The case of the Indian-American woman from Indiana, Purvi Patel, convicted for 20 years in prison for feticide, which comes up for appeal on May 23rd, is being keenly watched by activists and experts in the United States as it could be a seminal judgment for reproductive rights, and the criminalization of an abortion of a pregnancy, even if through accident.
On March 30, 2015, Patel, 33, became the first woman in the US to be convicted and sentenced on “feticide” charges for ending her own pregnancy. Patel says she had a miscarriage. When she arrived, bleeding, at a hospital near South Bend, her doctor called the police on her. The state of Indiana charged her with feticide for allegedly inducing an abortion, and child neglect for allegedly having a premature baby and then allowing the baby to die — an inconsistent and contradictory set of charges.
Salon reported that reproductive rights activists are keenly following the case. Farah Diaz-Tello, senior staff attorney at National Advocates for Pregnant Women, told Salon that if the state of Indiana permits Patel’s prosecution to stand it will change the way women can be prosecuted: “The state has used laws that were never intended to punish pregnant people for losing or ending a pregnancy, and now unless the appellate court steps in, anyone who self-induces an abortion at any stage (which is becoming increasingly common as abortion clinics vanish) could be charged with feticide.” Permitting a person to be charged based on the outcome of the pregnancy could mean requiring people to prove that a miscarriage or a stillbirth was unintentional.
Salon reported that it was Dr. Kelly McGuire who was on call when Patel came to the emergency room of St. Joseph’s Regional Medical Center. Dr. McGuire is listed as pro-life through his affiliation with American Association of Pro-Life Obstetricians and Gynecologists. Not only did he call the police, he accompanied them in the search for Patel’s stillborn fetus. He is the one who proclaimed that it had been a live birth. Later, during the trial, Shaku Teas, the pathologist who testified for the defense, determined that the baby was stillborn, telling the court that the fetus’ lungs weren’t developed enough to breathe. But the pathologist for the prosecution, Joseph Prahlow, testified that the fetus was born alive. News reports from the trial described Prahlow’s use of the “lung float test” to make this determination. Yet this 17th century test is widely 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 the New York Times. “It’s just not valid.”
Miriam Yeung, Executive Director of the National Asian Pacific American Women’s Forum, says that knowing what happened to Patel may cause other women experiencing a miscarriage to fear going to the hospital for care, particularly if they are immigrants.
“Immigrant women already face barriers in accessing healthcare,” Yeung told Salon. “Unfortunately, the actions of this doctor have created further misinformation for immigrant women, particularly pregnant women of color, who may now be more hesitant to access emergency health care.”
“When Donald Trump said pregnant people should face some kind of criminal penalty for having abortions, people were falling over themselves to distance themselves from that opinion,” Diaz-Tello said. “Well, here’s a case where that is precisely what happened.”
Also, last Tuesday, the state of Oklahoma passed a bill that would revoke the medical license from a doctor who performed an abortion for any reason than to save the mother’s life. It would then send them to prison for up to three years. Senate Bill 1552 defines abortion as “unprofessional conduct” on par with writing false prescriptions and having sex with patients. SB 1552 provides no exceptions for doctors that perform abortions in the case of rape or incest.
“No matter how far along she actually was in pregnancy, or whether the pills she was alleged to have taken had anything to do with the outcome of the pregnancy,” said Diaz-Tello, “to permit criminal charges based on a pregnancy outcome has huge ramifications for everyone who can become pregnant.”
Miriam Yeung, meanwhile, lays out a terrifying scenario, reported Salon: “This could mean prosecution could be brought for any action or inaction by a pregnant person, whether for a self-induced abortion, an accidental fall down the stairs, or a miscarriage. They all may all lead to criminalizing pregnancy.”
Writing jointly in the Huffington Post last month, Shivana Jorawar, a reproductive health and justice policy advocate and a board member of Jahajee Sisters, a New York-based organization empowering Indo-Caribbean women, and Deepa Iyer, author of We Too Sing America: South Asian, Arab, Muslim and Sikh Immigrants Shape Our Multiracial Nation and the former director of South Asian Americans Leading Together (SAALT), pointed out similar cases like that of Patel, that of Nausheen Rahman and Sharon Seudat that have occurred since Patel was imprisoned.
In Staten Island, New York, Rahman went to a hospital seeking care for vaginal bleeding after giving birth to a baby girl at home. She was reported to police by hospital staff after they noticed there was no birth certificate on file. After police found the baby, who was not alive, Rahman was charged with second-degree murder. On the day of Rahman’s indictment, Sharon Seudat was arrested in Long Island after experiencing profuse bleeding and seeking emergency care. After Seudat was hospitalized, a doctor determined she had given birth. Authorities investigated Seudat’s home and found the infant’s body. Seudat has been charged with second-degree murder and is being held on a $1 million dollar bond.
“Though the full details of these cases have yet to be made public, they are disturbingly similar to Purvi Patel’s story. And, they raise questions about whether South Asian women, in particular, are being scrutinized. Given the prosecutions of Rahman and Seudat in the year since Patel’s case began, (and five years since a Chinese American woman, Bei-Bei Shuai, was prosecuted under the same Indiana feticide law), it is not a far stretch to wonder whether these stories are part of a pattern of efforts to curb the reproductive rights of Asian American women,” they wrote in the Huffington Post.
“Is it perhaps easier for prosecutors to prove to a jury that Asian American women must have intended to harm their babies given the cultural (mis)perceptions of sex and pregnancy in Asian American families? Asian families are often thought of as particularly intolerant and unforgiving of sex and pregnancy outside of marriage. The circumstances of these cases appear to show a reliance on supposed cultural norms and practices as evidence of criminality—which should raise red flags about the ways in which racial stereotypes are used to curtail women’s bodily autonomy and power.”
They also noted that these cases are part of a broader national pattern where, in eight states, there are sex-selective abortion bans that exploit the notion that Asian American women are likely to choose abortion when they are pregnant with a female in order to “select” for sons. In Indiana, the sex-selective abortion ban became law as part of a larger package of restrictions. At the national level, Congress is debating a similar law this week.
“As Patel waits in prison for the appeal process to begin, we must continue to shine more light on the injustice she endures, as well as what it could be spawning around the nation” wrote Jorawar and Iyer.
This story was originally published on The American Bazaar.