Analysis Law and Policy

Alabama Supreme Court Justices Make Case for Prosecuting Abortions

Jessica Mason Pieklo

In a decision interpreting the state's chemical endangerment statute, two justices of the Alabama Supreme Court argued for jailing women who terminate pregnancies.

Alabama Supreme Court Justice Tom Parker opened his concurring opinion in Ex Parte Hicks—a decision that upheld the conviction of Sarah Janie Hicks under Alabama’s child endangerment statute for giving birth to a healthy baby that later tested positive for cocaine—by quoting former U.S. Supreme Court Justice Sandra Day O’Connor’s plurality opinion in Planned Parenthood v. Casey. “Liberty finds no refuge in a jurisprudence of doubt,” O’Connor wrote for the plurality in Casey, to underscore that despite the deep wounding Casey‘s undue burden standard had just delivered to Roe v. Wade, Roe‘s central premise, that a woman has a fundamental right to privacy that includes the right to choose abortion, remained intact. It was designed to be a reaffirmation of the liberty rights of women, even in the face of significant state intrusion.

So why would an Alabama Supreme Court justice quote one of the most famous lines of abortion rights jurisprudence in an opinion concerning criminal child endangerment? To launch a shot across the bow in the battle to re-criminalize abortion.

In Hicks, the Alabama Supreme Court ruled that “the plain meaning of the word ‘child,’ as that word is used in the chemical-endangerment statute, includes an unborn child” and, therefore, prosecuting pregnant persons under the statue was permissible. Passed in 2006, Alabama’s chemical endangerment law was intended to deter people from bringing children to places where controlled substances are produced or distributed, such as methamphetamine laboratories, but increasingly prosecutors have used it to charge pregnant women who test positive for a controlled substance or who, like Hicks, give birth to a healthy newborn who tests positive for a controlled substance, or who experience a pregnancy loss. The decision follows a similar one handed down last year by the Alabama Supreme Court in Ankrom v. State, in which Alabama’s highest court also ruled that the word “child” includes an “unborn child.” While neither Ankrom nor Hicks were expressly abortion rights cases, they are the proverbial canary in the coal mine. The Alabama Supreme Court did not need to address abortion rights jurisprudence in the Hicks decision at all. In fact, the majority opinion upholding Hicks’ conviction doesn’t, even though it interprets the child endangerment statute to “protect the life of the unborn.” But that at least two members, including the chief justice, went out of their way to link the reasoning in Hicks and Ankrom to a call to re-criminalize abortion and attack the very premise, re-affirmed in Casey, that pregnant people have any liberty interests at all, is a very clear indication that the goal of the “personhood” movement includes prosecuting and jailing women, even those who deliver healthy babies like Hicks.

“Liberty will continue to find no refuge in abortion jurisprudence until courts … like Alabama recognize an unborn child’s inalienable right to life at every point in time and in every respect,” Parker continued. His flipping of the Casey quote here is as telling as it should be chilling. In one fell swoop, Justice Parker announces Alabama’s attempted judicial secession from abortion rights jurisprudence and makes a call to action for other states to follow suit. But Parker’s opinion is not just some rhetorical exercise. He and his colleague and fellow ideologue Justice Roy Moore explicitly make the judicial case for prosecuting women who have had abortions. According to Parker, because the state has an interest in protecting life “at all stages of development,” this necessitates jailing and prosecuting women for not just endangering a developing fetus, but in the case of abortions as well. “Why should legal protection of an individual at a particular point in time depend entirely upon his or her subjective relation to the killer?” Parker wrote. “Because an unborn child has an inalienable right to life from its earliest stages of development, it is entitled not only to a life free from the harmful effects of chemicals at all stages of development but also to life itself at all stages of development. Treating an unborn child as a separate and distinct person in only select respects defies logic and our deepest sense of morality.”

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Not to be outdone by his colleague’s judicial activism, Justice Moore wrote separately that “as the gift of God, this right to life is not subject to violation by another’s unilateral choice ” and that it is “God’s law” the courts must follow.

From local to international, all law flows from the divine source: it is the law of God. The law of nature and of nature’s God binds all nations, states, and all government officials—from Great Britain to Germany to Alabama—regardless of positive laws or orders to the contrary.

Or, said another way, Justice Parker and Moore’s combined legal conclusion is that women should be prosecuted and jailed for their pregnancy outcomes because “God’s law” says so.

So why, beyond outright judicial activism, would Moore and Parker go out of their way to call specifically for courts to adopt fetal “personhood” as a means to eradicate abortion rights and to lay out, in detail, their purported legal reasoning for doing so? To help other anti-choice advocates make the same arguments in the future.

“These justices have clearly expressed the view that women who have abortions should be subject to prosecution and incarceration,” Lynn Paltrow, executive director of the National Advocates for Pregnant Women, told Rewire. “With the chief justice of a state supreme court now on record as viewing both women who give birth to healthy babies and women who have abortions as criminals, it is time proponents of anti-abortion laws and so-called ‘personhood’ measures address the punishment women will be subjected to as a result of these laws.”

In some ways, it was only a matter of time before an opinion like Hicks happened. Anti-choice zealotry has found a home with the elements of the criminal justice system that have pathologized and criminalized poverty, mental illness, and substance abuse. There’s the case of Rennie Gibbs, who at 16 years old faced life in prison after delivering a stillborn infant that prosecutors argued was related to cocaine use during pregnancy, despite the fact the infant never tested positive for cocaine, only cocaine byproduct. Other medical experts disagreed with that conclusion, instead concluding that the cause of death of Gibbs’ daughter was most likely the umbilical cord wrapped around the baby’s neck. A judge dismissed the case against Gibbs, but prosecutors have indicated that they will try and re-indict Gibbs this summer. Meanwhile, in Utah, a young woman was charged with a felony under the state’s child endangerment laws after having an emergency cesarean section that law enforcement believed was necessary because the woman allegedly was using methamphetamines while pregnant. And now Tennessee has explicitly given prosecutors the power to prosecute pregnant women for narcotic use, despite the fact that using drugs is not generally a crime.

One of the real dangers in prosecuting pregnant people under child endangerment statutes, according to Paltrow, is that there is no “limiting principle” to hold the state in check. “Once you decide that prosecutors and police officers have a role in prenatal care, there is no limiting principle, which means prosecutors can start to look at actions beyond just drug use,” she said. Paltrow’s right. In the argument promoted by Parker and Moore in Hicks, women’s personhood is erased at the moment of conception and anything that ends a pregnancy creates probable cause for an investigation into the cause of “death” of that pregnancy. And as the Parker and Moore opinions in Hicks show, for proponents of fetal “personhood” the only limiting principle  is the U.S. Constitution, which for now prevents judges from applying the logic of prosecuting pregnant drug users in the name of fetal rights to prosecuting women who seek abortions under the same—but even that may not be a given. In Iowa, three of the four Republican candidates for U.S. Senate have said that if elected they would block any federal judicial appointee who did not have a “biblical” view of justice or follow “natural law.” And while Kentucky senator and likely Republican presidential candidate Rand Paul recently caught heat from the right for claiming he had no interest in altering abortion laws, he remains a sponsor and proponent of the “Life at Conception Act,” which would create federal fetal “personhood.”

According to the Guttmacher Institute, in the pre-Roe days, despite the fact that many states criminalized abortion, including aiding and counseling a woman trying to obtain one, women were rarely convicted for having an abortion under those laws. Instead, prosecutors used the threat of jail, prosecution, and conviction to encourage them to testify against providers and drive out doctors who would continue to offer abortion care. That exercise of state power drove a dangerous and deadly wedge between pregnant people and their doctors and set patients and doctors up as potential adversaries with competing legal interests. But, history is an imperfect guide here. As we’re seeing in places like Alabama, Mississippi, Louisiana, and now Tennessee, fetal “personhood” proponents are creating a similar wedge, but this one isn’t to deter providers from treating women since TRAP (targeted regulation of abortion providers) laws and other laws restricting abortion access have already largely done that. This time, the exercise of state power is to go after the women themselves, regardless of her circumstances.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (D-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

CORRECTION: A previous version of this article included a typo that misidentified Sen. Tim Kaine as a Republican. We regret this error.

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.