Reproductive injustice: Persecution under fetal homicide laws

Rachel Falek, Editor In Chief

A woman can face up to 70 years in jail for having a miscarriage. That is not a typo. Purvi Patel, a 33-year-old woman, was recently sentenced to prison for 20 years in Indiana for delivering a stillborn fetus.

Here’s the kicker: Patel was charged of two contradictory crimes: feticide (the killing of a fetus) and neglect of a child under Indiana’s fetal homicide law. Fetal homicide laws “grant a fetus legal status distinct from the pregnant woman,” according to the National Conference of State Legislation. These laws could also apply to women’s abuse of drugs or alcohol during pregnancy. 

Patel miscarried on July 13, 2013. She came home early from work and laid in bed for numerous hours. She then went into the bathroom and miscarried on the bathroom floor. 

According to Indiana Religious Coalition for Reproductive Justice’s co-president, Sue Ellen Braunlin, Patel recognized that there was a fetus among the blood, but that the fetus was not alive nor did it ever take a breath of air. Patel decided she needed to go to a hospital. Before arriving at the emergency room of St. Joseph Regional Medical Center in Mishawaka, Indiana, Patel disposed of the fetus in a dumpster behind a shopping mall. 

Patel did not disclose to doctors that she had been pregnant. However, Dr. Kelly McGuire realized there was something Patel wasn’t telling him, as she still had a placenta in her womb attached to a severed umbilical cord that “looked like it was from a baby that was fairly far along,” McGuire said. 

McGuire then called the police, as he, like all physicians, is a “mandated reporter” of child abuse, meaning he is required to notify authorities if he suspects abuse. When Patel learned that McGuire gave the police her address, she admitted that she was pregnant. Patel most likely hid the fact that she was pregnant because she was impregnated by a married co-worker and didn’t want her Hindu parents to know. 

The police and McGuire searched for the fetus and declared it dead on the scene. 

So how did Patel get convicted of a law that was supposed to protect pregnant women, not criminalize them? Patel’s feticide charge originates from text messages police discovered on her phone, in which Patel talked to a friend about buying abortion drugs online from Hong Kong. However, this conviction is based on pure speculation, as the toxicologist did not find any trace of the drugs in her body or the body of the fetus. Furthermore, the police found no concrete information that Patel actually purchased said drugs.

At the same time, Patel was charged for child neglect, meaning the fetus was alive. How could Patel kill a fetus and at the same time neglect it? Judge Elizabeth Hurly, who was appointed by Indiana’s conservative governor, Mike Pence, saw no reason why Patel could not be convicted on both counts.  Patel can now face a sentence of between 6-20 years for feticide and 20-50 years for neglect. 

Regardless of the conflicting charges, the police used disproven science to declare that the fetus could have survived out of the womb. The court pathologist applied a “whole lung float test,” which tests if the lungs of the fetus float in liquid. If the lungs float, it means they have taken in air, but if they sink, it means that the baby has not breathed and therefore could not have lived without the mother. However, this test has been unreliable for over a century. In control tests, the lungs of stillborn infants have floated and the lungs of live-born infants have sunk in the liquid, according to forensic pathologists Pekka Saukko and Bernard Knight.

Despite the complete lack of evidence, as of March 13, Patel is the first woman convicted under Indiana’s Fetal Homicide Law. 

This is not the first time a pregnant minority woman was criminalized in Indiana. In 2011, Bei Bei Shuai faced similar charges after she attempted to commit suicide from depression. Shuai poisoned herself, and while she survived, her fetus did not. As with the Purvi Patel case, the authorities were quick to arrest Shuai, who spent a year in jail until a plea agreement was reached.

These cases against Patel and Shuai are rendered even more unbelievable when the state criminalized women under a law intending to protect pregnant women from third party violence. States originally enacted Fetal Homicide Laws to prosecute illegal abortion providers and to incarcerate men who abused their pregnant partners, according to India attorney Katherine Jack.

There are 38 states that have the fetal homicide laws and 23 of those laws apply to the earliest stages of pregnancy. This means that there are 38 states where women could be sentenced to the same fate. In fact, women have already faced this reality in states including Alabama, Mississippi, South Carolina and Tennessee. 

There is no lawful reason that Patel should be imprisoned for over half a century. Ind. Code Ann. § 35-42-1-6, includes “a person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus; the law does not apply to an abortion.” As there is no proof that Patel induced her miscarriage through pills, the last thing Patel should be facing is jail time. 

With that being said, we need to analyze why we as society are so quick to incarcerate people when our system is built on the fundamental idea of innocent until proven guilty. There have been 413 arrests or other actions by police that “denied pregnant women ‘physical liberty’” between Roe v. Wave in 1973 and 2005. In the last ten years, there have been over 380 cases. The increase in cases most likely correlates with the wealth of new anti-abortion laws passed at the state and national level. 

Women like Patel and Shuai need social services and health counseling, not incarceration. 87 percent of U.S. counties do not have an abortion provider, according to In Indiana, there are only 12 abortion providers and four cities with abortion clinics. In order for women to receive abortions, they must first have the time, money, and capabilities to travel these distances. Then women must take counseling, wait 18 hours, and attend two separate visits to get an abortion. 

Although I reject the notion that Patel induced her miscarriage, these facts allude to why women, like Shuai, would resort to poisoning their fetuses: they live in states that deny their reproductive rights. The Roe v. Wade ruling has little significance to its name if fetal homicide laws and personhood laws, which define a fetus in the womb as a “person,” continue to be enacted. These laws end up doing little to protect the fetus and go a long distance to incarcerate pregnant women.

The women who are most often convicted under these laws are low-income women and women of color. It is no wonder that these are the same women who are most likely to be without healthcare or access to contraceptives. Fetal homicide laws and personhood laws perpetuate suspicion and distrust by these minorities. They, “set a precedent for harsh punishment of women who have abortions or experience pregnancy losses,” according to the National Association of Professional Women statement. A 2006 study by professors at Santa Monica and Oregon State University found that 37 percent of African American respondents agreed that “medical and public health institutions use poor and minority people as guinea pigs to try out new birth control methods.” If women are afraid to get the care they need, more fetuses will end up in dumpsters or poisoned and more pregnant women will end up in jail. 

To provide women their reproductive rights and give them the access to the health care they need to protect both them and their fetuses, there must be reproductive justice. Women should have the right to decide whether or not to have a child, the right to affordable and safe contraception and abortions, as described by the Public Education Project. Women need to be in control of their reproductive destinies.