"If you're a pregnant woman, you should be scared to death," attorney Linda Pence says. Pence represented 36-year-old Bei Bei Shuai, who was charged with murder in Indiana in 2011 after she attempted suicide by way of ingesting rat poison while being 33 weeks pregnant. Shuai survived the attempt and ten days later gave birth via emergency C-section. The baby died two days later and Shuai was charged with murder and attempted feticide.
Shuai served 14 months in jail awaiting trial. Under tremendous public pressure, prosecutors offered Shuai a deal: plead guilty to a misdemeanor charge of criminal recklessness and the murder charge would be dropped. Shuai took the deal.
"When somebody takes the worst statute you can charge anyone with and they offer you a misdemeanor that's the equivalent to a traffic ticket, you take it," Pence says. Shuai's decision to take the plea bargain got her out jail but also robbed her and Pence of the opportunity to challenge the unconstitutional charges against her.
Rather than being an aberration, Shuai's case marks a subtle but dangerous shift in tactics for the anti-abortion movement. Historically, foes of reproductive freedom have targeted abortion providers, not the individual women who terminate their pregnancies. Now that longer seems to be the case. Indeed, the current version of Indiana's own feticide was enacted after Katherine Shuffield, a bank teller and an expectant mother of twins, was shot in the abdomen at gunpoint by bank robber. At the time of the laws passage in 2009, Republican lawmakers explicitly assured that the stringent law would not infringe on a woman's right to an abortion. Just a few short years later, however, women like Shuai and Purvi Patel found themselves victims of the very laws that were purported to protect them.
Patel, 34, is an Indiana woman who is currently serving a 20-year prison sentence after being convicted of both feticide and neglect of a dependent in February of 2015. According to the State's affidavits, in 2013 Patel sought treatment at a Mishawaka Hospital in South Bend for vaginal bleeding. Though she initially denied being pregnant or giving birth, Patel eventually relented and told doctors that she had delivered a stillborn. Not knowing what to do, Patel disposed of the fetal remains in a dumpster. Medical staff then alerted law enforcement, who recovered the remains in a dumpster of a nearby Target. The police also searched Patel's cell phone, where they discovered texts in which Patel told a friend she had ordered pills to induce abortion from a pharmacy in Hong Kong. Even though the pills Purvi ordered, Mifepristone, are legal in the United States, it is illegal to order them online.
A forensic pathologist who inspected the remains, estimated the fetus to have been 28 weeks old and concluded that, "in his opinion, the child had been born alive and had taken a breath." Patel's defense refuted both the age of the fetus and its ability to breathe. The pathologist based that conclusion on a "lung float" test, a method which has long been discredited. Nevertheless, the jury found Patel guilty.
"The Purvi Patel case is an example of a dramatic decision to charge a woman who had no idea that what she was doing was against the law in any way," says Lawrence Marshall, one of Patel's pro-bono attorneys handling her case. "To brand her guilty of feticide—which is a form of homicide—is indicative of the unwillingness of the prosecutors in this case to understand the issues in a nuanced and human way."
In Patel's appeal, Lawrence argued that the feticide law was being improperly applied since it was meant to prosecute people who kill a fetus during an act of violence against a woman, not to punish a woman for an illegal abortion. The state denied the appeal. Patel's case is now headed to an appellate court where, if heard, could set legal precedent.
While there's been several landmark cases about a woman's access to abortion providers, there is not much case law on a woman's right to provide herself with an abortion. Only recently did the Ninth Circuit Court of Appeals take up the matter in McCormack v. Hiedeman. The case centered on Jennie Linn McCormack, a mother of three, who purchased pills online to induce an abortion because she could not afford to travel several hours away to the nearest clinic (let alone make several trips due to Idaho's 48 hour mandatory waiting period). McCormack was uncertain of how far along she was when she took the pills and miscarried. Someone tipped the police to McCormack's at-home abortion and they arrested her months later. The police confiscated the fetal remains from a box in McCormack's backyard. McCormack was charged with a felony for violating a 1972 statute that says abortions must be performed by a doctor—and, in the case of second-trimester abortions, in a hospital. Fortunately, her defense team was able to beat the charge and was willing to go a step further and file a lawsuit against the state of Idaho.
The Ninth Circuit Court of Appeals ruled in McCormack's favor, rebuking the notion that abortion statutes could be used as a means of punishing women seeking to terminate pregnancies. The court further added that states must be clear about precisely what conduct they are outlawing in the abortion context. The ruling declared these laws unconstitutional, which means their reasoning can be used if there were a similar laws in the Ninth Circuit's states of California, Alaska, Idaho, Arizona, Montana, Nevada, Oregon, Washington, and Hawaii.
Even if states don't have statutes regarding feticide or self-induced abortion, women who perform their own at-home abortions are being prosecuted with general homicide laws.
Anna Yocca, 33, attempted to give herself an abortion with a coat hanger in bath tub when she was 24 weeks pregnant. Worried about the excessive bleeding she immediately experienced, Yocca and her boyfriend went to the emergency room. Yocca was transferred to a larger facility in Nashville where she gave birth to a baby who weighed 1.5 pounds. The baby survived though his lungs and eyes, were permanently damaged by the coat hanger. After undergoing a surgical procedure to remove the remainder of the placenta, Yocca awoke to police there to question her. Three months later, she was charged with attempted first degree homicide. Yocca is currently in jail awaiting trial.
Yocca is one of many vulnerable women facing consequences brought forth not by the law, but the emotional whims of people in power. Low income women like Yocca are the hardest hit by the increasing spike in abortion restrictions in states like Tennessee, where anti-abortion activists have fought hard to make the procedure so time consuming and expensive that few people with limited means could realistically manage to get one. With every plea for help, these women in crisis may face doctors, police, and prosecutors who are set on punishing them for choices often made out of desperation.
Furthermore, Pence says the way prosecutors are applying these laws is unconstitutional because they unfairly target pregnant women. "It is not illegal in the state of Indiana for a man or a non-pregnant woman, to attempt suicide," Pence explains. "Pregnant women, then, have reason to infer that they have been singled out as a group of people for which the laws apply differently." What's more, they are prosecuting women who buy legal abortion drugs online who may not know that what they are doing is criminally illegal. Particularly in the cases of Patel and Shuai, Pence argues, when no woman in their states' history had ever been prosecuted before for such conduct.
Yocca's next hearing will be in March, where the a judge will review a mental health evaluation ordered by her public defender. If Yocca's baby dies from health complications, she could be charged with murder.
"If people want to criminalize abortion, then do that out front," says Marshall. "Do it honestly and transparently. But to use these individual tragic victims as the way to make statements about your commitment to an anti-choice agenda, it is really just inhumane and profoundly unjust."