Reform of Iowa’s HIV Transmission Law Meets Resistance

Lynda Waddington

The case of an Iowa man sentenced to the maximum allowed by state law for failing to disclose to a one-time intimate partner that he was HIV-positive has been cited as evidence of the need to reevaluate state criminal transmission laws.

An Iowa man, whose only previous encounter with the law was a 2006
operating-while-intoxicated conviction, was sentenced to the maximum
allowed by state law for failing to disclose to a one-time intimate
partner that he was HIV-positive. The case, which has not resulted in
the one-time partner actually contracting HIV, has been used as
evidence by some who say it’s time that state criminal transmission
laws should be re-evaluated.

Iowa, however, isn’t a state with a high percentage of people living
with HIV, the virus that causes AIDS. Prosecutions related to this
particular law are often highly publicized as much for their uniqueness
as for a public’s need to know. In addition, of the statute’s 24
convictions since its inception, three have been appealed and
subsequently affirmed by the Iowa Supreme Court.

Ed Fallon, a member of the Iowa legislature during the 1998 session when the HIV transmission
law was nearly unanimously passed, said he voted in favor despite
having some reservations at the time. Because more than a decade has
passed, he can’t remember specific items of contention that may have
been brought up during legislative debate, but he has a general sense
of the federal government requiring such a law if the state wanted to
access monies for HIV- and AIDS-related care and education.

Fallon also isn’t sure if often spirited debate surrounding the ban
on same-sex marriage, passed earlier that same session, influenced
debate of the criminal transmission law.

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Opening a door to unintended consequences

Bob Rigg, an academic member of a legislative study committee
charged with reorganizing the criminal code, believes members of the
group are likely be willing to address issues surrounding this statute
and others during the course of their research. That being said, he
also wants advocates to understand that “once the flood gate is opened,
it can’t be closed.”

“There is often this notion of ‘Boy, we are going to change it and
we are going to make it all better,’ but sometimes when you open that
door [you don’t get the results you intended],” said Rigg, who worked
as a public defender in Polk County until 1995 when he became director
of a criminal defense program he developed at Drake University.

“Keep in mind that when you are talking about a legislature, a lot
of them are from rural areas. They are conservative. They have notions
about how things work and how they don’t work. Their understanding may
be absolutely perfect, but their clarity on some other things might not
be. And, you are asking these members to weigh in on a criminal act
that you’re going to turn into a crime and punish someone for doing. To
me, that is a very dangerous thing to do unless you know exactly where
you are going with it and exactly what’s going to happen with it. …
There’s no way to stop it, and there is no way to stop the amendments
that would come from either one political party or the other.”

Rigg’s personal preference, because the political process can be so
unpredictable, is to be extremely thoughtful when considering criminal
code changes.

“When people start playing around with the criminal code or they
start saying that we should amend our Constitution, I’m like, ‘No, we
shouldn’t.’ I err on the side of caution,” he said. “If you think what
you’ve got is bad, be careful. You just might end up with something
even worse.”

Although he is familiar with and has written about Iowa’s criminal
transmission of HIV law, he says he still doesn’t know enough about it
to determine if it is effective policy.

“The worst policy in the world is made on an anecdotal basis,” he
said. “That is, when you don’t like the result of one case out of
1,000, and you attempt to change policy to fix that one result. What
happens is that you end up making the other 999 worse. That’s the worst
way to make policy, and the worst way to get legislation through.”

A thorough evaluation of the transmission law, according to Rigg, would be an analysis of each case that has been prosecuted.

“You have to look at the Department of Corrections because although
people have been sentence, you want to know exactly how much time
they’ve served,” he said. “Just because a defendant is sentenced to 25
[years], doesn’t mean he or she is going to serve 25. Some of these
individuals could be paroled in as little as two.”

While state intervention to reduce prison sentences may not be an
intended consequence of the initial legislation, Rigg argues that it
can have “a moderating effect” on an otherwise extreme sentence.

“It is the judge’s job to sentence them. It is the DOC’s job to evaluate them for release,” he said.

Because he hasn’t done an extensive study on the practical impacts
of this particular statute, which is not currently on the committee’s
radar, Rigg indicated he didn’t feel comfortable voicing an opinion as
to its effectiveness.

“Is this statute something that should be discussed? Yes,” he said.
“I think all laws should be evaluated periodically to see if they are
accomplishing the intended goals of the legislature. Matter-of-fact,
now that you called me I might bring this statute up within the
subcommittee and ask what is going on with it.”

Yet even if Rigg and the rest of the committee decide to research
this or other criminal statutes, such review is not likely to be quick.
The last major revision of the criminal code took place in 1978, a
process that began, according to Rigg, during the 1960s.

EARLIER: HIV-positive man’s prison sentence shines light on Iowa law; Iowa courts stand firm on HIV transmission law

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

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Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.