Marshae Jones and how the Criminalization of Miscarriages Fits In With Abortion Laws
What is happening to Marshae Jones is yet another reminder that the pro-choice movement must move towards reproductive justice.
TW/CW: This essay discusses miscarriage, abortion, pregnancy loss, and gun violence.
Marshae Jones was taken into custody in Birmingham, Alabama on Wednesday after being indicted by a Jefferson County grand jury on manslaughter charges for the death of a fetus. Jones was five months pregnant when a physical altercation lead to her being shot in the stomach and resulted in the loss of her pregnancy last year. The shooter, Ebony Jemison, had all charges against her dismissed once the investigators of the shooting insisted that Jones was at fault because she allegedly instigated the fight.
Co-founder and Executive Director of UltraViolet, Shaunna Thomas, said in an official statement, “This is the toxic collision of the everyday racism, sexism, and violence experienced by Black women and the terrifying end point of the dangerous anti-choice laws spreading across the country, including in Alabama, that devalue, dehumanize and criminalize women. Instead of treating Marshae Jones with compassion after being shot and losing her pregnancy, Alabama has decided to further her trauma and the injustice she has already experienced by charging her, not the person who shot her, with a crime… This is part of a larger pattern of how our criminal justice system permits and furthers violence and abuse against Black women, and it is unacceptable.”
The Yellowhammer Fund, an organization which “provides funding for anyone seeking care at one of Alabama’s three abortion clinics and will help with other barriers to access,” is currently organizing to raise bail money and assist Jones with legal representation.
The case against Marshae Jones is, unfortunately, not anomalous or without precedent. In 2007, a Lowndes County grand jury indicted 16-year-old Rennie Gibbs for “depraved heart murder”—which Mississippi law defines as an act “eminently dangerous to others… regardless of human life”—after she prematurely delivered a stillborn. She was alleged to be at fault for the fetal death because she had used cocaine during the pregnancy. This Black woman, a teenager at the time of this trauma, was in danger of becoming the first person in Mississippi history to be indicted for the loss of their own pregnancy, but thankfully her charges were dismissed in 2014.
More recently, Latice Fisher, also a Black Mississippi woman, was indicted on a second-degree murder charge in 2018 and faces 20 to 40 years in prison. She went into labor and gave birth at home, but her baby was deceased by the time she arrived at the hospital. Laurie Bertram Roberts, the co-founder of the Mississippi Reproductive Freedom Fund (MRFF), told Rewire last year, “What’s happening to Mrs. Fisher and her family is the latest in a line of women of color having their pregnancies and specifically pregnancy loss criminalized. It’s a disturbing trend. Given what has been made public, I can see no crime here, only loss.”
Purvi Patel was sentenced to 20 years in 2015 after a self-induced abortion attempt with medication ended in a miscarriage, becoming the first person in U.S. history to be charged, convicted, and sentenced on a feticide charge. Her most serious conviction was overturned in 2016, reducing her child neglect conviction from a class A felony to a class D. Addressing Patel’s case, Director of the National Network of Abortion Funds (NNAF), Yamani Hernandez commented, “People of color are bearing the brunt of unscientific laws and misplaced moral outrage against abortion, which is blurring into the territory of miscarriage, putting any pregnant person at risk of prosecution and incarceration. It needs to stop.”
Though we know pregnancy is not an experience limited to cis women, the social understanding of normative pregnancies are gendered and generally observed as an extension of womanhood, therefore the laws related to pregnancy, and the criminalization of abortion and miscarriage are also gendered and under the influence of misogyny. Cis men’s regard for cis women’s reproductive health and processes as mysterious, scary, and gross, but as needing to be controlled by men because of women’s perceived irrationality and irresponsibility, contributes to the way that these things become regarded under the legal system. Their ignorance and fundamental misunderstandings of how “women’s bodies” operate causes a breakdown in the larger social understanding of these things as well, which allows the legal system to place a contradictory kind of culpability on pregnant people, a culpability which originates in the social imagination.
Pregnant people are at once seen as wholly, individually responsible for their pregnancies and at fault for their miscarriages no matter how either occur, but also not allowed autonomy over their own bodies because they are not regarded as responsible enough to make decisions about their own reproductive care (or sex lives). This means that pregnant people are burdened with the responsibility to prove that any given miscarriage is not their fault, but at the same time are often not afforded the right to end a pregnancy on their own terms, even if the pregnancy is detrimental to the fetus, themselves, or both.
In “‘The Event That Was Nothing’: Miscarriage as a Liminal Event” from The Journal of Social Philosphy, Alison Reiheld highlights how miscarriage becomes connected with abortion and the state’s intent to have control over pregnant individuals through language as well as perception. She writes, “A clinical term for miscarriage, ‘spontaneous abortion,’ reveals some of this liminality. Specific clinical descriptors for types of miscarriage include ‘complete abortion,’ ‘incomplete abortion,’ ‘inevitable abortion,’ ‘infected (septic) abortion,’ and ‘missed abortion’… Colloquially, miscarriage may be described as a ‘lost pregnancy’ or a ‘failed pregnancy.’ This is only slightly better than clinical use of the term ‘abortion,’ for while it also entails a degree of agency on the part of the pregnant woman, here it is an issue of omission rather than of commission. A lost pregnancy must have been lost by someone; someone must have failed for there to be a failed pregnancy.”
Reiheld goes on to enumerate how the lack of understanding for what a miscarriage really is and the desire to punish pregnant people (understood to be women) creates the kinds of laws that have been passed this year and outcomes like that of Marshae Jones:
“1. Laws which seek to control abortion by requiring women to prove that pregnancy loss is due to miscarriage rather than induced abortion or infanticide.
2. Laws which allow health care providers to opt out of treating miscarriage because it uses similar techniques to abortion.
3. Laws whose effect is to hold women criminally responsible for miscarriages where their actions had any plausible causal role in the pregnancy loss.
They are thus laws which enroll miscarriage in the abortion debate (1 and 2) and laws which enroll miscarriage in debates over the control of pregnancy (3).”
Alabama, where Jones resides, was among the number of U.S. states which passed some of the nation’s strictest abortion bans earlier this year, with a law that classifies abortion as a class A felony and could land abortion providers in prison for up to 99 years. Georgia’s abortion ban also includes punishment for those who seek out abortions in addition to the physicians who provide the service. The state’s HB 481 law dictates that a fetus must be treated as a full person with “full legal recognition” from the moment of conception, and the terminology of this law makes it easy for Georgia to prosecute people who miscarry if it is believed that they are in any way responsible for the loss of pregnancy, whether that belief is arbitrary or not. Essentially, any once-pregnant person could be held legally liable for not successfully carrying a pregnancy to full term. This level of reproductive control is a terrorism and policing of the body unlike any other.
BIPOC are disproportionately criminalized and targeted for prosecution for devastating outcomes of their pregnancies. The conservative effort to establish “personhood” for fetuses has always been about misogyny and the control of pregnant people—who are ostensibly understood to be cis women—but it has also been about furthering the reach of the carceral system, which impacts the lives of poor BIPOC more than anyone else. If strict abortion laws like the ones we’ve seen this year continue, especially ones with terminology that allows for prosecution in the case of a miscarriage, they will be creating more dangerous circumstances for pregnant BIPOC by putting them at even higher risk of incarceration. What is happening to Marshae Jones, and others like her is another reminder that movements for reproductive rights have to move beyond “pro-choice” rhetoric and work towards Reproductive Justice, centering BIPOC in this work most of all. It’s a reminder that matters of reproductive control cannot be divorced from the carceral system, that anti-abortion and similar policies target the most marginalized individuals, and that prison abolition is something that we must lift up in our fight for reproductive freedom and bodily autonomy.
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