The prosecution of an Alabama woman who was charged in the death of her fetus after being shot by another woman has sparked a debate over the increasing regulation of pregnancy, especially in states trying to block abortions.
Critics, including the state’s American Civil Liberties Union director, say the decision shows state officials are “criminalizing pregnancy.”
Marshae Jones, 27, was five months pregnant when she got into a fight with 23-year-old Ebony Jemison, a co-worker, in December 2018 in Pleasant Grove, Ala. Police say Jemison was losing the fight when she pulled out a gun and fired. The bullet killed Jones’ five-month-old fetus. Jemison was originally charged with manslaughter, but a Jefferson County grand jury decided not to indict her. Then, on June 26, Jones was arrested on a manslaughter charge after a grand jury indicted her.
On Monday, Jones’ attorney filed a motion to dismiss, saying “Using a flawed and twisted rationale, the State of Alabama has charged a new theory of criminal liability that does not lawfully exist.” The Jefferson County District Attorney’s Office issued a statement saying it is investigating whether to move forward with the case.
Prosecutors announced Wednesday that they were dropping the charges.
“There are no winners in this case, only losers in the sad ordeal,” Jefferson County District Attorney Lynneice Washington said in her statement.
While the charges have been dropped, critics say the initial decision to pursue and indictment against Jones was likely influenced by Alabama’s “fetal personhood” and the recently passed abortion ban, which is the most restrictive in the nation.
“From a legal standpoint I don’t see a connection between” abortion law and charges against Jones, says Andrew Skier, a former Alabama prosecutor who now works as a criminal defense attorney. “But, from a political and societal standpoint I can see that. A lot of people down here are thinking about [the state’s abortion law].”
Bryan Fair, a professor at the University of Alabama School of Law, says the state’s laws taking a strong stance against abortion “can take on their own forms” in other cases.
“This kind of incident puts pregnant women at risk of overzealous prosecutions by DAs who are elected and it criminalizes something that isn’t a crime,” Fair says.
It’s common for prosecutors to pursue charges against the perpetrator of an attack on a pregnant woman that causes the death of a fetus, such as in domestic violence. But Jones’ case — charging the woman for the loss of her own pregnancy — appears to be unique, experts say.
“Never have they ever prosecuted a mother for having someone else do something to them,” Carliss Chatman, an assistant law professor at Washington and Lee University in Virginia, says.
(In 2009, a pregnant teen in Utah was charged after she allegedly paid a man to beat her to induce a miscarriage. A judge ruled that her actions amounted to seeking an abortion under state law, and she was released.)
She worries that it signals an increasing willingness to criminalize pregnancy. “What if you trip down the stairs and fall down? Where is the line if you hold mothers accountable for things like this?” Chatman asks.
In addition to the state’s near ban on abortion, which was signed into law in May, Alabama voters passed a constitutional amendment in 2018 that ordered lawmakers to “recognize and protect the sanctity of unborn life and the rights of unborn children.” The so-called fetal personhood law is one of only three in the country.
Colorado, Mississippi, North Dakota have also tried to amend their state constitutions to include language that would grant personhood rights to fetuses, but those efforts failed.
“It’s a tactic that is being used as a backdoor way to attack Roe v. Wade,” Chatman, the Washington and Lee law professor, says. “You have some states challenging the definition of when a human being becomes a person. It’s usually always at the time of birth.”
Elizabeth Nash, who tracks state policy at the Guttmacher Institute, a nonprofit that researches and advocates for sexual and reproductive health issues, says she hopes the attention on Jones’ case sheds light on how laws meant to restrict abortion work to criminalize pregnancy.
“What we are seeing with this incident is that it’s a crystalizing moment that could galvanize people to what really happens. How pregnant women, particularly women of color are policed,” Nash says. “It could also add fuel to the fire of those who want to take away people’s rights.”
As for Jones, “She’s devastated. This has been a nightmare for her,” her lawyer, Mark White, tells TIME.
And Jones herself viewed the fetus as a person, White says. She named the unborn child Marlaysia Jones, cremated the remains and kept the ashes.
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