Commentary Law and Policy

Purvi Patel Isn’t the First Woman of Color to Have Her Pregnancy Put on Trial in Indiana (Updated)

Deepa Iyer & Miriam Yeung

Although feticide laws were originally intended to protect pregnant women from violence, such statutes are now being used to punish them, sending the message that women who do not have healthy pregnancies may be investigated for criminal acts.

UPDATE, February 4, 9:00 a.m.: On February 3, a jury found Purvi Patel guilty of feticide and neglect of a dependent causing death after less than five hours of deliberation; her sentencing will take place on March 6.

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

In America’s heartland, Purvi Patel, a 33-year-old Indian American, is in the midst of a criminal trial. Last July, Patel went to an emergency room in South Bend, Indiana, to seek assistance for heavy vaginal bleeding. According to court documents, Patel told her doctors she had miscarried, believed the fetus was not alive, and placed it in a bag in the dumpster. A few hours after she underwent medical treatment, local police arrived to interrogate her; after investigating further, they found text messages indicating that Patel may have ordered drugs to terminate the pregnancy. A toxicologist testified at the trial this week that no record of these or other drugs was found in Patel’s blood samples. Even so, the State of Indiana has decided to charge Patel with feticide and neglect of a dependent. If convicted of both charges, she could face a maximum sentence of up to 70 years.

This is not the first time Indiana prosecutors have charged a woman of color—or an Asian-American woman—under the state’s feticide law, which is defined as intentionally ending a pregnancy. In 2011, state prosecutors brought similar charges against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who had tried to commit suicide. She survived, but the fetus did not. Instead of assisting Shuai with mental health counseling and social services, the state charged her with attempted feticide and held her in prison for a year until a plea agreement was reached.

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These two cases in Indiana should ring alarm bells for all those committed to racial and reproductive justice. Although feticide laws were originally intended to protect pregnant women from violence, such statutes are now being used to punish them, sending the message that women who do not have healthy pregnancies may be investigated for criminal acts. They also have a disproportionate impact on women of color like Shuai and Patel, who often cannot access medical care, counseling, and other resources.

In Patel’s case, the state seems to be using the law to prosecute her for allegedly having an illegal abortion. In Indiana, abortion access is already extremely limited: There are only 12 abortion providers in the entire state, only four cities in Indiana have abortion clinics, and women must submit to counseling, an 18-hour waiting period, and two separate visits to obtain an abortion. Furthermore, Asian-American women in the state are increasingly at risk for additional restrictive policies. In fact, advocates expect to see an anti-Asian sex-selective abortion ban come up for debate this year in the state. The application of the feticide law in Patel’s case indicates that the state may be using it as a backdoor attempt to criminalize decisions women make during their pregnancies.

Advocates have been raising awareness about the impact of this trial on Patel and all women in Indiana. Members of the Indiana Religious Coalition for Reproductive Justice (IRCRJ), who have been attending Purvi Patel’s trial this week in South Bend, have expressed their concerns about the nature of the prosecution’s evidence and line of questioning, the psychological toll that the trial is taking on Patel and her family, and the state’s misplaced priorities when it comes to keeping its residents safe and healthy.

“Indiana can do much better,” Sue Ellen Braunlin, co-president of IRCRJ, told Rewire. “Expanding access to preventive health care, recognizing the effects of poverty, racism, and the environment, and legislation based on public health instead of on morality and religion would decrease the suffering and deaths of both infants and women in Indiana.”

National Advocates for Pregnant Women (NAPW) has also outlined the various risks to public health and constitutional violations of prosecuting pregnant women. Unfortunately, Judge Elizabeth C. Hurley, who is presiding over Patel’s trial, denied NAPW’s motion to submit an amicus brief to demonstrate these risks.

Purvi Patel’s case is an example of law enforcement and state prosecutors putting pregnancy on trial, and it foreshadows what’s in store for all women should Roe v. Wade be overturned. This legislation isn’t limited to Indiana—37 other states have passed similar laws, opening the door for more unjust treatment of pregnant women. It’s time for us to hold state lawmakers and law enforcers accountable to the lives and rights of all women.

CORRECTION: This piece has been updated to clarify the maximum sentence Patel could face if convicted of both charges. We regret the error.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.

Commentary Politics

Why Political Platforms Must Center the Most Marginalized People

Monica Simpson

"To ensure that all people and all families have the opportunity to thrive, our political platforms must be intersectional, so that the most marginalized are centered and our whole lives are honored," said SisterSong Women of Color Reproductive Justice Collective Executive Director Monica Simpson in a recent speech.

Editor’s note: This speech was given by SisterSong Women of Color Reproductive Justice Collective Executive Director Monica Simpson before the Democratic National Convention Platform Drafting Committee on June 17. The hearing was held as part of a process to determine “what should be included in the party’s platform for the July 2016 convention in Philadelphia.” A version of the statement will be sent to the Republican National Committee. We are reprinting it here with permission from SisterSong.

So for identification purposes, thank you for saying who I am. I’m really excited to be here as a volunteer and advocate to provide information to the drafting committee about the importance of reproductive justice and to highlight how the platform might address the priorities, experiences, and struggles of women of color.

So I grew up in the rural South, in a town with only one stoplight, in a town where racial divide was blatantly drawn by railroad tracks that split the town from the haves and the have-nots. I remember being forced to sign the prom promise that locked us into abstinence-only sex education, where we were given that [information about sexual health] only over one course period. And unfortunately, this is still the case.

Also in my church, the place where most Black people in my Southern community received political education, every young woman except three of us were pregnant before graduating high school. The nearest abortion clinic for those who were strong enough to endure the shame of their community and the church was 30 miles away. There were no sidewalks, or public transportation system, to get a person there, even if they wanted to have one.

Most felt stuck within the town limits, where the jobs were basically nonexistent. The then-newly built private prison that needed to be filled was a constant reminder of the criminal justice system that separated so many young mothers from the fathers of their children.

In this story, you can see how the overlapping issues like race, economic barriers, faith, and criminal justice can make it difficult and sometimes impossible for marginalized communities to access the services that they need. This is what intersectionality looks like. And it’s because of these types of stories like mine that Black women came together to establish the reproductive justice movement, now 20 years ago.

Reproductive justice, distinct from reproductive health and rights, is a movement-building framework that envisions liberation for the most marginalized. We believe that reproductive justice will be achieved when all people have the economic, social, and political power and means to make decisions about their bodies, sexuality, faith, and family with dignity and self-determination. As you can imagine, we have a long way to go.

To ensure the health and safety of women of color, I urge you to address the formidable barriers that prevent us from getting the care we need, deny our decisions, and lead to shameful disparities. [Together], we must complete the work to ensure health care for all by expanding Medicaid nationally and passing the Health Equity and Accountability Act. This act eliminates health disparities, and the one issue [to] address most importantly to us and our work right now is the issue of maternal mortality.

Black women are dying during pregnancy, childbirth, and the postpartum period at [rates] nearly four times higher than white women. This is a public health crisis and a national shame. We must stop it in its tracks and the avalanche of state laws that push access to safe and legal abortion out of reach for people of color by those struggling to make ends meet. This isthis will be helped by ending the Hyde Amendment that puts a ban on insurance coverage for abortion, and passing the Women’s Health Protection Act which removes barriers to access.

Of course, our ability to make real decisions about pregnancy cannot be separated from the economic realities in our lives. And furthermore, everyone needs to feel safe, especially mothers and pregnant women. But unfortunately, pregnant women dealing with substance abuse are being overly criminalized in states like Tennessee. Women like Marissa Alexander in Florida [were] imprisoned for protecting [their] family and women like Purvi Patel and Kenlissia Jones were criminalized for ending their pregnancies.

The intersection of criminal justice and our reproductive lives is real and something that we cannot ignore.

Now more than ever, women of color are standing up for the issues that matter to us and demanding change, and we are voting. Change in policies, change in the political discourse, and change in leadership are needed to ensure that our communities are no longer ignored. Like the platform as a whole, this is not a one-note plan. One of my sheroes, Audre Lorde, said we cannot have single-issue movements because we do not live single-issue lives. To ensure that all people and all families have the opportunity to thrive, our political platforms must be intersectional, so that the most marginalized are centered and that our whole lives are honored.

This speech has been lightly edited for clarity.

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Watch the full video, including the Q&A following Simpson’s speech, here: