Texas is Killing Women: On the Deadly Consequences of Inventing a Sacred Fetus

Since Texas banned abortion in 2021, sepsis and death rates have soared. The state does not care.

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Content warning for medical misogyny, pregnancy/birth trauma, and miscarriage.

Josseli Barnica was pregnant and looking forward to giving her daughter a sibling. It was not to be: at 17 weeks, she began to miscarry. The fetus was on the verge of expulsion, their head pressed against her cervix, which was dilated. The standard of care under these circumstances is to speed up delivery or empty the uterus to stave off sepsis—a potentially fatal infection which can also cause permanent kidney failure and brain damage.

The medical team did not adhere to the standard of care, because Barnica was in Texas, where doctors can be punished with up to 99 years in prison for performing an abortion. Instead, they told her they’d have to wait until the fetus had no heartbeat. They waited 40 hours for this outcome, exposing Barnica’s uterus to bacteria in the meantime. Barnica prayed for life-saving care, but to no avail: “It would be a crime to give her an abortion,” Barnica’s husband told ProPublica the medical team had said to the couple. Barnica can’t speak for herself anymore. She died of an infection three days after she delivered.

Image: Josseli Barnica with her daughter in 2020, via ProPublica

Barnica and Nevaeh Crain, a pregnant eighteen-year-old woman, are among the cases of tragic, preventable death we already knew about due to Texas’s (near total) abortion ban, which was implemented in 2021. Thanks to ProPublica, we now know there are dozens more. While the state’s maternal mortality review committee has declined to look at death data for 2022 and 2023, this new reporting shows an alarming spike in sepsis and preventable deaths in consequence.

Specifically, ProPublica obtained hospital records that showed that, when a pregnant patient presented to hospital suffering a miscarriage during her second trimester, and the fetus still had a heartbeat, they were at grave risk of infection due to delays in care. The rate of sepsis shot up more than 50% overall for patients who miscarried during the second trimester. (During the first trimester, miscarriages are typically managed in an outpatient setting; and during the third trimester, fetal death would be a stillbirth.) Overall, maternal mortality has increased by 33% in Texas since 2019, even as national rates have declined slightly.

“This is exactly what we predicted would happen and exactly what we were afraid would happen,” said Dr. Lorie Harper, who is a maternal-fetal medicine specialist in Austin. And it raises the likelihood that similar spikes in maternal mortality are occurring in states with similar abortion bans. “The fact that Texas is not reviewing those years does a disservice to the 120 individuals you identified who died inpatient and were pregnant [in 2022 and 2023],” said Dr. Jonas Swartz, an assistant professor of obstetrics and gynecology at Duke University, of the state’s refusal to investigate. “And that is an underestimation of the number of people who died,” he added. (The number of such deaths, in 2018 and 2019, prior to the pandemic, was just 79.) Caitlin Myers, an economist at Middlebury College, says examining the data from various angles makes things clear: they “tell a really compelling story that people are dying as a result of the abortion restrictions.”

The cruelty of making a pregnant patient wait for reproductive care when she is already miscarrying because the fetus has a heartbeat is a natural consequence of so-called “heartbeat laws” that have proliferated around the country. These ban an abortion at six or eight weeks (dating from the first day of someone’s last menstrual period). Such laws are in fact very much a misnomer. At this point, there is no heartbeat—not least because there is no heart (nor brain, nor face). An embryo at this stage of development is the size of a green pea, and a pulsing of cells that are specializing to become cardiac (and will become a heart much later) may or may not be detectable on ultrasound.

The sentimental depiction of a fetus or even an embryo as a full-blooded person who is vulnerable and precious and beholden to their mother’s whims is not just inaccurate; it is pointful. Its point is to depict women who want an abortion—for whatever reason—as cruel and unnatural killers. But make no mistake: it’s not that right-wing thinkers and lawmakers erroneously imagined a vulnerable person and then got worried that women who seek an abortion were wronging them. It’s that their sense that women are wrongdoers if they’re not dutiful wives and mothers has driven the invention of the hallowed figure of the fetus. The invention of this figure, replete with a beating heart, is designed to tug on the heartstrings.

Famously, philosophers have considered cases where an adult human being is dependent on you for their life. Judith Jarvis Thomson imagines a case where you wake up in hospital, hooked up to a violinist who needs to share your kidneys in order to survive. (Their orchestra is very invested in their survival—so, they kidnapped you.) This fanciful case is designed to make the point that, even if the fetus does have all the rights of an adult human being, it’s not obvious that you owe a person nine months of your life in order to sustain theirs. Plausibly, you would be justified in unhooking yourself regretfully and letting the violinist die. They may have a right to life, but you have a right to live your life unfettered by providing life-sustaining care for long periods.

These thought experiments are important, but they only go so far. For one thing, they assume good faith on the part of the anti-abortion proponent. For a second, they risk sanitizing the harms and costs and sacrifices of pregnancy (let alone having the child and then choosing to either raise them or give them up for adoption). Most importantly for our purposes, they assume that the fetus doesn’t have an elevated status with respect to adult human beings in the minds of these people—again, not because they independently came to believe this, but because inventing a hallowed fetal figure became a way to shore up the pressing sense that modern women are simply not caring enough. We must be made to care. The invention of the fetus as a kind of demigod makes the pregnant person into the fetus’s disposable earthly vessel—a person whose only proper role is to gestate and birth other people, and then care for them in perpetuity. The logical extension of this dangerous line of thought is that “the life of the mother” exceptions for abortion do not apply anymore: the fetus is not only a person who is just as important as their mother. They are sacred and indeed vastly more important. Their life cannot be ended, even as they are dying. And even if the result is the death of their mother.

This invention is driven by the sexist sense that women’s natural social role is motherhood, and the misogynistic attempt to enforce our reproductive labor. And it is, like many cultural constructions, both fragile and contingent. As is commonly pointed out, nobody actually thinks a fertilized egg or embryo is worth saving over an adult human being when they’re out of a woman’s body and housed in a laboratory setting. And, with notable exceptions, those who rail against abortion in a misogynistic vein don’t typically care about IVF procedures, which routinely result in unused fertilized eggs’ and embryos’ destruction. Indeed, Trump made noises this week about investigating ways to make IVF more affordable: a welcome idea for all of the wrong, pronatalist reasons. (It is also sure to be worthless in reality.)

So, again, the order of explanation is important to be clear about: people elevate the fetus and even embryos and fertilized eggs as a way to punish women for seeking reproductive freedom and care. They do not actually believe in their exalted status when they are outside a pregnant body. “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant,” said Alabama state senator Clyde Chambliss in 2019, explaining why a bill that claimed to protect fertilized eggs, embryos, and fetuses would not affect the legality of IVF procedures. I’ve said it before and I’ll say it again: this has nothing to do with life, and everything to do with caremongering—inventing a subject to justify the sense that modern women are suspect, even murderers, for not wanting to play their designated role as self-sacrificing mothers.

Some hope that the cruelty of the treatment of even those who do want to be mothers, and who are irrevocably miscarrying, will result in an amendment to the abortion ban in Texas. This would clarify that the exception for medical emergencies extends to allowing doctors to empty the uterus of a patient who is miscarrying even while there is still a fetal heartbeat. As Jessica Valenti wrote earlier this week, this seems a wan hope. Not only do the “clarifications” of exceptions typically go the wrong way when it comes to abortion law, but some lawmakers are doubling down and trying to go further in punishing women for seeking reproductive freedom. One lawmaker, Brent Money, recently filed a bill that would allow the state to charge women who obtain an abortion with homicide, which would make them subject to the death penalty. It garnered more than a dozen co-authors, the most support such a bill has ever enjoyed in Texas.

There is already a death penalty, in effect, simply for having a miscarriage. Texas is killing women.