Last week, the world learned the chilling news that Marshae Jones, a 28-year-old woman who was five months pregnant when shot in the stomach, has been charged with manslaughter. When a grand jury failed to indict Ebony Jemison, the woman who fired the gun, the police in Pleasant Grove, Ala., sought someone else — and landed on Ms. Jones, whom they now blame for the altercation that lead to the termination of her pregnancy. To the police, if Ms. Jones had not picked a fight, her fetus would have survived.
In Alabama, somehow all of this makes sense. Sadly, I am not surprised. In recent years, Alabama has led the nation in charging pregnant women under its chemical endangerment statute, which now extends to fetuses. When a case brought in 2011 under that statute, Ankrom v. Alabama, was appealed to the Alabama Supreme Court, the justices concluded that they saw no difference between a child and a fetus — and no difference between a viable fetus and a nonviable fetus. (In that case, which involved two defendants, one woman who had struggled with drug addiction gave birth to a stillborn son. She was arrested, and she took a plea deal of 10 years rather than face the possibility of life imprisonment.)
Let us be clear: Anyone who thinks it is the recently passed Alabama abortion law alone that sets the state apart on reproductive health is wrong. Alabama police and prosecutors strategically wield power and influence with hospitals and medical clinicians to ferret out women who “endanger” their pregnancies. By one count, there have been 479 arrested in Alabama for endangering their pregnancies and charged under the state’s chemical endangerment statute.
But make no mistake, fetal protection prosecutions are not confined to Alabama.
In 2006, at 16, Rennie Gibbs experienced a stillbirth. Mississippi prosecutors charged her with depraved-heart murder, claiming that her use of drugs during pregnancy showed reckless disregard for human life and was the cause of the stillbirth. In 2014, a judge dismissed the charge, but had Ms. Gibbs been convicted, she could have received a life sentence.
In 2011, Indiana prosecutors charged Bei Bei Shuai with first-degree murder and attempted feticide after Ms. Shuai’s failed attempt to end her own life. Ms. Shuai, distraught after a breakup with her boyfriend, ate rat poison to kill herself. Prosecutors, however, argued Ms. Shuai was actually making an unconventional attempt to end her pregnancy. In Indiana it is not a crime to attempt suicide, nor is abortion illegal or a crime. As an expert defense witness in that case, I emphasized those facts. We were successful — and thank goodness, because Ms. Shuai faced over 40 years’ imprisonment had she been convicted.
Sometimes the prosecution of pregnant women involves systematic collaboration between law enforcement and medical professionals. During the late 1980s, the Medical University of South Carolina cooperated with the police and prosecutors to create a task force that tested poor pregnant women, without their consent, for drug use; the hospital staff then turned this medical information over to law enforcement. The campaign resulted in dozens of arrests and convictions of black women. Some of these women were dragged out of the hospital in shackles and chains after giving birth to awaiting squad cars. The hospital staff avoided subjecting white patients to these punishments.
And although there is an uncanny connection between Southern former slave states and the onslaught of these pregnancy prosecutions, the North is not without its own shame. In Iowa, Christine Taylor was incarcerated for two days after falling down steps in her home; the police accused her of doing so on purpose to end her pregnancy. In Wisconsin, Alicia Beltran was subjected to civil confinement for the “protection” of her fetus after she told a physician assistant that she’d self-administered Suboxone, a drug used to help opioid addiction, to help wean herself off a painkiller. The assistant urged her to continue using Suboxone under a doctor’s supervision; when Ms. Beltran refused, she was taken to court. As a result of her confinement of more than 70 days, Ms. Beltran’s life was turned upside down and she lost her job. The State of Wisconsin appointed a lawyer for her fetus, but refused a lawyer for her.
The underlying assumptions in these cases and others highlight the troubling reality that pregnant women’s lives, rights and dignity matter increasingly less in the United States. Their pain, suffering and mental health are irrelevant. Pregnant women — especially poor pregnant women of color — are increasingly viewed as both expendable and worthy of punishment.
It is not simply the criminalization of pregnancy that has lead me to this conclusion. It is the glaringly high maternal death rates that exceed all other developed nations’; the rise in pregnancy exclusion laws, which override brain-dead pregnant patients’ medical directives; and the anti-abortion measures that allow no exceptions for rape and incest.
These devastating trends reduce pregnant women to chattel whose duties to the state revolve around pregnancy. In the United States, pregnancy, especially among the poor, has become a political land mine — a trigger for state surveillance and criminalization, with severe extralegal consequences.
Michele Goodwin is a professor at the University of California, Irvine, and the author of the forthcoming “Policing the Womb.”
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