Marshae Jones, Fetal Personhood and Wisconsin’s Act 292

| Reproaction

By: Nataley Neuman

Marshae Jones was five months pregnant when she was shot in the stomach on December 4, 2018, by another person at a grocery store in Alabama. Criminal charges were brought against the shooter but a grand jury decided not to indict; however, Jones herself was indicted for manslaughter for losing her pregnancy and “causing the death of another person” – i.e., her fetus.[1] Similar to a handful of other states, Alabama has fetal personhood protections on the books that recognize the “sanctity of ‘unborn life’ and the rights of ‘unborn children,’ including the ‘right to life.’” [2] The charges against Jones were later dropped after the quick action of advocates and activists, but news coverage of the case rekindled a nation-wide conversation about the harm that fetal personhood laws do to pregnant people.

Fetal personhood measures are policies or laws “attempting to establish fertilized eggs, embryos, or fetuses as legal persons (separated from pregnant [people]) with equal rights to others.” [3] Attempts to advance fetal personhood bills in state legislatures can be found as far back as 2008. [2] As of 2017, 18 states introduced fetal personhood measures, and 38 states already had fetal assault laws on the books, which consider fetuses as potential victims of crimes separate from the pregnant person. In a similar fashion, 15 states introduced measures to ban abortion by establishing personhood for fetuses, though these measures failed to pass. Fetal personhood laws, fetal assault laws and feticide laws serve as an avenue to further criminalize pregnancy and pregnancy outcomes. [3] 

These policies were allegedly developed to protect the health and wellbeing of a fetus, but these measures are actually used as grounds to prosecute people for pregnancy outcomes. In Indiana, the high-profile cases of Bei Bei Shuai and Purvi Patel caught national attention. Shuai was eight months pregnant when she attempted suicide. She survived, though her fetus was no longer considered viable. Shuai was charged with feticide and murder, and she spent more than a year in prison before reaching a plea deal with the state. [4] Purvi Patel was charged and convicted of feticide and child neglect after being accused of self-managing her own abortion outside of a medical setting. Patel was initially sentenced to twenty years in prison, but activists and lawyers were successful in securing a reversal of the feticide conviction and a reduced sentence. [3]

Wisconsin’s “Unborn Child Protection Act” (Act 292), called the “cocaine mom law” by some, shares similarities with fetal personhood laws across the country. Act 292 allows the state to take physical custody of a pregnant person, assign a lawyer for the embryo or fetus but no lawyer for the pregnant person including at important early stages of the proceeding, and send the person to drug treatment, psychiatric hospitals, or even jail – regardless of whether drug treatment is really needed. Like similar fetal personhood measures, Wisconsin’s Act 292 allows the state to “treat fertilized eggs, embryos, and fetuses as if they are already completely separate from the pregnant woman” [3]. However, Wisconsin’s law is unique in that it allows the state to take physical custody of the pregnant person and court proceedings happen as “child welfare” cases in juvenile court, which means they happen behind closed doors.

Similar to other fetal personhood measures, Act 292 serves as a way to deny people their constitutional right to individual liberty and bodily autonomy, simply on the basis of being pregnant. [5, 6] Although the circumstances of being the victim of a shooting might seem extreme, Marshae Jones’s case was not an anomaly, and it serves as another example of how fetal personhood plays out in real time to hurt people who are pregnant and their families.


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