Pictured above: Handcuffs. From
Imagine losing your baby only to be arrested for it.
That’s exactly what happened to Marshae Jones.
Last June, 27-year-old African-American woman Marshae Jones was indicted by an Alabama grand jury on manslaughter charges when she lost her 5-month-old fetus after being shot. The person who shot Jones, whom the police claimed was acting in self-defense, was not charged in the shooting. Jones, however, was held responsible for being in a fight while pregnant, and faced up to 20 years in prison. Due to a dedicated group of activists and lawyers — and public backlash — charges were dropped and Jones was set free. Unfortunately, Jones’ case is not that unique. Since Roe v. Wade, there have been several cases in which women were arrested for miscarriage or stillbirth.
Criminalizing pregnancy loss casts pregnant people as vessels rather than people. A fetus is a person by law in Alabama, and therefore can qualify as a victim of homicide. Someone like Jones could be held responsible for the death of a person if her actions are judged to be negligent. And in states like Arkansas, the language that defines “fetal personhood” is extremely vague, so a person could potentially be arrested for waiting even one minute to call the authorities after a pregnancy loss, or for engaging in behaviors that could put a pregnancy at risk. In Arkansas, five women have been arrested for stillbirth or miscarriage: three between 1884 and 1994, one in 2015, and another in 2016.
Many of the laws that have been used to prosecute people for miscarriage and stillbirth are loophole laws, meaning that since the courts cannot technically arrest someone for losing their baby, other laws must be written that can punish the pregnant person in different terms but still have the desired effect. “Concealing a birth” and “concealing a death” are felonies or misdemeanors in several states, and many people arrested after miscarriage or stillbirth are often charged under these laws. Also, many of the laws that have convicted these women are those that give fetuses, and sometimes fertilized eggs, “personhood.” When a fetus is considered a person in the eyes of the law, the rights of the pregnant person are often swept away.
A stillbirth is defined as the loss of a pregnancy after 20 weeks — a not-too-uncommon event that happens roughly 24,000 times per year in the United States, affecting approximately 1% of pregnancies. Stillbirth most commonly affects Black people; lower income folks; and people who are 35 or older, smoke while pregnant, have a history of pregnancy loss, have certain medical conditions such as diabetes or high blood pressure, or give birth to multiples.
In 2016, Katherine Dellis gave birth to a stillborn baby in her home. She went to the doctor to receive necessary medical care afterward, only to be arrested. An autopsy showed the baby had died about 30 to 32 weeks into the pregnancy. She was sentenced to five months in prison for concealing a dead body, despite the fact that the fetus had already died in the womb. Although Virginia Gov. Ralph Northam pardoned her, an appellate court had already upheld her conviction.
Pregnant people are often blamed for miscarriage and stillbirth despite the fact that most of the time, the fetuses die of natural causes. Among people who know they are pregnant, 1 in 4 pregnancies ends in miscarriage before 20 weeks. Many people miscarry before they even know they are pregnant. The most common causes of miscarriage are immune system issues, hormonal abnormalities, clotting problems, medical conditions (polycystic ovarian syndrome, diabetes, thyroid issues, etc.), womb or cervix issues, chromosomal abnormalities, and severe infections that lead to high fever. In most cases, the pregnant person did absolutely nothing to cause the miscarriage.
Targeting People of Color
Black, Latinx, and Native American women have higher rates of miscarriage and stillbirth than non-Hispanic white women, with Black people having the highest rates of stillbirth. This disparity can be due to a number of reasons, mostly that people of color tend to have lower rates of access to necessary prenatal care.
In 2016, Arkansas woman Keysheonna Reed miscarried twins at 24 weeks. Panicked, traumatized, and heartbroken, she buried them. When their bodies were found, she turned herself in, and an autopsy confirmed they had died in the womb and no illegal substances were found. She was charged with “abuse of a corpse,” which could sentence her up to 10 years in prison. She is still awaiting trial. Other women have been arrested for burying fetal remains, most of the time simply to mourn for them, even though some states, such as Indiana, are trying to mandate burial of fetal remains for anyone who has had an abortion — a requirement that would simply add to the already high out-of-pocket expenses associated with abortion.
Let’s return to the case of Marshae Jones, who was indicted on manslaughter after being shot in a fight she was said to have instigated. The case in general lacked detail, so it is unclear as to whether Jones actually started the fight. Nonetheless, she was indicted for “‘intentionally’ caus[ing] the death of her fetus by ‘initiating a fight knowing she was five months pregnant.’” Jones was charged with the death of her fetus, not with endangering the life of the other woman.
In most states, when someone has a felony conviction, they lose the privilege of voting. Abortion bans disproportionately affect people of color, who are also more likely to lose their pregnancies. If these abortion bans are enforced and pregnancy loss is criminalized, it could lead to the loss of voting rights for many people who can get pregnant. The states with the strictest abortion bans have higher populations of color, whom these bans disproportionately affect. This has already happened with drug laws. Eighty percent of those in federal prison for drug offenses are Black or Latinx, despite the fact that white people sell and use drugs at very similar rates. It has resulted in widespread disenfranchisement of African-American and Latinx people.
Putting Maternal Health in Jeopardy
Fetuses often have more human rights than the humans who house them. That is, until they are born. The United States has one of the highest infant mortality rates in the developed world, with an average of 5.8 babies dying per every 1,000 live births in 2017. The Black infant mortality rate is two times the mortality rate for babies born to white mothers. States that are passing or attempting to pass the most restrictive abortion bans happen to have the highest infant mortality rates in the country, with an average of 7.3 infant deaths per 1,000 live births. The U.S. also has the highest maternal mortality rate in the developed world. The Black maternal mortality rate in the U.S. is three to four times the rate of white folks.
When people miscarry, it is important for them to get medical attention, as miscarriages can result in severe complications and sometimes even death. If the criminalization of pregnancy loss becomes more widespread, how many people will still be willing to take that risk? How many will die or face lifelong complications as a result of avoiding medical care? How many doctors will be forcibly put in the position of unethically calling the police on their own patients? If there is such a fear of being arrested for something happening to your pregnancy, people could be less likely to seek necessary prenatal care.
Framing Pregnancy Loss as Feticide
In 2013, Indiana woman Purvi Patel went to the emergency department for bleeding. She was likely 23 to 24 weeks pregnant, and the child was stillborn. The police were called, Patel was arrested, and she was charged with feticide and neglect of a dependent. Despite a lack of evidence, prosecutors argued that the child was alive when it was born and she neglected it, leading to its death. They also claimed she bought abortion drugs online to terminate her pregnancy, despite toxicology reports showing nothing of the sort in her system. In 2015, Patel became the first American woman to be sentenced on a feticide charge, and was given 20 years in prison. In 2016, her conviction was overturned after she appealed to the court, and she was released, but not before being traumatized by the unethical way the justice system treated her.
Feticide is defined as “an act that causes the death of a fetus” — a definition that is very vague and nonspecific on purpose. It has been used to pile charges onto women who have been arrested for other offenses or criminalize pregnancy loss and other medical conditions.
In 2008, a New York woman was not wearing a seat belt while driving under the influence. She was also in the third trimester of her pregnancy. The car crashed, killing two people in a head-on collision, and her baby was delivered by emergency cesarean section, but did not survive. She was charged with manslaughter in the two deaths, and with driving under the influence — but those charges were dropped. A jury did, however, hold her responsible for failing to wear a seat belt and convicted her of manslaughter for losing her baby. She faced up to nine years in prison, but her conviction was overturned years later because New York’s high court believed “that it could be applied to a pregnant woman doing anything that could potentially endanger a fetus, from having a glass of wine to shoveling snow.”
In 2011, Bei Bei Shuai spent a year in an Indiana jail before her feticide charges were dropped. She was suffering from severe depression (an illness just like any other) and attempted suicide while pregnant. She survived the attempt, but the baby did not.
What is the standard of proof in instances of suspected feticide? As seen here, that has not been very clear, and that vagueness gives the judicial system more power and a wider range of women to punish. Let’s say it was determined a person fell down the stairs. How do you know they weren’t pushed by an abusive partner? How do you know the fall wasn’t an accident? This scenario actually happened after a woman fell down the stairs, went to a doctor because she was concerned about her baby, and the doctor interpreted her concern as intent to harm her unborn child. The police were called and she had to spend two nights in jail. Fortunately, charges were dropped.
Or how about a young person suffers a miscarriage the night after drinking? How do you know they were aware of their pregnancy (most people don’t know they’re pregnant until six weeks or later)? What if someone with anorexia loses their baby? Anorexia is an illness like any other, and one that is very difficult to treat. Holding an anorexic responsible for pregnancy loss criminalizes her eating disorder. Or what if someone who has cancer was punished for losing their child despite the fact that … they have cancer? Cases such as these are rare, but there have been several hundred since Roe v. Wade was decided in 1973, and that have worked their ways into federal and state laws.
There are documented arrests for suspected abortion or pregnancy loss prior to Roe v. Wade. But since Roe, there have been several hundred documented arrests after pregnancy loss. Now that abortion is technically legal, opponents seek ways to chip away at a person’s right to their own body. Under this view, people who can get pregnant are vessels for gestation and not really people. So what do we do when that vessel fails, intentionally or unintentionally? We punish it.
Dr. Jessica Zucker, a psychologist specializing in reproductive and maternal mental health, wrote:
On the precipice of potentially criminalizing miscarriage, I can’t help but wonder whose stories will get tucked away for fear of being questioned, accused, jailed even?! And so it goes that our reproductive outcomes are being examined under microscopes to determine if we somehow forced demise. And what if some of us did? What if the politicization of our bodies quiets the very chorus we’ve worked so hard to encourage?! I hope you’ll join me in continuing to speak your truth and, in so doing, widen our circle to include reproductive situations that may not apply to you directly. Because they do. Because you could be her. And she could be you.