By Alexa Kolbi-Molinas, Staff Attorney, ACLU Reproductive Freedom Project

Yesterday, the ACLU submitted a friend-of-the-court brief urging the Marion County Superior Court in Indiana to dismiss the prosecution of Ms. Bei Bei Shuai.

The facts of this case are heartbreaking. On December 23, 2010, Shuai, a 34-year-old pregnant woman who was suffering from a major depressive disorder, attempted to take her own life. Friends found her in time and persuaded her to get help. Six days later, Shuai underwent cesarean surgery and delivered a premature newborn girl who, tragically, died four days later.

On March 14, 2011, Shuai was arrested, jailed, and charged with murder and attempted feticide. Had Shuai, who is being represented by National Advocates for Pregnant Women and local attorneys, not been pregnant when she attempted suicide, she would not have been charged with any crime at all.

Of course, no one would deny that what happened in this case is terrible and tragic, and probably no one feels that more than Shuai herself. But this case is about so much more than whether attempted suicide should be a crime — in Indiana it is not — and the death of her daughter; its implications go much further.

The state is misconstruing the criminal laws in this case in such a way that any pregnant woman could be prosecuted for doing (or attempting) anything that may put her health at risk, regardless of the outcome of her pregnancy.

That’s right: according to the ways the laws are being applied here, the state of Indiana believes that any pregnant woman who smokes or lives with a smoker, who works long hours on her feet, who is overweight, who doesn’t exercise, or who fails to get regular prenatal care, is a felon. And the list of ways these laws could be construed to unconstitutionally prosecute pregnant women goes on and on.

Allowing the government to exercise such unlimited control over women’s bodies, decisions, and every aspect of their lives, and to send them to jail when they disapprove of a woman’s behavior, would essentially reduce pregnant women to second-class citizens by denying them the basic constitutional rights enjoyed by the rest of us.

Moreover, what does it say about our society — about our obsession with incarceration and using the criminal justice system to treat public health issues, and with controlling women’s lives and treating women as if they were somehow separate from their own pregnancies — that we would give a life sentence to a woman who tried to kill herself, just because she did so, in a moment of utter despair and distress, at the end of a wanted pregnancy? Is this (or any) punishment really appropriate here? Does anyone really think this will somehow deter desperate and distraught pregnant women from attempting suicide in the future?

If, as a society, we truly cared about healthy moms and babies, our focus would be on how we can support pregnant women, not how we can manipulate our criminal laws, and undermine basic constitutional principles, to find new ways to punish them.