This week, lawyers representing Purvi Patel, the Indiana woman sentenced to twenty years in prison for what she maintains was a miscarriage (a jury convicted her of feticide in February), filed an appeal. If they succeed, it will be the first step in exonerating Patel of wrongdoing. It will also be a sorely needed victory for reproductive rights in America.
The state of Indiana charged Patel with the seemingly contradictory crimes of feticide and felony neglect, claiming that she tried to end her pregnancy illegally and then abandoned her baby when it was born alive.
Patel is the first woman in the U.S. to be convicted of the crime of feticide, which sets a dangerous legal precedent allowing a woman to be jailed for attempting to terminate her own pregnancy. That is a frankly terrifying prospect.
What makes this particular instance even more troubling is how the case against Patel rests on dubious evidence, notwithstanding the legal complexities of Indiana’s feticide law. The methods by which the court determined that Patel had intended to abort her fetus as well as to prove that she delivered a living child are disturbing at best and amount to modern day witch hunt at worst.
Lawrence Marshall, the Stanford Law Professor who will be taking on Patel’s case pro bono, says it cries out to be rectified.
“There are issues here, there are errors here that were committed, that in our view justify and compel reversal,” he told the South Bend Tribune this week. “We will be hopefully showing the appellate court that errors were committed in both interpreting the law and how facts were allowed to be proven.”
In July 2013, thirty-three-year-old Patel went to the emergency room at St. Joseph Regional Medical Center in Mishawka, Indiana with heavy vaginal bleeding. She initially told ER staff that she had not been pregnant, as a range of personal reasons had compelled her to keep her situation private, a circumstance is that isn’t all that uncommon. But she later explained she had delivered prematurely in her bathroom, attempted unsuccessfully to resuscitate what she says was a stillbirth, and disposed of the dead fetus in a dumpster on her way to the hospital. What followed was the beginning of Patel’s cruel and unusual punishment for the sudden loss of her pregnancy, an already traumatic event that she endured alone in her home.
Patel’s doctors notified the police, who recovered the fetus and proceeded to interrogate their patient as soon as she was released from surgery at St. Joseph. They searched her cell phone records and later used text messages in which Patel discussed self-aborting her pregnancy as proof that she took pills with the intention of doing so. And yet no trace of the drugs was found in Patel’s bloodstream, nor were any records discovered of her purchasing them.
“If you live in Indiana and are pregnant, don’t ever tell or text anyone that you are ambivalent about being pregnant or are thinking about an abortion because if you have a fetal demise the fact that at one point you might have contemplated an abortion means you had something to do with it, medical evidence proving otherwise be damned,” Dr. Jen Gunter, a San Francisco-based OGBYN recently wrote on her blog.
“And if you have a precipitous premature delivery at home the first thing you must do is not cry or grieve or freak out because you didn’t realize you were that far along or pass out from blood loss, you must immediately call 911 because not being able to triage your own emergency home delivery is also a crime in Indiana.”
Not surprisingly, women’s rights and reproductive justice advocates have been in an uproar. Thirty-seven states currently have feticide laws. As Lynn Paltrow, Executive Director of National Advocates for Pregnant Women, explained in an interview, “It wasn’t surprising to any of us who have done research in this area […] especially because the organizations, the anti-choice and the so-called pro-life organizations that have sponsored feticide and other kinds of laws, have repeatedly promised that their purpose was protecting pregnant women, not punishing them, even those who seek to end their own pregnancies.”
But that’s hardly the only contradiction in Patel’s case. The feticide and felony neglect charges are seemingly in opposition, and yet the prosecution successfully pursued them simultaneously. Had Patel delivered a live fetus, she could only have been charged with the latter. But her conviction for both rests on the fact that Indiana’s feticide criminalizes the mere attempt to terminate a pregnancy.
But if Indiana can use its feticide law in this way, what bars other states from doing the same? After all, there’s an ongoing war on women’s reproductive rights being waged in the U.S., with legislators in states across the country having introduced at least 235 bills to restrict abortion this year alone.
There are a slew of other sinister circumstances to what Patel has been forced to go through. The autopsy records show that her fetus was 23 to 24 weeks old, which Dr. Gunter said is considered at the cusp of viability. If Patel had given birth to a breathing baby, it’s likely that it was alive for just seconds, and had she delivered at a hospital, she would have had the legal right to decline resuscitative care. Moreover, the prosecution used the pseudoscientific lung-float test, a practice from the 17th century meant to measure oxygen levels in the respiratory system. Patel tried to perform CPR on the fetus, therefore invalidating the archaic test before it was even pursued.
“The lung float test was disproven over 100 years ago as an indicator for live birth,” said Gregory J. Davis, assistant state medical examiner for Kentucky and a professor of pathology and lab medicine at the University of Kentucky, said in a New York Times interview. “It’s just not valid.”
The prosecution also stated that Patel had cut her umbilical cord on her own as some sort of further proof that she was in a state to have acted other than how she did after her ordeal — although it’s unclear what the proper behavior is for a mother who just suffered a pregnancy loss. Gunter’s testimony further diminished the relevance of this detail, stating that umbilical cords at her stage of pregnancy are not very strong on their own and could have broken without intervention.
Lastly, it bears mentioning that the only women in Indiana who have faced the charge of feticide have been women of color. In 2011, a Chinese American woman, Bei Bei Shuai, was suffering from depression and tried to commit suicide while pregnant. Though she survived, her baby did not. The state responded not by offering resources like mental health care and counseling but by tossing her in prison until a plea agreement was reached.
Paltrow says the racial dimension to these prosecutions comes as no surprise, either. “All of our country’s punitive mechanisms, whether the criminal justice system or many aspects of civil child welfare laws unquestionably disproportionately target and cruelly punish low-income people and very disproportionately people of color and immigrants.”
These cases underscore, in Paltrow’s view, how “Any time there is an effort to expand the use of state power to punish, it will start by targeting the least sympathetic and the least powerful people.”
Instead, many have sought to use Patel’s ethnicity to justify the way her saga has played out, tying it into colonialist images of a violently patriarchal India and to the 2012 Delhi rape. But those efforts are racist and wrong. The fact is that Patel’s experience couldn’t have taken place anywhere but in the United States, enmeshed as it is in our country’s ethnic and gender inequalities and still-roiling war over reproductive rights. More than anything else, Patel is a woman of color being penalized in America for losing a baby.
The St. Joseph Superior Court has ninety days to provide Patel’s lawyers with transcripts of her trial. They would then have thirty more days, with a possible additional thirty-day extension, to file a brief of their case with the Court of Appeals. Still, it could be over a year before the court decides whether the convictions should be overturned. Until then, Patel is sits in the St. Joseph County Jail waiting to be transported to an Indiana State Prison to begin serving twenty years behind bars.
Chaya Babu is a Blog Editor for The Brooklyn Quarterly as well as a writer for India Abroad and a number of other publications. Her work focuses on social issues and culture, and you can check our her musings on brown, feministy, identity politics at The Fobby Snob.