Marshae Jones could not have known she was about to lose her unborn daughter when she confronted Ebony Jemison in the parking lot of a Dollar General Store in Pleasant Grove, Alabama, on 4 December last year. She harboured no ill-will to her baby; nor did she fire the bullet that killed her. With four months to go, Jones had already picked a name: Marlaysia. She must have been distraught when she miscarried shortly after being shot in the stomach. Yet she is the one indicted by a grand jury on manslaughter charges. Jemison, who pulled the trigger during their brawl, has been absolved of all responsibility.
This is what it means to be pregnant, black and/or poor in the dystopia that passes for the US today. Reduced to a vessel for procreation, you cede your rights to the bundle of cells inside you. Your only function is to protect your foetus. And if you err, you can expect, not sympathy, but the wrath of Gilead.
Jones is not the first expectant mother to face charges in connection with the accidental death of her foetus in the US. In the past 10 years, prosecutors have brought a succession of cases against women whose have suffered miscarriages as a result of drug use or car accidents.
A four-year-old can shoot his six-year-old sister with a gun he finds in the dashboard of a car without charges being filed against the parents. But woe betide a pregnant woman who fails to fasten her seat-belt.
Your unborn baby doesn’t even have to die for you to be persecuted. When Christine Taylor arrived in ER after falling down the stairs at her home in Iowa, she made the mistake of telling nurses her marriage was on the brink of collapse and she was worried about the prospect of bringing up her children alone. That night, she was arrested in connection with attempted foeticide; she spent two nights in jail before the charges were dropped.
If that sounds like something from a TV drama, wait until you hear about Elizabeth Mort.
In 2010, her newborn was seized after poppy seeds on a bagel caused her to fail a drugs test (just like Elaine on Seinfeld 14 years earlier). Mort later won $144,000 in damages, but not until her baby daughter had spent five days in foster care.
A pregnant woman in the UK can feel as if she is being hectored about what she should and shouldn’t eat – no paté, no blue cheese, no alcohol – but in the US, scrutiny is all-pervasive and mercy non-existent. Under His Eye, indeed.
As the first expectant mother to be charged in relation to an act carried out by someone else, Jones marks a new phase in the dehumanisation of the pregnant. “Let’s not lose sight that the unborn baby is the victim here,” said Lt Danny Reid of Pleasant Grove police, ignoring the plight of the human incubator. “She had no choice in being brought unnecessarily into a fight where she was relying on her mother for protection.”
But if being shot while in possession of an occupied womb can see you charged, where might this lead? Could walking through a notoriously dodgy neighbourhood after dark constitute reckless endangerment? What if you work the night-shift? What if that dodgy neighbourhood is your home?
That this scandal should have unfolded in Alabama is no coincidence.
The state has been chipping away at hard-earned reproductive rights for years. In 2016, it passed a law outlawing dilation and evacuation – the procedure most commonly used to carry out terminations in the second trimester, thus effectively reducing the time limit from 30 to 15 weeks.
Then, in May, emboldened by the president’s Pro Choice pronouncements (and his contempt for women generally), 25 of the 27 male Republicans who sit on the 35-member state senate voted for an almost total ban on abortions, even in cases of rape and incest.
This onslaught is not confined to Alabama. Other laws, including bans on abortions where a foetal heartbeat can be heard (around six weeks), have been passed in Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Dakota and Ohio.
As always, such laws have a disproportionate impact on poor, black women, who are the least able to afford to go out of state for a termination.
At present, these restrictive laws are not being enforced (though it scarcely matters given the number of abortion clinics in Alabama has gone from 20 in the 1990s to just three). The stated aim of the politicians is to trigger challenges which might eventually end up in the Supreme Court. Their hope is that the appointment of conservatives Neil Gorsuch and Brett Kavanaugh might lead to a reversal of Roe v Wade, the 1973 ruling that established the right of a woman to choose whether or not to have an abortion.
So far, this seems unlikely. Some circuit courts have already dismissed the most restrictive laws as unconstitutional. And the Supreme Court seems to be in little hurry to enter the fray. Last week, the justices declined to hear Alabama’s attempt to re-institute the ban on dilation and evacuation procedures.
Even so, there are no grounds for complacency. Experts warn one circuit court upholding a foetal heartbeat ban might be all it takes for the Supreme Court to decide it ought to wade in.
And then, who knows? Giving his opinion on the D&E case last week, Justice Clarence Thomas, of Anita Hill fame, implied, if the case was heard, he would support a ban. “The notion that anything in the Constitution prevents states from passing laws prohibiting the dismembering of a living child is implausible,” he wrote.
The choice of that emotive phrase – “dismembering a living child” – is telling; it connects with a central plank of the anti-abortion campaign strategy – the promotion of the concept of foetal “personhood”.
This is something Thomas himself touched on earlier this year when he insisted laws allowing abortion on the grounds of race, sex, or disability were a form of eugenics revivalism.
As Jeannie Suk Gersen wrote in the New Yorker: “If the right to be free of discrimination on the basis of race, sex, or disability can be made relevant to a foetus, then foetuses are figured as entities with anti-discrimination rights – like people.”
The indictment of Jones for the manslaughter of her unborn baby is not directly linked to abortion laws. Indeed, had Jones chosen to have a termination, she could have done so without repercussions. It is losing the baby she had chosen to keep that has caused her problems.
However, her indictment serves an important purpose in furthering the aims of the anti-abortion movement. It reinforces the Pro Choice orthodoxy: that foetuses are fully-fledged human beings whose needs must be prioritised.
The irony is that Jones appears already to have regarded her unborn daughter as an individual, deserving of a memorial. As she waits to find out if the charges against her will be pursued, Marlaysia’s ashes sit on her grandmother’s mantelpiece. The plaque beside them reads: “Love one another.” There is precious little of that compassion on display in the US today.