Investigations Science

Anti-Choice ‘Science’: The Big Tobacco of Our Time

Sofia Resnick & Sharona Coutts

The issues might have changed, but the techniques now widely used by conservatives to distort science and, with it, public policy, remain the same.

To view the full False Witnesses gallery, click here.

First Big Tobacco, then climate change denial, and now, the anti-choice movement.

The issues might have changed, but the techniques now widely used by conservatives to distort science and, with it, public policy, remain the same.

They create nonprofits, staffed with die-hard ideologues, and set about producing and promoting bogus science, to build the illusion of dissent or doubt over conclusions drawn by peer-reviewed scientific or medical research. They develop their own “research findings” to suit their ideological views. Then they deploy scare tactics, all with the goal of passing laws that suit their agenda.

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In this case, the agenda is to promote the theory that abortion harms women’s health—physically and mentally. It’s a strategy anti-choice activists have been working on for decades, but in recent years, sympathetic state attorneys general have been increasingly relying on a cadre of so-called experts who will defend and promote anti-choice laws.

Rewire has detailed the various organizations and individuals involved in what might best be called the “False Witness” industry. We reviewed scores of public records from state attorneys general and health departments, interviews of officials and legitimate researchers, and a close examination of both the tax filings and the scholarly works of these organizations and individuals.

Our investigation reveals the close connections between many of the ostensibly independent “research” groups that feature prominently in the anti-choice movement. Several groups, such as the Charlotte Lozier Institute, the Reproductive Research Audit, and the World Expert Consortium for Abortion Research and Education, share many of the same officers and experts.

Our work details how the scientific and medical claims of these groups and individuals have been publicly discredited in episodes ranging from lying to the public, presenting false data in scientific journals, and being forced to retract articles that proved to be works of fiction presented as fact. Other doctors and professors catalogued in this gallery carry impressive credentials, appear to be apt in their fields, and are technically qualified to testify on reproductive-health issues. However, fueled by their religious or political beliefs (or both), many of these professionals have testified in support of unproven or discredited theories.

Our research also shows that, despite the documented problems with these “experts,” states have paid members of this group nearly $658,000 dollars since 2010 for testimony in both legislative and court hearings—paving the way for laws, policies, and legal opinions that are buttressed by “facts” that are “truthy” at best, or explicitly false at worst. That number is likely the tip of the iceberg, since it is based only information from states that complied with our records requests.

The impact of these False Witnesses has been wide-reaching: According to Aziza Ahmed, a professor at Northeastern University School of Law, who has studied the use of evidence in abortion litigation, courts are now accepting as fact what were once recognized as shoddy, “fringe” notions.

“The courts are acting politically and you’ll see that they’re doing a lot of work to legitimize what they call ‘conservative evidence,’” Ahmed said. She said this has put progressives in a “quagmire” of disputing unscientific claims—a debate that simply sows more doubt in the public’s mind. “The only way to deal with that is to acknowledge the politics of the courts and how the courts in today’s very anti-choice environment are making it possible for conservative ‘scientific’ arguments to have so much legitimacy.”

Rewire’s research has identified 14 people who have played an outsized role in creating and spreading key falsehoods about abortion. We have found that they are affiliated with a small number of key groups that give these bogus notions an official gloss but which are little more than vehicles for manufacturing doubt.

WECARE, Founded by Discredited Researcher

WECARE was founded in June 2011 by Priscilla K. Coleman, a professor of human development and family studies at Bowling Green State University in Ohio, to further the idea that abortion harms women. In addition to publishing questionable research and analysis, WECARE advertises ideologically driven scholars and professors to testify against abortion rights during legislative hearings or in the courts.

Coleman, who has a PhD in life-span developmental psychology from West Virginia University, has dedicated her career to establishing a causal relationship between abortion and mental illness. She is one of the small number of individuals whose incessant and unscientific claims have contributed to state laws that repeat that falsehood as a legislative “finding.”

In recent years, Coleman has testified in Alaska, Ohio, South Dakota, and even before the U.S. Congress, our research has found. Records obtained from these states show that she has earned a minimum of $10,875 for her work in North Dakota alone.

In February 2013 Alaska state Sen. John Coghill (R-Fairbanks), invited Coleman to testify in support of a bill he sponsored that would have eliminated the use of state Medicaid funding for abortions deemed medically necessary due to mental illness.

“I am of the opinion that abortion is never justified based on mental health grounds and abortion should not be paid for by the state of Alaska due to the presence of any form of mental illness in women,” said Coleman, as reported by the Anchorage Daily News; she was armed with citations from her large body of research, which she claimed documents “the association between abortion and declining mental health status.”

The problem with Coleman’s supporting research was that most of it was her own work, which had been thoroughly and embarrassingly debunked back in 2009.

The article in question appeared in the May 2009 issue of the Journal of Psychiatric Research and was co-authored by Catherine T. Coyle, Martha W. Shuping, and Vincent M. Rue (another member of our False Witnesses gallery.)

The study purported to analyze the relationship between induced abortions and a range of diagnosed mental health disorders using data from the National Comorbidity Survey for the years 1990 through 1992. Coleman’s team concluded that women who had reported having one or more abortions were likelier than those who had not reported having abortions to have been diagnosed with panic disorders and attacks, post-traumatic stress disorder, agoraphobia, bipolar disorder, mania, depression, and a dependence on alcohol and drugs.

Coleman’s study has been referenced by states’ attorneys to defend various state laws requiring doctors to tell women that abortion increases their risk to mental disorders. Among those is a 2005 South Dakota law that forced doctors to to tell women an abortion will put them at risk for depression or suicide—even though this alleged connection is at odds with the medical consensus on this issue. Coleman was also widely cited in a South Dakota legislative task force report that helped to inform that law.

Other researchers quickly pounced on major problems with Coleman’s article, and even Alan F. Schatzberg, a Stanford University psychiatry professor who edits the journal, along with Harvard Medical School professor Ronald C. Kessler, determined that Coleman’s analysis did not support her “assertions that abortion led to psychopathology in the NCS data.” Yet, for reasons it has declined to state, the journal did not retract Coleman’s article, a fact she repeats in defense of her otherwise eviscerated work.

Despite this public disgrace, Coleman is regularly called as an expert witness to testify about abortion-related policies, and has done so on the taxpayer’s dime. Between November 2013 and February 2014, the state of North Dakota paid Coleman more than $10,000 for expert testimony for abortion litigation, according to records Rewire obtained through a public records request. The state has been embroiled in litigation related to a series of anti-abortion bills since 2011.

And Coleman is not alone. Since founding WECARE in mid-2011, she has fortified relationships with other anti-choice researchers who have also been caught playing fast and loose with science, or outright lying, and yet who continue to collect hundreds of thousands of dollars to jet around the country, peddling their falsehoods in state houses and courtrooms.

Other WECARE affiliates include: Dr. Byron C. Calhoun, who has lied about the rates of abortion-related injuries in West Virginia; Dr. Elard S. Koch, whose attempts to disprove well-established links between lack of access to safe abortion care and higher rates of maternal death and illness have been challenged by a federal judge; Dr. Monique Chireau, an assistant professor of obstetrics-gynecology at Duke University, who promotes abstinence-only sex education; Dr. Martha Shuping, who has co-authored discredited research with Priscilla Coleman; and Dr. Angela Lanfranchi, who promotes the unfounded theory that abortion causes breast cancer.

Nearly all are members of the False Witnesses gallery and more information about them can be found in their individual profiles.

Two other groups that—like WECARE—supply lawmakers and reporters with medical professionals who hold minority views on abortion, are the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), an organization of approximately 2,500 obstetrician-gynecologists who oppose abortion rights (by contrast, the American Congress of Obstetricians and Gynecologists has approximately 57,000 members) and the Molecular Epidemiology in Life Sciences Accountability (MELISA) Institute in Concepción, Chile, which bills itself as a “private non-profit institution for advanced biomedical research.”

AAPLOG houses three False Witnesses: Executive Director Donna Harrison, who frequently claims that emergency contraception is abortion, and at-large board members Calhoun and Chireau.

Elard Koch founded and directs the MELISA Institute, which also houses three False Witnesses: Calhoun, Chireau, and Dr. John Thorp, a North Carolina-based obstetrician-gynecologist who serially testifies in court unfounded assumptions that problems from abortion are likely grossly under-reported. Thorp’s expert witness reports have also been influenced by anti-choice activist Vincent Rue.

The Charlotte Lozier Institute and Reproductive Research Audit

Whereas WECARE exists to lend credibility to the minority viewpoint that there is a significant, direct correlation between induced abortion and mental health disorders, the Charlotte Lozier Institute and Reproductive Research Audit exist to throw doubt on the majority viewpoint that abortion is a safe procedure that does not present physical and mental risks at a significantly higher rate than other procedures or life events.

The Charlotte Lozier Institute is the “education and research arm” of the Susan B. Anthony (SBA) List, a Beltway nonprofit that focuses on electing anti-choice politicians to Congress. The SBA List has been around since the early 1990s, but the Charlotte Lozier Institute was only founded in 2011—in an attempt by the anti-choice movement to rival the widely respected Guttmacher Institute as a trusted source of abortion-related research. It boasts as members several of the same people who work with Priscilla Coleman.

Though it masquerades as a research institute, the Charlotte Lozier Institute has so far produced little in the way of original research and data-gathering and has instead published more commentaries and analyses of others’ research that support its agenda on abortion and end-of-life issues. The group has also called for more standardized and robust reporting of abortion statistics by state health departments—under the guise of better understanding the risks of abortion. Yet, all the while, its parent organization, the SBA List, works every day to criminalize abortion. The Charlotte Lozier Institute reported spending $11,411 in 2012 seeking out academic and policy experts to provide oral and written testimony in favor of policies that restrict access to legal abortion, and boasts several False Witnesses members as “associate scholars.”

These include Calhoun, as well as Jacqueline C. Harvey, “a scholar of public policy and bioethics” with a PhD in public administration and public policy, and Michael J. New, an assistant professor of political science at the University of Michael-Dearborn, who has a PhD in political science and a master’s degree in statistics. According to their Twitter updates, New and Harvey appear to be involved romantically.

The Charlotte Lozier Institute files with the Internal Revenue Service as the Susan B. Anthony List Education Fund. The Fund’s public tax filings show that it is far from a true research institute, but is instead a political organization aligned with the Republican Party and intended to argue against reproductive rights.

Charles A. Donovan serves as president of the Charlotte Lozier Institute. He’s worked in the Beltway for decades for a variety of national conservative and religious right organizations, including the National Right to Life Committee, the Family Research Council, and the Heritage Foundation. He currently sits on the board of directors of the Family Research Council and Heartbeat International, a crisis pregnancy center network based in Columbus, Ohio.

In 2012, the group reported spending approximately $688,000 on the “Free Speech Project” it launched in 2010, donating most of that money to the James Madison Center for Free Speech in Terre Haute, Indiana, and the ActRight Legal Foundation in Plainfield, Indiana.

The James Madison Center is associated with James Bopp, Jr., who is involved with the infamous Citizens United case. Bopp was previously counsel for ActRight, an umbrella organization intended to help fund Republicans’ political campaigns, created by officers of the National Organization for Marriage, a national nonprofit that since 2007 has been campaigning against marriage rights for gay men and lesbians in the United States and abroad.

Charlotte Lozier also reported spending more than $46,000 collecting data on abortion and on collecting state and county-level data “to evaluate the effectiveness of marketing and other communications strategies to increase patient traffic to care centers,” referring to so-called crisis pregnancy centers designed to dissuade women from having abortions. The group reported spending approximately $44,000 on focus-group and polling research in 2012, exploring among other things “public attitudes toward the legal permissibility of abortions performed for the person [sic] of destroying an unborn child of a particular sex.”

Reproductive Research Audit (RRA) is a project of the Center for Morality in Public Life, a nonprofit based in Fairfax, Virginia, and founded in 2010, whose stated purpose is “to integrate good ethics with daily living.” Two of RRA’s regular contributors are Harvey and New, who are also affiliated with the Charlotte Lozier Institute.

RRA’s stated mission is “to shine a light on the methodology of scientific studies on reproductive health issues, exposing their bias, flaws and propensity to ignore data that does not support a pre-determined political agenda. Too often, such articles, rife with error, are cited as legitimate research, and are used to further efforts in favor of increased access to abortion and contraception.”

As with the Charlotte Lozier Institute, RRA works to undermine research that supports abortion rights policies, particularly research produced by the Guttmacher Institute. But in some cases, RRA’s research critiques misrepresent the study or analysis in question. And in other cases, RRA contributors completely distort the research they are purporting to “audit.”

For example, we have documented an instance where RRA’s Harvey tried to debunk a Guttmacher study, which documented the lengthy distances women traveled to access abortion services in 2008. Harvey inadvertently distorted the study, because she had not actually read it, but rather made assumptions based on the abstract alone.

“I regret that I worked from an incomplete source when a complete source was available and for the subsequent errors that caused,” wrote Harvey in a Reproductive Research Audit article dated July 31, 2013, in which she attempted to correct errors she had made in a critique of a Guttmacher Institute study after admitting to not having read the Guttmacher study.

Yet Harvey, like her fellow False Witnesses, continues to publish work that has an impact not only on the public debate, but on the constitutional rights of millions of Americans who wish to exercise control over their own reproductive health and future.

Correction: A version of this story included the line “For a month’s work in the fall of 2013, for example, the state of North Dakota paid Coleman more than $10,000 for expert testimony for abortion litigation.” In fact, that money was paid between November 2013 and February 2014. We regret the error.

Roundups Sexual Health

This Week in Sex: The Sexually Transmitted Infections Edition

Martha Kempner

A new Zika case suggests the virus can be transmitted from an infected woman to a male partner. And, in other news, HPV-related cancers are on the rise, and an experimental chlamydia vaccine shows signs of promise.

This Week in Sex is a weekly summary of news and research related to sexual behavior, sexuality education, contraception, STIs, and more.

Zika May Have Been Sexually Transmitted From a Woman to Her Male Partner

A new case suggests that males may be infected with the Zika virus through unprotected sex with female partners. Researchers have known for a while that men can infect their partners through penetrative sexual intercourse, but this is the first suspected case of sexual transmission from a woman.

The case involves a New York City woman who is in her early 20s and traveled to a country with high rates of the mosquito-borne virus (her name and the specific country where she traveled have not been released). The woman, who experienced stomach cramps and a headache while waiting for her flight back to New York, reported one act of sexual intercourse without a condom the day she returned from her trip. The following day, her symptoms became worse and included fever, fatigue, a rash, and tingling in her hands and feet. Two days later, she visited her primary-care provider and tests confirmed she had the Zika virus.

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A few days after that (seven days after intercourse), her male partner, also in his 20s, began feeling similar symptoms. He had a rash, a fever, and also conjunctivitis (pink eye). He, too, was diagnosed with Zika. After meeting with him, public health officials in the New York City confirmed that he had not traveled out of the country nor had he been recently bit by a mosquito. This leaves sexual transmission from his partner as the most likely cause of his infection, though further tests are being done.

The Centers for Disease Control and Prevention (CDC)’s recommendations for preventing Zika have been based on the assumption that virus was spread from a male to a receptive partner. Therefore the recommendations had been that pregnant women whose male partners had traveled or lived in a place where Zika virus is spreading use condoms or abstain from sex during the pregnancy. For those couples for whom pregnancy is not an issue, the CDC recommended that men who had traveled to countries with Zika outbreaks and had symptoms of the virus, use condoms or abstain from sex for six months after their trip. It also suggested that men who traveled but don’t have symptoms use condoms for at least eight weeks.

Based on this case—the first to suggest female-to-male transmission—the CDC may extend these recommendations to couples in which a female traveled to a country with an outbreak.

More Signs of Gonorrhea’s Growing Antibiotic Resistance

Last week, the CDC released new data on gonorrhea and warned once again that the bacteria that causes this common sexually transmitted infection (STI) is becoming resistant to the antibiotics used to treat it.

There are about 350,000 cases of gonorrhea reported each year, but it is estimated that 800,000 cases really occur with many going undiagnosed and untreated. Once easily treatable with antibiotics, the bacteria Neisseria gonorrhoeae has steadily gained resistance to whole classes of antibiotics over the decades. By the 1980s, penicillin no longer worked to treat it, and in 2007 the CDC stopped recommending the use of fluoroquinolones. Now, cephalosporins are the only class of drugs that work. The recommended treatment involves a combination of ceftriaxone (an injectable cephalosporin) and azithromycin (an oral antibiotic).

Unfortunately, the data released last week—which comes from analysis of more than 5,000 samples of gonorrhea (called isolates) collected from STI clinics across the country—shows that the bacteria is developing resistance to these drugs as well. In fact, the percentage of gonorrhea isolates with decreased susceptibility to azithromycin increased more than 300 percent between 2013 and 2014 (from 0.6 percent to 2.5 percent).

Though no cases of treatment failure has been reported in the United States, this is a troubling sign of what may be coming. Dr. Gail Bolan, director of CDC’s Division of STD Prevention, said in a press release: “It is unclear how long the combination therapy of azithromycin and ceftriaxone will be effective if the increases in resistance persists. We need to push forward on multiple fronts to ensure we can continue offering successful treatment to those who need it.”

HPV-Related Cancers Up Despite Vaccine 

The CDC also released new data this month showing an increase in HPV-associated cancers between 2008 and 2012 compared with the previous five-year period. HPV or human papillomavirus is an extremely common sexually transmitted infection. In fact, HPV is so common that the CDC believes most sexually active adults will get it at some point in their lives. Many cases of HPV clear spontaneously with no medical intervention, but certain types of the virus cause cancer of the cervix, vulva, penis, anus, mouth, and neck.

The CDC’s new data suggests that an average of 38,793 HPV-associated cancers were diagnosed each year between 2008 and 2012. This is a 17 percent increase from about 33,000 each year between 2004 and 2008. This is a particularly unfortunate trend given that the newest available vaccine—Gardasil 9—can prevent the types of HPV most often linked to cancer. In fact, researchers estimated that the majority of cancers found in the recent data (about 28,000 each year) were caused by types of the virus that could be prevented by the vaccine.

Unfortunately, as Rewire has reported, the vaccine is often mired in controversy and far fewer young people have received it than get most other recommended vaccines. In 2014, only 40 percent of girls and 22 percent of boys ages 13 to 17 had received all three recommended doses of the vaccine. In comparison, nearly 80 percent of young people in this age group had received the vaccine that protects against meningitis.

In response to the newest data, Dr. Electra Paskett, co-director of the Cancer Control Research Program at the Ohio State University Comprehensive Cancer Center, told HealthDay:

In order to increase HPV vaccination rates, we must change the perception of the HPV vaccine from something that prevents a sexually transmitted disease to a vaccine that prevents cancer. Every parent should ask the question: If there was a vaccine I could give my child that would prevent them from developing six different cancers, would I give it to them? The answer would be a resounding yes—and we would have a dramatic decrease in HPV-related cancers across the globe.

Making Inroads Toward a Chlamydia Vaccine

An article published in the journal Vaccine shows that researchers have made progress with a new vaccine to prevent chlamydia. According to lead researcher David Bulir of the M. G. DeGroote Institute for Infectious Disease Research at Canada’s McMaster University, efforts to create a vaccine have been underway for decades, but this is the first formulation to show success.

In 2014, there were 1.4 million reported cases of chlamydia in the United States. While this bacterial infection can be easily treated with antibiotics, it often goes undiagnosed because many people show no symptoms. Untreated chlamydia can lead to pelvic inflammatory disease, which can leave scar tissue in the fallopian tubes or uterus and ultimately result in infertility.

The experimental vaccine was created by Canadian researchers who used pieces of the bacteria that causes chlamydia to form an antigen they called BD584. The hope was that the antigen could prompt the body’s immune system to fight the chlamydia bacteria if exposed to it.

Researchers gave BD584 to mice using a nasal spray, and then exposed them to chlamydia. The results were very promising. The mice who received the spray cleared the infection faster than the mice who did not. Moreover, the mice given the nasal spray were less likely to show symptoms of infection, such as bacterial shedding from the vagina or fluid blockages of the fallopian tubes.

There are many steps to go before this vaccine could become available. The researchers need to test it on other strains of the bacteria and in other animals before testing it in humans. And, of course, experience with the HPV vaccine shows that there’s work to be done to make sure people get vaccines that prevent STIs even after they’re invented. Nonetheless, a vaccine to prevent chlamydia would be a great victory in our ongoing fight against STIs and their health consequences, and we here at This Week in Sex are happy to end on a bit of a positive note.

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.