By Civia Tamarkin, director, Birthright: A War Story
Yes, Marshae Jones is free. An Alabama prosecutor dropped the manslaughter case against Jones who was charged with the death of her five-month-old fetus after she was shot in the stomach during a fight. A grand jury had indicted her saying she did “intentionally cause the death” by deciding to provoke the altercation that willfully endangered her unborn child.
But despite the dismissal of the case amid national outcry, the fact that authorities brought criminal charges against the 27-year-old woman is a terrifying realization that the dystopia of Handmaid’s Tale has come to life in America. All across the country, pregnant women are jailed and prosecuted for behavior that is deemed threatening to the well-being of their fertilized eggs, embryos and fetuses. They may have fallen down stairs, used drugs, taken medication prescribed by a doctor, disregarded orders for bed rest or crashed their cars. It is all the result of the anti-abortion movement’s strategy to protect an unborn child the same as a living child.
As our film Birthright: A War Story shows, Alabama has been ground zero in the push to criminalize pregnancy. More than 500 pregnant women have been arrested under a misapplication of a chemical endangerment law for exposing their in utero children to controlled substances. Besides recently adopting a total ban on abortion with no exceptions for rape or incest, Alabama passed a so-called “personhood” law that fully protects embryos and fetuses under the state constitution and grants them the same legal rights as a living person.
It also sets up a potential conflict between the rights of a pregnant woman and her fetus. The case against Marshae Jones underscores the frightening consequences. When the fetus she is carrying takes precedence, a woman could lose her civil rights and face criminal liability for the premature birth or death of the child. And when it comes to punishing her for child endangerment, where is the line drawn? As one New York judge wrote, “Conceivably, one could find it ‘reckless’ for a pregnant woman to … shovel a walkway; engage in a contact sport; carry groceries; or disregard dietary restrictions.”
So the fight against “personhood” is not just about whether abortion remains legal or illegal, but about how many of the six million women who become pregnant every year could be subject to arrest and prosecution. It discriminates against women and isolates them as a separate, unequal class. And where is the outraged response beyond press accounts and angry online posts and tweets? Where are the women? Where are the busloads from around the country descending on Alabama and marching to the state capital? Where are the new freedom riders? This is an attack on the civil rights of women and it is time for another civil rights movement.