Yesterday afternoon, before the Indiana Court of Appeals, lawyers representing a woman charged with murder for a performing an at-home abortion pleaded for their client's freedom and condemned the lower courts for misusing a law that was meant to protect women—not punish them.
Purvi Patel, 34, who purchased drugs overseas to help her induce a miscarriage, was prosecuted under a feticide statute initially created to punish those who inflict violence against pregnant women with the intent of causing them to miscarry. Lawyers for Patel argued in court that the law was "passed to protect pregnant women from violence," not to criminalize abortion.
In 2013, Purvi Patel was running a restaurant owned by her family when she became pregnant. According to court papers, she was terrified by what her parents would do if they found out, as she was not married and wanted to terminate the pregnancy. Patel's friend offered to take her to a clinic to obtain a medical abortion, but Patel was concerned she was outside the 60-day window for taking the abortion pill, according to testimony.
Shortly after, Patel checked herself into a South Bend emergency room for excessive bleeding. At first she denied any pregnancy, but she eventually told doctors that she had miscarried. She said that the fetus was stillborn and she had disposed of it the remains in a dumpster. The doctors feared the fetus could still be alive and called the police to help recover it.
In court proceedings, it was later revealed that Patel text messaged her friend to say that she had ordered drugs from a pharmacy in Hong Kong to induce abortion. However, no trace of the medication was found in her blood stream when Patel arrived at the South Bend emergency room.
Patel was charged with feticide and child neglect. The State's case against Patel asserted that the baby was born alive. This is an important distinction: If the baby took a breath outside of her body, according to state law, it is its own person.
During the initial trial, both sides brought in experts who argued in opposition. The defense claimed that the baby was stillborn, and the prosecution argued that the baby could have lived. Patel was eventually found guilty and sentenced to 20 years.
You can't endanger a dead baby, can you?
In court yesterday, Patel's attorney, Lawrence Marshall, argued before a three-judge panel that "the feticide statute simply does not enter the field whatsoever of unlawful abortion." Since the law was created to protect women from third parties who could do their fetus harm, the law was not intended, Marshall argued, to regulate abortions.
Judge Nancy Vaidik noted that the state provided no evidence that Patel even knew the fetus was alive when she gave birth. "You can't endanger a dead baby, can you?" Vaidik asked deputy attorney general Ellen Meilaender.
Over 20 organizations and individuals—including Planned Parenthood, National Advocates for Pregnant Woman and National Advocates for Reproductive Health—have filed friend-of-the-court briefs in support of Patel.
"The prosecution seeks to establish the principle that by becoming pregnant, women may be subject to criminal charges depending on the circumstances of or outcomes of those pregnancies, including the all-too-common experiences of stillbirth," National Advocates for Pregnant Women writes in court papers. "Prosecuting women for feticide in relation to their own pregnancies violates women's constitutional rights to procedural due process, procreative privacy, and equal protection."
The state has rebuffed the claim, arguing that the feticide statute does not simply apply to third parties and can be used against pregnant women. It is unclear when the judges will deliver their ruling, and women's advocacy groups contend that the decision could have a serious impact on the way pregnant women are treated by the courts.