Last month, Purvi Patel faced two seemingly contradictory charges filed against her by the state of Indiana: feticide (actions leading to the death of a fetus in utero) and child neglect (actions that injure or cause death to a child resulting from a live birth). After a lengthy trial, the 33-year-old Indian American woman was found guilty on both counts in the death of her late-term fetus.
The State contends that Patel took black market drugs obtained from Hong Kong to induce a late-term abortion. This argument is based on text messages between Patel and a friend in which Patel considers buying those illegal abortion-inducing drugs. Yet, there is no evidence that Patel actually purchased any such drugs, and no traces of drugs were found in either Patel or her fetus.
Patel’s defense says the criminal charges were punitively filed over a death resulting from a traumatizing miscarriage.
Patel’s fetus was allegedly conceived with a married co-worker. Afraid of her parents’ strict prohibition on premarital sex and hoping to protect the identity of the fetus’ father, Patel hid the pregnancy. In Indiana, most abortions are not covered by health insurance or public funding, it is required that all women seeking an abortion receive “counseling” designed to discourage it, and 93% of counties lack any abortion clinic.
Advocates for Patel say that after deciding against an abortion, Patel wasn’t feeling well on July 13, 2013 and suffered a miscarriage in her bathroom.
Patel says she attempted to resuscitate the fetus with mouth-to-mouth, and then eventually realized that she was bleeding out and needed to go the hospital. Patel wrapped the fetus in paper towels and garbage bags and disposed of it in a dumpster, and went to the hospital where she initially refused to admit that she had been pregnant.
Patel’s doctors — who are mandatory reporters when they suspect a case of possible abuse — notified authorities who found the discarded fetus. Patel was immediately charged with feticide, even while law enforcement subjected her to a battery of questions, including interrogating her as to the race of the fetus’ father. Reports PRI:
Patel’s conviction is controversial in no small part because the prosecution’s case hinged upon a long since debunked test to determine if the fetus was born alive or not. Coroners used the “lung float test” (or hydrostatic test), a test that almost pre-dates the invention of the modern scientific microscope for examination of biological tissues and which is about as scientifically rigorous as throwing women into lakes to see if they float as method of determining if they are witches. Slate reports:
Nonetheless, the results of the State’s “lung float test” combined with Patel’s text messages were enough for a jury to make Purvi Patel the first woman in Indiana found guilty under the state’s new feticide laws; such laws are common to 38 states in the United States.
Patel is the first convicted, but not the first woman tried under Indiana’s feticide laws, which reproductive justice advocates say were originally designed to add a layer of legal protection for pregnant women from abusive domestic partners whose violence results in the death of a fetus.
In 2012, 34-year-old Chinese American immigrant Bei Bei Shuai was tried in Indiana for feticide after an unsuccessful suicide attempt wherein she drank rat poison, and which resulted in the death of her fetus. Reports the Guardian:
Indiana’s reproductive justice advocates were reportedly “astonished” by the prosecution’s decision to pursue this case, particularly in a state where suicide (or attempted suicide) is not illegal. Faced with a likely murder trial, Shuai ultimately accepted a plea deal to a lesser charge.
In 2011, Rennie Gibbs was charged with murder under Mississippi’s similar feticide laws for the death of her fetus in 2006, when she was 15 years old. Gibbs, who is Black, lost her fetus at 36 weeks. When law enforcement discovered that Gibbs was addicted to cocaine during the time of her miscarriage, they charged her under the state’s new feticide laws, even though experts later disputed the initial finding that the fetus had died of cocaine toxcity, arguing instead that death likely resulted from the umbilical cord being wrapped around the fetus’ neck. Charges were dropped against Gibbs in 2014 — who was the first woman in Mississippi to face feticide charges — although prosecutors are free to refile.
In other words, feticide laws in Indiana and Mississippi that were originally designed to protect pregnant mothers are now being used to criminalize them; and, alarmingly, these laws are also being used disproportionately to target immigrant women and women of colour who lack the political and economic resources to fight back.
This shouldn’t necessarily come as a surprise: anti-abortion activists and legislators are increasingly adopting a racialized tint to their anti-choice activism. Stereotypes of the bad Black mother are deeply ingrained in the Right’s War on Women. Meanwhile, the National Asian Pacific American Women’s Forum has been tracking a specific breed of anti-abortion legislation — sex-selective abortion bans — for the last years, and says that 21 states have considered adopting such laws. In states where these laws have been proposed, racist and xenophobic stereotyping that depicts Asian immigrants as misogynists and unfit mothers have been openly used as a significant contributing rationale.
These cases reveal the anti-abortion movement’s new tactic of ending abortion by criminalizing pregnant women, and specifically through the targeting of women from vulnerable communities. In Alabama, the state has filed charges against more than 40 women after the state passed a “chemical endangerment” law in 2006 (and upheld by the state’s Supreme Court in 2014) which allows the state to prosecute pregnant women for using a controlled substance during their pregnancy. Critics warn that this sets a dangerous precedent for the state to decide prenatal care. Meanwhile, Alabama’s rates of substance abuse deaths appear to be on the rise compared to 1999, and the state ranks poorly in its state-wide strategies for providing resources to help addicts overcome their addictions.
These laws do little to protect women, or even unborn fetuses; instead, they set the precedent that women — and particularly, women of colour — should be prosecuted for their prenatal choices, even when we have ample evidence to believe that those choices were the result of a system that has long ago failed these women. The use of feticide laws to prosecute — rather than protect — pregnant women is a corruption of the spirit of these laws, and only pushes these already underserved pregnant women further underground and outside of the reach of available support and resources. How can we claim to have moral interests at heart when we establish this kind of racist and punitive system of criminalizing mothers, or elevating the “personhood” of a fetus over that of its mother?
All of Purvi Patel’s actions indicate that she was motivated by fear of disclosing her pregnancy — whether to her parents or to the larger community. How in the world does convicting her for feticide after a miscarriage address this problem at all? How does this make the next pregnant woman of colour in Indiana more likely to step out of the shadows and seek help?
Answer: it doesn’t.
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