Co-authored by Emma S. Ketteringham
Citizens in Mississippi, once, and Colorado, twice, have resoundingly rejected so called "personhood" measures that would have established the "pre-born" as separate legal persons under the law. There is increasing evidence that when people understand the broad reach of such measures, they vote them down. But what happens when prosecutors and judges misuse their power and "pass" such measures in disguise?
While people in Mississippi were considering Proposition 26 and deciding whether fertilized eggs and embryos would be treated as entirely separate legal persons, a prosecutor and courts were addressing the same question behind the scenes, where voters have no role or voice.
In 2004, the Mississippi Legislature broadened the state's homicide laws to define "human being" to include an "unborn child at every stage of gestation from conception until live birth." The fetal homicide laws in Mississippi, as around the country, were passed to address third-party violence against a pregnant woman that caused harm to the unborn. In Lowndes County, however, a prosecutor decided that this law could be used to punish a pregnant woman who suffered a stillbirth. The prosecution targeted an African American teenager and chose a set of "facts" least likely to elicit sympathy: The prosecutor claimed that the stillbirth was caused by the teen's use of an illegal drug.
If judges decide that the homicide law permits the prosecution of this teenager, then all pregnant women who suffer such losses can be prosecuted for the crime of homicide. This is because the decision in the case isn't about being a teenager or using drugs -- it is about the same thing as a personhood measure: redefining eggs, embryos, and fetuses in such a way as to give the state power to investigate, control, and punish women in relationship to their pregnancy outcomes.
When asked to vote directly on the so-called personhood measure, 58 percent of Mississippi voters defeated the law. A majority of Mississippi voters realized that these measures not only provide a basis for recriminalizing abortion, but also for outlawing many forms of contraception, banning IVF, denying pregnant women cancer treatment, and for arresting women who suffer miscarriages and stillbirths.
Mississippi voters, however, were probably not aware that at the same time they were getting ready to defeat Proposition 26, five members of the Mississippi Supreme Court were voting to allow the homicide prosecution against the teenager to go forward. As a result, Mississippi might not need a personhood measure to treat embryos and fetuses as separate persons and the pregnant women who carry them as criminals.
Mississippi prosecutors and judges are not alone. In Indiana, after 34-year-old Bei Bei Shuai grew so despondent that she tried to kill herself while pregnant and tragically lost her newborn, prosecutors charged her with murder (defined to include viable fetuses) and attempted feticide (defined to include ending a human pregnancy at any stage). In February, the Indiana Court of Appeals in a 2-1 decision ruled that these laws could be used to prosecute Ms. Shuai. This is so despite the fact that attempting suicide is not a crime in Indiana and even though the murder and feticide laws in Indiana, like those in Mississippi, were specifically passed to address people who harm pregnant women -- not treat women who become pregnant as potential criminals.
If Indiana's Supreme Court upholds this judicially expanded version of the law, it will set a precedent and do what "personhood" measures do -- treat eggs, embryos, and fetuses as separate legal persons and the women who carry, sustain, and nurture them as criminals when things go wrong. Pregnant women in Indiana who experience a miscarriage or a stillbirth that law enforcement believes was caused by something she did or didn't do during pregnancy (think cigarettes, driving without a seatbelt, refusing cesarean surgery) could be investigated, arrested, prosecuted, and incarcerated, and since the charge is murder -- held without bail.
Moreover, if Roe v. Wade were ever overturned, you can be sure that in Indiana a woman caught seeking or having an abortion would be charged with murder or attempted murder.
In Alabama, prosecutors and judges have also used their authority to circumvent a vote on personhood by broadly interpreting and applying the state's 2005 chemical endangerment law. This law was passed to make it a crime to bring a "child" into an "environment" where drugs are "produced or distributed," such as a dangerous methamphetamine lab. Local prosecutors decided, though, that it could be used to arrest and punish pregnant women who went to term and had used any amount of a controlled substance.
In other words, pregnant women, according to the prosecutors, are no different than meth labs and pregnancy is the same as "chemical endangerment." Sixty women have been arrested and the Alabama Court of Criminal Appeals has so far affirmed this misuse of the law. Like "personhood" measures that would redefine person to include the unborn, the court of appeals redefined the word "child" to include the unborn. They did this without a statewide discussion and without a vote, in spite of the fact that the legislature has repeatedly and explicitly decided not to make the chemical endangering law applicable to women who use a drug while pregnant. The word "child" appears over 600 times in just one part of the Alabama criminal code.
Thus, even without a "personhood" measure, much less a vote in favor of one, prosecutors, with the help of judges, can do the same thing quietly behind the closed doors of chambers, bypassing the public referendums that have soundly rejected such measures.
People may not be able to vote in these cases but we can speak out against them. We can sign this petition against the prosecution of Bei Bei Shuai, and another in favor of recognizing pregnant women's personhood. We can write, email, and call local prosecutors and public officials, and we can demonstrate our opposition to prosecutions that create the basis for denying women their personhood.