Marshae Jones was five months pregnant when she was arrested for being shot in the stomach.
It was 2019, and Jones got into a fight in the parking lot of a Dollar General just outside of Birmingham, Alabama. It escalated until a woman pulled out a gun and shot her. After being rushed to the hospital, Jones was in stable condition, but the shooting caused her to miscarry.
Jones, then 28 with a young daughter, was arrested. A grand jury returned an indictment for felony manslaughter, stating that Jones “intentionally caused the death” of her fetus “by initiating a fight knowing she was five months pregnant.” She faced 20 years in prison.
Jones spent time in jail, and her name and mug shot were splashed across front pages as the case drew national attention. But the charge was eventually dropped, in part because Alabama’s manslaughter statute prohibits women from being prosecuted for their pregnancy outcomes. Prosecutors also concluded that pursuing charges against Jones was “not in the best interest of justice.”
Vesting fetuses with full legal rights would have unintended and unfair consequences for women like Jones, which prosecutors belatedly realized. But such consequences have been a goal of the anti-abortion movement for years. After this summer’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which ended nationwide abortion rights, these efforts could endanger any pregnant person in any state that enacts “fetal personhood” laws.
Abortion opponents’ stated motivation for these laws is to ensure severe punishment for patients, providers and anyone else who facilitates the end of a pregnancy in a state where the procedure is banned.
The battle is playing out most dramatically in Georgia. Less than a month after the Supreme Court overturned Roe v. Wade in June, the state enacted one of the most extreme abortion restrictions in the country. House Bill 481, or the Living Infants Fairness and Equality (LIFE) Act, bans abortion after cardiac electrical activity can be detected, usually around six weeks ― a point at which most people don’t yet know they’re pregnant. While several states have even more extreme abortion restrictions, including banning abortion from the point of conception, Georgia’s includes a uniquely terrifying clause: It recognizes an embryo or fetus as a person after six weeks of pregnancy.
The termination, or suspected termination, of a pregnancy after the six-week point could be considered murder under Georgia’s law. And although there is an exception for miscarriage in H.B. 481, abortion and miscarriage are medically indistinguishable. This means the law empowers officials to scrutinize, surveil and criminalize not only women seeking abortion care, but also women with wanted pregnancies.
Chris Carr, the attorney general of Georgia who is facing a tough reelection battle, has said that he doesn’t believe the law can be used to prosecute women for obtaining an abortion. But to many people, the intent of the law is clear — and Republicans, perhaps, are afraid to be honest about its implications.
“If a woman were to go to another state to seek abortion care, she could still be prosecuted here for conspiracy to commit murder or murder,” state Sen. Jen Jordan, who is challenging Carr as the Democratic nominee for attorney general, told HuffPost. “Medication abortions, in terms of how they present, look exactly like naturally occurring miscarriages, meaning women are going to be investigated for miscarriages.”
The idea of legally defining a fetus as a person is not new, but it has gained steam in right-wing groups since the fall of Roe ― most recently in Boston, where a so-called men’s rights group hosted the “National Men’s March to Abolish Abortion and Rally for Personhood.” Georgia’s personhood law may foreshadow a frightening new chapter in the war on choice.
“It’s so important for people to understand just how significant this specific provision is, even apart from the six-week abortion ban,” Jordan said. “This is a wholesale change to who a person is in this state.”
A Law That Set Off Shock Waves
There’s a snowball effect when a state defines a fetus as a human. And while Georgia is the first state to enact a personhood law in a post-Roe world, it’s not the first state to legally interpret a fetus as a person.
Sharon Bonte was seven months pregnant when she was hit by a car crossing the street in New Hampshire in 1988. She had an emergency cesarean section and her daughter was born with cerebral palsy due to the accident, leaving the child permanently disabled. A New Hampshire court ruled at the time that a fetus can have a cause of action against its mother for prenatal injuries, permitting the infant to sue her mother for negligence. The child’s father, Andy Bonte, brought the civil action against his wife, on behalf of his daughter. The infant’s attorney successfully argued that a fetus is a person, entitled to the same rights as born children, and won a $1 million judgment.
“This law is saying that the pregnancy you’re carrying after six weeks holds the same amount of value as you do.”
– Dr. Nisha Verma, Atlanta-based abortion provider and OB-GYN
A handful of New Hampshire Supreme Court judges warned about the dangers of recognizing fetal personhood in their dissenting opinion. They concluded that valuing a fetus as a human is an “intrusion into the privacy and physical autonomy rights of women” and holds “profound implications that such a rule of law holds for all women in this state who are, or may become, pregnant.” If fetal personhood were recognized by the government, the judges argued, it would allow the state to “govern such details … as her diet, sleep, exercise, sexual activity, work and living environment, and, of course, nearly every aspect of her health care,” encompassing “the mother’s every waking and sleeping moment.”
These fears are among the reasons why Georgia’s abortion ban set off intense criticism across the country when it was first introduced in 2019. “The State of Georgia … recognizes the benefits of providing full legal recognition to an unborn child above the minimum requirements of federal law,” the legislation reads. “It shall be the policy of the State of Georgia to recognize unborn children as natural persons.”
Georgia Gov. Brian Kemp (R), a dedicated abortion opponent, signed the bill into law in 2019, but it was immediately blocked in state court and later struck down by a federal court because it was unconstitutional under Roe.
But now Roe is gone, and the six-week abortion ban, along with its fetal personhood clause, went into effect in July. Though there are federal and state court cases being litigated against the abortion ban, the personhood bill remains in effect with some potentially harrowing consequences for anyone with the capacity for pregnancy in the state.
“This law is saying that the pregnancy you’re carrying after six weeks holds the same amount of value as you do,” said Dr. Nisha Verma, an Atlanta-based abortion provider and OB-GYN. “I’m not saying that pregnancy or fetuses don’t hold value … but I don’t believe that a pregnancy holds more value than the pregnant person. And that’s what these laws are saying.”
By recognizing a six-week embryo as a fully formed human, H.B. 481 is a sharp departure from federal law and most state laws. Federal law allows punishment for violence against a pregnant person that harms a fetus, but there’s no federal law that grants embryos or fetuses legal protection independent of the pregnant person.
Republican lawmakers did not outline how changing the legal definition of a person would impact the state’s civil and criminal codes ― creating a chilling effect where physicians and patients alike don’t know which of their actions may be considered illegal. And where state legislators were explicit in the fetal personhood clause, their choices were seemingly arbitrary and random, according to several experts who spoke with HuffPost. The law includes tax exemptions for a fetus, allows pregnant people to file for child support during pregnancy, and includes fetuses in the state population count.
The six-week abortion ban does include narrow exceptions, including if the mother’s life or health is at risk, as well as exceptions for rape or incest if a police report is filed. The law also includes distinctions around when the state recognizes a fetus as a “natural person.” The fetal personhood clause defines an “unborn child” as “a member of the species Homo sapiens” who “is carried in the womb” after cardiac electrical activity can be detected. This means that personhood does not apply to embryos created through in vitro fertilization or to ectopic pregnancies, which are embryos that implant outside of the uterus. Ectopic pregnancies are not viable and are life-threatening to the pregnant person.
“It is unclear how the personhood provision might be applied, and this lack of clarity is by design: It invites arbitrary and aggressive enforcement by prosecutors and creates a climate of fear and confusion.”
– Alice Wang, attorney, Center for Reproductive Rights
The personhood clause also clarifies that a person cannot be prosecuted for the outcome of their pregnancy if it’s a miscarriage or stillbirth. But, medically, it’s impossible to distinguish an illegal abortion after six weeks from a natural miscarriage ― the medical term for which is “spontaneous abortion.” Between 10% and 20% of known pregnancies in the U.S. end in miscarriages, according to the Mayo Clinic. And the frequency of miscarriage ― defined as the unexpected end of a pregnancy before 20 weeks ― is likely a lot higher than that, since many women miscarry before they even know they’re pregnant.
The Georgia law effectively opens up a Pandora’s box of surveillance and criminalization targeting anyone in the state who can become pregnant.
“The state of Georgia is purporting to amend hundreds of criminal and civil provisions of Georgia law that include the term ‘person’ to encompass an in-utero embryo or fetus,” said Alice Wang, a staff attorney from the Center for Reproductive Rights and one of the litigators on the state-level case against the Georgia law.
“It is unclear how the personhood provision might be applied, and this lack of clarity is by design,” Wang said. “It invites arbitrary and aggressive enforcement by prosecutors and creates a climate of fear and confusion.”
For example, Georgia allows expectant mothers to claim fetuses as dependents. If a woman miscarries, is that setting her up for tax fraud? Georgia also counts embryos or fetuses past the six-week point as part of the population. If someone miscarries, what are the consequences of reporting inaccurate information to the government?
And the list of questions only gets longer when the stakes are higher. If a pregnant woman legally travels out of state to get an abortion past six weeks, will she be arrested for conspiracy to commit murder on her return home? If she travels out of state to get a medication abortion and takes the second dose of abortion pills once back in Georgia, did she commit murder in the eyes of the state?
What about the provision that allows child support payments for a fetus? Women are most likely to be murdered by abusive partners during pregnancy ― will this increase the incidence of lethal intimate partner violence if abusive fathers can’t pay? And if child support is allowed, can custody disputes begin when a fetus is still in the womb?
A Political Choice
The answers to many of these questions will ultimately be resolved by the Georgia officials responsible for carrying out the law.
When HuffPost posed some of these questions to Kemp’s office, a spokesperson for the governor replied with a vague statement.
“Working closely with the General Assembly, Gov. Kemp has made significant strides in policies that protect life at all stages ― from adoption and foster care reform, to combatting human trafficking and passing the heartbeat bill,” the spokesperson told HuffPost.
The statement is similar to much of what Kemp has said on the abortion ban since it became law: little to nothing. The governor has seemed reticent to discuss specifics around the abortion ban, particularly enforcement, despite its central place in his 2019 campaign. And while frustrating, it makes sense: Pushing ever more aggressive anti-abortion policies is a winning strategy for Republicans running in crowded primary fields. But enforcing a fetal personhood law is completely different. Prosecuting women for their pregnancy outcomes, particularly those with wanted pregnancies, is not a winning strategy.
Jordan, the Democratic nominee for attorney general, told HuffPost that what was once used as a political football is now a reality that will have dire consequences for Georgians if enforced.
“If women know about this law and the impact on women all over this state, then they’re going to get voted out,” Jordan said of her opponent Carr, as well as Kemp and other Republicans in the state. “You would think that they’d be publicly rejoicing about it, and instead they don’t want to talk about it. And I understand why. Because the implications are broad and incredibly negative.”
Carr, who supported H.B. 481, argued that the law is not intended to criminalize pregnant women seeking abortions or those with wanted pregnancies.
“There is no mechanism under state law to prosecute women for having an abortion, a miscarriage, or an ectopic pregnancy,” said Kara Richardson, a spokesperson for Carr. “Georgia’s current criminal abortion code, which has been in effect for decades, makes clear that a pregnant woman cannot be prosecuted for obtaining an abortion, and the LIFE Act makes no change to that.”
But as the law reads currently, there’s not much preventing prosecutors from going after pregnant women in Georgia.
“Under H.B. 481, prosecutors and law enforcement are able to get the medical records of women so that they can investigate these situations,” Jordan said.
“I don’t want to live in a state where a woman who gets pregnant not only needs to get a doctor but has to get a lawyer too.”
– State Sen. Jen Jordan (D), Democratic nominee for Georgia attorney general
Jordan knows the pain of losing a wanted pregnancy. The state senator spoke about her seven miscarriages and one stillbirth in a 2019 floor speech against H.B. 481.
“A pregnant woman who suffers a miscarriage could be subjected to criminal investigation, indictment, prosecution — long-before a jury is asked to determine whether she intentionally did anything to cause the loss,” Jordan said in her floor speech. “My experience wasn’t about abortion, but it is what’s at stake here. It’s about the fundamental right to privacy of women.”
When asked if she believes she would have been investigated if this law were in place at the time of her pregnancy losses, she responded: “Absolutely.”
“It’s horrifying to think that when women are dealing with some of the most difficult moments of their lives in terms of losing a child, they have to sit there and think about if law enforcement will look into their records and investigate them or go after their doctor,” she said. “I don’t want to live in a state where a woman who gets pregnant not only needs to get a doctor but has to get a lawyer too.”
Beyond Carr’s prerogatives, the application of the law will be left to the discretion of individual district attorneys, often with the help of law enforcement and other county officials. Many Georgia prosecutors publicly stated they will not enforce H.B. 481, but others said they will.
In interviews with all 50 of Georgia’s district attorneys this summer, the Atlanta Journal Constitution found that several DAs said they would enforce the six-week abortion ban while others said they would prosecute on “a case-by-case basis.”
“I do not feel that is proper for me, as district attorney, to pick and choose which laws I want to enforce, and I do not do so,” Lookout Mountain District Attorney Chris Arnt told the newspaper in July, adding that he plans to prosecute anyone who violates the law.
Cherokee County District Attorney Shannon Wallace also said she would enforce the abortion ban. “When/if Georgia’s abortion law goes into effect, my office will treat violations of OCGA 16-12-140 [criminal abortion] just as we do all other violations of criminal statutes prosecuted in this circuit,” she told the Georgia Recorder.
Although none of Georgia’s current DAs appear to have commented specifically on the fetal personhood clause, some in the past have discussed what enforcement would look like.
When the abortion ban first passed in 2019, Douglas County District Attorney Ryan Leonard said Republicans “wouldn’t outline exceptions or exemptions if they didn’t anticipate criminal prosecution” of pregnant women. “If you look at it from purely a legal standpoint, if you take the life of another human being, it’s murder. … Based on my review, the only crime it could fall under is murder.”
Then-acting Cobb County District Attorney John Melvin argued in 2019 that the Georgia law offers “benefits of personhood” to fetuses and that not enforcing the law would be denying those fetuses rights. He also attacked fellow district attorneys who vowed not to enforce the law at the time, likening them to Nazis and racists from the 1960s for not recognizing fetuses as fully human.
Neither Leonard nor Melvin is still in office, although the latter is currently the assistant director of the Georgia Bureau of Investigation. But their extreme views illustrate how a handful of powerful people could instigate an unprecedented overhaul of the state’s civil and criminal codes.
Given prosecutors like these, women like Jones ― the Alabama mother who miscarried after being shot in the stomach ― would likely stand trial in Georgia today.
Surveillance, Scrutiny And The Threat Of Mass Criminalization
Some may believe that these possibilities are far-fetched or sound hyperbolic, but every expert HuffPost spoke with said this is the reality the U.S. is barreling toward.
“I struggle with trying not to be alarmist and making sure I’m grounded in reality, but the reality is quite alarming,” said Dana Sussman, the deputy executive director at National Advocates for Pregnant Women.
The Supreme Court overturned Roe and now over a dozen states have near-total abortion bans in effect ― and that number is only expected to grow. People are being denied cancer treatment, lifesaving miscarriage care and access to birth control prescriptions and emergency contraceptives. Although the Supreme Court recently declined to take up the issue of fetal personhood ― a small win for abortion-rights advocates ― the current reality is terrifying. And it only becomes more frightening when looking at how fetal personhood laws have played out in the past.
“I struggle with trying not to be alarmist and making sure I’m grounded in reality, but the reality is quite alarming.”
– Dana Sussman, National Advocates for Pregnant Women
Although Georgia is the first state to enact a fetal personhood law since Roe fell, it’s not the first state with a personhood law on the books. Fifteen states had some form of criminal fetal personhood laws in effect before Roe fell this summer. Many, like South Carolina’s and Alabama’s, center on drug use during pregnancy and have historically been weaponized against the most marginalized, including poor women and people of color. There were over 1,300 criminal fetal personhood cases nationally between 2006 and 2020, according to National Advocates for Pregnant Women.
If fetal personhood and abortion bans become one and the same, there will inevitably be prosecutions for terminating pregnancies, experts told HuffPost.
“If the present reality of pregnancy criminalization and abortion restrictions shows anything, it is that seemingly far-fetched possibilities too easily become reality,” NAPW argued in an August 2022 brief on the current state of fetal personhood in the U.S.
“Many would scoff at the idea that a pregnant person could be criminalized for falling down the stairs, getting shot in the stomach, or taking prescription medication. Yet those are all real cases,” the brief continues. “We should take all potential implications seriously, recognizing possible future ramifications while also acknowledging the bitter past and present of policing and criminalization of pregnancy.”
Personhood laws are similar to abortion trigger bans in that they were largely symbolic before Roe fell, Sussman said. And yet rogue prosecutors have weaponized these laws to criminalize hundreds of people since Missouri passed the first fetal personhood law in the country in 1986.
It’s not hard to see where the U.S. is heading now that Roe’s guardrails are gone and prosecutors are free to interpret personhood laws like Georgia’s in whatever way they wish.
“Even though the Georgia law makes exceptions for life endangerment and says the state won’t prosecute the pregnant person [for having a miscarriage], never trust a law that says that,” said Grace Howard, an assistant professor of justice studies at San José State University who is writing a book titled “The Pregnancy Police: Conceiving Crime, Arresting Personhood.”
“All I have seen in my work is those exceptions being ignored. And they get away with it because they’re usually going after folks who don’t have a lot of resources to fight back,” Howard said. “As long as they have a cooperative system of cops, prosecutors and judges, they can do whatever they want.”