Opinion: Maximizing the 'Fetal Personality' jurisdiction could lead to severe consequences, especially for pregnant women
The woman who shot Jones claimed self-defense and was never charged. However, Jones faced trial for second-degree murder, being accused of "intentionally causing the death of an unborn child."
Holly Thomas
The accusation against Jones led to a possible sentence of up to 20 years in prison. Yet, the case was dropped following public outrage over the potential legal dangers for pregnant women if their unborn children's rights were violated.
"Fetal personality" - a political movement advocating for legal protection similar to born individuals for fetuses - is inextricably linked with the prosecution of pregnant women. If a fetus is considered a murder victim, their rights supersede those of the living, breathing fetus.
In its landmark Roe v. Wade decision, the Supreme Court established the constitutional right to abortion, rejecting the concept of fetal personality. The court acknowledged that fetuses do not inherit full legal rights under the constitution.
The justices wrote, "The law has never regarded the unborn as possessing personal rights."
If Roe were overturned, many states would likely implement abortion bans almost immediately. Some extensive draft laws define the beginning of a pregnancy as conception, thereby protecting the embryo and even the fertilized egg. This level of protection cherished by the "fetal personality" movement creates a complex legal quagmire with potential dire consequences.
The criminalization of abortion opens the door for people to be charged with manslaughter or murder due to uncontrollable miscarriages, in the spirit of Roy, there have been numerous cases where a pregnant woman's personal freedom was threatened based on her pregnancy.
Recent court proceedings have shed light on the vulnerability of pregnant women to legal action.
Jennifer Jorgensen from New York was convicted of manslaughter after an auto accident in 2008. Although pregnant at the time (in her eighth month), she required an emergency cesarean section, but her baby died six days later. Reports suggest she was not properly restrained, and the district attorney also accused her of drug and alcohol use during pregnancy, which contributed to both Robert and Mary Kelly's deaths as well. Jorgensen was acquitted of all charges except manslaughter.
The manslaughter conviction was later overturned, but only because a judge determined that the New York legislature did not intend to punish pregnant women for their own actions or those affecting their unborn children unless those actions were intentional.
In 2021, Britney Plo was sentenced to four years in prison for first-degree manslaughter following a miscarriage. The hospital staff admitted that Plo had been using illegal drugs during pregnancy. However, the prosecution could not prove that drug use caused the miscarriage. Forensic investigations revealed that numerous illnesses, including genetic disorders, could have triggered the miscarriage. Plo's lawyer filed an appeal, an enormous risk, as an unsuccessful appeal could result in a life sentence for first-degree manslaughter.
With the existence of laws on fetal homicide, which exist in approximately 30 states, initial intent was to penalize those harming pregnant women. However, these laws soon evolved into instruments of prosecution against pregnant women. As these laws became more entrenched, so did precedent cases: Given the possibility of fetal homicide, legally prosecuting a pregnant woman for any harm done to her fetus was possible.
If fetal homicide laws are applied to mothers, the prosecution process typically revolves around supposed drug abuse. However, such laws might be used in various circumstances if state attorneys believe the fetus is in danger.
A man from Indiana was sentenced to 53 years in prison for the murder of a bank employee who was eight months pregnant during a robbery in 2008. The woman and her twins died, while the man was convicted of double homicide.
Indiana's abortion law was later applied in a 2010 case in which a woman named Beibei Shuai attempted suicide while eight months pregnant. Wounded, she survived but gave birth to a baby that died a few days later. Shuai faced charges of murder and attempted abortion. As part of a plea deal, the charges against her were dropped.
In 2013, Indiana's law was again invoked for the case of Purvi Patel, who went to the emergency room with severe bleeding, eventually discovering she had a miscarriage. Patel, from a conservative family, was concerned about her family finding out about her pregnancy and disposing of the dead baby.
The prosecution argued that Patel had attempted to use abortion pills to terminate her pregnancy, although toxicological testing did not detect those substances in her body. Patel was convicted of neglect of a dependent and attempted abortion and sentenced to 20 years in prison. Her conviction was overturned in 2016, leaving her life in ruins.
If abortion is criminalized, and fetuses essentially receive the same legal rights as humans, those more likely to face legal consequences due to pregnancy loss may be disproportionately affected by abortion laws, even if they are not charged criminally. Even the fear of being prosecuted can lead pregnant women to refuse medical help or reproductive health services, putting their pregnancies at further risk.
"The chaos and chaos in this is intentional," said Brigitte Amiri, Reproductive Freedom Project deputy director at the American Civil Liberties Union. "If people are confused and frightened, there's a lower chance of them seeking an abortion, and this strengthens the stigma surrounding abortion. All of this has the greatest impact on marginalized communities."
It is estimated that as many as one in four pregnancies ends in miscarriage, with the cause often unknown. Any woman can experience miscarriage, but those with anorexia, overweight women, and older women – who may require additional medical support – are particularly at risk.
African American women also face elevated risk of miscarriage, and tragically, those who have undergone miscarriage are also at higher risk.
Complicating matters, spontaneous and spontaneous abortions share similar symptoms, and it can be challenging to distinguish between the two. When a doctor suspects an illegal abortion retaliation and sounds an alarm, the evidence is far from watertight.
In 2010, the 22-year-old Christina Taylor from Iowa was brought to the emergency room after falling down the stairs. What Taylor said to medical personnel is disputed, but the police were called, and healthcare professionals suspected that her actions were motivated by harm to the unborn child. She was arrested for attempted abortion, although the charges only related to the third trimester of pregnancy in Iowa, in which Taylor was. She spent two nights in jail before the district attorney declined to officially file charges.
Such events raise questions about how authorities apply and potentially misuse fetal personhood laws. What happens when a pregnant woman is pushed down the stairs by a harmful partner? Which women should the authorities protect in such circumstances? What should women do if they faint due to hypoglycemia or exhaustion?
Numerous miscarriages occur before women even notice they're pregnant, which means several uninformed actions may inadvertently be interpreted as potential fetal harm. Even the most cautious pregnant women can run afoul of the law – a woman claimed she was charged with methamphetamine usage at childbirth after taking a legal medication prescribed by her doctor.
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People should not be criminally charged for making the decision to have an abortion. The bestowal of personhood to a fetus after the end of pregnancy – to the detriment of the fetus – is neither just nor fair.
Nor should a woman undergo the trauma of losing her pregnancy and having it used as a weapon against her by an unjust and unstable system that turns her miscarriage into a weapon.
Read also:
The following sentences contain the word ['opinions']:
- Varying opinions on the criminalization of pregnant women and the 'fetal personality' have emerged, with some supporting legal consequences and others advocating for the protection of a pregnant woman's rights.
- The criminalization of abortion and the granting of fetal personhood after pregnancy completion have garnered numerous critiques and opinions from legal experts, human rights advocates, and women's rights activists.
