On June 26th, Marshae Jones was indicted by a grand jury in Alabama for manslaughter. The charges stemmed from a miscarriage she had as a result of being shot in the stomach at five months gestation. The grand jury agreed with prosecutors: Marshae Jones was at fault for the death of her fetus because she willfully instigated a fight, a fight that resulted in her being shot and her pregnancy being terminated.
To be precise, Marshae Jones was shot in the stomach by another individual and charged with the death of her five month fetus because she engaged in an altercation that resulted in her being shot with a firearm.
While prosecutors initially charged the woman who shot Marshae with manslaughter, the grand jury ultimately determined she acted in self defense and the charge was dismissed. Insisting someone be held accountable for the death of the fetus, the district attorney in the case then charged Marshae.
In the majority opinion that asserted Roe v. Wade--the landmark Supreme Court decision that ensured access to abortion in the United States--Justice Harry Blackmun stated, “if this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th] Amendment.” This statement laid the groundwork for the efforts by the anti-abortion movement.
Since Roe, the primary goal of the anti-abortion movement (only second to spreading misinformation about the process of abortion and the types of people who get abortions), has centered around pushing fetal personhood laws through state legistlatures. And they have been hugely successful: as of January 2019, fetal personhood laws have been passed in almost every state.
From seemingly benign legislation that issues babies born still birth certificates, to much more complicated laws allowing prosecutors to treat fetuses as victims of crime; these laws have allowed for a meticulous chipping away at Roe and have pushed us closer and closer to giving fetuses the same rights as the women carrying them thus realizing Justice Blackmun’s prediction.
Since Minnesota became the first state to pass a fetal homicide law in 1986, 37 other states have added similar statutes. While these laws have largely been used to increase criminal charges against individuals that commit acts of violence against pregnant women, they have also been used against pregnant people themselves.
Marshae’s indictment is a direct result of these initiatives by the right to life movement.
While Marshae’s case is the latest case to gain viral attention, it is certainly not the first. In 1989, Jennifer Johnson was the first American woman convicted of delivering drugs to her fetus through the umbilical cord. Hundreds of women since, have been prosecuted for endangerment based on their drug use in pregnancy.
In 2008, Jennifer Jorgensen was in a car accident while 8 months pregnant. Her baby was delivered via emergency cesarean and died a few short days later. A jury found her guilty of manslaughter because she had not been wearing a seatbelt, thus causing the death of her daughter.
In 2010, Bei Bei Shuai was charged with murder after surviving an attempted suicide at eight months pregnant. In 2017, Kelli Renee Driskel was charged with feticide because her baby boy was stillborn after a pregnancy in which she continued to use illegal drugs. The list goes on.
What these cases have in common is the notion that a pregnant person committed some type of act considered negligent or willfully harmful to the fetus she was carrying. The police lieutenant in Marshae Jones’ case stated, “the investigation showed that the only true victim in this was the unborn baby. It was the mother of the child who initiated and continued the fight which resulted in the death of her own unborn baby.” The grand jury agreed.
Fetal personhood laws that grant fetuses or embryos (and in some cases, fertilized eggs) the same rights as the pregnant person create a hierarchy of decision making and legal protections. From doctors and nurses, to prosecutors and police, more often than not, the fetus takes precedence over the mother.
When pregnant people fear they will be charged with a crime for making a decision that might impact their pregnancy or fetus, they have lost the ability to provide consent and maintain bodily autonomy.
As a labor doula, I see this play out in the labor & delivery room constantly. Doctors and nurses reminding my clients, “your baby is our first priority--your plans come second. We will do whatever it takes to get this baby born healthy.”
Recently, I had a client refuse antibiotic treatment during labor for a suspected infection because in the past she had severe allergic reactions to many antibiotics and avoided them across the board. The hospital persisted in trying to coerce her to consent for treatment and ultimately called child protective services on her because they claimed her refusal endangered the health of her baby. Given my client’s history, she was at risk for anaphalyxsis, a potentially fatal allergic reaction, but the hospital weighed the baby’s health over her own.
As these laws push the point of personhood closer and closer to conception, the decision making for pregnant people that may be experiencing a medical emergency like a miscarriage or premature labor, gets more complicated. While it is almost impossible to determine the cause of miscarriage or stilbirth, women may neglect to seek medical treatment if they fear they may be held liable for the loss.
The same week that Marshae was shot, the American Medical Association filed a lawsuit against North Dakota because of a recent law that forces doctors to falsley inform patients that an abortion at any stage of pregnancy ends “the life of a whole, separate, unique living human.”
In a statement, the AMA argued “the patient-physician relationship is the cornerstone of health care, and depends upon honest, open conversations about all of a patient’s health care options” and that this law “unconstitutionally forces physicians to act as the mouthpiece of the state.”
Even in states that do not have specific requirements for the counselling of patients, physicians may hesitate to provide adequate information on treatment options that may impact a pregnancy even if it is in the pregnant person’s best interest. Especially in those states where fetal personhood is established in the first trimester, when the risk of miscarriage is highest, physicians may feel compelled to withhold information that could make them liable for fetal demise.
Meanwhile, in 2019, America’s maternal mortality rate is the worst in the developed world with an estimated 900 women dying annually of pregnancy and childbirth related complications--if we prioritize fetal health above maternal health, clinical outcomes for mothers can only continue to decline.
On July 3rd, prosecutors decided to drop all charges against Marshae. The horror this woman endured: first being shot, then losing her pregnancy, then being charged for the murder of a baby she very much wanted and intended to carry to term is unimaginable. That an overzealous prosecutor successfully convinced a grand jury to indict her on manslaughter charges demonstrates a larger shift in the balance between maternal and fetal rights in the United States. The police, the prosecutor and the jury involved in the case all sought to teach Marshae a lesson. They saw it as their fundamental duty to punish a woman for acting in a way that was unbecoming of a mother.
Since Roe became law, the anti-abortion movement has successfully changed the narrative in America regarding pregnancy and fetal rights. They have shifted public opinion away from viewing fetuses as a dependent part of the pregnant body to viewing them as independent, fully formed, unborn or preborn babies (phrases used by the right to life movement that are deeply problematic and inaccurate for a number of reasons). Pregnant bodies act as hosts for an unborn baby and as hosts they are required to adhere to a strict morality code and provide a hospitable environment in which a fetus can successfully gestate.
Marshae, Bei Bei, Jennifer and Kelli’s tragedies have been exploited by the anti-abortion movement to further their agenda and in the process, make it easier to criminalize the choices of all pregnant people in America. These cases are the alarming reality of the successful efforts of the right to life movement.
There are grave implications for the well-being and safety of the roughly six million women that get pregnant in America yearly. When only four million babies will be born live of these six million pregnancies--some ending in loss and others by abortion--that leave at least two million American women susceptible to the whims of the justice system. When we treat embryos and fetuses as citizens with full rights, every miscarriage, every termination, every act that could impact the healthy development of the pregnancy can be considered criminal.
If we don’t stop the right to life movement in their efforts and insist legislators roll back these fetal personhood laws throughout the country, we will lose mothers and pregnant people at an alarming rate to incarceration, disability and death.