April 21, 2011
Utah prosecutors and conservative politicians are determined to lock up the young woman known in court filings as J.M.S. for the crime of trying to end her pregnancy. Her grim journey through the legal system began in 2009, when she was 17 and pregnant by a convicted felon named Brandon Gale, who is currently facing charges of using her and another underage girl to make pornography. J.M.S. lived in a house without electricity or running water in a remote part of Utah. Even if she could have obtained the required parental consent and scraped together money for an abortion and a couple of nights in a hotel to comply with Utah’s twenty-four-hour waiting period, simply getting to the nearest clinic posed an enormous challenge. Salt Lake City is more than a three-hour drive from her town, twice that in bad weather, when snow makes the mountain passes treacherous. There is no public transportation, and she didn’t have a driver’s license.
And so, according to prosecutors, in May 2009, in her third trimester and desperate, J.M.S. paid a stranger $150 to beat her in the hope of inducing a miscarriage. The assault failed to end her pregnancy, but that didn’t stop police from charging her with criminal solicitation of murder. The juvenile court judge who heard her case, however, tossed it out on the grounds that her actions were legal under the state’s definition of abortion.
Local abortion opponents were outraged that J.M.S. had been freed. “It revealed an extreme weakness in the law, that a pregnant woman could do anything she wanted to do—it did not matter how grotesque or brutal—all the way up until the date of birth to kill her unborn child,” said Carl Wimmer, a state representative. He led a successful campaign to amend Utah’s abortion law so that as of last year, women who end their pregnancies outside the medical system can be prosecuted as killers. “We will be the only state in the nation that will do what we’re attempting to do here: hold a woman accountable for killing her unborn child,” Wimmer told the Salt Lake Tribune.
He’s wrong. In recent years, women in several states have faced arrest and imprisonment for the crime of ending their pregnancies, or merely attempting to do so. For decades now, feminists have warned about a post–Roe v. Wade world in which women are locked up for having abortions. Antiabortion activists dismiss such fears as propaganda. “The pro-life position has always been that women are victimized by abortion,” says the Priests for Life website, which has a page of sample letters to the editor meant to refute claims that abortion bans could lead to women being prosecuted. “In fact, we have repeatedly rejected the suggestion that women should be put in jail, much less executed.” But as abortion rights weaken and fetuses are endowed with a separate legal identity, women are being put in jail.
One of the most high-profile such cases is that of Bei Bei Shuai, who is, as of this writing, being held without bail in Indianapolis. Shuai, 34, was nearing the end of her pregnancy when she learned that her boyfriend, the baby’s father, with whom she co-owned a restaurant, was married to another woman and was returning to his first family. After attempting to kill herself by eating rat poison, she was found by friends and taken to a hospital. After several days, doctors performed a C-section, delivering her baby girl prematurely. At first, they were optimistic that Shuai and her baby would make a full recovery. But the baby had cerebral bleeding and died a few days later in her mother’s arms. Shuai spent the next month in the psychiatric ward on suicide watch. Shortly after her release, she was charged with murder and attempted feticide, or fetal homicide, and has been locked up for more than a month, with little access to psychiatric care. In court “she’s sitting there in an orange jumpsuit with handcuffs,” says her attorney, Linda Pence. “It’s the most unfair, inhumane thing that I’ve witnessed.”
Shocking as this case is, it’s not unique. In 2009 in South Carolina, 22-year-old Jessica Clyburn, eight months pregnant, tried to kill herself by jumping out a fifth-story window. She survived, but her fetus didn’t, and she was charged with homicide (she pleaded guilty to manslaughter).
Last year in Iowa, Christine Taylor, a pregnant 22-year-old mother of two, was arrested for attempted feticide after falling down the stairs. Taylor, who said she’d tripped after a distressing phone conversation with her estranged husband, went to the hospital to make sure her fetus was OK. While there, she confided to a nurse that she’d considered an abortion and was anxious about raising three children alone. Believing that Taylor had purposely thrown herself down the stairs, the nurse called over a doctor, who questioned her further. Police were summoned, and Taylor was arrested. The charges were dismissed only when prosecutors discovered that Taylor was in her second trimester, not her third, when criminal penalties could apply.
“This notion that the criminal laws can be used to address the relationship between a pregnant woman and her fetus, it’s definitely on the rise,” says Alexa Kolbi-Molinas, a staff attorney with the ACLU’s Reproductive Freedom Project.
Whether the antiabortion movement intended such prosecutions, antiabortion legislation helps make them possible. Throughout the past few decades, abortion foes have worked steadily to endow fetuses with rights separate from those of mothers, aiming to undermine the logic of Roe v. Wade. “In as many areas as we can, we want to put on the books that the embryo is a person,” Samuel Casey, former executive director of the Christian Legal Society, told the Los Angeles Times in 2003. “That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection—even protection that would trump a woman’s interest in terminating a pregnancy.”
One of the most effective ways of doing this has been through feticide laws, which exist in at least thirty-eight states, as well as at the federal level. Often these laws are introduced in the wake of a high-profile crime against a pregnant woman. The Unborn Victims of Violence Act, for example, which George W. Bush signed in 2004, was called “Laci and Conner’s Law,” after Laci Peterson, killed by her husband when she was eight months pregnant. Presented as a means of protecting women from violence, these laws seem designed to make feminists who oppose them appear callous and hypocritical. Who, after all, could object to punishing someone for harming a woman and her wanted pregnancy?
But time and again, such laws are used to prosecute pregnant women. The initial targets, says Lynn Paltrow, founder of National Advocates for Pregnant Women, were women who had used drugs during pregnancy. “There are a number of women who’ve been convicted or pled guilty based on the fact that they went to term or tried to go to term in spite of a drug problem,” she says. Now, a new wave of cases is taking the underlying logic of fetal protection laws still further. “What we’re seeing is an unadulterated, undisguised version of what’s been building for years,” says Paltrow.
Indiana strengthened its feticide law in 2009, prescribing prison sentences of up to twenty years for anyone who intentionally kills a fetus outside the context of a legal abortion. “The sole reason the feticide law was enacted was because of third-party attacks against pregnant women,” says Pence. “Now they’re turning it against the woman.”
In Utah, meanwhile, prosecutors aren’t letting up on J.M.S. They appealed the dismissal of her case to the State Supreme Court, which heard arguments in April. Because the law has since been changed, this isn’t a question of clarifying statutes or setting precedents—it’s about punishing one girl. Whatever the ruling, concedes Assistant Attorney General Christopher Ballard, “its practical application will only be in this case.” J.M.S., he acknowledges, “is a victimized young woman. She’s a troubled young woman.”
So why go after her? “She committed a crime when she paid someone to beat her unborn child to death, and she deserves whatever ramifications come from committing that crime,” he says. If abortion is understood as murder, this is what justice looks like.