Update: The charges have been dropped. Original post below.
A Georgia woman is being charged with malice murder after attempting to abort her pregnancy. Kenlissa Jones, 23, was five and a half months pregnant when she took an abortion pill called Cytotec (generic name: misoprostol), which she had purchased online.
Misoprostol is more effective when taken in combination with another medication, mifepristone, and it's not recommended at all after 12 weeks pregnancy. For Jones, the drug sent her into early labor, and she delivered a live but non-viable baby boy on the way to the hospital, where he died soon thereafter. Jones was sent to the Dougherty County Jail without bond. From WALB Georgia:
Dougherty County District Attorney Greg Edwards said this case will likely go before a grand jury, because Georgia and federal laws will need to be explored. It's the first time he has seen this kind of situation.
[…] Georgia law states that no abortions are authorized after the first trimester unless it is performed in a licensed hospital, in a licensed ambulatory surgical center, or in a health facility licensed as an abortion facility by the Department of Community Health.
The case is a difficult one. Even many who are OK with abortion may consider this situation murder, since the baby was out of the womb when it died. Yet Jones' attempt to abort took place when the baby was still in her womb, and still within the federal time frame for legal abortion. In many states, albeit not Georgia, including Georgia for now*—it passed a 20-week abortion bill in 2012, but it's been temporarily blocked by a state judge—Jones can still obtain an abortion legally at 22 weeks. How can Jones' actions be murder if they fail to kill the fetus in the womb, but not murder if they actually do?
Had doctors not known about Jones' taking the abortion pill, they may have considered this a typical miscarriage—which brings us to more murky areas. As more cases like this arise—and with stricter and stricter state abortion regulations and increased access to abortion drugs via the Internet, more cases will definitely arise—there's a danger that doctors will start treating all women who miscarry suspiciously.
Another thing to consider is appropriate punishments. "Opponents of abortion rights have repeatedly said that if the procedure were ever banned, women wouldn't be prosecuted for having illegal abortions – only doctors performing them would be," wrote Irin Carmon recently. But with no doctor involved, it's the women themselves who are being charged with things like malice murder and feticide. In Indiana, Purvi Patel was just sentenced to 20 years in prison after possibly inducing miscarriage with the abortion pill. In Pennsylvania last year, Jennifer Whalen was sentenced to 9 to 18 months for purchasing the abortion pill online for her pregnant daughter. In 2013, Indiana resident Bei Bei Shuai was charged with feticide after trying to commit suicide while pregnant, an action that resulted in the death of the fetus.
Is this fair? Does it matter whether the abortion attempt was consistent with medical protocol? And if inducing abortion intentionally through drug use or self-harm is considered murder, what about similar behavior that unintentionally causes a woman to miscarry? How can one be prohibited and not the other? The whole business is a legal and moral mess. As Emily Bazelon noted in The New York Times Magazine in April, "if [the Patel] case were only about a woman who clearly gave birth to a live baby and then killed her child, it would be clear cut." But in both Patel and Jones' cases, we're talking about actions they took before the fetus was out of the womb that ultimately resulted in its death out of the womb.
"The details of these cases are tragic and grisly, causing both pro-choice and anti-abortion groups to shy away from them," wrote Mark Joseph Stern at Slate today. Indeed, I almost gave up on penning this post myself several times.
Perhaps the best takeaway is that stories like this will only be more common the more we restrict safe and legal abortion access. "Rather than obtain a safe medical abortion, [Jones] took a dangerous gamble, and—after a period of intense pain—delivered a fetus in a car," writes Stern. "Her story doesn't fit neatly into the pro-choice or pro-life narrative. It's simply an illustration of what happens when a desperate woman takes her abortion into her own hands."
* Originally stated that Georgia had passed a 20-week abortion ban but not that it had been temporarily blocked by a state court.