In Alabama, which has some of the most severe abortion restrictions in the country, Marshae Jones, 28, was charged with manslaughter in the death of the 5-month-old fetus she lost after being shot by another woman during a physical altercation in December. Jones’ legal battle is only one case that spotlights exactly how far the fetal “personhood” movement — which seeks to define fertilized eggs, zygotes, embryos, and fetuses as people with equal (or more) protections under the law — has gone.
Across the country, Jones’ indictment has sparked an outcry among reproductive rights activists against the movement to value a fetus’ life over the freedom of its mother. While much of the national debate has been over whether Jones should have been charged with manslaughter at all, many of her neighbors in Pleasant Grove, AL, agreed that Jones deserved punishment in some form, The New York Times reported. Under Alabama law, a fetus has the same rights as a living child — a consensus that many in the conservative state seem to agree on.
“The investigation showed that the only true victim in this was the unborn baby,” Pleasant Grove police lieutenant Danny Reid said at the time of the shooting. “It was the mother of the child who initiated and continued the fight which resulted in the death of her own unborn baby.” Reid said the investigation showed that Jones’ shooter, 23-year-old Ebony Jemison, was defending herself. He also argued that the fetus was “dependent on its mother to try and keep it from harm,” and that Jones “shouldn’t seek out unnecessary physical altercations.” Jones was unarmed.
It’s getting to a point where pregnancy itself is being criminalized because so many things that someone does while pregnant can be the basis of a criminal prosecution.
Dorothy Roberts, law professor
The fight was allegedly over the father of Jones’ unborn child, and police originally charged Jemison with manslaughter. But the case against Jemison was dropped after the grand jury failed to indict her, arguing that she was acting in self-defense. Alabama has a “stand your ground” law in place.
On Monday, Jones' lawyers filed a motion to dismiss the case, calling the indictment "illegal, inappropriate, and unprecedented." Her attorney Mark White told The New York Times, “The motion will also give examples of the additional dangers this type of prosecution presents for the rule of law.” They did not state whether or not they would challenge the state's interpretation of "personhood."
The office of Lynneice Washington, Alabama’s first Black female district attorney who represents part of Jefferson County, released a statement saying it has not yet decided whether to prosecute Jones with manslaughter or a lesser charge, although a decision is expected shortly.
There is, however, a legal precedent for expecting mothers in Alabama being prosecuted for endangering their pregnancies. In an investigative partnership between ProPublica and AL.com, reporters found that hundreds of women in Alabama have been punished under a 2006 “chemical endangerment” law, which holds adults responsible for exposing children to controlled substances or drug paraphernalia — which includes anything from a meth lab to an open bottle of pills on a table. Due to the state's views on "personhood," prosecutors and courts have applied the law to embryos and fetuses exposed to substances in utero, and in one case, a woman was arrested for taking a Valium pill while pregnant.
In one of the state's most extreme cases, a judge ruled in March that a man could file a wrongful death lawsuit against the clinic and pharmaceutical company that gave an abortion pill to his girlfriend. J. Brent Helms, the attorney who filed the lawsuit, told The New York Times that the case is the first to “establish personhood for even an unborn aborted child.”
“At this stage, we don’t know all of the ramifications,” Helms said, regarding applying “personhood” to early-stage pregnancies. “Every time I speak to someone, they come up with something new.”
Dorothy Roberts, a professor at the University of Pennsylvania Law School who specializes in reproductive rights and justice, said prosecutions of women for the unintentional deaths of their fetuses are becoming more common. “Many are saying it’s getting to a point where pregnancy itself is being criminalized because so many things that someone does while pregnant can be the basis of a criminal prosecution,” Roberts said in a statement to Refinery29.
Roberts argues that this criminalization of pregnant women targets women of color at disproportionate rates. “In the late 1980s and early 1990s, prosecutors began to charge women for crimes for using drugs during pregnancy. The first women to be prosecuted were Black women who smoked crack cocaine during pregnancy. Even though there is evidence that drug use during pregnancy is not more likely to happen in any particular racial group or economic group, the vast majority of women who were prosecuted were Black women,” Roberts said.
On top of being punished for another person's decision to shoot her, Jones — who has a 6-year-old daughter — recently lost her job and her house, which burned down, White, her lawyer, told The New York Times. “If you look at the five top stress factors that humans can experience, she may be the only person we’ve encountered that got all five simultaneously,” White said.
According to the Times, "even Ms. Jones views the fetus that died in the shooting as a baby": She named it Marlaysia Jones, cremated its remains, and kept the ashes in an urn.
Refinery29 reached out to Marshae Jones' legal team and we'll update this story when we hear back.