In Alabama, a woman who was shot in the stomach five times and lost her pregnancy as a result has been charged with the manslaughter of her foetus. Marshae Jones allegedly instigated a fight that resulted in the shooting, and, thus, according to a local police source, the “only true victim” was the “unborn baby”. Lieutenant Danny Reid further explained that the foetus is “dependent on its mother to keep it from harm, and she shouldn’t seek out unnecessary physical altercations”.
If Jones can be tried for manslaughter, what other types of pregnancy loss can be treated as serious crimes? If a pregnant woman is hit by a car while jaywalking, is this manslaughter? How about if – despite knowing of the tiny risk – she chooses to eat soft blue cheese and miscarries due to listeria? What if she changes the cat litter and contracts toxoplasmosis?
These questions are not as outlandish as they seem. While cases are rare, hundreds of women have been prosecuted for endangering their pregnancies in the US since Roe v Wade. Charges include murder, manslaughter, neglect, criminal recklessness and chemical endangerment.
Framing the foetus as a potential crime victim separate from the person carrying it is a tactic intended to enshrine its legal personhood. Anti-abortion groups hope this could provide a pathway to overturning Roe v Wade. The fact that those prosecuted are often women mourning the loss of wanted pregnancies is, to conservative strategists, mere collateral damage.
Anti-abortion groups will capitalise on the murder or injury of a pregnant woman to gain support for increased feticide penalties, then cynically use the new laws against those they were intended to protect. So, for example, in 2008, Katherin Shuffield was shot and lost her twins. In response, state legislators enacted stricter feticide laws. These have since been used to charge a depressed pregnant woman with murder following a suicide attempt; to charge a woman who had substance abuse issues with manslaughter following a stillbirth; and to sentence Purvi Patel – the first US woman to be sent to prison for inducing her own abortion – to 20 years for feticide (a conviction since overturned).
Proclaimed concern for the foetus has long been used to legally victimise women of colour, and African-Amercian women in particular. In the 1980s and 90s, the racist war on drugs whipped up public hysteria about an epidemic of “crack babies”, a hysteria now understood to have no scientific basis. Pregnant African-American addicts were prosecuted on charges that included child abuse, distributing drugs to a minor and assault with a deadly weapon.
Jones’s case is not an isolated incident. However, it is a particularly harrowing one. A confluence of Alabama’s bizarre “stand your ground” gun laws and the ideological push to grant the foetus legal personhood has resulted in an indictment that looks – to outside eyes – like something directly from Gilead. Its implications for the criminalisation of pregnancy are amplified by the precariousness of Roe v Wade under Trump’s conservative supreme court.
I’m certainly not the first to remark that conservative concern for the innocent child never survives the trip down the birth canal. As the comedian George Carlin so eloquently put it almost 20 years ago: “If you’re preborn, you’re fine; if you’re preschool, you’re fucked.”
But I wonder if this hypocrisy has ever been visible in such high relief; while Jones faces up to 20 years in jail for manslaughter, thousands of migrant children, many stolen from their parents, are being detained in horrific conditions in US border facilities.
Holly Cooper, part of a team of lawyers who recently inspected a Texas facility, told the Associated Press: “In my 22 years of doing visits with children in detention, I have never heard of this level of inhumanity.” The lawyers found dangerously ill children, who they believe would have died had they not inspected the centres. Children were cold, hungry, filthy, exhausted, living in overcrowded conditions, locked in cells or cages almost all day, and lacked basic access to sanitary facilities. Children as young as seven and eight were caring for younger ones they’d just met. Guards took clothing and medication from children, and – chillingly – referred to them as “bodies”.
Meanwhile, lawyers for the Trump administration argued in court that these children do not require soap, toothbrushes, blankets or beds.
When people are capable of condoning both the criminalisation of miscarriage and the institutionalised abuse of migrant children, there can be no illusion that love of the innocent underpins their ideology. What’s common to and consistent between Jones’s indictment and the border camps is punishment and control of “bodies” considered inferior by dint of their race, ethnicity or gender.
This is patriarchy; this is white supremacy – bare-faced and unmistakable.
• Emer O’Toole is associate professor of Irish performance studies at Concordia University in Montreal, Canada
