Kenlissia Jones did what many women before her have done. Facing a pregnancy she could not or did not want to continue, Jones, a 23-year-old black woman from Georgia, went online in search of a solution. There, she purchased Cytotec, a prescription abortion-inducing pill, from a pharmaceutical company in Canada. She delivered a five and a half-month-old fetus in her neighbor’s car en route to the hospital, which died 30 minutes later.
Soon after, she was turned over to police by hospital officials and was subsequently charged with malice murder. Jones faced the death penalty for terminating her own pregnancy. In response to swift public outcry, Dougherty County District Attorney Greg Edwards dropped the murder charge, citing what many of us already knew: Georgia law doesn’t permit the prosecution of a woman for terminating her own pregnancy.
But this case is indicative of a much larger pattern, one that has been moving from state to state, county to county, leaving many innocent women of color in its wake.
Since 2011, 231 restrictions on abortion have been enacted in state legislatures across the United States. The number of women living in a state hostile to abortion rights has grown from 31 percent in 2000 to 57 percent in 2014, according to the Guttmacher Institute. As burdensome restrictions pile up, access to safe abortion becomes more elusive, particularly for those who can’t afford it. That means that low-income women, many of whom are women of color, are either forced to carry to term a pregnancy that they do not want, or take matters into their own hands.
Jones lives in one of the 96 percent of Georgia counties without an abortion clinic, a reality we cannot ignore. Without access to a safe, qualified abortion provider, women will find a way to terminate their pregnancies, and they do.
“It has become clear that the reason that Kenlissia Jones bought medication off the internet to terminate her pregnancy is because she couldn’t afford to terminate her pregnancy otherwise,” Farah Diaz-Tello, senior staff attorney at National Advocates for Pregnant Women, told the Ms. Blog.
But it is mostly women of color, particularly black women, who are being criminalized for their pregnancy outcomes.
“This is a health issue—she needed health support,” says Monica Raye Simpson, executive director of the Atlanta-based reproductive justice organization SisterSong. “For her to then have to immediately go to sit in a jail cell, that is just inhumane.”
The criminalization of pregnant black women and black mothers is nothing new. In response to the case of Marissa Alexander, an African American mother from Florida who faced up to 60 years in prison for firing a warning shot near her abusive husband, SisterSong began to focus more intently on the criminalization of black mothers and pregnant women. “[We started] to frame this work in a different way that did not necessarily just have a focus on abortion access and abortion rights, but that this is an overarching issue around over-criminalization and over-policing, and how that is a violation of human rights, but definitely reproductive oppression,” says Simpson.
In a 2013 study, researchers at National Advocates for Pregnant Women found that women of color are disproportionately arrested and charged under feticide laws. While women of all racial groups are subject to criminalization for their pregnancy outcomes, black women not only bear the brunt of it, they are more likely to be turned over to law enforcement by people they trust.
“Black women especially came to the attention of law enforcement because of healthcare professionals—healthcare providers, social workers, nurses,” explains Diaz-Tello. White women are often charged because of a prior arrest or a report from a family member.
This is exactly what happened to Kenlissia Jones, and it’s what continues to happen to women of color across the country.
Women like Bei Bei Shuai, a Chinese immigrant who was charged with murder and attempted feticide in 2011 for ingesting rat poison while pregnant, killing her fetus. She was taken to the hospital and consented to all treatment to save her life, after which she was subsequently turned over to police. The murder charge was dropped after Shuai accepted a plea deal.
Women like Purvi Patel, who was sentenced to 20 years in prison for feticide after she miscarried, possibly because she’d taken abortion-inducing pills. Though not the first woman in the U.S. to be charged, Patel is the first woman to be convicted and sentenced on a feticide charge.
Both Patel and Shuai are women of Asian or South Asian descent, ethnicities that are targeted from the beginning of the criminalization process. Supporters claim that bills like the Pregnancy Nondiscrimination Act, or PRENDA, are designed to prevent sex-selective abortions. But according to Diaz-Tello, that’s a farce. Bills like PRENDA “limit women’s ability to make decisions about their bodies in a race-specific way, and it’s targeted at Asian and South Asian women,” she says. Diaz-Tello further explains that this legislation is based on the racist trope that Asian and South Asian women seek sex-selective abortions because they are seen as “fundamentally untrustworthy in their pregnancies.”
Jones, Shuai, and Patel are clearly examples of women of color who need support and access to quality reproductive and mental-health care. When a pregnant woman is in crisis and seeks care from her healthcare providers, she should feel confident that her needs will be confidentially and safely met. Instead, she may find herself charged, prosecuted and convicted for her pregnancy outcomes.
Thanks to public outcry, Jones is no longer facing the death penalty. But many women of color aren’t so lucky. Diaz-Tello explains, “We know that right now, there are women sitting behind bars because of the outcomes of their pregnancies, in states where the law doesn’t permit that outcome, and it’s because if nobody finds out about it and there’s no public outcry, it is up to their public defenders to try and ensure that justice is done.”
According to the National Conference of State Legislatures, 38 states have fetal homicide laws, 23 of which apply to early gestational stages of pregnancy. These laws are often passed in response to a tragic accident or an act of violence, like the murder of seven-and-half-months pregnant Laci Peterson at the hands of her husband. These laws are proposed and passed under the guise of protecting pregnant women and their fetuses from outside harm, but in reality, they are sometimes used against women for their own pregnancy outcomes, even when explicitly unlawful.
Today in America, too many women of color are trapped in a double bind of their own state legislature’s making: If they continue their pregnancies, they will likely receive little in the way of support, as the social safety net continues to be slashed. If they find a way to terminate the pregnancy on their own, they could be charged and prosecuted.
“It is no coincidence—no surprise—that word of [Kenlissia Jones’] arrest came on the same day that the Fifth Circuit upheld the law that [could shut] down all but eight of Texas’ abortion clinics,” says Diaz-Tello. “I think that we can expect to see a lot more arrests, and in particular arrests of women for whom legal abortion is out of reach, and that is clearly going to be low-income women [and] women of color.”
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