When is an anti-choice group actually for abortion? When it comes to defending a law that could help them in their endless quest to give full legal rights to fertilized eggs.
The Liberty Counsel is taking up the “chemical endangerment of children” law, usually meant for prosecuting those who cook meth in areas where children live. But the anti-choice legal group is hoping that an extension of the law could be applied to pregnant women who use the drug, essentially classifying the embryo or fetus as a “child” and allowing a legal precedent for so-called “personhood.”
How desperate are they to make it happen? Well, if their legal ploy could inadvertently increase the likelihood that an addict might get an abortion so she doesn’t end up in jail, so be it.
An attorney for the American Civil Liberties Union, which filed a brief on behalf of the women defendants, called the prosecutions a “misuse of an otherwise good law.” Applying the chemical endangerment law to fetuses, said the attorney, would “analogize a woman’s body to a meth lab” and would force pregnant women who are struggling with addiction to choose between jail and abortion.
“They’re so desperate to have any judicial interpretation of a fetus or egg as a person that they don’t care about the result,” said Alexa Kolbi-Molinas, staff attorney for the ACLU Reproductive Freedom Project. “The sole goal in filing this brief has nothing to do with protecting women and babies, but is solely about trying to get a decision that holds that a fetus or egg is a person, because somewhere down the line it will make abortion illegal.”
Make a woman a “meth lab” and a fertilized egg a “person.” We always knew that the more eggs became “people” the less women would be counted as people, too.
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.
GOP-backed "personhood" laws have been an unmitigated failure. Voters in state after state have rejected by wide margins personhood ballot initiatives, and personhood bills have failed to gain traction in many legislatures.
An Iowa Republican plans to introduce a measure defining life as beginning at conception in response to the U.S. Supreme Court’s ruling striking down an anti-choice Texas law, which has limited states’ ability to restrict abortion care access.
GOP-backed “personhood” laws have been an unmitigated failure. Voters in state after state have rejected by wide margins personhood ballot initiatives, and personhood bills have failed to gain traction in many legislatures.
Rachel Lopez, a spokeswoman for Planned Parenthood of the Heartland, told IowaWatch that personhood measures are routinely introduced in Iowa but have failed to gain traction in the GOP-dominated legislature.
“Although we have not yet seen the details of this impending effort, we are confident that it also will fail to advance,” Lopez said. “Personhood bills are a waste of both time and taxpayer dollars, as they have failed time and again in Iowa and other states.”
Iowa lawmakers this year introduced SJR 2001, a joint resolution proposing an amendment to the state constitution specifying that the document does not secure or protect a fundamental right to abortion care.
SJR 2001 was referred to the senate rules and administration committee, but never received a hearing or a vote.
Schultz, who was elected to the state senate in 2014 after serving in the house, has sponsored or co-sponsored several anti-choice bills while in the state legislature, including personhood measures.
SF 478, sponsored by Schultz during the 2015 legislative session, would have defined “person” when referring to the victim of a murder, to mean “an individual human being, without regard to age of development, from the moment of conception, when a zygote is formed, until natural death.”
Mark Kende, director of Drake University’s Constitutional Law Center, told IowaWatch that Schultz’s proposal would not survive in the courts.
“He can try to pass that legislation but it certainly wouldn’t trump the federal Constitution,” Kende said. “Even if that language got into the state constitution it can’t defy three Supreme Court decisions in the last 40 years.”
“I’m pro-life and I want to do what I can to encourage things that can protect the lives of unborn children,” Branstad said. “Yet I also recognize that we have to live with the restrictions that have been placed on the states by the courts.”