A 27-year-old Alabama woman was indicted on manslaughter charges Wednesday in the loss of her pregnancy, even though, police say, another woman pulled the trigger.
The moment quickly became a flash point in the broader debate over abortion, particularly in Alabama, and raised questions over how fairly manslaughter charges can be applied in the state.
Marshae Jones of Birmingham was five months pregnant on Dec. 4 when an argument broke out between her and another woman outside a Dollar General, AL.com reported. The fight, which police said was over the fetus’s father, led 23-year-old Ebony Jemison to shoot Jones in the stomach. Jones survived the shooting, but it resulted in a miscarriage.
Jemison was charged with manslaughter, but a grand jury failed to indict her, and the charge was dismissed, according to AL.com. At the time, police alleged that Jones started the argument and that Jemison shot Jones in self-defense.
But on Wednesday, a grand jury indicted Jones on a manslaughter charge, AL.com reported. She was being held Thursday on a $50,000 at the Jefferson County Jail, records show. It is not clear whether Jones has an attorney.
“The investigation showed that the only true victim in this was the unborn baby,” Pleasant Grove Police Lt. Danny Reid said in December, in the days following the shooting. “It was the mother of the child who initiated and continued the fight which resulted in the death of her own unborn baby.”
Lynneice Washington, the district attorney for Jefferson County’s division, who will handle the case, did not return multiple requests for comment. Multiple calls to the Pleasant Grove Police Department ended in busy signals.
In a phone interview late Thursday, Ebony Jemison’s mother, Earka, corroborated the police account. She told The Washington Post her daughter was cleared by a grand jury on June 10 when evidence and testimony was presented to suggest Jones started the fight, causing Ebony to fire a warning shot out of fear.
Jones worked at the same company as Ebony Jemison and the fetus’s father, where tension developed between the two women, according to Jemison’s mother. Things boiled over on the afternoon of Dec. 4, when she says Jones, who was driving with friends at the time, spotted Ebony and leaped out of the vehicle to attack her. Jones’s friends left the car soon afterward and began to move toward the scuffle, she claimed.
“Ebony was afraid for her life and reached in her purse for the gun,” Earka Jemison said, adding her daughter had a license to carry. “She tried to fire a warning shot to get away from her.”
But the shot — which Earka says was aimed at the ground — ricocheted into Jones instead, the mother said.
Earka told The Post her daughter was receiving threatening messages and calls as a result of the indictment. Ebony Jemison was not available for comment.
“If they weren’t sitting in the courtroom, let them talk,” the mother said about the people threatening her daughter. “I saw the evidence. I saw the evidence.”
Alabama is among 38 states with laws that classify fetuses as victims in homicide or assault, according to the National Conference of State Legislatures. In Alabama, a “person” includes embryos and fetuses at any stage of development.
Richard Jaffe, a criminal defense attorney in Birmingham, said he was shocked Jones was charged with manslaughter, which in Alabama can apply to someone who negligently causes another person’s death after ignoring a known risk.
“No one expects to be shot or wants to be. To charge this person is astonishing to me,” Jaffe told The Washington Post on Thursday. “She is probably going through enough grief as it is.”
He said manslaughter charges had been misapplied in a “huge stretch” over what can be considered a known risk. One pending case of his, Jaffe said, involves a client who allegedly threw keys across a highway. His wife went to retrieve them. She was struck and killed, and the man was charged with manslaughter.
In both cases, Jaffe said, it is difficult to prove the person ignored an anticipated danger or reaction.
Abortion and pregnancy rights groups quickly seized on the incident with Jones as further evidence of Alabama criminalizing pregnancy.
Alabama has become the epicenter for reproductive rights advocacy after it passed the most stringent abortion laws in the country, outlawing the procedure except when necessary to save the mother’s life.
Jaffe said he was not sure whether that new law was directly relevant in Jones’s case or whether prosecutors could argue the miscarriage counted as unlawful intervention.
“This is another example of how Alabama is moving to criminalize pregnancy,” Randall Marshall, executive director of the American Civil Liberties Union of Alabama, said in a statement. “Indeed, Alabama is one of the most dangerous places in the country for a black woman trying to carry her pregnancy to term, and this prosecution is just one more attack on the basic human rights and dignity of black women in our state.”
Marshall added that “if this prosecution is allowed to proceed, it will not be much of a step to come up with a way to prosecute a woman who has an abortion.”
Matt Hart, a defense attorney and former prosecutor in Alabama, said manslaughter charges in circumstances similar to Jones’s case have been around in Alabama well before the new abortion law passed. He pointed to the “chemical endangerment of a child” statute, which makes it a crime to expose embryos or fetuses to controlled substances.
“It’s a similar subject because it involves recognition of an individual in the womb,” Hart told The Post. “I’m not saying [the abortion law] doesn’t affect the prosecution in this scenario, but legally, I don’t think it would’ve.”
Lynn Paltrow, the executive director of National Advocates for Pregnant Women, told The Post that Alabama leads the country in mothers charged with crimes related to pregnancy, namely under the “chemical endangerment of a child” statute.
But this case, she noted, was unique.
“This is the first time the idea that fertilized egg or fetal personhood has provided the basis for arrest of a woman because she was pregnant, and she herself was the victim of a criminal act,” Paltrow said. “ . . . Alabama has indicted Ms. Jones, claiming it is a crime for a woman to be unable to protect her own life and health.”
Amanda Reyes, the executive director of the Yellowhammer Fund, part of a nationwide umbrella advocacy group, said Alabama “has proven yet again that the moment a person becomes pregnant their sole responsibility is to produce a live, healthy baby and that it considers any action a pregnant person takes that might impede in that live birth to be a criminal act.’’
She continued: “Tomorrow, it will be another black woman, maybe for having a drink while pregnant. And after that, another, for not obtaining adequate prenatal care,” Reyes said in a statement, AL.com reported.
NARAL Pro-Choice America President Ilyse Hogue said on Twitter: “This what 2019 looks like for a pregnant woman of color without means in a red state. This is now.”