Indiana’s Religious Freedom Restoration Act (RFRA) has justifiably provoked outrage nationwide for its apparent intent to legalize anti-gay discrimination by private businesses.
But another controversial law that this week resulted in a draconian 20-year prison sentence for a woman named Purvi Patel has received far less attention. That law is a fetal homicide mandate under which Patel was charged and convicted earlier this year, alongside a charge of negligence. But Patel is being criminalized for likely having had a late-term miscarriage or stillbirth.
If this sounds utterly outrageous, it is exactly that. Some years ago I, like millions of women, suffered a miscarriage. Mine was an intentional pregnancy and the miscarriage occurred just a few weeks after conception. It was a bewildering and traumatic experience after which I wanted nothing more than to be left alone to recover.
In Patel’s case, the pregnancy was unintended and the miscarriage is estimated to have occurred at about 22 to 24 weeks of gestation. (While exact definitions vary, some doctors consider a miscarriage at 20 or more weeks to be a stillbirth, while others use 24 or even 28 weeks as the cutoff between miscarriage and stillbirth.)
Patel arrived at the hospital bleeding heavily. She eventually revealed she had miscarried, was surprised to see a fetus as far along as it was, and she admitted that she disposed of it in a dumpster. She was interviewed by police without an attorney present and without having been read her rights while in her hospital bed. One can only imagine how shocked she was when she found out that prosecutors were gathering evidence and statements to charge her and put her away for a very long time.
In fact, the charges themselves are contradictory and reveal the desperation of a state that is intent on criminalizing pregnant women. A jury deliberating for just five hours convicted her on two counts: feticide, for killing the fetus before it was born, and negligence, for killing it after it was born. Clearly it cannot be both—and yet Patel was convicted of both.
There were several other contradictions. First, during the trial, prosecutors attempted to make the case that Patel intended to terminate her pregnancy by taking abortion-inducing drugs. But a toxicology report found no evidence of such drugs in her bloodstream.
Second, when investigators found the fetus in the dumpster where Patel had disposed of it, it was pronounced dead, and yet a pathologist testified that the fetus took a breath after it emerged from the womb and thus was considered to be briefly alive. He based his finding on a test first developed in the 17th century called a “lung-float test” that has been widely discredited.
Third, fetuses can be viable outside a mother’s body, but only after 24 weeks of gestational age and with immediate medical intervention. Viability is never guaranteed, but it is possible, depending on the health of the fetus and the technology available. Patel says her pregnancy was only 22 to 24 weeks along, and doctors could not come to an agreement on the exact gestational age of the fetus. So, other than the results of the “lung-float test,” there was no evidence that the fetus was born alive or, if it had been, whether it was even far enough developed to have been capable of life outside the womb.
If Patel’s pregnancy had been intended, if she had obtained prenatal care, and (as is the case for 1 in every 160 pregnancies), if she had then suffered a stillbirth, she would likely not have been charged with anything. What the state of Indiana seems to really be punishing her for is wanting to control her own body, since text messages from her phone reveal she made an inquiry about abortion-inducing medication. Those messages were entered into the evidence. But Indiana has one of the most restrictive anti-abortion laws in the U.S., and there are only a dozen abortion clinics serving the entire state, leaving Patel with very few options to acquire a legal abortion, if indeed that was her intention.
Indiana’s so-called feticide or “fetal homicide” law is not uncommon. A majority of states have such laws, and advocates claim that they are intended to criminalize abhorrent behavior like the horrifying recent case of a Colorado woman who lured a pregnant mother to her home using a Craigslist ad and then attacked her with a knife, cut out her 7-month-old fetus and drowned it.
But increasingly such laws are being used to criminalize pregnant women themselves. In Indiana, Patel is the second woman to be charged with feticide and the first to be convicted. The only other woman who was charged was a Chinese-American named Bei Bei Shuai whose attempted suicide was linked to the termination of her pregnancy. The fact that the only two women Indiana has targeted with this law are women of color of immigrant backgrounds ought to be extremely troubling.
Fetal homicide laws are part of the same spectrum of antiabortion legislation around the country as the so-called fetal personhood laws. Under fetal personhood laws, fetuses are given the same rights as fully formed humans, and thus such laws can also be used to charge women with homicide for having abortions. Indeed, across the country, many pregnant women have been arrested and imprisoned in the last few years under the color of similar laws. A 2013 study published in the Journal of Health Politics, Policy and Law found that a majority of women who are criminalized under fetal personhood laws are women of color, and a majority are also poor women.
Women are also being judged severely in the court of public opinion. Media coverage of the Patel trial routinely referred to the fetus as a “newborn” or “baby boy.” One ABC affiliate used the phrase “death of her child” in its headline.
The media’s conflation of a stillborn fetus with a child feeds into the perception that Patel and other women like her have murdered their living, breathing children and therefore deserve harsh punishment. Even the judge in Patel’s sentencing hearing lectured her, using deeply patronizing and patriarchal language, saying she had “choices you could have made that you didn’t make” —but what choices could she have made in a state like Indiana with its aforementioned strict abortion laws?
We need to begin seeing these fetal personhood and homicide laws as part of the spectrum of how women are targeted by the state in a variety of ways. As I have previously written about, women of color (particularly black women) are often judged as promiscuous or oversexed, or are mistaken for prostitutes. They are especially vulnerable to the attacks on abortion and reproductive health care. And once they have babies, they are often criminalized as negligent parents even when there are no viable options for child care.
While there has been stalwart solidarity with Patel inside the state from pro-abortion-rights groups like the Indiana Coalition for Reproductive Justice, very few national organizations or high-profile individuals have expressed outrage over the Indiana conviction and sentencing. Interestingly, Indiana’s RFRA, which has turned the state into a national pariah over potential anti-LGBT discrimination, is being cited by anti-abortion activists as possibly affording them cover for their prejudices too. But that aspect of the RFRA has not provoked similar anger.
While Indiana Gov. Mike Pence is being nationally shamed for signing the RFRA, we are collectively giving him a pass for overseeing a state where a woman can be thrown into prison for having a stillbirth. The many celebrities calling for a boycott of Indiana do not appear to be as appalled by Patel’s sentence as the passage of the RFRA. But if we agree that the rights of women on par with the rights of the LGBT community, then Indiana’s pariah status needs to be based on solidarity with all those suffering the consequences of discriminatory laws.