole Women's Health v. Hellerstedt, 231 F. Supp. 3d 218, 233 (2017) (enjoining, preliminarily, the Texas State Health Services Commissioner from amending Texas administrative code).

(16) See id. (footnote omitted) (discussing recent abortion litigation in Texas).

(17) See id. at 222.

(18) Id. (explaining that Amendments may be an excuse for restricting abortion rights).

(19) Id. at 230-31 (specifying regulations with the express purpose of providing a burden on proving violations of rights).

(20) Id. at 232 (showing burdens outweigh any perceived benefit from restrictions).

(21) See Whole Woman's Health v. Smith, 338 F. Supp. 3d 606, 643 (W.D. Tex. 2018) (noting violations of the Fourteenth Amendment's due process and equal protection clauses).

(22) Id. at 613 (citations omitted) (footnote omitted).

(23) Id. at *1; see Molly Redden, Texas Measure Requiring Burial of Fetal Remains May Herald Wave of Similar Laws, GUARDIAN (Dec. 19, 2016), https://www.theguardian.com/usnews/2016/dec/19/texas-fetal-remains-burial- cremation-law.

This law would put great strain on Texas healthcare facilities to properly dispose of fetal remains from abortions and miscarriages through burial or cremation. Id. Other issues would require healthcare providers to work with funeral homes and, in turn, pass on high costs to patients. Id.

(24) Smith, 338 F. Supp. 3d at *7; see Alexa Ura, Lawyers: Rule to Bury or Cremate Fetal Remains Could Head to Suit, TEX. TRIBUNE (Aug. 1, 2016), https://www.texastribune.org/2016/08/01/lawyersfetal-remains-rule-could-lead- lawsuit/. "Texas politicians are at it again, inserting their personal beliefs into the health care decisions of Texas women." Id. See also Stephie Grob Plante, What My Miscarriage Taught Me About Texas' Fetal Burial I legislation, REWIRE Nf.WS (May 23, 2017), https://rewire.news/article/2017/05/23/miscarriage-taught-texas-fetal-burial-legislation/. "It's a subtle manipulation, to allege that women don't think hard enough about what abortion entails, to trick someone into believing that they're burying a child." Id. It creates a level of mental torture and only adds additional pain. Id.

(25) Id. at *24.

(26) Id. at *26. While the law is unconstitutional because of the added difficulty women face to have an abortion, it also affects the healthcare of all women seeking healthcare beyond abortions in the state. Id.

(27) Emma Green, State-Mandated Moumingfor Aborted Fetuses, ATLANTIC (May 14, 2016), https://www.theatlantic.com/politics/archive/2016/05/state-mandated-mourning-for-abortedfetuses/482688/.

(28) Id. People in the funeral business bury abandoned or left bodies all the time; most of their job is plotting and facilitating rituals of death. Id. In Indiana, the perspective is burying a fetus is similar to that. Id. The goal is for the fetus to have the same dignity and respect to be buried as any other body would. Id.

(29) Emily Crockett, Indiana Gov. Mike Pence signed a law this year that mandated funerals for fetuses, VOX (Oct. 3, 2016, 4:59PM), https://www.vox/com/2016/7/14/12190380/mike-pence-trump-vicepresident-aboriton-funerals-fetuses. Often these efforts are criticized because the laws are incoherent from a medical perspective in relation to the medical realities of pregnancy. Id. Women in opposition of the bill called Pence's office explaining their periods in graphic detail to highlight its absurdity. Id.

(30) Planned Parenthood of Ind. and Ky., Inc. v. Comm'r of Ind. State Dep't of Health, 265 F. Supp. 3d 859, 873 (S.D. Ind. 2017). The court concluded that the challenged provisions violate the Fourteenth Amendment to the United States Constitution and unless the Supreme Court overturns prior cases, this court is "bound to follow that precedent under the rule of stare decisis." Id. at 872.

(31) Id. at 871. "Whether or not an individual views fetal tissue as essentially the same as human remains is [a] ... moral decision" and a question that this Court cannot resolve. Id. The Court was unable to find any legal support for the position that the state has a legitimate interest in 'treating fetal remains the same as other human remains' since the Supreme Court has clearly stated a fetus is not a person. Id.

(32) Id.

(33) Planned Parenthood of Ind. and Ky., Inc. v. Comm'r of Ind. State Dep't of Health, 888 F.3d 300, 308 (7th Cir. 2018). The dissent by Judge Manion disagrees with the court's majority opinion about the fetal remains a provision, stating that "it is a legitimate exercise of Indiana's police power." Id. at 321.

(34) Id. (quoting Roe v. Wade, 410 U.S. 113, 158 (1973)).

(35) Planned Parenthood of Ind. and Ky., Inc. v. Comm'r of Ind. State Dep't of Health, 2018 WL 3655854 (7th Cir. 2018).

(36) Id. at *1.

(37) Id. at 5 (Easterbrook, J., dissenting) (citation omitted).

(38) Mo. Rev. StAT. [section] 194.387 (2018) (detailing a mother's right to final disposition of fetus remains).

(39) See Mo. REV. STAT. [section] 194.390 (2018) (explaining that there is no language in [section] 194.375 or [section] 194.390 prohibiting women's abortion rights).

(40) See 2018 La. Acts 204 (providing a law requiring human remains after surgical abortions to be buried or cremated); see also Maria Clark, Funding restrictions for abortion providers, fetal burial requirements clear Senate committee, TlMES-PlCAYUNE (Apr. 25, 2018), available at https://www.nola.com/health/2018/04/abortion_legal_challenges_loui.html (describing challenges against the new law requiring fetal remains to be buried or cremated).

(41) See L. B. 1040, 105th Le.g., 2nd Sess. (Neb. 2018) (explaining that patients receiving abortions have a right to a certificate of nonviable birth).

(42) Chaunie Brusie, Nebraska Passes Imw Recognising Miscarriage Before 20 Weeks, Mom.Me (May 2, 2018), https://mom.me/news/248594-nebraska-passes-law-let-parents-get-certificaterecognizing-miscarriage/ (allowing families to request certificate of "non-viable birth" for pregnancy loss before twenty weeks).

(43) Press Release, Nebraska Family Alliance, LB1040 Takes Effect, State-Issued Commemorative Birth Certificates for Miscarriages Now Available in Nebraska (July 12, 2018) (on file with author).

(44) Brendan Farrington, Florida law to give miscarriage certificates, TALLAHASSEE DEMOCRAT (June 2, 2017, 6:59PM), https://www.tallahassee.com/story/news/2017/06/02/new-florida4aw-willprovide-certificates- miscarriages/102440344/ (noting Florida will become first state to issue birth certificate to women who have had miscarriages).

(45) Id. The Grieving Families Act would allow for "certificates of nonviable birth" to be assigned at the request of parents whose pregnancies end after nine weeks and before twenty weeks. Id. Because the Act would set boundaries of nine and twenty weeks, this would seemingly define that a child is considered a person and not just a fetus beginning at week nine. Id. Planned Parenthood did not take a stand in support or in objection to the Act or the idea of the birth certificates for miscarriages. Id.

(46) Id. The goal of Cortes was to give parents the opportunity to have something physical to not only remember their child, but to begin their healing process. See supra note 44. Cortes worked very diligently to ensure that this bill was not specifically devoted to the topic of abortion. Id. Additionally, this bill gives parents the option to obtain the certificate; the state will not automatically do this when a fetus between nine and twenty weeks is lost. Id.

(47) FLA. STAT. [section] 382.002(14) (2018) (outlining how Florida defines nonviable birth).

(48) FLA. STAT. [section] 382.0086(1) (2018) (describing time requirements of issuing death certificate for a nonviable birth).

(49) Tamar Lewin, A Move for Birth Certificates for Stillborn Babies, N.Y. TIMES (May 22, 2007), https://www.nytimes.com/2007/05/22/us/22stillbirth.html.

(50) Id. In 2014 Ohio changed a decade-old law allowing commemorative stillborn birth certificates to remove the term "stillborn." See Jessica Holbrook, Birth certificates now available for parents of a stillborn child, CANTON REPOSITORY (May 31, 2014), https://www.cantonrep.com/article/20140330/News/140339992.

(51) N.Y. Pub. Health [section] 4160-A (2018).

(52) N.Y. PUB. HEALTH [section] 4160 (2018) (emphasis added).

(53) OR. Rev. Stat. [section] 432.148 (2018).

(54) Carol Sanger, The Birth of Death: Stillborn Birth Certificates and the Problem for Imw, 100 CAL. L. Rev. 269, 272 (2012).

(55) Id. at 303.

(56) Id. at 310.

(57) See Sady Doyle, When a Miscarriage Becomes a Crime, ELLE (Apr. 17, 2017), https://www.elle.com/culture/career-politics/a44552/when-a-miscarriage-becomes-a-crime/ (arguing systemic failure to protect reproductive rights leads to criminalization of miscarriages); see also Elisabeth Malkin, They Were jailed for Miscarriages. Now, Campaign Aims to End Abortion Ban., N.Y. Times (Apr. 9, 2018), https://www.nytimes.eom/2018/04/09/world/americas/elsalvador-abortion.html/ ("In El Salvador, a total ban on abortion leads to an immediate suspicion of women whose pregnancies do not end with a healthy baby[.]").

(58) 410 U.S. 113 (1973).

(59) Lara Freidenfelds, What Michelle Obama's miscarriage teaches us about modern pregnancy, WASH. POST (Nov. 16, 2018), https://www.washingtonpost.com/outlook/2018/ll/16/what-michelleobamas-miscarriage-teaches-us-about- modern-pregnancy/?utm_term=.8756eeec4caa.

(60) See generally Natasha Bach, Most Americans Want Roe v. Wade to Stay, According to a New Roll, FORTUNE (Sept. 12, 2018). The American public is overwhelmingly opposed to overturning abortion rights, by a margin of 71% to 23% according to a September 2018 poll. Id. However, this sentiment will vary by state, and conservative states can be expected to outlaw abortion if able to do so. I do not think this outcome, or public opinion, will be significantly changed by providing a new outlet of legal recognition for those grieving a miscarriage. However, in expressing this opinion I must note that, as a male, my own reproductive rights are not at risk (though nor am I at risk of a miscarriage). I also understand that not all women who have experienced the unexpected loss of a pregnancy will seek the recognition conferred by laws like Florida's. They might ask, as does Professor Sanger in her thoughtful article: "How is it that authorizing birth certificates for children who have never lived has come to seem a reasonable rather than an eccentric legislative gesture?" Sanger, supra note 54, at 273. For such women, no legal imprimatur is necessary to validate a deeply personal experience. I should also acknowledge the heartfelt loss men may experience with miscarriages. As one man writes:
   There was no life outside the womb to flash before my baby's eyes,
   so it flashed through mine. I mourned the days I would never have
   to teach her how to write her name, pick her up when she fell off a
   bike, walk her down a wedding aisle or meet her in a delivery room
   to hold her children. But despite the sorrow, somehow my love for
   her was growing.


See Chris Cate, Even After a Miscarriage, I will always be my baby's father, WASH. POST, (Sept. 28, 2018), https://www.washingtonpost.com/news/parenting/wp/2018/09/28/even-after-amiscarriage-i-will-always-be-my-babys- father/?utm_term=.d4d2514993f2.
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Publication:Journal of Health & Biomedical Law
Article Type:Medical condition overview
Geographic Code:1U5FL
Date:Sep 22, 2019
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