They made an example out of Purvi Patel

May 19, 2016

Rachel Cohen reports on the case of an Indiana woman convicted under the state's "feticide" law--and the impact of anti-choice laws on women in dozens of states.

THE ANTI-CHOICE right has made an example of Purvi Patel. Last year, Patel was convicted simultaneously under Indiana's "feticide" law and for child neglect after suffering a miscarriage. She was sentenced to 20 years in prison.

The courts will hear an appeal of Patel's conviction on May 23, providing an opportunity for everyone who cares for reproductive justice to show our solidarity in her defense.

Police used text messages found on Patel's phone while she was being treated in an emergency room to allege that she had used abortion medication to terminate her pregnancy. But toxicologists found no evidence of the drugs in Patel's body or that of the fetus.

Nonetheless, prosecutor Ken Cotter has been unapologetic for joining a growing effort to hold pregnant people criminally liable for the outcome of a pregnancy.

Patel's sentence is the harshest yet imposed among hundreds of criminal proceedings targeting women for actions deemed dangerous to their pregnancies nationwide. Thirty-seven other states have enacted "feticide" laws similar to Indiana's, but even in states lacking them, poor women and women of color often face legal scrutiny of a wide range of actions during pregnancies, from consuming controlled substances to living in unsafe housing.

Purvi Patel receives a jail sentence of 20 years for suffering a miscarriage
Purvi Patel receives a jail sentence of 20 years for suffering a miscarriage

In Idaho, which lacks fetal homicide provisions but outlaws self-induced abortions, Jennie Linn McCormack, a single mother of three, faced prosecution for using an abortifacient medication at home to terminate a pregnancy.

She couldn't afford the $500 cost of an abortion performed by a doctor or the travel necessary to receive "counseling," undergo a waiting period and then return for the procedure at the nearest of the state's four abortion providers. Charges against her were eventually dropped, but only after McCormack was forced to quit her job and avoid leaving home due to public vilification.

In Indiana, Bei-Bei Shuai faced up to 45 years' incarceration for death of a fetus in 2012. Shuai had been eight months pregnant when her boyfriend broke up with her. Overwhelmed and grief-stricken, she attempted to end her own life.

She became the first person to face felony charges in the state under fetal homicide legislation supposedly devised to punish violent attacks against pregnant women. Shuai eventually pled guilty to a lesser charge and was released after spending over a year in prison.

Shuai and McCormack join hundreds of other casualties of an escalating effort to expand criminalization from abortion providers to pregnant people. The National Advocates for Pregnant Women have documented such a sweeping criminalization of pregnant low-income people and people of color that executive director Lynn Paltrow has termed the phenomenon "the New Jane Crow."

PATEL'S PROSECUTION began when she arrived at a South Bend hospital seeking treatment for excessive bleeding. Dr. Kelly McGuire, an avowedly anti-choice doctor who happened to be on call that night, not only called police to investigate the circumstances of the end of Patel's pregnancy, but actually left the hospital, still in scrubs, to join them in recovering the fetal remains Patel acknowledge having discarded.

This follows a pattern of decades of anti-choice individuals bringing their criminalizing crusade into medical settings. In Killing the Black Body and elsewhere, Dorothy Roberts documents how selective drug screenings and reporting from hospitals to state authorities launched a moral panic over infants exposed to crack cocaine.

Beginning in the 1980s, Black women suffered hundreds of instances of removal of custody or "protective" incarceration due to medical interventions based more on demeaning views of Black maternity than any scientific evidence of fetal harm.

Decades of research have demonstrated that exposure to cocaine in utero has no more demonstrable effect on children's development than poverty does, and that white people use cocaine at similar rates as Black people, including during pregnancy, though they are drug-tested immediately after labor far less frequently.

But science has largely failed to overcome the prominent mythology surrounding "crack babies" that has stripped hundreds of Black women of their custody and freedom.

Instead the war on drugs has continued to collide in new ways with the war on women. Alabama passed a "chemical endangerment" statute in 2006 in the midst of a crackdown on methamphetamine production and use.

The penalties for exposure to perceived danger include jail time, even if a fetus shows no signs of harm. Because it's considered a form of child abuse, penalties have included the termination of custody over all of a parent's children.

Incredibly, Patel was convicted not only of feticide but also of felony child neglect. Dr. McGuire led the charge to prove that Patel in fact delivered a live fetus whose death outside the womb resulted from criminal negligence.

A pathologist who testified for the prosecution, Joseph Prahlow, claimed the fetus was five to 10 weeks older than Patel reported, and cited a "lung float test" to allege it might have taken a breath after delivery. The test, consisting of placing the fetal remains in water to see if they would float, is as old as similar practices used in the 17th century against accused witches--medically, it is completely discredited.

Patel's lawyers are appealing both convictions for lack of evidence. But Indiana has continued to expand its legal war on women, most recently passing a bill that combines dozens of new provisions limiting abortion access and threatening criminal liability to providers and patients.

ASSAULTS ON reproductive justice in the U.S. have ranged from sterilization abuse against the poor, Black, Latina and Native communities, whose reproduction is deemed undesirable, to repression of access to abortion and birth control to compel women to view motherhood and social reproduction as their natural destiny.

But the different attacks have always been interconnected. Today, we inherit decades of the right's efforts to assert fetal personhood and rights over and above the rights of women and people who can become pregnant. The resulting logic underlies both the tide of legal attacks on reproductive health care and the criminalization of people like Purvi Patel.

On Monday, we have a chance to stand together with Patel and everyone whose rights to bodily autonomy and the right to determine their own reproductive lives hangs under threat. Apna Ghar and National Asian Pacific American Women's Forum are calling for supporters to stand vigil at the Indianapolis courthouse or to tune into oral arguments via livestream.

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