Read original article on The Establishment.
July 23, 2016
By Katie Klabusich
In a partial victory yesterday for reproductive justice advocates, the Indiana Court of Appeals vacated unjustly incarcerated Purvi Patel’s felony conviction for “feticide” while upholding the prosecution and conviction for “felony neglect of a dependent.”
In February, after less than five hours of deliberation, an Indiana jury convicted Patel of the two clearly conflicting charges following a miscarriage the prosecutor could never definitively prove was an illegal self-induction abortion. (Self-induction is illegal in all 50 states.) Authorities were alerted by doctors at the hospital where she sought care for emergency heavy bleeding when she admitted she had been pregnant and delivered a stillborn fetus. She had disposed of the fetus on the way to the hospital because she didn’t want her conservative Hindu family members to know she had been pregnant.
The court didn’t buy attorney general Gregory F. Zoeller’s claim that Patel’s possible use of mail-ordered abortion medications constituted a criminal act.
“[W]e hold that the legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions,” 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 did, however, seem to accept the pseudo-science used to “prove” that the fetus was both of a viable gestational age (25-28 weeks according to state testimony) and born alive and should have received medical care, but ruled that the Class A felony neglect should have been a Class D felony and remanded the case back to the trial court for re-sentencing. Her original neglect charge led to a 30-year sentence with 10 suspended, to be served concurrent with the now vacated six-year sentence for feticide. The new classification carries a sentence of six months to three years; she has been in jail for sixteen months.
From the decision:
“[T]he State failed to prove beyond a reasonable doubt that the baby would not have died but for Patel’s failure to provide medical care. Therefore, we vacate Patel’s class A felony conviction and remand to the trial court with instructions to enter judgment of conviction for class D felony neglect of a dependent and resentence her accordingly.”
Essentially, they can’t prove her neglect was on purpose enough for the felony with a 30-year sentence, but are still saying shereally should have known better, so she still faces three years because the fetus was definitely born alive. The almost unfathomable acceptance of the state’s “medical” testimony about viability was described perfectly by Rewire’s vice president of law and the courts, Jessica Mason Pieklo:
“[T]he 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.”
This was not Indiana’s first attempt to jail someone for a tragic end to a pregnancy under the feticide law. Bei Bei Shuai accepted a plea deal for misdemeanor criminal recklessness after serving a year in jail on a charge of feticide following a failed suicide attempt that resulted in a miscarriage in 2010. The plea deal makes Patel’s conviction and sentencing technically unique, but indicative of a pattern by the state of jailing pregnant women of color who are unable to access needed medical care.
The track record the state is quickly establishing, along with the mixed decision, has led to a similarly mixed reaction from reproductive justice advocates.
“The National Asian Pacific American Women’s Forum [NAPAWF] stands with Purvi Patel and applauds the Indiana Court of Appeals’ ruling that feticide laws must not be used ‘to prosecute women for their own abortions.’ No woman should fear for her safety or freedom based on the outcome of her pregnancy, and today’s ruling brings us one step closer to justice for Patel and women across the country,” NAPAWF said in a statement following the ruling.
Except that there’s still the matter of re-sentencing on the lesser felony charge.
“When Purvi Patel returns to trial, she will again face scrutiny for attempting to control her own reproductive future amidst a political agenda aiming to restrict women’s access to abortion and other critical health care,” continued NAPAWF. “The Court affirmed today that women should not be prosecuted for their pregnancy outcomes, but this decision could still be appealed by the state. Regardless, we will not rest until Purvi Patel and all women are free to make our own reproductive decisions, raise our families and live with dignity.”
The response from Shelly Dodson, director of All-Options Pregnancy Resource Center in Bloomington, Indiana, was more scathing. As she said in a statement following the Court’s ruling:
“The research is clear. If pregnant people fear criminal consequences, they don’t go to the doctor. Indiana is setting a dangerous precedent not to trust the medical community. Choosing to criminalize people around pregnancy decisions and pregnancy outcomes is a grave injustice, which is just as true for anti-abortion laws like HB 1337 as it is for Purvi Patel. The state of Indiana is sending a clear message, to anyone who is or might be pregnant that, “you don’t deserve help, you don’t deserve support—you deserve jail.” People throughout Indiana deserve open-hearted support through all their pregnancy and parenting turning points and to be treated with respect and dignity.”
Brief reminder: Soon-to-be-former governor of Indiana, newly minted republican vice presidential candidate, and all-around awful human being Mike Pence signed HB 1337 even though he didn’t need to for it to become law. He wanted to make sure his signature was affixed to legislation the National Network of Abortion Funds (NNAF) rightly depicts as having made an already tenuous situation even more dangerous for pregnant people. Indiana’s infant mortality rate is an alarming 7.1% (the national average is 5.6%), with the rate of black infant deaths 2.3 times higher than for white infants. Residents overall have worse health outcomes than the rest of the country—and again, it’s higher for people of color.
As Monica Simpson, executive director of SisterSong, outlined in a statement, it’s no coincidence that the state has chosen to prosecute these two particular women:
“Too often, laws and cases like this one have a disparate impact on women of color. The only two women charged in Indiana for their pregnancy outcome were AAPI (Asian American Pacific Islander) women. When we look at states that have jailed or charged women based on behaviors, such as laws punishing women for using drugs during pregnancy it is low-income women and women of color who are caught up in this unjust dragnet.”
In a statement, NNAF executive director Yamani Hernandez agreed:
“People of color are bearing the brunt of unscientific laws and misplaced moral outrage against abortion, which is blurring into the territory of miscarriage, putting any pregnant person at risk of prosecution and incarceration. It needs to stop, and the decision didn’t go far enough to restore full justice for Purvi Patel.”
Parker Dockray, executive director of the pregnancy, parenting, adoption, and abortion support organization Backline and All-Options Pregnancy Resource Center in Bloomington, Indiana, broke down the scope of the injustice from the Patel case and tied it to the need for access to the full spectrum of education and health-care services:
“The state of Indiana is choosing to restrict and punish women of color who experience poor pregnancy outcomes, while at the same time taking away needed supports such as unbiased options counseling, information and support for postpartum depression, and other resources for pregnant people and families. Purvi Patel’s case is an example of why access to information and support is so crucial. Indiana’s leaders continue to enforce a punitive response when their focus should be on increasing supportive programs and access to information—not on punishing people who have had a miscarriage or are seeking abortion care.”