States are prosecuting women in the name of ‘fetal rights’. We should all be alarmed | Moira Donegan

The indictment of Marshae Jones is part of a larger trend of states criminalizing women for unintended pregnancy outcomes

In December, 28-year-old Marshae Jones saw a woman she didnt like, Ebony Jemison, in the parking lot of a Dollar General in Pleasant Grove, Alabama, and confronted her. The fight turned physical, and Jemison shot Jones, who was five months pregnant, in the stomach. Jones was rushed to a hospital. She survived, but lost her pregnancy. The fetus had been struck by a bullet.

Yet a grand jury indicted Jones not Jemison for manslaughter. Under Alabama law a fetus has the same rights as a living person, and the grand jury ruled that Jones had an obligation to avoid anything that could potentially cause harm to her pregnancy, like making herself available to be shot.

The indictment follows on the heels of an amendment to the Alabama state constitution late last year giving fetuses the rights of people the provision that made the indictment possible and the states passage of a total abortion ban in May. After a national uproar, charges against Jones were dropped. But the Jones indictment is part of a larger trend, both in Alabama and nationwide, of states engaging in hostile surveillance of pregnant women, often with the collusion of doctors, and criminalizing women for their pregnancy outcomes. The campaign is the product of a mass moral panic based on a flimsy and misogynistic ethical calculation in which women have few claims to their own rights, dignity or freedom, but are burdened with greater and greater responsibilities to protect, care for and hold themselves accountable for the actions of others.

This moral calculus can be seen in the growing number of prosecutions of women, predominantly women of color, found to have used drugs while pregnant. In Joness home state of Alabama, a draconian provision called chemical endangerment has been used to imprison women who are addicted to drugs for the crime of endangering their fetuses. In some cases, women are tested for drugs without their consent and reported to police by their doctors. According to ProPublica, the chemical law has led to 479 arrests in Alabama.

Chemical endangerment can be invoked against women who test positive for drugs even if their pregnancies are perfectly fine. But the statute is wielded with specific cruelty against those who lose their pregnancies through miscarriage or stillbirth. In 2011, a woman who gave birth to a stillborn boy took a plea deal of 10 years in prison for the stillbirth; this was to avoid a life sentence. Laws against fetal endangerment have also been used against women who attempt suicide; other laws have been used to prosecute women who miscarry and are found to have illegally disposed of fetal remains. Theoretically, they can enable prosecutions of pregnant women engaged in perfectly legal, nonviolent and even accidental activities, like drinking wine, playing sports or tripping down some steps even when those activities do not end the pregnancy.

In order for prosecutions like that of Marshae Jones to make sense, the fetus needs to be considered not only a person, but a special class of person, one with not only all the same rights and privileges of living, sentient, autonomous human beings, but quite a few extra rights and privileges on top of those. Writing in the London Review of Books, the novelist Sally Rooney reflected on the 2018 Irish abortion referendum: If the foetus is a person, it is a person with a vastly expanded set of legal rights, rights available to no other class of citizen: the foetus may make free, non-consensual use of another living persons uterus and blood supply, and cause permanent, unwanted changes to another persons body.

When the fetus is considered a person it not only has these rights over its mother, but also the right to have its interests represented it is not uncommon in these cases for the state to appoint a lawyer to represent the interests of the fetus. It has the right to have these interests represented even though it does not articulate these interests itself: the fetus cannot speak, and if it could it is not clear that it would have anything to say. Instead, its rights are determined by third parties, often church groups or Republican state legislators, who presume to speak for the fetus, and do so by speaking over the voice of the person who would otherwise be considered the fetuss next of kin: the woman pregnant with it.

As fetal rights expand even beyond those of real people, womens rights contract into something significantly less than legal personhood. Pregnant women lose the freedom to determine their own lives, to choose what to eat and how to exercise and where to go. And they gain a substantial burden for the welfare of others specifically for the fetus, which is recognized as a person but not endowed with any responsibility to itself or to the woman who carries it. In Joness case, the pregnant woman is assigned responsibility for not only her own actions but for those of other people who choose to hurt her.

In choosing to indict Marshae Jones, the state of Alabama has blamed her for her own shooting, employing the same misogynistic, victim-blaming logic that asks a rape victim what she was wearing. One wonders what kind of life a woman would have to lead to meet the unusually high bar for personal safety and responsibility these cases set for pregnant women. I can only imagine that the lives these laws want pregnant women to lead are very limited indeed. That seems to be the point.

  • Moira Donegan is a Guardian US columnist

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