In Indiana, Purvi Patel, who says she miscarried, has just been sentenced to 20 years under a feticide statute.
Last July, Patel went to an emergency room in South Bend, Ind., where she told the doctors she had a miscarriage. Asked what she had done with the fetal remains, she said the baby was stillborn and, not knowing what else to do, she put the body in a bag and left it in a Dumpster. The police were able to recover the body. Later, they also found text messages in which Patel told a friend about ordering pills to induce an abortion from a pharmacy in Hong Kong and about taking the medication. Three days later, she texted the same friend, “Just lost the baby.”
Patel was charged with felony child neglect and feticide, based on the supposed self-abortion. Asked by Slate’s Leon Neyfakh about the apparent contradiction between the charges, the St. Joseph County prosecutor, Ken Cotter, said that a person can be guilty of feticide under Indiana law for deliberately trying to end a pregnancy, even if the fetus survives. As Neyfakh points out, the Indiana feticide statute exempts legal abortions — but while the pills Patel took are available in the United States with a prescription, it’s against the law to order them online, as she apparently did. And so she was prosecuted for taking the medication as well as for letting her baby die after the self-abortion failed.
First such conviction ever in the U.S.; might not be the last. Heather Digby Parton writes:
Indiana is obviously a very conservative state and it would be easy to chalk these laws up to its particular tendency to use the state to advance a social conservative agenda in the name of “life” and “religious liberty.” Sadly, Indiana is not the only state criminalizing pregnancy. Prosecuting pregnant women for the death of their fetus has become distressingly common throughout America. The Journal of Health Politics, Policy and Law published a study called “Arrests of and Forced Interventions on Pregnant Women in the United States“. They found hundreds of cases of women being held criminally liable for the deaths or alleged endangerment of their fetuses along with forced medical interventions and incarceration of women for the alleged protection of the fetus. The authors of the study, Lynn Paltrow of the National Advocates for Pregnant Women and Jeanne Flavin, Professor of Sociology, Fordham University pointed out the strange legal terrain on which this is all taking place:
In almost all of the cases we identified, the arrests and other actions would not have happened but for the fact that the woman was pregnant at the time of the alleged violation of law. And, in almost every case we identified, the person who initiated the action had no direct legal authority for doing so. No state legislature has passed a law that holds women legally liable for the outcome of their pregnancies. No state legislature has passed a law making it a crime for a pregnant woman to continue her pregnancy to term in spite of a drug or alcohol problem. No state has passed a law exempting pregnant women from the protections of the state and federal constitution. And, under Roe v. Wade, abortion remains legal.
Yet, since 1973, many states have passed feticide measures and laws restricting access to safe abortion care that, like so-called “personhood” measures, encourage state actors to treat eggs, embryos, and fetuses as if they are legally separate from the pregnant woman. We found that these laws have been used as the basis for a disturbing range of punitive state actions in every region of the country and against women of every race, though disproportionately against women in the South, low-income women and African-American women.
Many examples they give are astonishing. E.g., a woman who gave birth to twins, one stillborn, was charged with criminal homicide because of her decision to delay cesarean surgery. A woman who smoked marijuana while pregnant, and bore healthy twins, was arrested for delivery of a controlled substance to a minor.
I can only see all this from a man’s perspective, but ISTM that it’s hard enough to be a woman, and at risk of pregnancy, without also being at risk for what the law might do to you if you don’t handle your pregnancy just right. I suppose I could entertain an argument for locking up a pregnant alcoholic to save the baby from fetal alcohol syndrome, which is an actual thing; but even that’s a stretch (and since that would give the woman an incentive to abort, it’s probably not going anywhere politically).
Punishing pregnant women for fetal deaths will certainly lead many women to avoid prenatal health care, among other numerous problems.
See: El Salvador, where a miscarriage can land you in prison (if you’re poor).
Depends on the stage of pregnancy among other things.
No, it shouldn’t. I know a couple where the wife lost a fetus a week before her due date. It can happen any time. We should never criminalize the loss of a fetus, ever, for any reason
And “pro-lifers” take note – if the life of the fetus is what you care about, avoiding prenatal care is potentially bad, even lethal, for the fetus in some cases.
That’s no miscarriage. Even if it was only her dog , and the police had text messages from her saying she was buying some poison to kill her dog and then that she had given her dog the poison, and then three days later they found her dog dead in a dumpster, would anyone be stupid enough to take her at her word that it was an accident?
Hamlet
April 3, 2015, 9:44pm
7
No, it shouldn’t. I know a couple where the wife lost a fetus a week before her due date. It can happen any time. We should never criminalize the loss of a fetus, ever, for any reason
There is a difference between “losing” a fetus and killing one.
Hamlet
April 3, 2015, 9:45pm
8
There is a difference between losing a fetus and intentionally killing it.
jayjay
April 3, 2015, 11:05pm
9
Would it have made a difference to either of you if she’d had an actual clinical abortion?
We learned about “feticide” as a defined crime in law school, but the scenarios we studied involved, say, a man beating a pregnant woman and causing a miscarriage.
Grumman:
That’s no miscarriage. Even if it was only her dog , and the police had text messages from her saying she was buying some poison to kill her dog and then that she had given her dog the poison, and then three days later they found her dog dead in a dumpster, would anyone be stupid enough to take her at her word that it was an accident?
That would go only to prove that she used illegal means to self-induce abortion, which I hope no one here, not even the “pro-lifers,” would regard as a crime meriting prison time, whatever the law might say. But the prosecution’s case was based in part on the theory that the baby was born alive. From the first story linked in the OP:
If this case were only about a woman who clearly gave birth to a live baby and then killed her child, it would be clear cut. There is a line between pregnancy and birth, and once it is crossed, the state has just as much at stake in protecting the life of a newborn as it does in protecting the life of anyone else. But the evidence that Patel’s baby was born alive is sharply contested. The pathologist who testified for the defense, Shaku Teas, said the baby was stillborn. Teas told the court the fetus was at 23 or 24 weeks gestation and that its lungs weren’t developed enough to breathe. (Here’s more support for this position.)
But the pathologist for the prosecution, Joseph Prahlow, testified that the fetus was further along than that — at 25 to 30 weeks gestation, which is past the point of viability — and was born alive. News reports from the trial emphasized Prahlow’s use of a “lung float test” in making his determination. The idea behind the test — which dates from the 17th century — is that if the lungs float in water, the baby took at least one breath. If they sink, then the fetus died before leaving the womb.
If that sounds like the old test for witchcraft — if an accused witch floated, she was judged guilty; if she sank, she was innocent — it’s also about as old and nearly as discredited. “The lung float test was disproven over 100 years ago as an indicator for live birth,” Gregory J. Davis, assistant state medical examiner for Kentucky and a professor of pathology and lab medicine at the University of Kentucky, told me. “It’s just not valid.”
I don’t agree with that in practice. In practice, conservatives use that to punish either women, doctors, or both when a fetus is lost. Until that changes, I would never support any sort of extra punishment
BrainGlutton:
Many examples they give are astonishing. E.g., a woman who gave birth to twins, one stillborn, was charged with criminal homicide because of her decision to delay cesarean surgery. A woman who smoked marijuana while pregnant, and bore healthy twins, was arrested for delivery of a controlled substance to a minor.
Since you don’t mention convictions, I’m thinking these women were acquitted, right?
Convictions in the circumstances you describe would be outrageous. Acquittal in those circumstances is exactly what should happen, and probably does.
Yes, it is terrifying, and inconvenient, and expensive to be acquitted after a false accusation. And it happens all the time. But it’s a lot better than the alternative of a false conviction.
No, it shouldn’t. I know a couple where the wife lost a fetus a week before her due date. It can happen any time. We should never criminalize the loss of a fetus, ever, for any reason
Yes we should never prosecute people for miscarriages anymore than we prosecute parents for infanticide if they die by SIDS.
PhillyGuy:
Since you don’t mention convictions, I’m thinking these women were acquitted, right?
Convictions in the circumstances you describe would be outrageous. Acquittal in those circumstances is exactly what should happen, and probably does.
Yes, it is terrifying, and inconvenient, and expensive to be acquitted after a false accusation. And it happens all the time. But it’s a lot better than the alternative of a false conviction.
Well, sometimes it got worse.
After a hearing that lasted less than a day, a court issued an order requiring a critically-ill pregnant woman in Washington, D.C. to undergo cesarean surgery over her objections. Neither she nor her baby survived.
Not everyone agrees with this equivalency. Many of us here consider it fatuous.
Sitnam
April 4, 2015, 3:16am
17
BrainGlutton:
We learned about “feticide” as a defined crime in law school, but the scenarios we studied involved, say, a man beating a pregnant woman and causing a miscarriage.
Its strange to me that it should matter.
No, it shouldn’t. I know a couple where the wife lost a fetus a week before her due date. It can happen any time. We should never criminalize the loss of a fetus, ever, for any reason
I lost one at 5 months, and one at 7 months, and both times it put me in serious peril of losing my life… wonder if I had died if my spouse could file charges of murder against the sprog if it had been born.
And has a man ever been charged of murder if he beat a woman and it caused a miscarriage?
This would have been on the front page of the Washington Post . I wanted to read that story.
So I googled your quote and found it here:
Our new study makes clear that post-Roe anti-abortion and “pro-life” measures are being used to do far more than limit access to abortion; they are providing the basis for arresting women, locking them up, and forcing them to submit to medical...
Then I read the journal article, written by the same authors, that the link above purportedly summarizes:
http://jhppl.dukejournals.org/content/early/2013/01/15/03616878-1966324.full.pdf+html
I cannot find any Washington D.C. case described in that journal article. And I can’t find any case, in that article, meeting all the other criteria.
Given the obvious advocacy of a political position, and apparent lack of fact checking, my level of trust for these case summaries is low.
No, but he has been charged with feticide. Different crime.