More than a year after she was sentenced to 20 years prison for terminating her pregnancy, Purvi Patel finally had the opportunity to have her case heard by the Indiana Court of Appeals on Monday.
Patel is the first woman in the country to be convicted and imprisoned on a feticide charge, a dangerous precedent that would legally condone criminalizing pregnant people for pregnancy loss. According to attorney Katherine Jack—who defended Bei Bei Shuai, another Indiana woman charged with feticide, in 2011—if Patel’s conviction is upheld, it will set “a precedent that anything a pregnant woman does that could be interpreted as an attempt to terminate her pregnancy could result in criminal liability.”
In July 2013, Patel sought help at St. Joseph Regional Medical Center in Mishawaka, Indiana, for heavy vaginal bleeding. At first, Patel did not tell medical staff that she had been pregnant, but she later informed doctors that she had had a miscarriage at home. One of the doctors then reported Patel to the police. When Patel awoke from surgery necessary to remove the placenta, she was greeted by officers, and a month later, Patel was charged with feticide and neglect of a dependent. According to prosecutors, Patel had attempted to terminate her pregnancy, but instead gave birth to a live baby whom she abandoned.
There is no dispute that Patel ordered drugs online to induce an abortion, but it remains unclear whether Patel actually delivered a live baby. From the oral arguments on Monday, it also remains unclear whether Patel was aware of the gestational age of the fetus. Evidence at trial showed that Patel believed she was only around 12 weeks pregnant, not 25 weeks. Abortion is legal in Indiana until 20 weeks.
But the larger question in the case is whether an Indiana state law, originally meant to protect pregnant women from harm, can be used to punish women who have either miscarriages or abortions.
According to the state of Indiana, that’s just fine: if a person contributes to the death of a fetus, then that person can face felony criminal charges. The judges on the Court of Appeals, however, pressed the Indiana Deputy Attorney General on where the line should be drawn. If a pregnant person smokes cigarettes, for example, and then miscarries, should that person face criminal prosecution?
Thirty-eight states have feticide laws, and 23 of them apply to the earliest stages of pregnancy. Turning these laws against pregnant people who self-induce abortion, especially given the onslaught of state-level abortion restrictions since 2010, can lead to negative public health consequences and further marginalize vulnerable populations who have difficulty accessing, or simply cannot access, quality healthcare, including abortion. In their study of arrests and forced legal interventions on pregnant women in the U.S. from 1973 to 2005, Lynn Paltrow, Executive Director of National Advocates for Pregnant Women, and Jeanne Flavin, Professor of Sociology at Fordham University, found that 71 percent of cases involved poor women. The majority of cases involved women of color, with African-American women most targeted at 52 percent.
It is no surprise to some advocates that Indiana’s feticide statute has now been used against two Asian women: Shuai, a Chinese immigrant, and Patel, an Indian-American. “Asian women have been singled out when it comes to criminalized reproduction because of ugly stereotypes that claim we have a disregard for life,” explained Miriam Yeung, Executive Director of the National Asian Pacific American Women’s Forum. Yeung points to a police officer’s interaction with Patel at the hospital. “In the hospital, an officer interrogated Patel about the race of her fetus’s father, repeatedly asking ‘Was he Indian, too?’ The officer’s implication that Patel’s race and the race of the fetus’s father had some effect on the outcome of her pregnancy reflects the anti-Asian rhetoric that’s increasingly prevalent in the debate about abortion rights.”
A group of reproductive justice organizations filed an amicus brief with the Indiana Court of Appeals in support of Patel. In their brief, the advocates warn that upholding Patel’s conviction “will have cascading repercussions for all pregnant people, particularly those from marginalized communities.” They continue, “Criminalization will also prompt unwarranted scrutiny of all pregnant people, including those suffering from unintended pregnancy loss. If the Court creates a new category of feticide for self-induced abortions, it will result in constant policing of pregnant people who experience pregnancy loss. These negative repercussions will be felt the most by communities of color, immigrants, and low-income people, who already live under State surveillance and, because of their poverty, are more likely to have poor birth outcomes.”
A decision by the Court of Appeals could take months. Meanwhile, Purvi Patel remains behind bars.
