Marshae Jones, a 28-year-old Alabama woman, is facing a manslaughter charge after her fetus died in utero. Her crime? Allegedly provoking a fight with a person who ultimately shot her in the stomach, killing her five-month-old fetus.
Lawyers for Jones filed a motion for the charges to be dropped on Monday, stating that there is no legal or factual basis to permit a criminal prosecution. A hearing is scheduled for July 9.
The unusual case highlights a growing movement to prosecute women for alleged crimes against their own fetuses. Jones’ case, in particular, raises questions about the legal ramifications of the concept of “fetal personhood,” which holds that a fertilized egg, embryo or fetus is a separate person with a separate set of rights who deserves full legal protection under the U.S. Constitution.
Alabama, known for its deep hostility toward abortion rights, is at the epicenter of the fight to recognize the fetus as an individual person. Over the years, anti-abortion activists and lawmakers have laid the groundwork for Jones’ extraordinary prosecution.
In 2018, voters passed a constitutional amendment declaring that it is “public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children.” Earlier this year, Gov. Kay Ivey (R) signed into law a near-total ban on abortion, which she called a testament to her constituents’ deeply held belief that every life is precious.
Alabama is also one of 38 states with a fetal homicide law, which allows charges to be brought when a fetus is killed. Under state law, “an unborn child in utero at any stage of development, regardless of viability” counts as a “person” for prosecution purposes. But the statute stipulates that women should not be charged in the deaths of their own fetuses, complicating the state’s case against Jones.
Nancy Rosenbloom, director of legal advocacy at the National Advocates for Pregnant Women, said she suspects prosecutors will argue that the 2018 constitutional amendment somehow negates existing criminal law ― a prospect that reproductive rights groups warned about at the time of its passage.
The concept of “fetal personhood” comes out of the anti-abortion movement, she said, which has worked for years to change the definition of the word “person” in state law to include a fertilized egg, embryo or fetus.
The idea is that if a fetus is considered a person, abortion at all stages of pregnancy can more easily be outlawed. But these measures have had another effect: criminalizing women who lose pregnancies, no matter the cause.
“Anti-abortion advocates have essentially put into place a broader set of laws that are being used to arrest and prosecute women,” Rosenbloom said. “That same thinking ― of making the fetus a separate person ― always restricts the right of the woman who is pregnant.”
This is a new boundary that has been crossed. Women who lose a pregnancy, who are already dealing with that pain, will also have to think about whether there’s anything they did that the state could decide was criminal.
Kimberly Mutcherson, co-dean of Rutgers Law School
Alabama leads the country in criminal cases involving women accused of endangering their fetuses, she said. Over 600 women have been charged since 2005 with alleged crimes related to their pregnancies; the vast majority of them prosecuted for exposing their embryo or fetus to controlled substances under the state’s “chemical endangerment of a child” statute.
The criminal cases go beyond substance abuse during pregnancy, Rosenbloom added, pointing to cases where pregnant women have been charged for getting in a car accident, failing to leave a physically abusive partner, or attempting suicide.
Randall Marshall, the executive director of the ACLU of Alabama, worries that the Jones case signals an expansion of the policing of pregnancy in the state, raising significant constitutional concerns.
“This could easily subject any act or omission by a pregnant woman to state scrutiny,” he said. “Virtually everything a pregnant woman does or does not do has an impact on the fetus. What if you don’t get regular prenatal care, or you keep too many hours, or drive an unreliable car, or fail to keep your diabetes under control?”
If prosecutors hold Jones, a victim of gun violence, criminally liable for someone else’s action that ended her pregnancy, it will send a frightening message to all Alabama women, said Kimberly Mutcherson, co-dean of Rutgers Law School.
“This is a new boundary that has been crossed,” she said. “Women who lose a pregnancy, who are already dealing with that pain, will also have to think about whether there’s anything they did that the state could decide was criminal.”
She noted that proponents of anti-abortion and personhood measures often argue that the legislation won’t be used to punish pregnant women.
“What’s revealing about this is that it sort of peels back that layer of pretext ― which is that this is not about hurting women ― and shows that that is really at the core of a lot of what is going on here,” she said.
What Jones needs right now is compassion, not prison time, said Elissa Serapio, a physician who provides obstetrics-gynecology care in several states, including Alabama.
“Losing a desired pregnancy can be incredibly traumatic,” she said. “Ms. Jones deserves medical care for her bullet wounds and the kindness and compassion that all people deserve when facing loss. She should not have to worry about being imprisoned for losing a pregnancy.”
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