The case of Purvi Patel: Should a pregnant woman be charged with feticide?

When Purvi Patel arrived at the St. Joseph Hospital emergency room on July 13, 2013, blood was flowing from her pelvis.

At first, the 33-year-old Granger woman denied she had delivered a baby. But as doctors pressed her about her condition, Patel said she had miscarried and discarded the body in a dumpster.

Witnesses would later describe Patel as a woman who conceived a child as a result of an affair with a married man, and hid the pregnancy from her religiously conservative family. But the circumstances led prosecutors to probe into other possible motives.

And what they found — in text messages to a friend and emails to a company that sells abortion drugs over the Internet — led to an outcome that has thrust her into the nation’s debate over women’s reproductive rights and abortion.

On Feb. 3, Patel became the first Indiana woman to be convicted of feticide in connection with her own miscarriage. Legal experts say her 20-year sentence for feticide and neglect of a dependent add up to one of the most severe penalties an American woman has faced for aborting her own pregnancy.

Anti-abortion activists have shown little interest in the case. But Patel’s feticide conviction under a state statute adopted in 1979 to fight illegal abortion clinics is raising questions among legal scholars, medical examiners and women’s rights advocates about how much control women should have during their pregnancies, and whether they can be held criminally responsible when something goes wrong.

“It’s troubling for a few reasons,” said David Orentlicher, a professor at the Robert H. McKinney School of Law in Indianapolis who studies health care law. “What it says is that women have to worry that if they do something that might be viewed as something harmful to their fetus, they could have a prosecutor come in.”

Is a pregnant woman who smokes vulnerable to prosecution? Or one who drinks? Or one who falls in a skiing accident? What if she had previously expressed reservations about her pregnancy?

Law professors from Indiana and Stanford universities say Indiana’s feticide law raises enough questions that they have agreed to handle Patel’s appeal for free. Meanwhile, women’s rights advocates say the law itself may need to be revisited.

A controversial case

Many of the details surrounding Patel’s case remain contested weeks after her trial concluded.

At Patel’s trial, prosecutors presented evidence that Patel ordered the abortion drugs misoprostol and mifepristone from a pharmacy in China, including text messages between her and a friend, and emails Patel exchanged with the company. Patel’s attorney, Jeffrey Sanford, argued the messages and emails did not prove Patel took the pills.

Misoprostol and mifepristone are drugs U.S. doctors can prescribe to women who wish to have non-surgical abortions, though World Health Organization guidelines recommend the drugs be taken only in the first trimester of pregnancy.

Forensic evidence presented at trial from pathologists who examined Patel’s fetus suggested she was about 26 weeks pregnant when she delivered. A friend of Patel’s who testified for the state, however, told a jury Patel believed she was around two months pregnant based on irregularities with her menstrual cycle, according to news reports in South Bend.

The state also asserted that Patel’s child was born alive, rather than stillborn as she claimed. That evidence, used to support the charge of neglect of a dependent, also has been heavily criticized in the weeks following Patel’s conviction.

A forensic pathologist called by the state testified the baby was born alive, citing a controversial autopsy procedure called the lung float test, designed to determine whether the baby took a breath. St. Joseph County Prosecutor Kenneth Cotter said the procedure was only a fraction of the science presented in support of the state’s assertion, adding that the pathologist also cited the baby’s height, weight and organ development.

Sanford, however, called another pathologist who testified the fetus was stillborn. That expert testified the lungs were not developed enough to draw breath, according to news reports. Sanford did not respond to multiple requests for comment from The Indianapolis Star. Patel also declined to comment through her lawyer.

The bulk of Patel’s sentence reflects her neglect conviction. After the conviction, Judge Elizabeth Hurley handed down a 30-year sentence for that charge out of a maximum 50 years. Ten years were suspended, meaning Patel will serve 20 years in prison.

Hurley added another six years in prison to Patel’s sentence under the state’s felony feticide statute, the minimum amount. However, Hurley required that sentence be served concurrently with the neglect sentence, meaning it did not add additional time to Patel’s prison sentence.

Legislative intent

A big question surrounding the law is whether it was ever intended to be applied to pregnant women.

Laws criminalizing self-abortion date back to the late 1800s, when such an offense was classified as a misdemeanor.

Kate Jack, an Indiana-based lawyer who provides local counsel for the National Advocates for Pregnant Women, said she was unable to find any instances of a woman being prosecuted under that law. And the law was repealed in 1977 in Indiana, five years after Roe v. Wade established that women had a right to have an abortion under the 14th Amendment’s due process clause.

Two years later, Indiana’s feticide statute was passed. The law made it a crime to “knowingly or intentionally” end a pregnancy with a goal other than to produce a live birth or to remove a dead fetus, with an exception for legal abortions.

The statute makes no specific reference to women who abort their pregnancies.

Jack and others say the law was originally intended to target illegal abortion providers.

And as late as 1988, law enforcement officials were concerned the law could not be used to prosecute a man who punched his pregnant wife in the stomach, causing the loss of her child.

“I thought there would be a statute applicable to the case,” Greenfield Police Detective Jack Heiden told The Indianapolis News in June 1988. “But when we began researching it, it became clear there wasn’t, except for feticide, which really doesn’t address an individual. It’s basically for doctors.”

In 1992, the Indiana Supreme Court ruled that a Montgomery County man could be charged with feticide for strangling his pregnant wife, despite the man’s argument that the law was intended to punish those who perform illegal abortions.

“A proper construction of the feticide statute, therefore, requires that it be viewed not as an illegal abortion statute, but as an extension of the laws of homicide to cover the situation in which the victim is not a ‘human being’ ” as already defined by state law, “but a fetus,” the court wrote.

In what later became perhaps the most famous application of the state’s feticide statute against a third-party attacker, an Indianapolis man was convicted of feticide and attempted murder for shooting a pregnant bank teller during a 2008 bank robbery.

The man’s feticide conviction was eventually tossed out by the Indiana Court of Appeals after the court ruled his conviction of both attempted murder and feticide conflicted with the state’s double jeopardy law. But the case still prompted a review of the feticide penalties by state lawmakers, who changed feticide from a Class C to a Class B felony — a move that increased the maximum penalty to 20 years in prison.

A first under the feticide law

The first Indiana woman charged under the feticide statute in the death of her own child was Bei Bei Shuai, a Shanghai native living in Indianapolis. She tried to kill herself by ingesting rat poison in 2010. Shuai survived, but the baby she was carrying died two days after being delivered via cesarean section.

Shuai’s attorneys asked the Indiana Court of Appeals to drop the charges, arguing that for the state’s murder and feticide statutes to apply to a pregnant woman, the language would have to explicitly reference them.

In a 2-1 decision, the appellate court rejected that argument and allowed the state to continue pursuing the case.

But that court never directly addressed whether using the feticide statute against a pregnant woman violated her constitutional rights. Had Shuai been convicted, that issue might have been clarified on appeal. But she pleaded guilty to a lesser charge, resolving her criminal case, but leaving the broader issues unresolved.

“They specifically side-stepped the constitutional issue,” said Linda Pence, an Indianapolis attorney who represented Shuai. “The courts are now going to have to address that constitutional issue. They’re faced with a woman who has now been sentenced to 20 years imprisonment for her conduct while pregnant.”

A proper application?

Both Indiana prosecutors who charged women under the feticide law say they were compelled to do so by the plain language of the statute.

“It’s our duty to apply the laws given to us by the legislature. We can’t pick and choose,” said Marion County Prosecutor Terry Curry, who brought the charges against Shuai.

“If that is the sentiment of the legislature, that they should take this out of the realm of criminal prosecution, then that’s what they should do.”

Cotter, the St. Joseph County prosecutor, cited the two-step test the feticide law requires.

First, he said, a person needs to terminate a pregnancy “knowingly or intentionally.” Second, that person needs to take that action without intending to have a live birth or remove a dead fetus.

He said the facts of Patel’s case uniquely fit the law’s criteria: “I frankly don’t anticipate that I’ll ever charge it again, because I’m not sure that I’m ever going to get the evidence like that again.”

Some states have passed laws that criminalize acts of violence against the unborn, but specifically exempt pregnant women. Indiana’s feticide law, however, includes no such language.

To Cotter, that means he used the law the way the legislature intended.

“All they had to do was put in language that this does not apply to the mother,” Cotter said. “They very easily could have carved out an exception, and they didn’t.”

Still, the two prosecutors interpreted the law in at least one significantly different way.

The charges brought against Patel contain what some say is a contradiction. How can a woman be guilty of feticide, the killing of an unborn child, if the child was born alive?

Cotter said the feticide charge was appropriate, even if the child was born alive, because the statute required only two things: first that the woman intentionally terminated the pregnancy; and, second, that it was with a goal other than a live birth.

Does that mean a woman could be convicted of feticide even if the child doesn’t die?

In charging Shuai, whose baby also was born alive, the Marion County prosecutor took a different approach, filing a charge of “attempted” feticide.

That apparent ambiguity concerns some. “I would think that to commit the crime of feticide, you need to kill a fetus,” said Jennifer Hendricks, an associate professor at the University of Colorado who studies reproductive law. “If you have the intent to accomplish it, but it doesn’t happen, that’s an attempt — that’s not a crime.”

‘You have to know what you’re doing’

Women’s rights advocates fear prosecutors may be able to apply the law in troubling ways.

They say a pregnant woman who does something inadvertent — such as smoking or drinking — that jeopardizes the health of her child could be prosecuted for feticide.

Cotter, the St. Joseph County prosecutor, says no. He cites the law’s requirement that the pregnancy is terminated “knowingly or intentionally.”

The smoker, Cotter said, “can’t be prosecuted.”

“While it’s bad for you and we all know that pregnant women shouldn’t smoke,” he said, “ it’s not a crime to do that. It’s just not.”

Adds Cotter: “You have to know what you’re doing.”

But Jack said allowing prosecutors to probe into a woman’s intent while pregnant leads to a slippery slope. Not every pregnancy is received joyously, she points out. Could a woman who expressed hesitancy about her pregnancy find herself in court after a miscarriage?

What if a woman tries to obtain a legal abortion, but skips Indiana’s mandatory counseling requirement before going to the doctor?

What about a pregnant woman who accidentally falls down the stairs, but later confides in her doctor that she was having second thoughts about having a child?

“When you open the door to criminal prosecutions of pregnant women related to their own pregnancy, you basically let a prosecutor search everything that pregnant woman has done or said to find intent,” Jack said. “Sometimes any expression of ambivalence of a pregnancy might be interpreted as intent.”

A public health option

Patel is far from the only woman who has been arrested on charges relating to the outcome of her pregnancy.

A study conducted by National Advocates for Pregnant Women found more than 400 pregnant women were arrested or detained between 1973 and 2005 in connection with their pregnancies.

But not all of those women were prosecuted. And in cases when they were, the punishments have been significantly milder than what Patel faces.

Consider a 2004 case from South Carolina, when a migrant farmworker from Mexico pleaded guilty to illegally performing an abortion after taking misoprostol. She was sentenced to 90 days in jail.

Three years later, an 18-year-old Dominican woman was arrested in Massachusetts after taking misoprostol during her 25th week of pregnancy — around the same gestational age of Patel’s child, according to the prosecution.

That woman was sentenced to probation and therapy. Patel faces 20 years in prison.

Some women’s advocates say that’s unacceptable.

“No one thinks that self-abortion is an ideal public health option,” Jack said. “I think the point is just that if we criminalize it, it forces people even deeper underground with even worse public health outcomes.

“Ideally, the best public health situation would be that everybody has access to whatever health care they need or want.”

Star researcher Cathy Knapp contributed to this story.

Call Star reporter Jill Disis at (317) 444-6137. Follow her on Twitter: @jdisis.