Investigations Human Rights

Deprived of Care, Incarcerated Women Suffer Miscarriages, Stillbirths, Ectopic Pregnancies

Sharona Coutts & Zoe Greenberg

Rewire has identified at least a dozen instances of women experiencing miscarriages, stillbirths, and ectopic pregnancies in jails and prisons across the country, in circumstances that show a shocking lack of medical care from the professionals charged with providing it.

This is the second article in Rewire’s Women, Incarcerated series. You can read the other pieces in the series that have been published so far here.

On the morning of September 11, 2011, Krystal Moore thought she was dying. Sharp pain stabbed at her stomach, so much so that she curled up into a fetal position on her bed. She didn’t know what was happening. Though she was pregnant, she was only six months along, not nearly ready to give birth.

She couldn’t simply call the family doctor. She was an inmate, serving time at the Jerome Combs Detention Center in Kankakee, Illinois, for smoking marijuana while on probation. But in the early hours of that Sunday morning, her pain was escalating quickly.

“I woke up hurting,” she told Rewire. “I tried to get in the shower, and I couldn’t.”

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She asked to go the hospital. She had spoken to some other inmates, and she began to think she was having contractions. The pressure on her stomach was getting worse.

Krystal Moore

Krystal Moore

A guard telephoned the jail nurse, Ivetta Charee Sangster, to tell her that Moore was having stomach pains. Sangster was on duty that Sunday, though she wasn’t actually at the detention center, which, like many jails, doesn’t have full-time medical staff available, despite housing a sick and vulnerable population. Even if Sangster had been there, she was only a licensed practical nurse, a role that generally involves providing only very basic medical care, like taking a patient’s blood pressure or changing a bandage. She would not have been able to give Moore the urgent care she required for what had become a serious infection of her womb.

Meredith Manning—Tennessee, 2004

Twenty-three-year-old Manning began to miscarry in a Corrections Corporation of America facility. She bled for two days before she was taken to the hospital, where she gave birth to a baby that died shortly after. This case settled for $250,000.

Sangster sounded irritated on the phone, according to the transcript of the call that later appeared in a lawsuit filed by Moore.

“Krystal Moore, she’s—in my opinion, a lot of times she’s full of shit,” Sangster told the guard. “You can go eyeball her and call me back if you want. She’s probably full of shit. But you can let her know that she can see the doctor tomorrow if she’d like.”

Our attempts to contact Sangster were unsuccessful.

By 2:30 that afternoon—at least eight hours since she first alerted guards to her pain—Moore began bleeding while sitting on a toilet. Screaming out of pain and fear, she was finally taken to a local hospital, but not before being forced to walk down the stairs from her cell to the ambulance, according to a court opinion from December 2013.

Moore was fully dilated by the time she arrived at the hospital, where she says she was shackled to the hospital bed. Then, around 5:20 p.m., she gave birth to twins. Had she been taken to hospital earlier, there was a possibility that the babies could have survived, according to an expert who provided evidence for the lawsuit. Instead, one baby lived for only a day; the other survived for 16 days.

“I remember it clear as yesterday. I think about my twins every day and every night. How would they be?” Moore said.

Shela Williams—Texas, 2014

Williams was 18 weeks pregnant when she entered a Texas jail. She had a high-risk pregnancy but did not receive adequate obstetric care while incarcerated. When a doctor finally did examine Williams, he told her that her child “wasn’t going to make it.” She went to a nearby hospital, where she delivered her stillborn; she was not allowed to attend his funeral.

Moore’s case settled last year for $620,000, according to her lawyer. But in a five-month investigation, Rewire found that her story is not unique. After reviewing more than 200 legal cases, as well as the Human Rights Defense Center’s database of “Deaths in [Corrections Corporation of America] Custody,” Rewire identified at least a dozen instances of women experiencing miscarriages, stillbirths, and ectopic pregnancies in jails and prisons across the country, in circumstances that show a shocking lack of medical care from the professionals charged with providing it.

This number is most likely a dramatic under-representation of the problem. In addition to the shame and grief that many women feel at the loss of a pregnancy, incarcerated women often fear complaining about their miscarriages behind bars because they do not want to compromise ongoing cases or face retribution from jail or prison staff, according to community activists and researchers who work closely with incarcerated women.

Bethany Cajúne—Montana, 2009

Although Cajúne was pregnant, and both her doctor and drug treatment counselor had prescribed her continued use of Suboxone (a medication that suppresses withdrawal symptoms) in jail, the doctors and nurses there would not give her the prescription. She went through immediate withdrawal, losing ten pounds in less than two weeks. She feared she would lose her baby. Finally, after nine days, a public defender intervened and she received the treatment. This case settled in 2011.

To be sure, low-quality prenatal care is a symptom of the larger problem of poor medical care in corrections facilities in the United States, as has been documented in California, Arizona, and Florida and through thousands of lawsuits against prisons and the private contractors that sometimes run them.

Prison health services were so bad in the 1960s and 1970s that in 1976 the U.S. Supreme Court ruled that failure to provide appropriate medical care to prisoners amounted to a violation of the U.S. Constitution’s prohibition on cruel and unusual punishment. As a result, incarcerated people are the only group in the United States with a constitutional right to medical care.

But with the swelling number of women behind bars, the failure to provide prenatal care is becoming a major concern.

The cases we examined were strikingly similar to Moore’s: pregnant women waiting weeks to see doctors, nurses instructing women to take antibiotics for labor pains, and inmates miscarrying in toilets or on cell floors. Sangster’s comments would have fit into any of the cases that we read. Again and again, we saw women inmates in need of prenatal care ignored, silenced, and disbelieved.

Gretchen Harbison—Indiana, 2010

Harbison could not feel her fetus move for three days. She was eventually transferred to a hospital, where she delivered a stillborn. Harbison alleges that the prison doctor failed to treat her pregnancy with any urgency, despite knowing that she had four complicated deliveries in her past.

“I feel like that jail done killed my kids,” said Moore. “I’ve been feeling that since the day I gave birth.”

Prenatal Care Is Crucial—and Missing—Behind Bars

At the end of 2012, there were more than 200,000 women in prisons and jails, comprising 9 percent of the nation’s incarcerated population. Based on current trends, the number of women behind bars is expected to grow.

The median age of women in state and federal prison is 34, and the majority of incarcerated women are of reproductive age, according to a study by the Bureau of Justice Statistics. Many women in prison have high-risk pregnancies, complicated by problems including poor nutrition, domestic violence, mental illness, and drug and alcohol abuse.

Poor prenatal care in corrections facilities is a grave concern, especially since those facilities have become one of the major providers of health care for marginalized communities, according to Brad Brockmann, executive director of the Center for Prisoner Health and Human Rights at the Miriam Hospital in Providence, Rhode Island, an affiliate of Brown University.

“For many of the individuals who come into the system, their first physical as adults is when they enter prison or jail, because prior to January 2014 Medicaid was not available to many, with only safety-net programs available in the community,” Brockmann said.

Tiffany Pollitt—Pennsylvania, 2010

An inmate hit Pollitt in the stomach; she repeatedly reported the incident, but no doctors or nurses took her seriously. She continued to say she was in serious pain. Corrections officers told Pollitt to “grow up,” asked her what she expected them to do, and told her “better luck with next shift.” Then Pollitt bled all over the floor of her cell. Finally, she was transferred to a nearby hospital, where she delivered a stillborn baby.

The quality of prenatal care provided by prisons or jails varies wildly between and within states, with most facilities providing very poor care, according to a 2010 review of state policies by the National Women’s Law Center and the Rebecca Project.

The survey graded all 50 states on their treatment of mothers behind bars. Thirty-eight states received a failing grade in the category of prenatal care. The researchers reported that 43 states do not require medical exams as part of prenatal care for women in confinement. Forty-eight states don’t offer pregnant women screening for HIV.

And this review only examined what states said their policies were; there were no on-site inspections. “Paper reviews are of limited value in a corrections context,” said Amy Fettig, senior staff counsel for the ACLU’s National Prison Project.

The reality is, no one is looking closely at what is happening in practice on a national scale when it comes to the care of incarcerated pregnant people, experts told Rewire.

DeShawn Balka—Georgia, 2012

Balka was about 24 weeks pregnant when she entered the jail. She experienced nausea, cramping, bleeding, and vaginal discharge, which she reported to jail guards. No one examined her. Then she began experiencing extreme pain and cramping. She sat on the toilet in her cell and pressed the emergency call button; no one responded. Ultimately she gave birth into the toilet. Her baby was pronounced dead at the hospital a few hours later.

For instance, there are no clear answers to some fundamental questions, such as how many women are pregnant during incarceration each year in the United States. A 2011 report by the American Congress of Obstetricians and Gynecologists put the number at 6 to 10 percent of incarcerated women, while a 2008 study by the Bureau of Justice Statistics estimated that between 4 and 5 percent of women admitted to state and federal prisons that year were pregnant.

There are also no comprehensive data for the number of pregnant women in jails, which typically house people prior to conviction or sentencing, or sometimes for immigration matters or for shorter sentences.

And there is simply no national picture of pregnancy outcomes—miscarriages, abortions, stillbirths, and live births—for incarcerated women, experts told us. The most recent data we could find came from 1998, when the Government Accountability Office reported that there were about 1,400 births in prisons that year.

Only two states require collection of data on pregnancy outcomes for incarcerated women—Delaware and Oregon, according to the Rebecca Project report. Delaware did not respond to our request for records, but Oregon provided information recorded about the only state prison that houses women, Coffee Creek Correctional Facility, between July 2012 and November 2014.

Countess Clemons—Tennessee, 2011

Eighteen-year-old Clemons started miscarrying in a prison in Tennessee. After leaving her in a cell for almost three hours, guards took Clemons to a hospital, where she delivered a baby who died soon after he was born. This case settled for $690,000 in 2014. The Corrections Corporation of America was also issued a sanction for destroying video evidence of the delay in treatment.

That data say there were 51 pregnant prisoners during that time, but give little insight into the type of care provided to these women, apart from the indication that some women were assessed to see whether their pregnancies were high-risk. Of these pregnancies, 37 resulted in births while incarcerated. Eleven women had c-sections, and three women’s labor was induced. There was one miscarriage and one abortion, and an additional four women returned a negative pregnancy test after earlier indicating that they were pregnant. At the time the data were provided, seven of the pregnant prisoners remained incarcerated, while at least two had been released prior to giving birth.

The data do not cover jails, which are governed separately by each of Oregon’s 36 different counties, according to Wendy Smith, a spokesperson with the state’s Health Services Administration.

Another data set comes from Texas, which tracks how many pregnant inmates are booked into county jails—last month, there were 382. A draft bill would require Texas jails to collect data on prenatal care, as well as the use of solitary confinement or restraints on pregnant inmates.

It’s therefore reasonable to imagine that thousands of women around the country are experiencing a wide range of pregnancy outcomes while in jails and prisons, with no oversight mechanism to track the care they receive.

But most states do not collect data on incarcerated pregnant woman, and there is no national set of data about prenatal care or pregnancy outcomes for incarcerated people.

Experts say this lack of national and local data is no coincidence.

“It’s one of the many areas where the lack of data points to the invisibility of incarcerated people, and specifically incarcerated women,” Tamar Kraft-Stolar, director of the Correctional Association of New York’s Women in Prison Project told Rewire.

Nicole Guerrero—Texas, 2012

Guerrero began to experience pain, bleeding, and cramping, and alerted medical staff. Guerrero was put in solitary confinement, where she went into labor by herself on the floor of her cell. The umbilical cord was wrapped around the baby’s neck, and the baby was later pronounced dead. Guerrero was made to stay in solitary confinement while the infant was taken away.

Despite the lack of comprehensive national data, our investigation found that, with few exceptions, prenatal care in prisons and jails across the country is shockingly inadequate.

In addition to insufficient food and inappropriate living conditions for pregnant people, our research underlines what health experts and women’s rights advocates have said for years: Prisons and jails are among the most dangerous places to be while pregnant.

“A Near-Death Sentence” for Writing Bad Checks

For Laila Batts, poor prenatal care behind bars came close to ending her life.

In early January 2007, Batts was detained for ten days at the Elmwood Complex Women’s Facility, in Santa Clara, California, after writing a bad check to pay some bills.

Batts was in her first trimester of pregnancy the day she entered jail, and that night she began to experience spotting and severe cramping. For the next ten days, Batts complained to nurses about her pain.

By Monday, January 8, Batts told jail staff that she wanted to go to the hospital, because her condition was getting worse. Her request went unfulfilled. On January 9, a nurse saw Batts bleeding on the floor of her cell and complaining that her symptoms were getting dramatically worse, but the nurse did not send for emergency help. When Batts finally saw a doctor the next day, January 10, the doctor noted that she was suffering from an abnormal pregnancy, was at risk of an ectopic pregnancy, and required care, according to records produced in the lawsuit. But instead of providing that care, the doctor sent Batts back to her cell. Batts thought she was suffering a painful miscarriage.

“What started out as a request for modified community service in light of her pregnancy turned into a near-death sentence, bringing Ms. Batts within hours—perhaps minutes—of losing her life,” court filings said.

The day after she was released from jail, Batts woke in excruciating pain and was rushed by ambulance to the emergency room, where, she told Rewire, surgeons removed her ectopic pregnancy, as well as a fallopian tube. Ectopic pregnancies are extremely dangerous, and require immediate attention to avoid potential death of the pregnant person.

Latish Durden—Georgia, 2012

Durden had a high-risk pregnancy and had surgery on her cervix while at the jail. She required constant monitoring. She began experiencing cramping, bleeding, and discharge, but she was not treated. Eventually she was taken to the hospital, where she delivered a stillborn baby.

Batts settled her case, but declined to say how much she was awarded.

What is unusual in her lawsuit is that the complaint focused on the physical and mental pain that she endured. The vast majority of cases we examined focused on the loss of the fetus, not on the suffering of the pregnant woman, because the law tends to focus more on permanent losses—the death of a “viable” fetus—than on temporary pain experienced by the woman. For this reason, we found more cases involving stillbirths (a loss of pregnancy after 20 weeks’ gestation) than miscarriages, which occur prior to 20 weeks.

And because many miscarriages are difficult, if not impossible, to prevent, it is extremely difficult for women who have suffered them while incarcerated to prove any fault on the part of the authorities. This makes mistreatment of miscarriage tough to detect, with even grassroots community advocates struggling to identify where it has occurred.

Diana Claitor, executive director of the Texas Jail Project, says she usually doesn’t hear about a miscarriage from the woman who suffered it.

“Mostly we get a grandmother calling,” Claitor told Rewire. “The first call I got was an elderly Hispanic woman asking, ‘Is there any way we can get the body of our dead grandchild and put it in the family plot?’”

“Sanctity of Life in Texas Looks Like This”

Many of the cases of miscarriage or stillbirth we found occurred in states that have recently introduced laws that claim to protect fetuses, even at the expense of the woman bearing them.

For example, miscarriage in Texas is treated differently if it does not happen behind bars.

Last year, Dallas police swarmed a high school after a fetus was found in a toilet. They launched an investigation, reviewing video footage and interviewing teachers to find the “suspect.”

But two years earlier, no such attention was given to the case of Autumn Miller, who in the summer of 2012 miscarried into a toilet while serving a one-year sentence at the Dawson State Jail, also in Dallas.

Miller, who in pictures has light brown hair and a warm smile full of straight, white teeth, was already the mother of three children. She had entered the jail in February, after violating probation on a drug possession charge, not realizing she was pregnant.

Throughout May and June, Miller complained of cramps and fatigue, and requested a pregnancy test and Pap smear. She never received either from the jail.

On the night of June 14, Miller began bleeding, and experiencing pain so severe that she couldn’t walk, according to a lawsuit filed against the Corrections Corporation of America. Miller told guards she felt like she was having a baby.

Guards brought her to a medical unit where a nurse waited on a telescreen (like the jail in Kankakee, there was no full-time medical staff on-site). But Miller could barely explain what was happening before a guard turned off the screen, handed her a menstrual pad, and locked her in a segregated cell.

Screaming, Miller gave birth into a toilet. She was then handcuffed, shackled, and transported to the hospital separately from her newborn. Miller named the infant Gracie Robinson; she barely weighed a pound. Gracie died four days later.

“They had her locked in a cell down in the medical area, all by herself, when she was laboring, unbeknownst to her,” Miller’s lawyer, Paula Sweeney, told Rewire. “Then they couldn’t find the key to get the door open when it became apparent what was going on. Then, as she’s laying there on the cot, with blood everywhere, in terror and agony, the male guards start taking pictures with their cellphones.”

Miller’s case was settled in January 2014, and the facility that housed her has since been shut down because of budget cuts as well as increased scrutiny about what was going on behind the prison walls.

“Texas runs around bragging about the sanctity of human life, until you get a chance to see it in real life,” Miller’s lawyer told us. “Sanctity of life in Texas looks like this.”

No Role for Prosecutors in Prenatal Care

Experts have a wide range of recommendations to improve pregnancy care in prisons and jails, including laws that require tracking and reporting pregnancy outcomes, the elimination of solitary confinement for pregnant prisoners, and an increase in inmates’ access to OB-GYNs.

In Texas, a coalition of groups, including the Texas Jail Project and the ACLU of Texas, is pushing for a bill that would mandate tracking of prenatal care and treatment of pregnant prisoners in the state’s approximately 250 county jails.

The bill has caused unease among some women’s advocates, however, because of fears that gathering data on pregnant inmates could lead to more punitive action by the state.

“There is legitimate fear from legislators that are interested in doing this kind of tracking that those numbers will be used to punish pregnant women for drug use,” Mathew Simpson, policy strategist at the ACLU of Texas, told Rewire. “When it comes down to it, if we don’t know the birth outcomes, we can’t make an assessment of where the gaps are.”

The broader picture, however, is that jails and prisons are generally the wrong place to house pregnant women, given that they frequently lack the appropriate staff or facilities, and are fundamentally geared toward punishment, not care.

“Judges and prosecutors think that it’s a good idea to empower jail guards—whose job is to punish criminals—to give prenatal care,” Lynn Paltrow, the executive director of National Advocates for Pregnant Women, told Rewire. “There has to be a very clear consensus that there is no role for prosecutors to be involved in prenatal care.”

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.