[Featured image: Thomas Hawk / Flickr / Creative Commons]
By: Farah Diaz-Tello, J.D., If/When/How Senior Counsel
This summer, the country was shocked when an Alabama grand jury indicted a woman named Marshae Jones for manslaughter after she was shot in the abdomen and experienced a stillbirth as a result. The shooter was not charged: according to the police chief, the fetus “was the only true victim.” Amid a flood of protests, prosecutor, District Attorney Lynneice Washington, decided to drop the charges a week after they were announced.
So, all’s well that ends well? Not quite. Prosecutors have a role to play in ending the criminalization of pregnancy, but that role requires acknowledging that their discretion ends where people’s rights begin.
According to Washington, the prosecution was dropped “in the interest of justice.” Prosecutors have a unique responsibility to serve justice, which includes exercising discretion in instances when a prosecution would actually undermine justice. In this vein, some activists have encouraged prosecutors to take a stand against the criminalization of abortion and other reproductive outcomes, and to use their discretion to decline to prosecute in such cases — in the service of justice.
But Ms. Jones’s case was not one that required careful prosecutorial discretion. In fact, Ms. Jones is not even eligible for prosecution in this matter, according to none other than the Alabama law itself.
Like 36 other states, Alabama has a law that criminalizes harm to fetuses in utero. As we first outlined in our report Roe’s Unfinished Promise: Decriminalizing Abortion Once and For All, nine of these states do not have language explicitly protecting people from criminal punishment for harm to their pregnancies. Alabama, as it happens, isn’t one of them. The provision of the Alabama criminal code that defines a victim of homicide or assault to include “an unborn child in utero at any stage of development, regardless of viability” also provides that it does not permit the prosecution of “any woman with respect to her unborn child.”
What this means is that it would not only offend justice to prosecute Ms. Jones, doing so would violate the law. Prosecuting pregnant people where the law forbids it is not within the bounds of prosecutorial discretion, and would be dangerous for us to reinforce the idea that it is.
Prosecutorial discretion has long been used to perpetuate reproductive oppression. For example, it was blatant prosecutorial overreach that led to the criminal prosecution of hundreds of Alabama women who gave birth to babies who tested positive for criminalized drugs — regardless of whether the drugs had, or even could have, caused any health problems for the child. It was enterprising prosecutors trying to change the law who created the legal fiction — unsupported by the statues — that a fetus was a “child” that was being “chemically endangered” within the body of a pregnant person who used a drug. Only after activist judges endorsed this approach in high court decisions did it become the law of Alabama. Given the Alabama Supreme Court’s willingness to flout federal protections, it is all the more important for principled prosecutors to stand firmly on the law, so that their stands for justice aren’t eroded by shifting political winds.
Contrast District Attorney Washington’s approach with that of Dougherty County, Georgia’s District Attorney Greg Edwards. In 2015, Kenlissia Jones was arrested for homicide after allegedly taking pills to induce a premature labor which the baby did not survive. After reviewing the facts of the case and relevant law, District Attorney Edwards issued a statement that his office would not be pursuing homicide charges because Georgia law does not permit such charges. Quoting Georgia’s Court of Appeals, he acknowledged that “while [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones.” He also cited case law from Georgia and “an overwhelming majority of jurisdictions” that have refused to criminally prosecute people for the outcomes of their pregnancies. This statement left no doubt that the decision to abandon the prosecution of Kenlissia Jones was sound as a matter of law as well as a matter of justice.
Prosecuting pregnant people where the law forbids it is not within the bounds of prosecutorial discretion, and would be dangerous for us to reinforce the idea that it is.
These matters require us both to hold and to work creatively within and without the tension that sometimes exists between reproductive justice activism and reproductive justice lawyering. Reproductive justice activism requires an understanding of the ways that legal systems (and the players within those systems) fail communities and perpetuate marginalization. Reproductive justice lawyering requires an understanding that the rule of law is central to peace and stability in a modern society: the alternative is chaos and rule by force. So, while we understand that the law fails, leaves behind, and intentionally targets communities we seek to center (people of color, Indigenous people, LGBTQ+ people, and people living in poverty, and many other groups), our job is to ensure that these people receive the full benefit of the protection of the law and its guarantees of liberty, equality, and due process.
This means that it is not enough for a prosecutor to decline to prosecute because they think it unjust: they must also acknowledge where the law forbids them from prosecuting.
The stakes of overemphasizing the role of prosecutors in deciding whether to prosecute pregnant people have become more clear as legislatures pass increasingly radical abortion restrictions that include criminalization of abortion providers. Concerns about criminalization related to Georgia’s recently passed abortion ban have prompted many to press that state’s DAs on whether they would prosecute people who have abortions or the people who help them.
One prosecutor, speaking to NPR, was chillingly circumspect. Macon County District Attorney David Cooke told NPR that he would not bring criminal charges under the new law, should it go into effect, because the law is intentionally unconstitutional under Roe v. Wade. But, when pressed on whether he would charge people under the law in the event that Roe were overturned, he said only that “there are complicated situations that are going to come out of this if Roe v. Wade is overturned.” This is troubling, because Georgia’s ban does not change the legal provisions (which, notably, did not include Roe v. Wade or any other abortion jurisprudence) that District Attorney Edwards relied upon in dismissing the charges against Kenlissia Jones in 2015. There is sufficient justification for a prosecutor to say, unequivocally, that people may not be charged with a crime for ending their own pregnancy; instead Cooke emphasized that it was “his call to make.” Based on the population of our nation’s jails and prisons, this “call” disproportionately means locking up people already pushed to the margins of our society.
As attorneys serving reproductive justice, we should celebrate and take heart any time a person is spared from the clutches of the prison industrial complex. But we must also be vigilant that we are not inadvertently feeding its power by ceding to prosecutors more authority than the law permits them.
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