Welcome to RJ Court Watch, a legal podcast produced by Rewire and senior legal analysts Imani Gandy and Jessica Mason Pieklo. This episode we discuss the criminal prosecution of Purvi Patel, an Indiana woman who was recently convicted of two contradictory felony charges of neglect of a dependent and feticide. Patel’s case is the second time Indiana prosecutors have gone after a woman in relation to a bad pregnancy outcome, and there are already reports of more cases lining up behind hers.
Jessica Mason Pieklo: Imani, it’s hard to think of a clearer case of why it is not just important, but fundamentally necessary, to approach reproductive rights issues from a reproductive justice framework than Patel’s case.
Imani Gandy: Yeah, and not even really just that. It’s important to approach these cases from a common sense standpoint. I mean, there is nothing about this case and this verdict that makes any sense to me whatsoever. I mean, how can you be charged with killing a fetus and then neglecting a live baby? It doesn’t make any sense. Can you explain it to me, Jessica?
JMP: Well, I can’t, but I will certainly try. So here’s what’s going on in Indiana. Purvi Patel is a 33-year-old woman who showed up at a hospital with heavy vaginal bleeding. At first she was reluctant to admit to doctors that she had a birth, but eventually she did. And then everything went bananas from there, basically. What Patel told doctors was that she had miscarried at home, that she placed the remains in a garbage bag and disposed of them, because, I mean, from a practical matter, if you have a miscarriage at home, I think that’s like—what do you do, right? I mean there is just that issue out there. But doctors went bananas and police showed up and they were interrogating Patel at three o’clock in the morning in her hospital room and all this led to two different charges. One is feticide for what prosecutors claim is Patel’s self-induced abortion. They claim she ordered drugs online, abortifacients, and induced a miscarriage at home. Then they also charged her with neglect of a dependent, which requires a live birth. So, we have two charges: one says Patel induced a stillbirth, a dead fetus; and the other says she induced a live birth and then neglected the baby until it died. That discrepancy apparently didn’t matter to an Indiana jury who convicted her on both charges and now she faces up to 70 years in prison.
IG: It’s really just mind boggling to me. And what’s really more mind boggling to me is, as you said, looking at this from a reproductive justice standpoint, the other woman that was prosecuted for similar charges [in Indiana] was also a woman of color. So it makes me wonder what is going on in Indiana, what is going on in this country where we are seeing more and more laws enacted by state legislatures that have a disproportionate effect on women of color. And I don’t know what to do. I don’t know how we can make this issue, I don’t know, more appealing to society at large. I don’t know if there needs to be a couple of white women who end up being prosecuted and facing 70 years in jail before we can get people to start caring about this stuff. But just a quick Google search shows that there aren’t a lot of articles or news stories about this case, and one would think that this would be something that everyone is talking about. I guess the verdict means that more people will be talking about it, but the notion that this woman is facing 70 years in prison for a bad pregnancy outcome is really just outrageous.
JMP: It is, and you bring up a lot of good points that I think really deserve some unpacking. One of them is the fact that Patel’s prosecution is not the first time Indiana has tried to do this. They tried to do this a few years earlier with the prosecution of Bei Bei Shuai, a Chinese woman who attempted suicide in the eighth month of her pregnancy and ultimately lost the pregnancy as a result. She survived and prosecutors tried but ultimately dropped the feticide charge against her because they didn’t have the evidence that she was attempting to kill her baby. Not to mention the fact that the statute was never contemplated to be used against women, against pregnant women. But, ultimately, I think what we are seeing in both these prosecutions is not prosecutions based on evidence but prosecutions based on emotion and assumptions about what an appropriate mother looks like, how an appropriate mother behaves, and how a woman should or should not respond to news that she is pregnant. One of the things that really struck me about the Patel prosecution in particular was there was a lot of testimony from the state about Patel’s demeanor. They said that she didn’t cry enough, that she was having a difficult time looking doctors in the eye when she was talking to them, that she was very cold in her demeanor. They spun that so say she was a murderer. Those are also classic trauma symptoms too. So I think the fact that we have the state coming down in its criminal capacity against women of color for bad pregnancy outcomes is something that, I mean, we expect the anti-choice community to be silent about this kind of thing, but the reproductive rights community really needs to be coming together and up in arms about this.
IG: Right, and I think the fact that her parents were strict Hindus, it seems to me she was hiding this pregnancy from her parents who were strict Hindus so there was to be no sex before marriage let alone a baby out of wedlock. So it seems to me there is a lack of awareness or concern for cultural difference that could compel certain women to react differently to a pregnancy. Where is the understanding about various cultures here? I really am at a loss, because it really is profoundly depressing, because she is a 33-year-old woman who ostensibly had her entire life ahead of her. She was in a relationship with a married man and now she potentially imprisoned for 70 years for charges that literally do not jive well together. You cannot be at the same time guilty of killing a baby and also neglecting a baby. I know I seem to be stuttering and stammering its simply because I’m really that shocked and unable to figure out what we as a community can do to raise awareness about this sort of stuff. It’s not the first time this has happened in Indiana, but these sorts of cases are also happening around the country. There is the case of Amanda Kimbrough in Alabama who was charged with chemical endangerment because she was addicted to methamphetamines. I mean where is the concern for women who are addicted to drugs? Where is the concern for women who are having mental health issues? There has got to be a better way to help these women rather than just prosecute, convict them and throw them in jail.
JMP: I think when we peel back all of the layers in the Patel case we see so many of the societal failures across the board. There was a lot of evidence and testimony about text messages back and forth between Patel and her best friend about her menstrual cycle. Did she miss a period, or was she spotting? How far along in the pregnancy was she? So there is this issue and Indiana is a state with no sex education in its public schools and where it is practically impossible to get an abortion and where anything having to do with sex and female sexuality is completely taboo and then on the flip side of that anything having to do with motherhood and the biology of reproduction is mystified to the point where women and people don’t have access to the basic information to empower themselves to make good reproductive health choices and then face felony charges and potentially the rest of their life in prison for making decisions when in moments of crisis. And that is just an across-the-board failure.
IG: Speaking from the legal perspective, I’m really interested in this whole lung float test that the pathologist used to determine that the baby was born alive. I mean, this is a test that has been discredited since the 80s. So how is it that these sorts of anti-scientific methods are making it into the courtroom? And it’s not just the courtroom. Junk science is permeating legislatures to the point where you have legislatures for example including pages and pages of nonsense about fetuses feeling pain to further restrict access to safe abortion care. So there seems to be a problem with—and we even see it in the current measles outbreak with people talking about whether or not herd immunity is something that is real, whether or not vaccinations is something that is real, or whether it is BigPharma that is trying to control us all. There is a real problem in this country with people disbelieving science and believing that their own quasi-science or their own emotion trump actual, logical, scientifically provable facts.
JMP: The float test is really fascinating, and our colleague Emily Crockett made a comment to me about how it sounds like something right out of the Salem Witch Trials, right, like if the fetus’ lungs float then she’s a witch! And I hate to make light of it, but it is so tragic that I think we have to in that sense, because that is the level of absurdity we are at. As you said, this is anti-science.
The pathologist determined, based on a test that if the lungs float in water then they had air in them. But having air in them is not necessarily the same thing as having taken a breath, for example. And, there is volumes and volumes of scientific evidence where during second-trimester miscarriages, for example, a baby takes a breath. That doesn’t mean that the baby was ever viable, that that baby would ever survive, which is an important test when we are talking about neglect of a dependent right because that statute, that charge right there, depends on a viable actual human being not a potential human being, which is when we are talking about pregnancy, something there. And I think you are right to connect it to junk science across the board. I mean, the pathologist in this case, this is one of my favorite absurd facts from the Patel case, moonlights as an instructor in the Bradley Method of birth coaching. The Bradley Method for those of you unfamiliar with is a husband-centered, male-focused process, where its like lamaze, except its all about the guy as the perfect coach through this process, and to me that says everything about the bias against Patel. These people decided that she was not the perfect mother, or that she was not an appropriate woman because of whatever reason. And they found a way to throw her in jail for it.
JMP: We have with us Rev. Marie Siroky, board member of the Indiana Religious Coalition for Reproductive Justice, an organization that is and has been closely monitoring the Purvi Patel prosecution.
Rev. Siroky, thank you for joining us.
Rev. Marie Siroky: Thank you for having me.
JMP: One way to describe the Patel case is that Ms. Patel is being prosecuted for “felony miscarriage” or “felony stillbirth.” Can you kind of quickly walk us through the case the State of Indiana is trying to make against Ms. Patel and whether or not you feel like that description is an accurate or a fair one.
MS: I think your description is very accurate and very fair. And, briefly, what happened: Ms. Patel went to the hospital in July 2013 for bleeding, profuse bleeding, and during the course of her examination they asked if she was pregnant and delivered, and she said no. They sent her to the OB ward, where at this time she had lost about a fifth of her blood, and they asked again and she said no, she had never been pregnant or delivered. They actually called in a third doctor, and then I believed they examined her and there was an umbilical. She then admitted she delivered at home, a stillbirth, said the baby was not breathing and that she had wrapped it in a bag and placed it in a dumpster.
JMP: One of the things that has struck me about the Patel prosecution that is similar to the Bei Bei Shuai case which came before Ms. Patel sadly in Indiana is the idea that there are a lot of officials in the chain that seem to be jumping to the conclusion that there was a bad act here. Does that fit with your assessment as someone who is actually in Indiana?
MS: Yes it definitely does. And there’s something, you know, I don’t like to use the term “pro-life,” “pro-choice,” because I think all of us are for life, but there seems to be this idea that whenever there is a less than optimal outcome, that the first thought the woman did something wrong and it is right away persecution. You had the Bei Bei Shuai case—which was so involved and very different from this one—which even though in her case the baby was born alive, was almost full-term, and then died afterwards. In the Bei Bei Shuai case, she wanted to commit suicide but the drug she took doesn’t cross the placenta and wouldn’t have affected the baby, none of that mattered from their point of view in pursuing that prosecution though that was eventually dropped to a different charge. Recently, in Indianapolis there was a dead infant found in a park which they estimate to be about a year old. Everything is going toward where is the mother, we have to find the mother, the safe haven laws. Nothing toward could she be a victim too. Even when I asked the police about that. Is it possible she is also a victim? That she’s dead somewhere? No. It’s always what did she do wrong.
JMP: Can you talk a little bit about the climate in Indiana for pregnant people and families and any services or lack of services that your state has and how that fits into the Patel prosecution?
MS: I think the overall atmosphere is, women, you know we have the fourth highest infant mortality rate. And that’s not just infants, it actually goes up to 2 years of age. So what is happening is two things. There is not enough access to services for prenatal care, and then also not enough access—you know once the child is born—as far as health, classes, coverage. All these are missing. Instead, there is so much legislation—so much legislation going toward criminalizing women when they are pregnant, which would not be a crime for anyone else. There is so much weight focusing on this, as I tend to call it, pro-fetus, because the woman is totally discounted in this. A new bill was just introduced that would make it a felony if a woman who is pregnant or reasonably knows she is pregnant takes a controlled substance. Reasonably knows she is pregnant? Who gets to decide when you reasonably know you are pregnant? So even though you could legally choose to have an abortion in between that time, say you ingest something—that could be a felony. Does that make any sense at all?
Thank you for listening to RJ Court Watch, a legal podcast produced by Rewire. For more of our coverage of reproductive rights and justice issues, please go to www.rhrealitycheck.org.