A grand jury in Alabama handed down an extraordinary decision against a woman this week: It charged Marshae Jones with manslaughter, for starting a fight that ended with another woman shooting her in the stomach and killing her fetus. Jones had been five months pregnant.
"Let's not lose sight that the unborn baby is the victim here," police lieutenant Danny Reid said at the time of the shooting, AL.com reports. "She had no choice in being brought unnecessarily into a fight where she was relying on her mother for protection."
The case has drawn nationwide attention, as it comes after Alabama passed a near-total abortion ban last month, which is scheduled to take effect later this year. Alabama law, it seems, extends remarkable protection to fetuses, sometimes to the detriment of their parents.
But while penalizing pregnant people for harm or potential harm to their fetuses may be unusual, it still has a long and steady history in America, as I reported last year. Between 1973 and 2005, at least 413 people were arrested, detained, or forced to undergo medical interventions they didn't want, in the name of protecting the health of their fetuses, according to an analysis published in the Journal of Health Politics, Policy, and Law by Jeanne Flavin, a sociologist, and Lynn Paltrow, founder of National Advocates for Pregnant Women, a non-profit legal organization that specializes in cases like these.
Those affected were disproportionately poor minorities: 71 percent of them qualified for a free public defender and 59 percent were people of color, including 52 percent who were black. (In 2004, only 20 percent of people in America were non-white and 13 percent were black.) Prosecutors and hospitals in the South were especially likely to bring these kinds of cases, particularly against black women. More than half of the cases in the analysis were brought in Southern states. Seventy-two percent of cases against black women originated in the South.
In almost all cases, lawyers depended on state laws that consider unborn fetuses as legally distinct from their mothers, the analysis found. At least 38 states have laws that assign penalties for violent crimes that kill fetuses, according to the National Conference of State Legislatures. Twenty-nine of those states have laws that apply at the earliest stages of pregnancy.
Alabama law—as listed on the Alabama legislature's website, which is considered an unofficial record—says that people can be charged with homicide for killing "an unborn child in utero at any stage of development, regardless of viability." But the law also says it doesn't allow for the homicide prosecution of "any woman with respect to her unborn child."
"The law is clear, the statute is clear," says Nancy Rosenbloom, a lawyer with the National Advocates for Pregnant Women. Yet Rosenbloom says she would not be surprised if Jones' case goes forward anyway. Alabama voters recently passed an amendment to their state constitution, which declares that "it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children." A lawyer or judge may use the amendment to justify sentencing Jones, Rosenbloom thinks. It's also possible a lawyer defending Jones will successfully use the Alabama code to get the case thrown out.
A message left with the district attorney's office dealing with Jones' possible prosecution, regarding this part of the Alabama code, wasn't immediately returned.
On Thursday, prosecutors for the Bessemer division of Alabama's Jefferson County told AL.com that they hadn't yet decided whether to pursue Jones' charges.