Indiana’s law allowing discrimination against gay people is not the only reason that the state deserves our opprobrium. It’s also about to become the first state to imprison a woman for what it says is the death of a baby born after an attempted abortion.
On Monday, 33-year-old Purvi Patel, an unmarried woman from a conservative Hindu family who bought abortion drugs online, was sentenced to twenty years in prison for the crimes of feticide and neglect of a dependent. It was not the first time that feticide laws, passed under the guise of protecting pregnant women from attack, have been turned against pregnant women themselves. Indiana, after all, was also the state that jailed Bei Bei Shuai, an immigrant who tried to commit suicide by poisoning herself while pregnant, and whose baby later died. But the Patel case is still a disturbing landmark. “Yes, the feticide laws in other states have been used to arrest and sometimes punish the pregnant women herself,” says Lynn Paltrow, executive director of National Advocates for Pregnant Women, which advised Patel’s defense. “This is the first time it’s being used to punish what they say is an attempted self-abortion.”
Some of the facts in the case are murky. Prosecutors contend that towards the end of her second trimester, Patel took the drugs she’d bought online, but ended up giving birth to a live fetus that she abandoned in a dumpster. As Slate reported, however, the test that the forensic pathologist used to determine that the baby was born alive—the so-called “lung float test”—is widely considered unreliable. Further, the inclusion of feticide charges suggests that the crime lay as much in what Patel was accused of doing while she was pregnant as in what she did afterwards. Killing a live baby, after all, isn’t feticide—it’s homicide.
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Indiana strengthened its feticide law in 2009, after a pregnant woman who was shot during a bank robbery lost the twins she was carrying. Under the statute, feticide applies in cases where a “person…knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.” There is an exemption for legal abortion, but no explicit one for self-abortion. Reproductive rights activists like Paltrow have long contended that such laws, championed by conservatives, are a sneaky way of eroding abortion rights, and the Patel case shows that they are right. We’ve reached a point where desperate women who end their pregnancies before viability are going to prison.
Anti-abortion activists often deny that this is what they want. “Women Shouldn’t Face Prison Time For Abortion; They’re Victims Too,” is the headline of a 2012 column on LifeNews.com. The author, Calvin Freiburger, argues that pro-choice concerns about jailing women are a red herring, and that the anti-abortion movement has “largely reached consensus that punishment for abortion should rest predominantly with the one who performs the act: the abortionist.” Eventually, he allows, once pro-choice “indoctrination” has been uprooted so that the evil of abortion is more widely understood, “a future generation might decide that abortion-seeking women should be presumed to fully understand what they’re destroying, and they may choose to punish them accordingly. But that’s not where we are today. Pro-lifers recognize how the abortion movement victimizes mother and child alike, so we’re dedicated to saving both.”
Well, Patel, whose conviction will certainly be appealed, could use some saving. If this isn’t how the promoters of feticide laws intended them to be used, now would be a good time for them to say so.