Analysis Human Rights

Why Are Alameda County Jails Forcing Women to Take Pregnancy Tests?

Susie Cagle

For at least several years, Alameda County sheriffs and medical personnel have routinely conducted pregnancy tests on thousands of prisoners, old and young, fertile and sterile, willing or not. It's a practice that isn't shared by any other jails in California. No one can say for exactly how long Alameda County jails have been forcing arrested women to take pregnancy tests, and no one can really explain why.

For pregnant women in Alameda County jails in the 1980s, the daily realities of life included shackled limbs, denial of prescribed medication, and, in the case of full-term miscarriage, at least one health-care worker who insisted a woman and her baby would be “better off” if the child died. During that time, rates of female incarceration spiked, and a troubled prison system attempted to make do. Women at the jail faced rates of miscarriage 50 times higher than the California average.

In 1986, advocates sued for a litany of offenses. And in 1989, they won. Policies changed. But their attempts at reforming women’s health unexpectedly opened the door for another form of abuse.

For at least several years, Alameda County sheriffs and medical personnel have routinely conducted pregnancy tests on thousands of prisoners, old and young, fertile and sterile, willing or not. It’s a practice that isn’t shared by any other jails in California. No one can say for exactly how long Alameda County jails have been forcing arrested women to take pregnancy tests, and no one can really explain why.

“It’s ironic that they’ve stood the [1989] agreement on its head and are using it as a reason to do something coercive and punitive,” attorney Ellen Barry, who litigated the case and wrote the settlement agreement, told Rewire recently.

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One 26-year-old woman was arrested for a misdemeanor in December 2011 in Oakland while she was menstruating. “Deputies at the Glenn Dyer jail wouldn’t give me a pad, but still made me take a pregnancy test,” she told Rewire.

These unique abuses came to light over the past four years, as large political demonstrations in Oakland saw the mass arrest and detention of protesters and journalists privileged enough to not have experienced Alameda County jails before. In June, the American Civil Liberties Union filed a lawsuit against the county for violating women’s Fourth Amendment rights against unreasonable searches.

“This is not a suit that we thought we should have to bring,” said ACLU attorney Elizabeth Gill. “In our view it’s very clearly both unconstitutional and illegal what the sheriff’s office is doing. Mandatory pregnancy testing is a clear invasion of a women’s right to privacy.”

In short, the practice is “crazy,” she said.

Women and the Prison System

The story of Alameda’s mandatory pregnancy tests is really the story of how U.S. prisons have grappled with an influx of young women over the past four decades: with supreme incompetence and intermittent malice.

As the incarcerated population exploded due to mandatory minimum sentencing and the drug war, jails and prisons were suddenly grappling with an influx of women, and an influx of health issues particular to those women. Between 1980 and 2011, the female prison population grew nearly 600 percent.

Still, women remained a relatively small portion of the prison population, making their needs by volume intrinsically less urgent—in 2000, women constituted only 7 percent of the total number of inmates in the United States. In everything from health care and nutrition to labor and housing facilities, women’s care traditionally took a back seat to that of male inmates, even though they faced unique problems inside.

“Women entering correctional facilities are often in very poor health for a number of reasons, including higher rates of poverty, substance abuse, and sexual/physical abuse among this population,” writes Kelly Parker in the Journal of Law and Health.

At any given time, around 2 to 3 percent of all women are pregnant in the United States, but according to Legal Services for Prisoners With Children, an estimated 8 to 10 percent of women who enter prison are pregnant. In Alameda County, more than twice as many pregnant women were admitted into county jails in the 1980s as in previous decades.

These women are not a comparatively large population, but they are a particularly vulnerable one. In some cases, pregnant women who are addicted to drugs have been given longer prison sentences only to ostensibly protect their unborn children.

But prisons did not know what to do with their pregnant women. In 1987, the California Department of Health Services commissioned a study of three of the state’s largest facilities for incarcerated women: the California Rehabilitation Center in San Bernardino county, the California Institution for Women in Riverside County, and the Santa Rita “mega-jail” in Alameda, the fifth largest county jail in the United States. The study found that “in all three facilities, early identification of pregnancy did not routinely occur, health care plans and case management systems for perinatal care did not exist, and prisoner’s prenatal medical records were generally not available at outside contracting hospitals when two women delivered their babies.”

It took a series of lawsuits across the country to effect changes. In 1983, in West v. Manson, women incarcerated and detained at a Connecticut state prison sued for poor treatment and conditions, and won.

So too did incarcerated women in California, in Harris v. McCarthy (1987), and Yeager v. Smith (1987).

In 1986, Vernita Jones, Darlene McKeever, and Patricia Ailsworth—along with unnamed other pregnant women as a part of a class—filed suit against Alameda County and its jail system.

Vernita Jones’ baby had died after she was not allowed to have the methadone that had been prescribed to her by a doctor. “She had entered drug treatment before she was incarcerated and then was precipitously terminated from methadone, detoxed without treatment, and lost the baby at full term,” said Barry.

In 1989, the plaintiffs won, and Barry wrote a long settlement agreement that mandated a new multimillion-dollar women’s health-care facility, and a long list of new rules and guidelines for sheriffs and health-care workers to follow in their treatment of pregnant prisoners. “In the years immediately following the settlement, I believe there was good faith compliance,” she said.

In some ways, Alameda County women were lucky. “Pregnant women incarcerated in correctional facilities that have been the subject of litigation have seen an improvement in the conditions they experience,” Parker wrote. “However, most of these facilities would not have made these changes without the threat of litigation. Thus, those pregnant women incarcerated in facilities that have evaded legal scrutiny may still face conditions not much improved than those endured by Ms. Yeager and others like her.”

The Jones v. Dyer decision and resulting consent decree was a local game-changer, a turning point. It also had consequences that no one could have seen coming.

Whose Policy Is This?

Alameda County sheriffs point to the 1989 settlement agreement in Jones v. Dyer as proof that they’re not only complying with the now long-expired binding consent decree, but that they’re also going above and beyond for women’s health. The agreement, which expired in 1993, delineates a long list of procedures and guidelines meant to protect pregnant women and their fetuses, including specifications as to how pregnancy tests should be made available to all detainees so that pregnant women can access special health care, food, and other rights and services in jail.

“There were no provisions in the settlement agreement that coerced women into having mandatory pregnancy tests—this would have been against the letter and the spirit of the settlement agreement,” said Barry.

Indeed, the agreement also clearly states that those tests are voluntary for all prisoners, and that detainees can choose to opt out: “A prisoner may choose not to have this pregnancy test,” it states.

In 2011, I was arrested while reporting in Oakland, and forced to take one of these pregnancy tests, peeing into a plastic cup in an open cell in front of milling sheriffs who tried to avoid eye contact. I asked them and the health-care worker who took the cup why I had to do this. I got no response.

In an interview several months later, Alameda County sheriffs assured me that this was not their policy. “That’s Corizon’s policy,” they told me, referring to the private health-care company that oversees all medical needs in Alameda County jails. “That’s not us. You should talk to them.”

However, in a 2010 letter sent to the ACLU, Alameda County head sheriff Gregory Ahern writes that “every female prisoner is required to submit to a pregnancy test through urinalysis.”

As prison populations have exploded over the past few decades, so has the prison industry. While private prison facilities have proliferated across many parts of the country, California’s jails have, with some exceptions, remained under public control. But some municipalities have contracted out for specific jail services, including health care.

As attorneys were still hashing out Jones v. Dyer, Alameda County contracted with Prison Health Services in 1988.

“The concern about private health care is that these institutions are basically saying we can do this cheaper, which usually means we can do this at a less quality level,” said Barry. “This issue was highlighted fairly shortly after the settlement was written, and we did have to remind the county a number of times that though they’d privatized, it doesn’t take away their duty to provide constitutionally sufficient medical care.”

Prison Health Services repeatedly violated the settlement by not providing women with prescribed methadone.

“For months and months after they did not get their act together. It was very disruptive and very difficult” to get the company to comply, said Barry.

In 2011, Prison Health Services merged with its largest competitor, Correctional Medical Services, to become the largest company of its kind in the country. Corizon boasts operations in the jails and prisons of at least 29 states, including in three other California counties. The company bills itself as a cost-cutting measure for cash-strapped municipalities that have seen their prison populations skyrocket.

“This has been a very long and a very successful partnership,” said Ahern, the county sheriff, on the occasion of the county’s renewal of Corizon’s contract last February. “Corizon has provided excellent service to our inmate population while saving the County millions of dollars over the length of the contract.”

“Even My Own Bodily Fluids Were Not My Own”

One after another, women held at Alameda County jails told me similar tales of coercion and confusion, regardless of their alleged crime or their personal medical history. (The women all asked to remain anonymous.)

“They made me take one even though I’m infertile, told them so, and even though that could have easily been verified with one phone call. They had a woman cop watch me pee, I think because I had indicated I didn’t want to take a pregnancy test,” one woman told me in a written message.

“They told me it was because ‘Glen Dyer can’t hold women, so all women being held at Glen Dyer need to take a pregnancy test,’ which didn’t make any sense,” wrote another.

“It struck me for the first time when I was forced to pee in the cup, that I really could be coerced to do things that I didn’t want to do, and that it didn’t take much either. I was pretty furious that even my own bodily fluids were not my own,” a third woman wrote in her prison diary, which she shared with me.

When they arrive at the jail, prisoners have a very brief consult with a health-care worker who asks a few basic medical questions. Then they are given the pregnancy test—before they are technically booked into the jail, but are in sheriffs’ custody.

While Alameda County sheriffs claim these tests are meant to protect women’s health, during this limbo period in holding—which can last for more than two days—it is jail policy that detainees are not given access to doctors, nurses, or any other medical care, including their prescribed medications for conditions as serious as diabetes, multiple sclerosis, and HIV.

Alameda County and Corizon both declined to answer questions about their specific reproductive health-care policies and pregnancy test practices due to the ACLU’s pending lawsuit.

“Women are provided with a wide range of services, including contraception, as well as obstetrical care if they are pregnant while incarcerated,” Corizon spokesperson Susan Morganstern wrote in an email. “Corizon’s policies are consistent with the American Congress of Obstetricians and Gynecologists, and the entire program is closely monitored by a board-certified obstetrician/gynecologist.”

Though sheriffs previously said that mandatory pregnancy testing was Corizon’s policy, they have changed their story following the ACLU’s suit.

“They are saying different things in different contexts,” said the ACLU’s Gill. “They’ve variously said they’re required to do it or that their health-care contract requires it, which may be the case but is irrelevant.”

Since the suit was filed, sheriffs have repeatedly stated that the policy was a result of a consent decree, though they’ve declined to provide details.

“In the past we’ve gotten sued for not doing pregnancy tests, so it’s one of those,” Alameda County Sergeant Ray Kelly said, sighing.

Of Alameda County’s two jails, only the suburban Santa Rita “mega-jail” is approved to incarcerate female prisoners of any kind, including misdemeanor arrestees who are only held for a few hours.

“Glen Dyer Detention Facility [in Oakland] does not have the facility or space to dedicate to women’s reproductive health,” said Alameda County Captain Colby Staysa. “The decision to not allow female inmates at Glen Dyer Jail included many factors and was not based solely on reproductive health.”

If the policy originated with the county, it clearly violates the Jones v. Dyer settlement agreement, along with prisoners’ constitutional rights. If it originated with Corizon, it’s even more peculiar.

“There’s a strange notion that if these agencies go with privatization, that lessens the culpability of the government entity in situations where there are unconstitutional violations,” said Barry.

“It’s the sheriffs’ contract, and they are responsible for the healthcare of women in their jails. It’s not like the health-care provider could come in and do whatever they want,” said Gill.

It’s not clear why Corizon would facilitate costly, unwanted medical procedures on unwilling women, but the company has good reason to try to protect itself from potential liabilities. In its short history, the company has fought and settled several hundred lawsuits, with allegations ranging from neglect that resulted in a broken finger, to abuse that resulted in wrongful death.

But when I asked Sergeant Ray Kelly about the county’s contract with Corizon, he was confident: “Inmates get the same level of care that you or I would, probably better in some cases.”

The ACLU’s case is set to go to trial this fall in state court. The suit seeks to maintain pregnancy testing in the jails, but on a voluntary, not mandatory, basis, with a clear opportunity for women to opt out if they choose. The suit also seeks to have a court declare that the mandatory pregnancy testing clearly violates the Fourth Amendment, which protects against unreasonable searches.

“The fix to this is very simple: You don’t force a pregnancy test on every women who’s arrested,” said Gill.

But as long as pregnant women are incarcerated, Alameda County and other jails will attempt to strike a balance between delivering minimally acceptable care while protecting themselves from possible liability.

“Basically what we would like to see is not really any pregnant women in Santa Rita or any other jail,” said Carol Strickman, staff attorney at Legal Services for Prisoners with Children. “I don’t think jails and prisons are very good at providing adequate medical care, and it’s a vulnerable time for people. The bottom line is resources.”

But there’s one quick and simple way that Alameda County could cut its health-care budget right now: Stop forcing women to pee in those cups.

Analysis Human Rights

El Salvador Bill Would Put Those Found Guilty of Abortion Behind Bars for 30 to 50 Years

Kathy Bougher

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would heighten the likelihood that those charged with abortion will spend decades behind bars.

Abortion has been illegal under all circumstances in El Salvador since 1997, with a penalty of two to eight years in prison. Now, the right-wing ARENA Party has introduced a bill that would increase that penalty to a prison sentence of 30 to 50 years—the same as aggravated homicide.

The bill also lengthens the prison time for physicians who perform abortions to 30 to 50 years and establishes jail terms—of one to three years and six months to two years, respectively—for persons who sell or publicize abortion-causing substances.

The bill’s major sponsor, Rep. Ricardo Andrés Velásquez Parker, explained in a television interview on July 11 that this was simply an administrative matter and “shouldn’t need any further discussion.”

Since the Salvadoran Constitution recognizes “the human being from the moment of conception,” he said, it “is necessary to align the Criminal Code with this principle, and substitute the current penalty for abortion, which is two to eight years in prison, with that of aggravated homicide.”

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The bill has yet to be discussed in the Salvadoran legislature; if it were to pass, it would still have to go to the president for his signature. It could also be referred to committee, and potentially left to die.

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would worsen the criminalization of women, continue to take away options, and heighten the likelihood that those charged with abortion will spend decades behind bars.

In recent years, local feminist groups have drawn attention to “Las 17 and More,” a group of Salvadoran women who have been incarcerated with prison terms of up to 40 years after obstetrical emergencies. In 2014, the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) submitted requests for pardons for 17 of the women. Each case wound its way through the legislature and other branches of government; in the end, only one woman received a pardon. Earlier this year, however, a May 2016 court decision overturned the conviction of another one of the women, Maria Teresa Rivera, vacating her 40-year sentence.

Velásquez Parker noted in his July 11 interview that he had not reviewed any of those cases. To do so was not “within his purview” and those cases have been “subjective and philosophical,” he claimed. “I am dealing with Salvadoran constitutional law.”

During a protest outside of the legislature last Thursday, Morena Herrera, president of the Agrupación, addressed Velásquez Parker directly, saying that his bill demonstrated an ignorance of the realities faced by women and girls in El Salvador and demanding its revocation.

“How is it possible that you do not know that last week the United Nations presented a report that shows that in our country a girl or an adolescent gives birth every 20 minutes? You should be obligated to know this. You get paid to know about this,” Herrera told him. Herrera was referring to the United Nations Population Fund and the Salvadoran Ministry of Health’s report, “Map of Pregnancies Among Girls and Adolescents in El Salvador 2015,” which also revealed that 30 percent of all births in the country were by girls ages 10 to 19.

“You say that you know nothing about women unjustly incarcerated, yet we presented to this legislature a group of requests for pardons. With what you earn, you as legislators were obligated to read and know about those,” Herrera continued, speaking about Las 17. “We are not going to discuss this proposal that you have. It is undiscussable. We demand that the ARENA party withdraw this proposed legislation.”

As part of its campaign of resistance to the proposed law, the Agrupación produced and distributed numerous videos with messages such as “They Don’t Represent Me,” which shows the names and faces of the 21 legislators who signed on to the ARENA proposal. Another video, subtitled in English, asks, “30 to 50 Years in Prison?

International groups have also joined in resisting the bill. In a pronouncement shared with legislators, the Agrupación, and the public, the Latin American and Caribbean Committee for the Defense of the Rights of Women (CLADEM) reminded the Salvadoran government of it international commitments and obligations:

[The] United Nations has recognized on repeated occasions that the total criminalization of abortion is a form of torture, that abortion is a human right when carried out with certain assumptions, and it also recommends completely decriminalizing abortion in our region.

The United Nations Committee on Economic, Social, and Cultural Rights reiterated to the Salvadoran government its concern about the persistence of the total prohibition on abortion … [and] expressly requested that it revise its legislation.

The Committee established in March 2016 that the criminalization of abortion and any obstacles to access to abortion are discriminatory and constitute violations of women’s right to health. Given that El Salvador has ratified [the International Covenant on Economic, Social and Cultural Rights], the country has an obligation to comply with its provisions.

Amnesty International, meanwhile, described the proposal as “scandalous.” Erika Guevara-Rosas, Amnesty International’s Americas director, emphasized in a statement on the organization’s website, “Parliamentarians in El Salvador are playing a very dangerous game with the lives of millions of women. Banning life-saving abortions in all circumstances is atrocious but seeking to raise jail terms for women who seek an abortion or those who provide support is simply despicable.”

“Instead of continuing to criminalize women, authorities in El Salvador must repeal the outdated anti-abortion law once and for all,” Guevara-Rosas continued.

In the United States, Rep. Norma J. Torres (D-CA) and Rep. Debbie Wasserman Schultz (D-FL) issued a press release on July 19 condemning the proposal in El Salvador. Rep. Torres wrote, “It is terrifying to consider that, if this law passed, a Salvadoran woman who has a miscarriage could go to prison for decades or a woman who is raped and decides to undergo an abortion could be jailed for longer than the man who raped her.”

ARENA’s bill follows a campaign from May orchestrated by the right-wing Fundación Sí a la Vida (Right to Life Foundation) of El Salvador, “El Derecho a la Vida No Se Debate,” or “The Right to Life Is Not Up for Debate,” featuring misleading photos of fetuses and promoting adoption as an alternative to abortion.

The Agrupacion countered with a series of ads and vignettes that have also been applied to the fight against the bill, “The Health and Life of Women Are Well Worth a Debate.”

bien vale un debate-la salud de las mujeres

Mariana Moisa, media coordinator for the Agrupación, told Rewire that the widespread reaction to Velásquez Parker’s proposal indicates some shift in public perception around reproductive rights in the country.

“The public image around abortion is changing. These kinds of ideas and proposals don’t go through the system as easily as they once did. It used to be that a person in power made a couple of phone calls and poof—it was taken care of. Now, people see that Velásquez Parker’s insistence that his proposal doesn’t need any debate is undemocratic. People know that women are in prison because of these laws, and the public is asking more questions,” Moisa said.

At this point, it’s not certain whether ARENA, in coalition with other parties, has the votes to pass the bill, but it is clearly within the realm of possibility. As Sara Garcia, coordinator of the Agrupación, told Rewire, “We know this misogynist proposal has generated serious anger and indignation, and we are working with other groups to pressure the legislature. More and more groups are participating with declarations, images, and videos and a clear call to withdraw the proposal. Stopping this proposed law is what is most important at this point. Then we also have to expose what happens in El Salvador with the criminalization of women.”

Even though there has been extensive exposure of what activists see as the grave problems with such a law, Garcia said, “The risk is still very real that it could pass.”

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.