Miscarriage of Justice: The Consequences of Defining a Fetus as a Person

Prosecutors in Alabama have dropped manslaughter charges against Marshae Jones, over the death of the fetus she was carrying when she was shot in the stomach. 

The 28-year old woman was five months pregnant when she was shot in the stomach during an argument, wounding her and killing her fetus. A grand jury originally did not indict the shooter—but instead indicted Jones for “initiating a fight knowing she was five months pregnant.”

Activists at a Stop Abortion Bans Rally in St. Paul, Minnesota. (Fibonacci Blue / Creative Commons)

Jones’ arrest came weeks after Alabama passed a law essentially giving a fetus the same rights as a child who has already been born, and banning abortion at any stage of pregnancy, even in cases of rape and incest.

A 2006 Alabama law allows homicide charges to be brought when a fetus is killed; lawmakers said originally that it would allow for two murder charges when a pregnant woman was killed. But the law was turned against the pregnant woman in Jones’ case, even though it does not authorize prosecution of a “woman with respect to her unborn child.”

Reproductive rights activists argue Jones’s arrest is proof that the recent changes in abortion laws are expanding the scope of fetal homicide to include something that arguably was not intended under the original law, but which follows as a result of legally treating a fetus as a person. Alabama state law broadly recognizes a fetus at any stage of development as a person, and therefore as a potential victim for criminal homicide or assaults.  

Several states already permit an offense to be brought for the murder of an unborn child during the commission of an already defined crime against a pregnant woman. Abortion laws enacted in several states may influence fetal homicide and wrongful death law. Alabama, Louisiana and Missouri have passed laws limiting women’s access to abortion, and Georgia banned abortion even in cases of rape or incest. The federal government also created a federal law in 2004 called the Unborn Victims of Violence Act, which permits criminal charges against a person who causes death to an unborn child.

These laws violate the holding in Roe v. Wade, the 1973 Supreme Court decision that gave women a constitutional right to privacy should they seek abortion. But aside from the Constitutional issues, the impact of Alabama’s recent abortion law restrictions are spilling over into other legal areas.  

The issue in fetal manslaughter charges is whether the law should treat a pregnant woman and her fetus as separate entities. The previously issued indictment of Jones stated that she did “intentionally cause the death” of “Unborn Baby Jones by initiating a fight knowing she was five months pregnant.” It suggests strongly that the fetus and the mother are separate entities under the law. 

The impact of laws treating a mother and a fetus separately affects rights across the board, and not necessarily in ways that all make sense.

If a fetus is a separate person, then the fetus has rights. But defining a fetus as a person calls into question countless legal issues. If a fetus is truly a person, then child support laws should go into effect at the start of a heartbeat. In that situation, the father would be legally be required to pay a percentage of his income in accordance with applicable state statutes. Fathers who failed to contribute to the unborn child’s welfare, would be prosecuted by the government. If a state elects to grant full personhood to a fetus, then parents should be able to claim a fetus on their taxes.  

Parents now apply for a Social Security number for their child once they have a birth certificate; if personhood begins earlier than birth, a fetus will need a Social Security number to be claimed on taxes and to take advantage of public resources. Nearly three million pregnancies a year in the U.S. are unintended, meaning such a shift would require a massive expansion of social support systems, healthcare and education. Pregnant women, if legally separate from their fetus, also ought to be able to drive in the carpool lane throughout their pregnancy.

These propositions may sound ridiculous—yet the core legal structures that make them possible are in place across the country.

States have the ability to set their own laws, yet those laws must be both consistent and constitutional in order to be valid. Enforcement of many recently passed state laws restricting access to abortion are being blocked by federal judges. The argument that fetuses have legal rights from the time of conception may even soon be brought to the Supreme Court, and it will have consequences for fetal homicide matters and beyond. Tightening abortion laws could impact issues that may seem wholly unrelated at first glance.  

The District Attorney in Alabama ultimately decided it was “not in the best interest of justice to pursue prosecution of Ms. Jones on the manslaughter charge” after receiving numerous calls and emails regarding the injustice of arresting a woman who was shot, and whose fetus was killed. But the questions her charges raised are still unanswered.

Politicians, judges and the general public should seriously consider the far-reaching ramifications of granting fetal rights under the law. If a fetus is not part of a pregnant woman, she is no more than a human incubator.


Frances Lynch is an attorney, a Public Voices Fellow with The Op Ed Project and author of Draw the Line: A Sexual Harassment Free Workplace. Follow her on Twitter @ftlynch.