Increasing Numbers of Women Face Jail Time for Wanting an Abortion

The following article first appeared in The Nation magazine. For more great content from the Nation, sign up for their email newsletters here.

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.”