News Law and Policy

Judge Orders Marlise Munoz Removed From Mechanical Support

Jessica Mason Pieklo

The Friday ruling came after Munoz's family asked a court to let them bury her.

Read more of our coverage on Marlise Munoz’s case here.

After an hour of arguments Friday in the case of Marlise Munoz, the pregnant woman who has been kept on life support against her and her family’s wishes so her pregnancy could continue, a Texas judge ordered John Peter Smith Hospital to declare the woman dead and withdraw life support by 5 p.m. Monday.

The arguments came after attorneys for Marlise Munoz’s husband, Erick, filed an emergency motion with the court to try and get the hospital to remove life support measures from Munoz, who suffered a pulmonary embolism in November and was declared legally brain dead. Despite the fact that Munoz is brain dead, and that she and her family were clear that she did not want life-supporting measures to be taken, the hospital never officially pronounced her dead, because, according to hospital attorneys, Texas law permitted the hospital to override those wishes in attempts to save her developing fetus.

Attorneys for the hospital finally admitted earlier this week that the fetus Munoz is carrying is not viable, after tests showed the fetus is severely malformed and suffers from developmental problems related to likely oxygen deprivation. Attorneys for the hospital also conceded in the hearing that if Munoz were alive, she would elect to abort the fetus.

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The hospital has the option to appeal the ruling.

News Violence

Fetal Tissue Workers Sue to Stop David Daleiden From Getting Their Names

Nicole Knight

The plaintiffs' lawyer explained that the researchers, who remain anonymous in the complaint, “are very fearful that they may be subjected to the same type of harassment and violence” that abortion clinic employees have faced.

Employees and scientists with ties to the University of Washington’s Birth Defects Research Laboratory have won a temporary reprieve in federal court barring the release of their personal information to anti-choice activist David Daleiden and his cohorts.

Federal judge James L. Robart granted the restraining order on Wednesday, after the plaintiffs filed a class action lawsuit to block the release of a trove of documents requested by Daleiden and a representative from a Washington state anti-choice group. The unredacted records reveal the individuals’ identifying information, such as names, addresses, and phone numbers, according to court documents.

A hearing on a permanent order is expected later this month in U.S. District Court for the Western District of Washington.

Using the Washington state Public Records Act, Daleiden and Zach Freeman, communications director with the anti-choice Family Policy Institute of Washington, had sought records dating back to 2010 related to work at the Birth Defects Research Laboratory. The research laboratory collects, processes, and distributes fetal tissue for research at academic and nonprofit institutions nationwide, according to court documents. Also ensnared in the sweeping document request were various medical and bioscience institutions, including Seattle Children’s Hospital and Planned Parenthood affiliates.

Daleiden had requested purchase orders, invoices, emails, grant applications, contracts, materials transfer agreements, rent/lease agreements, and other documents, according to an exhibit in court documents.

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Janet Chung, counsel with Seattle-based Legal Voice, who is representing the plaintiffs, said her clients wanted to stop the release of the unredacted records.

Daleiden, a self-proclaimed investigative journalist and head of the California-based anti-choice group Center for Medical Progress, was formerly indicted for his role in a string of discredited “sting” videos falsely accusing Planned Parenthood of profiting from fetal tissue donations.

Reached by phone on Friday, Chung explained that the plaintiffs, who remain anonymous in the complaint, “are very fearful that they may be subjected to the same type of harassment and violence” that abortion clinic employees have faced, particularly after the publication of the CMP videos. Releasing the unredacted records would violate the plaintiffs’ constitutional right to privacy and free association, according to the complaint.

Chung called Daleiden and Freeman’s records request a “fishing expedition” intended to “harass and intimidate.”

In an emailed statement, Daleiden said he is seeking the “truth” about a “cover-up” at the University of Washington.

When Rewire asked Daleiden whether he objected to redacting identifying information, such as names and addresses, he said in an email that his records request in February did not ask for the “personal contact information of any individuals whatsoever.”

As he explained to Rewire, however, he is seeking the communications of eight individuals whom he considers public figures:

My request only seeks those of 8 public figures…who are very publicly identified with their work at [Birth Defects Research Laboratory] with fetal body parts or with Planned Parenthood’s abortion program in Washington state.

The eight “public figures” that Daleiden names include a retired birth defects researcher, a research director at Seattle Children’s Hospital, and a top executive at Planned Parenthood.

Chung, however, told Rewire that Daleiden’s request was so broad that releasing the records would disclose the personal information of more than 150 individuals.

Chung said the plaintiffs resorted to court action because the state public records law doesn’t necessarily require the redaction of personal information, and the University of Washington had warned that it would release the records on August 5.

About two weeks before filing the complaint, Chung said they’d discussed redacting the documents with Daleiden, but he declined. She said they’re continuing to try to resolve the matter with Daleiden’s legal counsel.

In affidavits included with the complaint, plaintiffs claim they’ve been threatened, harassed, and exposed to violence —even murder—due to their ties to fetal tissue research.

As an employee at Seattle Children’s Hospital, identified only as John Doe 1 to protect his privacy and safety, writes:

In one case, Seattle Children’s diagnosed a fetus with a lethal disorder, and because of number of weeks of gestation, the patient had to travel out of state to obtain an abortion. I had interactions with the physician who performed the abortion relating to the autopsy that Children’s Labs performed on the fetus. That physician was later killed by someone with anti-abortion views.

In another affidavit, a professor and research scientist who studies congenital birth defects and is identified as Jane Doe 8, writes:

I fear that having my identity and personal information released to the public would lead to harassment, threats, or violence directed against me or my family.

Protecting the privacy and safety of researchers and employees with ties to fetal tissue science has emerged as an issue of growing concern among scientists as anti-choice groups and Republican lawmakers march on with what some have called a Planned Parenthood “witch hunt.”

In June, the head of the U.S. House Select Investigative Panel on Infant Lives revealed fetal tissue scientists’ identities in letters sent to U.S. Department of Health and Human Services—prompting fears in the medical research community the individuals will be subject to harassment and violence by anti-abortion activists.

As Chung told Rewire, “This is all very much rooted in the concern that the same types of harassment and violence that clinics experience are now being targeted on a wider range of people—all with the goal of chilling important research and medical care.”

The lawsuit is the fourth filed against Daleiden and his anti-choice group following the release of the first wave of CMP’s sting videos last summer. Planned Parenthood Federation of America, the National Abortion Federation (NAF), and StemExpress, a fetal tissue processing firm that once worked with Planned Parenthood, have all sued in federal court in California.

Daleiden often frames his work as citizen journalism, but in a brief filed with the NAF lawsuit, 18 of the country’s leading journalists and journalism scholars noted that “calling himself an ‘investigative journalist’ … does not make it so.”

In April, California Attorney General Kamala Harris’ office searched Daleiden’s California apartment as part of an ongoing investigation into the CMP’s secret recording methods.

Officials in a dozen states, including Washington state, have cleared Planned Parenthood of any wrongdoing in its tissue donation programs, and eight additional states have declined to investigate the health-care provider.

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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