If you ever doubted that pregnant women are rapidly becoming little more than fetal containers, consider the case of Marshae Jones of Pleasant Grove, Alabama. Last December, this 28-year-old black woman, five months pregnant, got into a fight with another woman, who took out a gun and shot her in the stomach. Marshae lived; the fetus did not survive. A grand jury declined to indict the shooter, on grounds that she had acted in self-defense. Instead, Ms. Jones was arrested and charged with manslaughter; as of this writing, prosecutors have not yet decided whether to proceed with the case.
“The only true victim in this was the unborn baby,” Lt. Danny Reid of the Pleasant Grove Police Department told AL.com at the time of the event. “When a five-month pregnant woman initiates a fight and attacks another person, I believe some responsibility lies with her as to any injury to her unborn child. That child is dependent on its mother to try to keep it from harm, and she shouldn’t seek out unnecessary physical altercations.”
Beginning in the 1990s, so-called pro-lifers passed a wave of state laws across the country that recognized fetuses as potential victims of homicides in cases of violence against pregnant women. Supporters assured the public that the laws were intended to protect women from violence and would never be used against the woman herself.
Yet that’s exactly what just happened. Nor is Marshae Jones the first woman to face criminal charges for the unintentional loss of a pregnancy. Women have been prosecuted for the deaths of fetuses as the byproduct of car accidents, attempted suicide, drug overdoses, and more. Most of those women have been poor and in various sorts of trouble; the kind of people who don’t usually get a lot of understanding from the public. The way their stories are told amplifies our lack of empathy: They are portrayed as careless (you were pregnant and not wearing your seatbelt?), selfish (why couldn’t you wait till you gave birth to kill yourself?), and out of control. Legal abortion has always been the exception to fetal homicide laws, which is not very logical but was mandated by Roe v. Wade. Now, with Roe threatened as never before, we see that the people who warned the laws were a stalking horse to criminalize abortion and had nothing to do with the safety of pregnant women were right.
Alabama proves it. The state where Marshae Jones is accused of manslaughter is also the state that has passed a near-total ban on abortions, with no exceptions but for fatal fetal anomalies or the near-certain death of the woman, and with penalties of up to 99 years for doctors who perform them.
Meanwhile, amid all the talk about the preciousness of “life” and the helplessness and innocence of “the unborn,” Alabama doesn’t do much for babies. Alabama has the second-highest infant mortality rate in the country, and black babies are twice as likely to die as white babies. The March of Dimes gives the state an F for its rate of premature births. And yes, Alabama is a poor state, but that makes it all the stranger that it has rejected the federal largesse of expanded Medicaid under the Affordable Care Act, which would cost the state very little and cover more than 300,000 people.
It would seem that in Alabama, the woman, and only the woman, is responsible for producing a healthy live child. Not the state, not the community, not her family, and certainly not the father, who, along with the rest of the country, has no obligation to provide for the woman he has made pregnant until the child is born. She is on her own.
As the news of Jones’s arrest broke, I caught up by phone with Lynn Paltrow, the brilliant lawyer who is the redoubtable founder and executive director of the National Advocates for Pregnant Women. “The arrest of a black woman for being pregnant and the victim of a shooting is brought to you by those who want to outlaw abortion and incarcerate more black, brown, and poor white people,” she said. After our conversation, Paltrow e-mailed me, noting that while Marshae’s case was unique in some ways, she nevertheless joins hundreds of Alabama women “whose pregnancies and claims of rights for fetuses have provided the basis for arrest for such crimes as chemical endangerment of a child” under a law intended to apply to individuals who brought children to dangerous meth labs, not drug-using women.
In fact, Alabama leads the country in arresting pregnant women for being a dangerous “environment” to the fertilized eggs, embryos, or fetuses inside of her. So even if you can’t identify with Marshae Jone’s choices, there are big principles at stake. If a pregnant woman counts as a dangerous environment under the law, and a woman can be arrested because she does not, or cannot, ensure her safety, then all pregnant women are endangered: from mugging victims (why were you out on that unsafe street so late?) and women who “provoke” their partner to beat them to women who have miscarriages because of the physical demands of their jobs.
Theoretically, every woman whose pregnancy goes awry—or even could have gone awry—could be in big legal trouble. As the case of Marshae Jones shows, that possibility is becoming less theoretical by the day.
