Analysis Law and Policy

Indiana Prosecutors Start Jury Selection in Feticide Trial on ‘Roe’ Anniversary

Jessica Mason Pieklo

The story of Purvi Patel's prosecution, and the others lining up behind her, paint a bleak picture of life under the state's ultra-conservative Republican reign and give a frightening look of what's to come as increasingly draconian abortion restrictions force pregnant people to turn to other, sometimes illegal and often dangerous, means.

Read more of our articles on the Purvi Patel case here.

Far away from the throngs of anti-choice protesters descending on the nation’s capital for their Roe v. Wade anniversary counter-protest, attorneys in Indiana began the process of selecting jurors for the felony feticide trial of Purvi Patel.

Patel faces two different, and contradictory, charges after suffering a premature delivery and seeking medical care. The story of her prosecution, and the others lining up behind her, paint a bleak picture of life under the state’s ultra-conservative Republican reign and give a frightening look of what’s to come as increasingly draconian abortion restrictions force pregnant people to turn to other, sometimes illegal and often dangerous, means.

According to prosecutors, Patel went to an emergency room in St. Joseph, Indiana, last summer for vaginal bleeding. They claim Patel at first denied to hospital workers that she had recently given birth. Eventually, prosecutors allege, she told staff she believed she was roughly two months pregnant and miscarried the fetus at home.

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Prosecutors claim Patel told hospital staff that when she saw the fetus wasn’t breathing or moving, she put it in a plastic bag and placed the bag in a dumpster.

The doctors believed Patel had been much further along in her pregnancy than Patel had disclosed, claiming in one of the charging documents that she was closer to 28-to-30 weeks post-fertilization.

Police eventually located the fetus believed to be the one Patel had discarded, and based on an initial examination by police and medical personnel, concluded the fetus was roughly 30 weeks and theoretically capable of surviving outside the womb. The physician who conducted the autopsy on the fetus determined it was premature and approximately 28 weeks post-conception.

Prosecutors initially charged Patel with felony neglect of a dependent, a class A felony that carries with it a 50-year prison sentence.

But in order to convict Patel with felony neglect, prosecutors must be able to prove the fetus she delivered was born alive, something Patel’s attorney claims prosecutors can’t do. That’s why they have also charged Patel with feticide.

Indiana law defines feticide as “knowingly or intentionally” terminating a pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.” In text messages Patel sent about a month before her miscarriage, Patel admits to being more than two months pregnant and to planning to terminate her pregnancy with medication she ordered online from Hong Kong, according to court documents.

However, according to court filings, only one of the two drugs Patel took would have induced labor, while the other drug only works if the pregnancy is fewer than nine weeks. That means there is an open question as to whether any medication Patel allegedly took had any effect at all.

Feticide carries an eight- to 20-year prison sentence.

The inspiration for Indiana’s feticide law came in 2009 after a bank teller who was pregnant with twins was shot during a bank robbery and lost the pregnancy. Until recently, prosecutors had refrained from using the state’s law against a pregnant person.

Then, in 2011, Indiana prosecutors charged Bei Bei Shuai, a Chinese immigrant, with murder and attempted feticide after a failed suicide attempt ended her pregnancy. The state kept Shuai in jail for more than a year on those charges before eventually reaching a plea agreement with Shuai’s attorneys.

Shuai in 2013 pled guilty to a misdemeanor charge of criminal recklessness, and prosecutors dropped the feticide charges against her as they were readying them against Patel.

“Indiana’s atmosphere seems to be that once they find out a person is pregnant, then it is all about the fetus and nothing about the mother,” Rev. Marie Siroky, a UCC minister and Indiana Religious Coalition for Reproductive Justice board member told Rewire in an interview. “These stories get framed in such a way that women are always the criminals and I do think it’s racial.”

“These are women of color, these are not white women, and I do think there’s this assumption that they’ve done something.”

The facts of the Patel case as laid out by prosecutors fits Siroky’s description of a “fetus first” mentality, in which the state presumes pregnant people are guilty until proven innocent. When Patel first arrived at the hospital and denied giving birth, staff called Dr. Kelly McGuire for a second opinion. After McGuire determined Patel had recently delivered and was likely further along in her pregnancy than she had told hospital staff, he became so concerned for the welfare of Patel’s fetus that he fled the hospital to go look for the fetus.

Once his client admitted to the miscarriage and the fetus was discovered, uniformed officers were stationed outside Patel’s hospital room, according to documents filed by Patel’s attorney. At one point, Patel underwent a surgical procedure only to have officers stationed bedside waiting to interrogate her.

Patel’s attorney argued those actions violated Patel’s constitutional rights and sought to exclude the statements Patel made while in the hospital. Patel’s attorney also tried to get the feticide charge dropped, arguing the statute was never intended to be turned against pregnant people.

Prosecutors scoffed at the argument, citing the Shuai prosecution for proof to the contrary. Attorneys from the National Advocates for Pregnant Women had sought permission from the court to submit an amicus brief, including leading expert medical, legal, and bioethics opinions on the ways in which prosecuting pregnant people undermines public health and violates numerous constitutional rights.

Judge Elizabeth C. Hurley, a University of Notre Dame law graduate and 2013 judicial appointee of abortion rights foe Gov. Mike Pence (R), denied all of those requests, which means the trial moves forward.

Attorneys and advocates monitoring both the Shuai and Patel cases note that at the same time Indiana conservatives prosecute women of color based on dubious investigations and scientific proof, the state has higher-than-average infant mortality rates and in 2013 lead the nation in sexual assaults against teenagers. In 2013, Indiana Attorney General Greg Zoeller floated the idea of drug testing all pregnant women in the state.

“There’s a lot of blaming and shaming of women,” Carolyn Meagher, co-president of the Indiana Religious Coalition for Reproductive Justice, said in an interview with Rewire. “Republican leadership in the state blames the high infant mortality rates on the behaviors of pregnant women, like smoking or narcotic use, but they will not take a look at social determinants of health like poverty and racism. We don’t even have preschool here yet.”

Rev. Marie Siroky of the reproductive justice coalition noted that the abortion politics surrounding the case are also inescapable. South Bend, where the prosecution is taking place, has a significant Right to Life presence, which Siroky sees as a component in the prosecution.

The University of Notre Dame, one of the many Catholic institutions challenging the birth control benefit in the Affordable Care Act, is also located right outside the city.

“We have some legislators in the state who cannot let this [abortion] go,” Siroky said. “Under the guise of being ‘pro-life’ and to make the conservatives happy, they are going to go after people like Patel.”

Siroky continued, “The prosecutors are sending the message that when a woman has a pregnancy that ends in anything other than an optimal pregnancy, they are going to go right away for feticide charges with the assumption that she did something.”

For their part, local anti-choice groups have remained largely silent on Patel’s prosecution except to note the existence of Indiana’s “safe haven” law that allows newborns to be surrendered without fear of prosecution.

“Have you considered the mother is a victim?” Siroky said.

Patel’s trial is scheduled to begin on January 26.

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 Law and Policy

ACLU of Indiana Sues State Health Department, County Prosecutors Over Ultrasound Law

Michelle D. Anderson

The official digest language for the law says that pregnant patients considering an abortion “must be given the opportunity to view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone” at least 18 hours before an abortion.

The American Civil Liberties Union (ACLU) and Planned Parenthood joined forces again on Thursday to challenge an anti-choice law that the organizations say will prove burdensome for reproductive clinics and their patients alike in Indiana.

The two parties filed a lawsuit on behalf of Planned Parenthood of Indiana and Kentucky in the U.S. District Court for the Southern District of Indiana to challenge a provision of the omnibus HEA 1337, which requires an ultrasound at least 18 hours before an abortion procedure.

The official digest language for the law says that pregnant patients considering an abortion “must be given the opportunity to view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone” at least 18 hours before an abortion. At the same time, the clinic must obtain the state-required “informed consent.”

The provision went into effect July 1. Prior to its enactment, Indiana law required an ultrasound but did not mandate the time at which the imaging had to be provided. As such, clinics typically performed ultrasounds right before the procedure.

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The plaintiffs claim the new law would require many patients to make two lengthy trips to obtain an abortion or pay for an overnight stay in order to receive care. This, Planned Parenthood officials said, would also burden its majority low-income clientele by causing them to lose at least a day of wages and by potentially requiring them to arrange special child care.

The law, the plaintiffs argue, would also cause clinics to become more crowded, delaying abortions to the point where some patients may not be able to receive care within Indiana’s legal limits. Indiana bans abortions after 20 weeks except when the pregnant person’s life is in danger.

Betty Cockrum, president and chief executive of Planned Parenthood of Indiana and Kentucky, told the Indiana News Service the Supreme Court’s recent ruling against Texas’s omnibus anti-abortion bill, HB 2, opened the door for the organization to seek further review of Indiana’s laws.

In an official statement, Cockrum said the 18-hour ultrasound requirement was “unduly burdensome” and added no value to the state’s already restrictive abortion policies.

The 10-page lawsuit, which argues that there is no medical justification for an ultrasound 18 hours before an abortion, lists Indiana State Department of Health Commissioner Dr. Jerome Adams and the prosecutors of Marion, Lake, Monroe, and Tippecanoe Counties as defendants.

As commissioner, Adams is the “duly appointed official” in charge of the agency responsible for licensing abortion clinics pursuant to Indiana law, the suit explains.

Similarly, the prosecutors of the four counties listed in the lawsuit, help enforce the laws that the four Planned Parenthood clinics that provide abortion care in Indiana must adhere to.

While Planned Parenthood has 23 health centers throughout the state, it only provides abortions in Bloomington, Merrillville, Indianapolis, and Lafayette.

Thursday’s lawsuit is the second legal action Planned Parenthood has taken against Indiana officials in recent weeks to challenge laws the health-care provider says could make securing abortion care cumbersome or impossible for state residents.

On June 30, a federal judge granted a preliminary injunction to block several provisions in HEA 1337 that would have kept a pregnant person from terminating a pregnancy when an abnormality, such as a life-threatening disability, is present in the fetus.

The lawsuit filed Thursday asks for the law to be blocked during the trial and until the court makes a decision, a declaration that the ultrasound provision is unconstitutional, and an monetary award for the plaintiff’s attorney fees.