Analysis Law and Policy

Advocates Urge Eighth Circuit to Revisit Viability Standard in ‘Roe’

Jessica Mason Pieklo

Arkansas is the latest state to see a direct attack on Roe v. Wade as fetal "personhood" advocates ramp up attacks on reproductive autonomy.

Attorneys for the anti-choice legal advocacy organization Liberty Counsel told the U.S. Court of Appeals for the Eighth Circuit recently that in light of modern advances in medicine, it’s time to revisit the viability standard that was first articulated by the Supreme Court in Roe v. Wade.

The viability standard sets fetal viability as the point at which states can begin to ban abortion outright. Thus, abortion bans prior to fetal viability are on their face unconstitutional.

In an amicus brief filed in Edwards v. Beck—the lawsuit challenging Arkansas’ Act 301, which bans abortion at the point a fetal heartbeat is detected, but not before 12 weeks—Liberty Counsel makes it clear the purpose of revisiting viability is to re-establish writ large the ability to prosecute people who terminate pregnancies.

“The Supreme Court majority in Roe v. Wade mischaracterized early reported cases in the 14th Century, which did not classify abortion as ‘murder,’ as somehow reflecting a common law ‘freedom’ for pregnant women to procure abortions without threat of criminal sanction,” Liberty Counsel states. “In fact, however the early cases merely reflected the state of scientific knowledge at that time in the context of stringent proof requirements for a murder conviction.”

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The brief continues:

Legal and medical experts did not have the tools available to determine whether a child who was stillborn following an injury was alive at the time of the injury, and therefore could make the “beyond a reasonable doubt” determination that the defendant had killed a child who was alive at the time of the incident. Reviewing the early cases in context shows that the failure to indict was not due to a lack of recognition of the humanity of children in the womb, but to problems of proof, i.e., had the abortionst’s act really been the cause of the death of the child? The cases recognized that killing a child in the womb was a crime, but proof problems made prosecution and conviction for homicide difficult.

As scary as Liberty Counsel’s argument to the Eighth Circuit is, the legal framework the group advances in Edwards v. Beck is already developing in places like Indiana, Mississippi, and Alabama, where prosecutors are trying to hold women criminally accountable for their pregnancy outcomes, by relying on concepts of fetal “personhood” as a basis for charging women under other criminal statutes.

Alabama Supreme Court Justices Tom Parker and Roy Moore went out of their way to make the case for prosecuting pregnant women in concurring opinions 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 who later tested positive for cocaine. “Liberty will continue to fine 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 wrote. “Why should legal protection of an individual at a particular point in time depend entirely upon his or her subjective relation to the killer?”

It’s worth repeating that in the Hicks case, Sarah Janie Hicks delivered a healthy baby but was still prosecuted.

More recently, prosecutors in Oklahoma declined to criminally charge a teenager who allegedly self-induced an abortion, citing a lack of evidence.

Importantly, Arkansas is not the only state where anti-choice activists are trying to test the limits of the Roe viability doctrine directly, but it may be among the first where anti-choice activists directly acknowledge that overturning Roe’s viability standard is central to advancing nationwide the power to police pregnancy outcomes. Arizona tried unsuccessfully to have the Roberts Court revisit the issue in the legal challenge to its 20-week abortion ban. Meanwhile, attorneys for the State of North Dakota defend that state’s six-week abortion ban by arguing that the issue of when a fetus becomes viable is a matter of scientific dispute. Similar arguments appear in the legal challenges to the contraception benefit in the Affordable Care Act, where those businesses who oppose the coverage requirement wrongly claim intrauterine devices (IUDs) and emergency contraception are abortifacients.

Anti-choice advocates have long invoked the idea of fetal “personhood” and the notion that life begins at conception as a basis for their opposition to abortion rights. But these cases that directly challenge the viability doctrine of Roe reflect a renewed push in the legal fight for “personhood.” The fact that we’re seeing mutations of this argument show up in criminal prosecutions, in addition to the contraception argument, shows this is a multi-faceted legal strategy at work.

So far, federal courts have held the line and upheld viability as the point at which the state can ban abortion outright, and when put to voters “personhood” initiatives have failed, repeatedly. But we can’t let those victories suggest that the threat posed by “personhood” advocates has abated. Because it hasn’t.

Advocates challenging the Arkansas ban have until June 26 to submit their response brief to the appeals court.

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.

News Abortion

Study: United States a ‘Stark Outlier’ in Countries With Legal Abortion, Thanks to Hyde Amendment

Nicole Knight Shine

The study's lead author said the United States' public-funding restriction makes it a "stark outlier among countries where abortion is legal—especially among high-income nations."

The vast majority of countries pay for abortion care, making the United States a global outlier and putting it on par with the former Soviet republic of Kyrgyzstan and a handful of Balkan States, a new study in the journal Contraception finds.

A team of researchers conducted two rounds of surveys between 2011 and 2014 in 80 countries where abortion care is legal. They found that 59 countries, or 74 percent of those surveyed, either fully or partially cover terminations using public funding. The United States was one of only ten countries that limits federal funding for abortion care to exceptional cases, such as rape, incest, or life endangerment.

Among the 40 “high-income” countries included in the survey, 31 provided full or partial funding for abortion care—something the United States does not do.

Dr. Daniel Grossman, lead author and director of Advancing New Standards in Reproductive Health (ANSIRH) at the University of California (UC) San Francisco, said in a statement announcing the findings that this country’s public-funding restriction makes it a “stark outlier among countries where abortion is legal—especially among high-income nations.”

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The researchers call on policymakers to make affordable health care a priority.

The federal Hyde Amendment (first passed in 1976 and reauthorized every year thereafter) bans the use of federal dollars for abortion care, except for cases of rape, incest, or life endangerment. Seventeen states, as the researchers note, bridge this gap by spending state money on terminations for low-income residents. Of the 14.1 million women enrolled in Medicaid, fewer than half, or 6.7 million, live in states that cover abortion services with state funds.

This funding gap delays abortion care for some people with limited means, who need time to raise money for the procedure, researchers note.

As Jamila Taylor and Yamani Hernandez wrote last year for Rewire, “We have heard first-person accounts of low-income women selling their belongings, going hungry for weeks as they save up their grocery money, or risking eviction by using their rent money to pay for an abortion, because of the Hyde Amendment.”

Public insurance coverage of abortion remains controversial in the United States despite “evidence that cost may create a barrier to access,” the authors observe.

“Women in the US, including those with low incomes, should have access to the highest quality of care, including the full range of reproductive health services,” Grossman said in the statement. “This research indicates there is a global consensus that abortion care should be covered like other health care.”

Earlier research indicated that U.S. women attempting to self-induce abortion cited high cost as a reason.

The team of ANSIRH researchers and Ibis Reproductive Health uncovered a bit of good news, finding that some countries are loosening abortion laws and paying for the procedures.

“Uruguay, as well as Mexico City,” as co-author Kate Grindlay from Ibis Reproductive Health noted in a press release, “legalized abortion in the first trimester in the past decade, and in both cases the service is available free of charge in public hospitals or covered by national insurance.”