Commentary Human Rights

It Is All Too Easy for Pregnant Women To Be Put on Trial in the United States

Farah Diaz-Tello & Laura Huss

Purvi Patel's 41-year sentence for contradictory charges is a glaring reminder of the fact that abortion’s legal status in the United States does not mean prosecutions for pregnancy loss can’t happen here.

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

On Monday, the State of Indiana sentenced Purvi Patel to 41 years in prison for feticide and neglect of a dependent for experiencing a pregnancy loss; the concurrent charges mean Patel will serve 20 years. Recently, similar cases in other countries where abortion is illegal have garnered much public attention; however, Patel’s fate is a glaring reminder of the fact that abortion’s legal status in the United States does not mean such prosecutions can’t happen here.

A team of United Nations human rights experts congratulated El Salvador earlier this year for its decision to pardon Carmen Guadalupe Vásquez Aldana after she served six years of a 30-year prison sentence for experiencing a stillbirth. Vásquez was 18 years old when she became pregnant as a result of a rape. When she delivered a stillborn infant and sought medical help for heavy bleeding, Vásquez was interrogated by police, who believed she had caused the stillbirth. She was charged with procuring an abortion, which is illegal in all circumstances in El Salvador. Prosecutors later changed the charge to aggravated homicide after insisting that she had given birth to a live infant. Activists from Agrupación Ciudadana por la Despenalización del Aborto described the weak case against her to the Independent: “The evidence is that there is a dead baby, a woman, and the forensic evidence establishes they are mother and child. That’s it.” On January 21, the government issued her a pardon.

Calling the decision to pardon Vásquez a reversal of “an appallingly unfair sentence,” the UN experts urged El Salvador to review the cases of 16 other women, known along with Vásquez as Las 17, imprisoned with sentences of up to 40 years because they were accused of having abortions after seeking medical help for miscarriages or stillbirths. Another one of Las 17, known as “Mirna,” was released last December after completing her 12-and-a-half year prison term.

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During the same week Vásquez was pardoned in El Salvador, Purvi Patel sat in a courtroom in South Bend, Indiana, and waited for a jury to decide her fate. In July 2013, Patel presented to the emergency room of St. Joseph’s Hospital in nearby Mishawaka, bleeding after an apparent miscarriage. Almost immediately, her request for emergency health care triggered a criminal investigation against her. She told health-care workers that she had miscarried, but did not bring the fetal remains with her—she had disposed of them in a trash bin. Questioning whether Patel had really miscarried or delivered a full-term baby, hospital staff contacted law enforcement. One of the hospital physicians even rushed to participate in the search for the remains.

But despite intensive investigation, many questions remained unanswered, including how far along Patel was in her pregnancy. Throughout, Patel has maintained that she experienced a stillbirth. What the investigation did reveal, however, was that Patel had texted with a friend about her ambivalence toward her pregnancy. With these texts as key “evidence,” Indiana prosecutors charged Patel with two seemingly mutually exclusive crimes: neglect of a dependent for allegedly giving birth to and abandoning a live newborn, and feticide for allegedly “knowingly terminat[ing] … her own pregnancy by ingesting medication.” Each charge is punishable by decades behind bars.

The proceedings against Patel are a grim parallel to the cases against Las 17: They reveal what the future looks like if pregnancy outcomes, including abortions, are the subject of criminal investigations in the United States. Patel’s private conversations and emotional reactions to pregnancy loss underwent public scrutiny: All of her text messages became part of the investigation and the subsequent trial. Courtroom spectators also described the stigmatizing and sexist claims prosecutors made to suggest Patel’s guilt, in place of actual evidence. For instance, prosecutors tried to make her seem uncaring by describing her as being “distracted” in the emergency room as she texted her best friend for support, and made much of the fact that she did not cry at that time. As Sue Ellen Braunlin of the Indiana Religious Coalition for Reproductive Justice tweeted: “Just sayin’ — If you have a miscarriage in Indiana, you better cry real tears. And Do. Not. Text.”

Not only were Patel’s demeanor and affect put on the stand, but, as in many other criminal cases involving pregnancy, junk science was presented as credible evidence in support of the state’s “neglect of a dependent” narrative. This argument was that Patel attempted to terminate her own pregnancy, failed, and then delivered a baby who was born alive and then allowed to die. To support their claim that the baby was born alive, the state relied on the “lung float test”—the very same discredited test used to put many of Las 17 behind bars. These tactics, among others, made the state’s case eerily reminiscent of witch trials from centuries back. Yet, with disproved science and speculations based on Patel’s demeanor as the only evidence, the Indiana jury convicted her.

In addition to the paucity of credible scientific evidence, the prosecutions in Indiana and El Salvador share another trait: a blatant attempt to conflate abortion with murder, even if the occurrence of the abortion itself is in question. This has long been the goal of abortion opponents in the United States. It is also reflected in “fetal assault” laws that criminalize pregnant women and the ongoing but thus far unsuccessful attempts to add personhood amendments to state constitutions. When pregnant women’s rights—to privacy, to medical care, to abortion—are under attack, any woman who experiences a loss, even at the earliest weeks in pregnancy, could become a murderer in the eyes of the law. If Patel’s conviction is upheld on appeal, many more women like Purvi Patel and Guadalupe Vásquez can expect police at their bedside when they seek help.

While the arrests in El Salvador stem from that nation’s total ban on abortion, Indiana shows us that a government need not make the procedure illegal to cause devastation to the lives and health of women who find themselves pregnant. Vásquez’s pardon in El Salvador may be a turning point in that country’s record of punishing women for abortions and pregnancy loss; Patel’s conviction should be a wake-up call to people in the United States that it is all too easy for a pregnant woman to find herself on trial.

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