On February 3, 2015, an Indiana jury found Purvi Patel, a 33-year-old Indian-American woman, guilty of two crimes, one of which is feticide for attempting a self-abortion. This Monday, March 30, Patel will be sentenced. The prosecution and verdict in this case demonstrate that, despite their claims to the contrary, the real result of the anti-abortion movement —if not the intended goal—is to punish women for terminating pregnancies.
The anti-choice movement’s long-term strategy goes beyond just limiting access to abortion. It also includes passing feticide laws that recognize fertilized eggs, embryos and fetuses as having a separate legal status and creates special penalties for causing them harm.1
As historian and legal scholar Reva B. Siegel has documented, many “pro-life” activists promote anti-abortion measures as “women-protective,” ensuring “women’s informed consent, women’s health, women’s welfare, and women’s freedom.”2 Feticide laws fall into this category: They are presented as a means of protecting both pregnant women and their “unborn” children, and they have overwhelmingly been introduced in the wake of violence against pregnant women. No Indiana law, including its feticide law, has ever been proposed and enacted that claimed it could or should be used as a basis for prosecuting and incarcerating women who have abortions. 3
Yet, as a result of the Patel case, such a law now apparently exists in Indiana.
The Patel case began when a 33-year-old woman went to a Mishawaka, Indiana emergency room in July 2013, bleeding and seeking help. Patel, who helps run her family’s restaurant and cares for her ailing parents and grandparents,4 eventually told health-care workers that she had miscarried. She explained that she had disposed of the fetal remains in a trash bin. After police found the remains they arrested Patel on the charge of “neglect of a dependent.”
About a month later, county prosecutors added the charge of “feticide.” According to a sworn statement in support of the arrest, Patel sent text messages to a friend indicating that she had obtained two drugs from Hong Kong in an attempt to end her pregnancy and that she had taken some amount of those drugs.5 The feticide charge was based on the claim that Patel “did knowingly terminate a human pregnancy, to wit: her own pregnancy, by ingesting medication,” and that this conduct was not a legal abortion performed in accordance with Indiana abortion law.6
To many observers, it was a shocking new application of Indiana’s feticide law, which was intended to criminalize “knowing or intentional termination of another’s pregnancy.”7 Turning this law into one that can be used to punish a woman who herself has an abortion is an extraordinary expansion of the scope and intention of the state’s law. Nevertheless, a jury convicted Patel on both the feticide and neglect charges; she now faces as many as 70 years in prison.
Even assuming Indiana’s feticide law could somehow become an abortion criminalization law, many people were initially baffled by how Patel could be charged with two seemingly contradictory charges: feticide for ending a pregnancy and also child neglect for giving birth to a baby and then failing to care for it. The state’s explanation took the interpretation of the feticide law to an even further extreme as prosecutor Ken Cotter argued, “a person can be guilty of feticide even if the fetus in question survives, as long as a deliberate attempt was made to ‘terminate’ the pregnancy ‘with an intention other than to produce a live birth or to remove a dead fetus.’”8
Put another way, Indiana’s feticide law is now an abortion criminalization law that not only can be used to punish a woman who ends her pregnancy, but also can be used to punish a woman who even attempts to end her own pregnancy.
This should raise alarm for numerous reasons. To begin with, attempts to end one’s own pregnancy are not extraordinary. One study of abortion patients found that 2.3 percent reported having used misoprostol or other substances, such as vitamin C or herbs, to attempt to end a pregnancy at some point in their lives.9 Another study found that the overall percentage to be higher at 4.6 percent, with even greater percentages in Texas,10 where more than half of all abortion clinics have been forced to close as a result of restrictive abortion legislation.11 (Seven percent of abortion patients in Texas, and 12 percent of such patients near the U.S.-Mexico border, reported having first taken steps in an attempt to terminate their own pregnancies.12)
Another reason for concern is the vagueness of the interpretation of this law.
What constitutes “a deliberate attempt” to terminate a pregnancy? In another Indiana case, 34-year-old Bei Bei Shuai was arrested for attempted feticide because prosecutors construed her attempt to kill herself while pregnant as an attempt to terminate a pregnancy.13 Suicide is not a crime in Indiana or any other state. Nevertheless, Shuai, a Chinese immigrant who survived and gave birth to a baby who lived for several days, was arrested on both feticide and murder charges. Massive public pressure eventually helped get both charges dropped, but not before Shuai spent a full year locked up in state custody and another year under a form of house arrest that required her to wear an electronic monitor for which she had to pay $12 per day.14
There is also the matter of what else might constitute “a deliberate attempt” to end a pregnancy. If a woman suffers an unexplained miscarriage or stillbirth, would the fact that she had previously searched for information about using medications like misoprostol to end a pregnancy15 be used against her? In the Patel case, the state had no physical proof that Patel had actually taken—or even purchased—any medication, apart from text messages allegedly discussing these matters.16 (For the record, the state similarly had no actual proof that the fetus had been born alive, relying instead on a scientifically invalid and widely discredited “float test” to persuade the jury otherwise.17)
What the Patel case demonstrates is that both women who have abortions and those who experience pregnancy loss may now be subject to investigation, arrest, public trial and incarceration. Indeed, Patel has consistently said that she experienced a miscarriage18 that she, like most women in this situation, was unprepared to handle.19 Pregnancy loss is not uncommon: some 15-20 percent of all known pregnancies end in miscarriage;20 one percent of pregnancies—approximately 26,000 each year—result in stillbirth.21 Following the Patel case, however, any miscarriage or stillbirth could be investigated as feticide (an “illegal” self-abortion).
While the scope of Indiana’s feticide law may be vague, the message the Patel case sends is anything but. As an NBC South Bend affiliate summarized it, the verdict broadcast the warning that “there is no room in society today for do-it-yourself abortions.”22
The outcome of this case is noteworthy and alarming for another reason as well. It directly contradicts the repeated claims of anti-abortion leaders that their efforts will not lead to punishing women. Several years ago, 17 anti-choice leaders participated in an online symposium hosted by the conservative magazine National Review, addressing the question of whether there should be “jail time for women who seek abortions.”23 Overwhelmingly the writers assured readers that this was not their goal and moreover, that it would never happen.24 One of the contributors, Marjorie Dannenfelser, president of the national anti-choice group Susan B. Anthony List, argued that fears of women being prosecuted and jailed were just a pro-choice tactic to malign abortion opponents. 25
“The fact of the matter is that compassion for women before abortion was legal and compassion for them after unborn protections are enforced will drive the law,” said Dannenfelser. “The focus of such laws is on protection, not punishment.”26
Another essay contributor, Anne Hendershott, promised, “No one wants to send a woman who has had an abortion to prison—she will suffer enough from her decision.”27 And Tom McClusky, vice president of government affairs for the Family Research Council, flatly called the threat of criminalizing abortion under feticide laws “ludicrous.”28
These writers are not alone. Anti-abortion organizations have routinely downplayed or denied the threat. An Ohio Right to Life webpage, “Overturning Roe v. Wade,” assures readers that “no one is interested in sending women to jail.”29 Generations for Life, the youth arm of the Pro-Life Action League, likewise insists that “the idea of punishing women who have abortions could not be further from anti-choicers’ minds.”30 And legal advocacy organization Americans United for Life has maintained that, “if Roe is overruled, no woman would be prosecuted for self-abortion.”31
But in Indiana, the prosecution of Purvi Patel for an alleged self-abortion is exactly what happened.
It should come as no surprise that not a single national anti-choice group sounded an objection to the Patel prosecution and its use of Indiana’s criminal laws to punish a woman who allegedly sought to end her own pregnancy.32 A similar, deafening silence was heard when Jennie McCormack, a mother of three in southern Idaho—where there are no longer any abortion providers—was arrested after she used medication obtained online to end a pregnancy.33
The anti-choice movement has not taken any steps to oppose prosecution of pregnant women, in spite of peer-reviewed research that I published with Jeanne Flavin34 establishing that anti-abortion measures, including the feticide laws now in existence in 38 states, are providing the justification for the arrest of pregnant women, including those who have had or who attempted to have abortions.
It is likely that most people in the U.S., whether they identify as “pro-life” or “pro-choice,” don’t want to see any woman locked up for having an abortion35 (including the more than 60 percent of women who have abortions who are already mothers).36 Perhaps this is why anti-abortion organizations work so hard to deny the predictable and inevitable consequences of their efforts: women being locked up.37
The anti-abortion organization Priests for Life insists the “pro-life position has always been that women are victimized by abortion. In fact, we have repeatedly rejected the suggestion that women should be put in jail.”38 On Monday, Purvi Patel will find out at sentencing just how much time she will have to serve in jail or prison. But what the Patel case already demonstrates is that we cannot take Priests for Life and the other “pro-life” organizations at their word when they promise protection and not punishment for women.
On March 30, 2015, the Indiana court sentenced Purvi Patel to 41 years for the crimes of feticide and neglect of a dependent (Patel will serve 20 of the 41 years in prison).
- See Lynn Paltrow, Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, 62 Albany Law Review 999, 1009-1015 (1999).
- Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart Faculty Scholarship Series, Paper 1134 (2008), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2131&con…
- See Indiana v. Bei Bei Shuai, Defendant’s Memorandum of Law in Support of Motion to Dismiss, In the Marion Superior Court Criminal Division, Cause No.: 49G03-1103-MR-014478 at 10-14 (March 30, 2011).
- Amy Gastelum, An Indiana jury says Purvi Patel should go to prison for what she says was a miscarriage, PRI’s The World (March 13, 2015) available at http://www.pri.org/stories/2015-03-13/indiana-jury-says-purvi-patel-sho…
- Indiana v. Patel, Supplemental Affidavit in Support of Probable Cause, In the Stat Joseph Superior Court, Cause No 71 DO8-1307-FA-0000-17 (July 17 2013) available at https://www.documentcloud.org/documents/1280086-patelpcaffidavit.html
- Indiana v. Patel, Second Amended Information (In the St. Joseph Superior Court, Cause No., 71D08-13 (Dec 8, 2014).
- Sandra L. Smith, Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application. 41 William & Mary Law Review 1845 at 1852-3 (2000) (emphasis added) available at: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1539&context=…
- Leon Neyfakh, False Certainty: Why did the pathologist in the Purvi Patel feticide case use the discredited “float test” to show her fetus was born alive?, Slate (Feb 5, 2015). Available at: http://www.slate.com/articles/news_and_politics/crime/2015/02/purvi_pat…
- Rachel K. Jones, How commonly do US abortion patients report attempts to self-induce? 204 Am J Obstet Gynecol 23 (2011) available at: http://www.ajog.org/article/S0002-9378%2810%2901008-2/pdfSummary
- Daniel Grossman, et. al.Self-induction of abortion among women in the United States, 18 Reproductive Health Matters 136 (November 2010), available at http://www.rhm-elsevier.com/article/S0968-8080%2810%2936534-7/abstract
- RH Reality Check, Tracking Texas Abortion Access, http://rhrealitycheck.org/tracking-texas-abortion-access-map/ (last updated Oct. 15, 2014).
- Daniel Grossman, et. al., The public health threat of anti-abortion legislation, 89 Contraception 73 (2013)
- eepa Lyer and Miriam Yeung. Purvi Patel Isn’t the First Woman of Color to Have Her Pregnancy Put on Trial in Indiana (Updated)!, RH Reality Check (February 2, 2015). Available at: http://rhrealitycheck.org/article/2015/02/02/purvi-patel-isnt-first-wom…
- National Advocates for Pregnant Women, Thank You! Bei Bei Shuai is Free and More http://advocatesforpregnantwomen.org/blog/2013/08/thank_you_bei_bei_shu…; Jodi Jacobson, Bei Bei Shuai out on bail but far from free, RH Reality Check (May 22, 2012) available at: http://rhrealitycheck.org/article/2012/05/22/bei-bei-shuai-out-jail-out…; David Cerola, Bei Bei Shuai case ends after plea agreement, Nuvo (August 2 2013)
- See e.g., Women on Waves, Using Medications (Pills) to End an Unwanted Pregnancy in the USA https://www.womenonwaves.org/en/page/711/using-medications-pills-to-end… (last visited March 25, 2015).
- Indiana v. Patel, Supplemental Affidavit in Support of Probable Cause, St.Joseph Superior Court, Cause No 71 DO8-1307-FA-0000-17 (July 17 2013) available at https://www.documentcloud.org/documents/1280086-patelpcaffidavit.html
- Supra note 8.
- Supra note 4.
- Jennifer Gunter, Feticide laws force birth and punish women (September 10, 2014) available at: http://www.kevinmd.com/blog/2014/09/feticide-laws-force-birth-punish-wo…
- Raj Rai & Lesley Regan, Recurrent Miscarriage, 368 Lancet 601, 601 (2006).
- Ruth C. Fretts, Etiology and Prevention of Stillbirth, 193 American Journal of Obstetrics & Gynecology 1923, 1924 (March 2005).
- WNDU NewsCenter 16 Staff, UPDATE: Purvi Patel found guilty on all counts, WNDU.com (March 26, 2015), video: “Purvi Patel’s Fate In The Hands of a Jury” available at: http://www.wndu.com/home/headlines/Jury-out-in-Purvi-Patel-trial-290718…
- One Untrue Thing, An NRO Symposium, Life After Roe, National Review, Aug. 1, 2007, http://www.nationalreview.com/article/221742/one-untrue-thing-nro-sympo….
- Ohio Right to Life, Overturning Roe v. Wade, http://www.ohiolife.org/overturning-roe-v-wade/ (last visited March 25, 2015).
- Generations for Life, Blog, How Much Jail Time for Women Who Have Abortions?, posted by John, July 31, 2007, at 12:00 p.m., http://generationsforlife.org/2007/0731/how-much-jail-time-for-women-wh….
- Clarke D. Forsythe, Why the States Did Not Prosecute Women for Abortion Before Roe v. Wade, Americans United for Life, April 23, 2010, http://www.aul.org/2010/04/why-the-states-did-not-prosecute-women-for-a….
- Indeed, the response from the group St. Joseph County Right to Life suggests clear support for such arrests. Right to Life Program Director Jeanette Burdell released a statement regarding Patel’s conviction, writing, “We agree the prosecutor should have pursued this because it involves an innocent human life. Unfortunately, this case shows that our culture and our society have devalued human life to the point where this mother might not have been fully aware of the gravity of her actions. This is the impact of legalized abortion.” See Fox28, Pro Life Group Reacts to Purvi Patel Conviction, Feb. 4, 2015, http://www.fox28.com/story/28029167/2015/02/04/pro-life-group-reacts-to….
- Jessica Robinson, Idaho Woman Arrested For Abortion Is Uneasy Case For Both Sides, NPR, April 9, 2012, http://www.npr.org/templates/story/story.php?storyId=150312812.
- Lynn M. Paltrow and Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973– 2005: Implications for Women’s Legal Status and Public Health, http://jhppl.dukejournals.org/content/38/2/299.full.pdf+html?sid=b0811f….
- See Anna Quindlen, How Much Jail Time for Women Who Have Abortions?, Newsweek, Aug. 5, 2007, http://www.newsweek.com/quindlen-how-much-jail-time-women-who-have-abor….
- Guttmacher Institute, Fact Sheet: Induced Abortion in the United States, July 2014, http://www.guttmacher.org/pubs/fb_induced_abortion.html.
- See Lynn M. Paltrow, Roe v. Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration, American Journal of Public Health (2013).
- Priests for Life, Letter 263, http://www.priestsforlife.org/lte/lte26.html (last visited March 25, 2015).