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. 

Commentary Politics

The Loss of Our Sons and Daughters Is More Than a Political Moment

Toni Bond Leonard

We must bear witness to support the Black mothers who shared their stories of losing children to state and racial violence at the Democratic National Convention. But bearing witness means demanding justice and policy change.

When I watched the Mothers of the Movement—a group of Black mothers of slain children—take center stage at the Democratic National Convention (DNC) last week, I saw Black women “making a way out of no way.” We turn our suffering and righteous indignation into agency.

Sybrina Fulton, Trayvon Martin’s mother, talked about being thrust into the spotlight while grappling with her teenage son’s killing. Geneva Reed-Veal, the mother of Sandra Bland, began her remarks by acknowledging God’s greatness and how the mothers’ presence at the DNC was itself proof of that greatness. She then related the horrific details of her 28-year-old daughter being found hanging in a Texas jail cell after a possibly unlawful traffic stop in 2015. She called it the worst nightmare anyone could imagine.

But as eloquent and moving as the Mothers of the Movement were, their narratives were treated as a political moment that demonstrated mostly that Hillary Clinton had successfully campaigned to garner the backing of these mothers who are surviving reproductive loss. As I watched Reed-Veal fight back tears, I wondered what type of strength it takes to find peace with such a loss.

The lives of women such as Fulton and Reed-Veal—and those of their deceased children and their remaining families—matter more than a fleeting appearance in Philadelphia. While Clinton is apparently able to imagine what it means to lose a child and talk about that on the campaign trail, it is different to live with the immeasurable weight of losing a loved one, especially when it was due to systemic racism.

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In the Christian tradition, we remember Jesus’ suffering on the cross. And the mothers’ words call us to bear witness to police violence and the women who suffer irreparable reproductive loss. But bearing witness requires us to do more than see and hear about atrocities. We must also demand justice.

Reproductive justice theory holds that women have the human rights to bear children (or not), and to parent with the necessary social and economic supports so that their children not only survive, but thrive. Thriving means access to safe affordable housing, quality education, a living wage, healthy foods, and health care that is grounded in prevention and healing. It means living without fear of violence, especially from the very state authorities entrusted with protecting us.

In Sisters in the Wilderness: The Challenge of Womanist God-Talk, womanist theologian Delores Williams discusses Black women and a particular type of “surrogacy.” She uses the biblical story of Egyptian slave Hagar, who became Abraham’s concubine to bear him the son that his wife, Sarah, had not. Hagar’s body—and her child—were not her own. Williams argues that Black women have long been forced to step into others’ roles—raising white women’s children during and after slavery, for one—and that surrogacy has been exploitative.

We stand now in a moment where Black women are still surrogates. Their children are not their own, used as human targets by law enforcement and racists to act out their hatred of Black people. And even as the Mothers of the Movement struggle to grieve, their pain plays out in public.

To honor and address their pain, we must listen compassionately to Black people who say “Black Lives Matter.” The shootings of police officers cannot be used to scapegoat the legitimate concerns and demands of Black Lives Matter, which push us to confront historical and ongoing violence against Black Americans. Those urgent cries must fall on ears ready to understand the long history of our lives not mattering in this country. Those cries come from the collective memory of enslaved Black bodies, especially Black mothers forced to bear children to gratify economic greed, and firsthand contemporary experience.

Political candidates must also do more than just listen to the heartrending stories. They must also put forth concrete legislation to address the structural inequality behind racial profiling and the murders of Black people.

While Clinton’s platform includes ending gun violence and building trust between communities and police, what we did not hear at the DNC was how she would advance policies that would prevent the tragic reproductive loss that the Mothers of the Movement now know.

Her platform sounds progressive, but I cannot help but remember her racially coded comments in support of the 1994 Violent Crime Control Act: that youth in gangs “are often the kinds of kids that are called ‘super-predators.’ No conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel.”

Typically, dogs are brought to heel so that they walk close to or follow their owners. An unconscious, unfortunate choice of wording, perhaps? Still, the anti-poor legislation passed during her husband’s administration, and which she supported, has created and worsened conditions that shove poor families, disproportionately families of color, further into poverty.

In this watershed moment, radical accountability is needed if we’re to stem the use of deadly force against Black people.

Our elected leaders can model accountability by admitting that their own policies or statements have fed the police and not hungry people. Quite frankly, Clinton’s support of the crime bill and of the federal welfare reform requires some meaningful and public repentance.

And that repentance has to be more than a moment at the DNC or any future political gathering, but a sincere strategy to correct the injustices that claimed the Mothers of the Movement’s children. This is what it means to bear witness.

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.

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