By Alexa Kolbi-Molinas, Staff Attorney, ACLU Reproductive Freedom Project
June 2011 marks the 40th anniversary of President Richard Nixon’s declaration of a “war on drugs” — a war that has cost roughly a trillion dollars, has produced little to no effect on the supply of or demand for drugs in the United States, and has contributed to making America the world’s largest incarcerator. Throughout the month, the ACLU has been blogging daily about the drug war, its victims and what needs to be done to restore fairness and create effective policy.
Deciding to continue a pregnancy, even if you are struggling with addiction, should never be a crime. But in the 40 years since our country declared its “war on drugs,” the ACLU has been involved in countless cases across the country where women with drug dependencies have been prosecuted solely for becoming and remaining pregnant.
You have to hand it to the prosecutors, though, because their cases have been nothing if not creative. Take, for example, the state of Alabama. In just the past five years, Alabama has prosecuted at least 40 women (that we know of) for the crime of being a meth lab. These women have all been convicted under a 2006 law that makes it a crime to allow children into houses where meth labs are operated. But none of these women were operating a meth lab. And none of these crimes involved anyone other than the woman herself. With the state of Alabama alleging that their bodies were the equivalent of a meth lab, these women have been sent to jail for no other crime than that they couldn’t beat their addictions while they were pregnant. They were not charged with any other — actual — drug-related crime.
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No one is suggesting that drugs are good for embryos or fetuses. For that matter, neither is smoking (or even just living with a smoker), eating unpasteurized milk products, or failing to get regular prenatal care. But do we really want to make a pregnant woman’s behavior and choices, any health condition she suffers, or the fact that she lacks health insurance a crime because it could hurt the fetus? If we do, then virtually everything a pregnant woman does or does not do could land her in jail, because virtually everything a pregnant woman does or does not do — from what she eats, to where she works, to what condition her health was in before she became pregnant — has an effect on her fetus. Allowing the government to exercise such unlimited control over women’s bodies, and every aspect of their lives, would essentially reduce pregnant women to second-class citizens, denying them the basic constitutional rights enjoyed by the rest of us.
What is more, these prosecutions have nothing to do with keeping babies safe — and prosecutors know it. Leading medical organizations have publicly opposed these prosecutions for decades because they only serve to undermine fetal and maternal health. It’s not just a matter of public record, it’s common sense: by forcing doctors to turn in their own patients, these prosecutions only drive women away from the health care and treatment they need. But apparently some states care less about getting women the medical care they need, and more about showing the world that they are “tough” on drugs.
Once again, our country’s obsession with the “war on drugs,” and with using the criminal justice system to treat what is fundamentally a public health issue, has blinded lawmakers and law enforcement to what really matters. If, as a society, we truly care about healthy moms and healthy babies, we must ensure pregnant women have access to prenatal care, support, and treatment to overcome their addiction. And we should put an end to policies that undermine basic constitutional principles in order to lock up the pregnant women and mothers who need health care most.
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 Rewirepreviously 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.
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.
In a time of great strife, in which those who seek to divide us have a very large platform, I remember that these things are all true:
You can oppose an illegitimate or unnecessary war, and still individually and collectively honor and love the troops that serve.
You can honor and love the troops that serve, but protest the ways in which war is waged and abhor the behavior of individual soldiers who abuse human rights and dehumanize the civilians in a population. You can honor and love and support the troops that serve but still work to change the systems, and hold politicians and individuals responsible for crimes they perpetrate.
You can honor and love any and all public servants—as I do deeply—but still abhor systemic problems in civil services that lead to racist behaviors and outcomes (or those based on class, immigrant status, gender, ability, or any other basis for discrimination).
You can honor, love, and respectpolice, but abhor the militarization of our police forces; racial and ethnic profiling; abuses of fines, fees, and arrests that both target and most adversely affect the poorest individuals; and the growing dependency of the budgets for police forces based on fines drawn from those who can least afford it. You can honor, love, and respect the police, but still understand why there is a great level of distrust of policing in some communities. You can honor, love, and respect the police, but still recognize real abuses of power by individuals or groups among them, and seek to hold those responsible accountable for their actions.
You can honor and love police for putting their lives on the line for public safety, but recognize the very deeply legitimate concerns of movements—like Black Lives Matter, immigrants’ rights groups, women’s rights groups, LGBTQ rights groups, and others for whom policing often is not about public safety, but is itself a source of fear—because law enforcement is and has been too often used against these groups in ways that are disrespectful, demeaning, and sometimes deadly.
You can honor, respect, and love the police, but support the work of Black Lives Matter, immigrants’ rights groups, women’s rights groups, and LGBTQ rights groups, and defend them against blame for the behavior of someone acting in their name who is not actually acting in their name at all.
You can honor and respect the work of prosecutors, judges, and other law enforcement officials, but recognize when the systems in which they are working are not working for the people or to promote justice, or when individuals within those systems operate more on bias than on integrity.
You can protest and advocate for change in any and all of these systems without dishonoring the individuals within them. Indeed, by protesting and seeking to make them better, you make the world better for those within and outside of law enforcement and, hopefully, promote a more universal justice.
You can and we all must honor and treasure the freedoms of speech and of assembly, and abhor violence, while also recognizing that sometimes it is perpetrated by people, like veterans, whose own needs for health care, love, and honor have not been met by the country that sent them to war, or by people who feel so alienated that they—wrongly but nonetheless—resort to violence.
You can be confused by or even irritated by something you don’t understand, but it is on you, not others, to try to understand it. As Proverbs 4:7 says, “The beginning of wisdom is this: Get wisdom. Though it cost all you have, get understanding.” Read, discuss, challenge yourself. Try to open yourself up to what may seem like radical ideas. Make yourself vulnerable to learning. If you don’t understand the movement for Black lives, women’s rights, LGBTQ rights, immigrant rights, then listen to the very people fighting for their rights in order to better understand them. You may have started from a very different place than they do; you may stand in a very different place today. The issues may seem alien at first. But just because you don’t have cancer does not mean cancer does not exist. Try hard to understand why there is distance, what you don’t understand, and what you can—what we all must—do to narrow that distance in understanding each other.
We can love, honor, and respect each other and still recognize and raise awareness of our collective weaknesses. Indeed, that is the essence of progress and of democracy. Don’t fight it. Try to help it along.
People are human and therefore flawed. The systems we create also are therefore often flawed. We need mutual love and respect, along with vigorous debate and sometimes protest, to right the wrongs that are the inevitable result of our flawed selves and our flawed systems.
Love, honor, respect, and accountability: We need them all. Accountability, along with freedom, is the essence of a functioning democracy and part of the struggle for justice. The right to speak, the right to protest, the right to agitate for changes in systems that are flawed because we are all flawed in some way. The right to make things better.
Speaking up, speaking out, changing systems… This is not disrespect or lack of love and support. It is the essence of the struggle for the rights of all people. It is democracy. Some will tell you that in speaking out you are being disrespectful, but the opposite is true. You are respecting the many who have fought and given their lives—and who continue to be placed in harm’s way—on behalf of all of us so that we may all exercise our basic freedoms.
Let’s embrace the struggle. We can love, honor, respect police and other public servants, politicians, soldiers, and ourselves, and still work to hold them and ourselves accountable. These things are all true. I can hold these true simultaneously.
Can we all hold these things true simultaneously? I hope so, because I fear our failure to do so will only result in more violence and hatred.