News Human Rights

The United States: Where Pregnancy is Probationary and Your Body Is a Crime Scene

Soraya Chemaly

Bei Bei Shuai's case means that all pregnant women are potential criminals and that their bodies can be treated as potential crime scenes. How the "pro-life" movement is threatening to imprison a depressed woman for up to 45 years for attempting suicide.

Prosecuting women based on the outcomes of their pregnancies violates their constitutional rights and is cruel and unusual punishment. And yet, this is what is happening.

Bei Bei Shuai is a woman in Indiana who attempted suicide while pregnant. Shuai was saved by friends and three days after a caesarian surgery the newborn died.  She was arrested and charged with feticide.  She has been in jail for 14 months and faces 45 years in prison. Last week, the Indiana Supreme Court refused to review a Court of Appeals decision, thereby allowing her case to move forward and essentially supporting the idea that the fetal murder and feticide charges against her are applicable to pregnant women  Her situation is tragic. But, her case is also a very dangerous precedent, ensuring as it does that girls and women will lose their rights and can be put in jail for miscarriage, drug addiction, accidents, attempted suicides, and for “chemically endangering” their fetuses from the moment of conception. Circumstances like hers are sadly, too frequent. She needs public support. Another woman, Christine Taylor was arrested and imprisoned and charged with “attempted feticide” for falling down stairs under what her doctors thought were questionable circumstances.  

Of particular note is that in denying Bei Bei Shuai reprieve from charges, the Indiana Supreme Court upheld a mid-level appellate court ruling that said that laws established to penalize people who hurt pregnant women can actually be used against pregnant women themselves. Hundreds of women around the country* are currently imprisoned under the aegis of “best intentions” laws. What this means is that feticide and fetal murder laws can now be used to charge, imprison and penalize pregnant women at the discretion of legislators and law enforcement officials.

“It means that women can be charged and imprisoned if they engage in any intentional act that law enforcement believes will threaten the life or health of the fertilized eggs, embryos, and fetuses they carry,” explains Emma Kettering of the National Advocates for Pregnant Women.

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So, since this is happening, it is only fair to say that once a woman gets pregnant she is a crime scene in waiting. In Arizona, she doesn’t even have to be pregnant. How much jail time should she consider when she is expecting? 

In the case of Bei Bei Shuai, up to 45 years. What was clearly a sad and gruesome suicide attempt (she took rat poison) resulting from depression and desperate personal circumstances is being turned into murder.

In this environment, and with no confidence that their rights will be respected and protected, pregnant women will continue to be jailed, in ever increasing numbers, in unexpected ways that violate their rights. Fear of imprisonment will result in women compromising their health and the health of their fetuses by avoiding pre-natal care, treatment for addiction and medical help if they fear they are miscarrying. They will have more abortions to avoid penalization. 

The creeping expansion of these laws needs to be broadly objected to as a matter of citizenship, rights, law, logic, science and public health. This is particularly true in the case of insidious chemical endangerment laws, which demonstrate as Bei Bei Shua’s case does, the danger of turning health issues into criminal issues. 

Chemical endangerment laws in particular ignore actual scientific research regarding fetal development, relying instead on faux moralities, irrational mythologies and deliberate misunderstandings. But, once the laws are established they can be mis-used. And, whereas “chemical endangerment” starts off with illegal substances, like cocaine and meth, among women who need drug treatment programs, not vilification, it is applicable to any chemical threat to a fetus in any woman’s womb. Severe alcohol abuse, although entire legal, can be far more dangerous than illegal drugs, what do we do about that? What about pesticides in your garden? How about BPAs in…everything? What about if a woman works somewhere where she is exposed to toxic substances, say she’s a nurse in a hospital? What if she takes medication to regulate an illness? What if she needs chemotherapy? These are all chemically endangering. How long should a woman go to jail? Twelve months for cigarettes? Six for anti-depressants? She has to take them, because if she is depressed enough to attempt suicide and her fetus is lost, she – like Bei Bei Shuai – will go to jail for much longer.

What has come to pass is exactly what anti-abortion activists always denied would happen: namely, that women would lose their rights and be criminalized through pregnancy (*see below).  Their strategy has always focused on eliminating abortion and prosecuting abortion providers. But, that strategy is increasingly obsolete. Changing medical technology and options that allow women to bypass doctors in terminating unwanted pregnancies clearly mean that doctors cannot be the target of prosecution and women have to be. 

“You pass laws first that say only physicians can perform abortions. Then you pass laws that make it impossible for those physicians to provide abortions. And then women take the steps they need to take as they do all around the world, as they did before Roe,” explains Lynn Paltrow, founder of the National Advocates for Pregnant Women, one Bei Bei Shua’s legal representatives. “And you create a perfect setup for making literally millions of women subject to arrest for having illegal self abortions.”

This is the only way to achieve their goal – stripping women of their right and ability to control their own reproduction safely and legally. That’s what happens when wombs are public property and pregnancy loss is considered murder. 

Using laws like the ones used against Bei Bei Shuai and creating fetal pain and chemical endangerment laws ensure that women are penalized for exercising their rights, claiming bodily integrity and assuming they have equal protection under the law. They are criminalized. And criminals are punished when they break laws. What the “pro-family,” “pro-life” movement has successfully done is create dangerous precedents and legal frameworks that penalize women who violate state defined breeding rules.  

In pursuing anti-choice, fetal protection policies that erroneously pit a woman’s rights against those of her fetus equally from the moment of conception the “pro-life” movement targets unsympathetic women and manipulates public opinion about what makes women “good mothers.”  Women who break laws, use drugs, seem careless and unethical are “bad mothers.” They do this strategically and effectively play on the complexity and nuance implicit in research regarding fetal development, societal ideals that glorify motherhood and public opinion. Women like Bei Bei Shua and others are paying the price for their achieving their goal of voiding Roe v. Wade. Persecuting women by any means necessary is just one component of dismantling women’s rights and eliminating abortion. 

Consider Mississippi which while it has not technically outlawed abortion, in practice it has, especially for women who cannot afford to leave the state to end their pregnancies. 

  • Murder in Mississippi includes the unborn. A prosecutor in Mississippi is already trying to use the state’s murder law to punish Rennie Gibbs, a teenager who suffered a stillbirth and faces life imprisonment. She was a cocaine user, but there is no evidence of a correlation between her drug use and the stillbirth. 
  • Women in Mississippi are prohibited by law upon threat of penalty from performing their own abortions, even with perfectly legal drugs. A doctor has to be involved.
  • Doctors in Mississippi who want to perform abortions must have admitting privileges in a local hospital, which legislators – dismissing the coat-hanger concerns of “some African Americans” – boast is near impossible. 
  • Women in Mississippi who cannot travel because they do not have the financial wherewithal or they have children or parents that they care for, will do what women have always done and find dangerous, not medically sound ways to terminate unwanted pregnancies.  This is, of course, illegal.

“But, hey…” if women die using hangers and “home remedies” and go to jail for doing it or miscarry trying, so be it.  Mississippi is proud to be the first state to enact compulsory pregnancy for women. 

Is this really what American’s want? There is no other conclusion. Pregnant women will all be potential criminals, their bodies considered potential crime scenes. They will deny themselves health care, endanger their lives, harm their bodies, have high-risk pregnancies. Many, many will go to jail.

People need compassion, they need to be educated about how to avoid unwanted pregnancies, they need medical attention, pre-natal care and drug treatment if suffering from addiction. They need access to safe abortions. They need their rights to be respected and protected. They do not need to go to jail. 

Forty-seven medical and legal advocacy groups have filed amicus briefs describing their objections to this “disturbing trend.” This isn’t a trend. A trend is something organic and possibly unexpected. This is a planned strategic assault on women and their rights. 

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.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.