In March, Republican presidential front-runner Donald Trump called for punishing women who have abortions. His statement drew quick opposition from all corners of the political arena, including multiple anti-abortion groups that see doctors, not women, as the criminals. While Trump swiftly backpedaled, realigning himself with the mainstream GOP pro-life position, recent news events have shown that his controversial idea may already be in place in the United States.
This week, an appeals court heard arguments in on a whether a 35-year-old Indiana woman should be criminally prosecuted for her self-induced abortion.
You can’t endanger a dead baby, can you?
It’s still unclear what exactly she’d be charged for. That’s because the facts around Purvi Patel’s abortion are blurry. In 2013, Patel arrived at a hospital bleeding heavily, telling doctors she had experienced a miscarriage and left the fetal remains in a dumpster. Since she “showed signs of advanced pregnancy,” her pro-life doctor called the police and went to confirm that the fetus was, in fact, deceased. Patel confirms she delivered a stillborn, but her doctor who recovered the fetus said he saw the it breathe and claims it could have lived if given rapid medical attention.
Police later found evidence that Patel had taken pills to induce an abortion, and that she had feared telling her family about the unplanned pregnancy.
The state of Indiana then pinned Patel with 20 years in prison on contradictory charges: Feticide for allegedly inducing an abortion and child neglect for allegedly allowing a living baby to die. She is the first woman in the U.S. to be charged with feticide for ending her own pregnancy.
Appeals court hearing today for Purvi Patel, Indiana woman convicted of feticide. My earlier story on her case: https://t.co/E2FlL5kqDQ
— Jill Disis (@jdisis) May 23, 2016
Abortion is legal in Indiana, but a state feticide law meant to protect pregnant women from violence doesn’t explicitly exempt women themselves from being guilty of the crime. This, combined with the state statute forbidding women to be prosecuted for having an abortion, left Monday’s three-judge panel ultimately frustrated.
Judge Nancy Vaidik demanded any evidence from the state to prove “beyond a reasonable doubt” that Patel knew her infant had been alive. If so, she could be held liable. However, the prosecution relies solely on Patel’s doctor’s testimony — and rejecting Patel’s account of a stillbirth, painting her as a cold-blooded murderer.
“You can’t endanger a dead baby, can you?” Vaidlik asked Indiana Deputy Attorney General Ellen Meilaender.
Patel’s attorney, Stanford University law professor Lawrence Marshall, argued that Indiana’s feticide law was not created to prosecute women for their own abortions — especially since the medical procedure is allowed by law. Judge L. Mark Bailey asked that if it was created to blame women for her fetus’ death, where does the state draw the line?
“One pack of cigarettes a day, or a fifth of whiskey a day?” Bailey asked. “I mean, what is it that we’re going to start prosecuting here?”
Lisa Sangoi, an attorney at the National Advocates for Pregnant Women, which filed a brief on Patel’s behalf, told MSNBC that this question is the most troubling piece of the case.
“Anything a woman does and doesn’t do can potentially affect her pregnancy,” she said. “To hold a woman criminally culpable for her perceived pregnancy outcomes really takes us down a very slippery slope. What happens to the women in Flint, Michigan who are drinking the water there? Or the woman who needs to support her family and continues to work in her stressful job in the eighth month of her pregnancy and has a complication? Do we then prosecute them?”
Anything a woman does and doesn’t do can potentially affect her pregnancy
Two dozen advocacy groups, including Planned Parenthood and the American Civil Liberties Union, have filed court briefs in support of Patel.
The judges left the court with little evidence of what position they would ultimately take. Judge Vaidik both attorneys that they had given the judges “a lot to think about” and that the court would rule as soon as it can. Abortion rights advocates say the case could make it to the Supreme Court.
Patel’s case may be the first feticide-related abortion charge, but other women in the U.S. have been threatened with prison time for their abortion. Women in Mississippi and Tennessee have faced jail time for alledged drug use during pregnancy, and a woman in Iowa was prosecuted for falling down the stairs while pregnant. Criminalizing women for their abortion is not a new practice outside of the U.S. In El Salvador, many women have even been imprisoned for actual miscarriages that were painted in court to look like abortions.