'More And More Common': Woman Indicted For Manslaughter After Her Fetus Was Shot

NPR's Michel Martin speaks with law professor Dorothy Roberts about the case of Marshae Jones, who was indicted on manslaughter charges after her fetus was shot by another woman.

MICHEL MARTIN, HOST:

Last Wednesday, a grand jury indicted a 27-year-old Alabama woman named Marshae Jones on manslaughter charges in connection with a fight between her and another woman. What's moved this story from the local crime law to a national story, though, is that Jones was five months pregnant, the death was that of Jones' fetus and Jones did not pull the trigger. In fact, the grand jury declined to indict the shooter. Instead, grand jurors indicted Jones. According to the indictment, Jones, quote, "intentionally caused the death of her unborn baby by initiating a fight knowing she was five months pregnant," unquote.

On Facebook, the ACLU of Alabama wrote that this is another example of how Alabama is moving to criminalize pregnancy. You may recall that the state passed one of the most restrictive abortion laws in the country last month. We wanted to get more perspective on this case, so we have called Dorothy Roberts. She is a law professor at the University of Pennsylvania. She wrote the book on this very issue in 1997 called "Killing The Black Body: Race, Reproduction, And The Meaning Of Liberty."

And professor Roberts is with us now. Thank you so much for joining us.

DOROTHY ROBERTS: Oh, sure. Thanks for inviting me to talk about this.

MARTIN: So, first of all, could you just help us understand what's going on here? Under what law was Jones indicted?

ROBERTS: She was indicted under the ordinary homicide law, which allows for prosecution of people who kill other people. But because Alabama revised its law to include a fetus as if it were a living person or human being already born, it can apply, then, to a fetus.

MARTIN: OK. So in a statement, the police lieutenant said that the investigation showed that the only true victim in this was the unborn baby. Is it common to see prosecutions of women for the unintentional death of fetuses that they are carrying?

ROBERTS: It's becoming more and more common since the late 1980s, early 1990s, when prosecutors began to charge women for crimes for using drugs during pregnancy. That has spread out to include prosecutions of women who commit all sorts of conduct during pregnancy that harms a fetus. It's included attempting suicide. It's included driving drunk. It's included botching self-induced abortions. And many of us are saying it's gotten to a point where pregnancy itself is being criminalized because so many things that someone does while pregnant can be the basis of a criminal prosecution.

MARTIN: I was just trying to understand, like, what is the legal theory here at work? Is it that women who are pregnant have a higher duty to care?

ROBERTS: It's that argument, and it's also the argument that the fetus is equivalent of a child, and therefore, all the laws that protect a child from parental maltreatment would apply to a fetus as well. I should mention most of these cases involve mothers who fail to protect their children from harm, including, in many cases, mothers who are themselves victims of domestic violence and then get charged with crimes for failing to protect their already-born children.

So this prosecution brings together a lot of theories that are very sexist that would justify massive control of pregnant women on grounds that they owe a duty to their fetuses to behave in certain ways and that - and ultimately make pregnant people vulnerable to prosecution for just about any kind of conduct that can be deemed risky.

MARTIN: Marshae Jones is African American. What is the relevance of race in your view?

ROBERTS: Racism is what caused the notion that using drugs during pregnancy, which is a health problem, could be turned into a crime to prosecute pregnant women and mothers. We can trace that to the so-called crack epidemic at the end of the 1980s, early 1990s. And the first women who were prosecuted were black women who smoked crack cocaine during pregnancy.

And the vast majority of women who were prosecuted among hundreds of women were black women, even though there is evidence that drug use during pregnancy is not more likely to happen in any particular racial group or economic group. And so this was clear targeting of black women, which I believe is part of a long history of devaluing black motherhood in particular and also a result of discriminatory behavior in hospitals, where hospitals were much more likely to turn in black patients for using drugs during pregnancy than white patients.

And so the way I looked at those prosecutions, which started all of this, was it was actually punishing these women for having babies - not really any way of trying to protect their fetuses from harm. And, in fact, these women were being used as scapegoats to blame them for disadvantages, whether we're talking about health disadvantages or other kinds of social disadvantages that were actually caused by structural inequality.

MARTIN: That's Dorothy Roberts. She's a professor of law at the University of Pennsylvania. She's the author of "Killing The Black Body: Race, Reproduction, And The Meaning Of Liberty."

Professor Roberts, thank you so much for talking with us.

ROBERTS: Oh, you're welcome. Thanks for inviting me on.

(SOUNDBITE OF CORYAYO'S "MARBLE FLOORS")

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