The Crime Was Pregnancy

Marshae Jones was shot in the stomach in December, and she’s now in jail facing criminal charges—because she was five months pregnant at the time, and the attack ended her pregnancy. Despite the prior dismissal of charges by a grand jury, an Alabama grand jury last week charged Jones with manslaughter.

“The investigation,” local police officer Danny Reid had said, “showed that the only true victim in this was the unborn baby.”

Thirty-five years ago, in this publication, feminist attorney Janet Gallagher asked: “What lies in store for pregnant women in the future?”

Writing 11 years after Roe v. Wade, Gallagher was concerned about the growing “fetal rights” movement and all the ways it could be used to violate the rights of women. Roe recognized the constitutionally protected right to have an abortion, but also acknowledged the state’s “interest in potential life” in later stages of a pregnancy.

According to the Guttmacher Institute, “The last seven years account for 34 percent of the 1,193 abortion restrictions enacted by states” since Roe was decided, many of which also assert separate rights for the fetus. Eighty-six abortion restrictions were passed in 2017 and 2018, and at press time more than 250 have been introduced this year. In 2019, seven states (and counting) have enacted a ban on abortions at six weeks’ gestation. Courts have so far struck down these efforts as unconstitutional. With the increasingly conservative majority on the U.S. Supreme Court, though, there is understandable anxiety surrounding the future of Roe.

However, what is at stake today is more than the right to abortion; it is the ability of half of our population to be free from state surveillance and punishment, to make our own medical decisions, to have access to health care, to have our government protect and not violate our human rights.

The anti-abortion movement has been working to create a framework that recognizes fertilized eggs, embryos and fetuses as separate “persons” under the law to be protected, even from the women who carry them. This framework has been utilized to prosecute; civilly commit to hospitals, treatment programs and mental institutions; and force medical procedures upon hundreds of pregnant women in the U.S. 

Writing in Ms., Gallagher accurately warned that the “fetal rights argument… not only threatens the abortion rights of women who choose not to have a child, but the rights of women who choose to bear one.” The radical expansion of the criminal legal system’s reach has created a starker reality for women today, particularly for women of color, than the one that existed 35 years ago.

In the late 1980s, when stories of pregnant women being prosecuted for drug use emerged, Dorothy Roberts, a legal scholar of race and gender, wrote: “I immediately suspected that most of the defendants were Black women.” Roberts was right—the cases were overwhelmingly brought against people of color. With the expansion of the war on drugs came the exaggerated and race-based fears surrounding crack cocaine use and pregnancy.

Today, decades after the demonizing image of “crack mothers” was created, we are inundated with tragic and heart-wrenching stories about overdose and the opioid epidemic, which is depicted as a public health crisis faced by many American families. But if we scratch beneath the surface, we see that pregnant women— of all races—are not included in this new sympathetic response.

Judicial decisions in Alabama have permitted the prosecutions of more than 600 pregnant women under the charge of “chemical endangerment” of a child. The law was intended to prosecute people for bringing children to dangerous environments like meth labs, not people for being pregnant and using a controlled substance. In 2013, the Alabama Supreme Court heard appeals on these cases and decided women could be prosecuted under this felony charge simply for being pregnant: The word child was redefined to include a fetus.

These cases, seemingly unconnected to the usual debate surrounding reproductive rights, were used by Alabama Supreme Court Justice (now Chief Justice) Tom Parker to further the war on abortion. In a 22-page separate opinion, Parker listed statutes from across the country that grant legal protections to fetuses and concluded, “Today, the only major area in which unborn children are denied legal protection is abortion,” explaining “that denial is only because of the dictates of Roe.”

Today, more and more states are attempting to amend their own constitutions to afford full protections to fetuses—more protections, in fact, than those afforded to women. In 2018, Alabama successfully passed an amendment that enshrines fetuses’ “right to life.”

But the cases of hundreds of women have taught us that rights cannot be granted to fetuses without also stripping them from pregnant women.


This piece is excerpted from a feature in the Summer 2019 issue of Ms.

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To read more from the issue, check out the excerpt archive.


Amber Khan is a senior staff attorney at National Advocates for Pregnant Women.