Indiana woman jailed for “feticide.” It’s never happened before

When Purvi Patel showed up in the St. Joseph Regional Medical Center’s maternity ward, bleeding and showing a protruding umbilical cord, Dr. Kelly McGuire immediately knew something was wrong.

“There should have been a baby at the end of the umbilical cord,” he testified in an Indiana court room.

McGuire, who is obligated to report cases of suspected child abuse, called the police, he told PRI. Informed that officials were heading to her home, Patel told her doctors that she’d had a miscarriage and had left her stillborn fetus in a dumpster behind a shopping center. Still in his hospital scrubs, McGuire followed police cars to the scene and examined the fetus, which he pronounced dead on arrival. Patel was charged with child neglect, and later with killing her fetus, and on Monday she was sentenced to 20 consecutive years in prison.

The verdict makes Patel the first woman in the U.S. to be charged, convicted and sentenced for “feticide” for ending her own pregnancy, according to the group National Advocates for Pregnant Women (“NAPW”). Though Patel said she had had a miscarriage, she was found guilty of taking illegal abortion drugs. The Indiana statute under which Patel was convicted bans “knowingly or intentionally terminat[ing] a human pregnancy” with any intention other than producing a live birth, removing a dead fetus or performing a legal abortion.

Monday’s sentencing brought an end to Patel’s trial, but it may be only the beginning of the public debate about the details of her case. Patel’s conviction has many pro-choice activists alarmed that feticide laws, initially passed as a means of protecting pregnant women from providers of dangerous illegal abortions and other sources of harm, are now being used against them.

“Prosecutors in Indiana are using this very sad situation to establish that intentional abortions as well as unintentional pregnancy losses should be punished as crimes,” Lynn Paltrow, executive director for NAPW, told the Guardian in August of 2014. “… No woman should be arrested for the outcome of her pregnancy.”

According to local CNN affiliate WSBT, Patel, a 33-year-old from a family of Indian immigrants in South Bend, Ind., told a police detective she had been aware of her pregnancy for three weeks when she left work early because of cramping back in July 2013. Eventually the pain sent her into the bathroom, where “it all came out,” she said. Among the blood, she found her fetus, which looked lifeless. She tried to open the baby’s mouth and resuscitate it, but was unsuccessful.

When asked why she didn’t call 911, Patel said she was in shock at the amount of blood she was losing. Because she “didn’t know what else to do,” she put the body in a plastic bag and took it to a dumpster, then showed up at the emergency room of St. Joseph Regional Medical Center.

Later in her interview with the detective, Patel said she didn’t want her parents, who are strict Hindus, finding out.

“About the encounter with [the father] or about tonight?” the detective asked.

“All of it,” she replied.

Though Patel said her baby died in a miscarriage, prosecutors argued that she had attempted to induce her own abortion, basing their argument on text messages found on Patel’s phone in which she told a friend she was taking abortion drugs online. But a toxicologist was unable to find evidence of drugs in Patel’s or her baby’s body.

Meanwhile, prosecutors pursued a second charge of child neglect, arguing that Patel’s baby had been born alive. McGuire, the doctor who examined the fetus when it was first found by police, said that the baby was about 30 weeks old and could probably have survived after birth. A pathologist for the prosecution also testified that the baby’s lungs passed a “floating test” — the science of which has been contested — indicating that the baby had drawn breath.

Patel’s defense attorney, along with plenty of commenters in the media, argued that the prosecution couldn’t simultaneously accuse Patel of killing her unborn child and of abandoning a living one.

“It really should have to be one or the other. … That the jury convicted Patel of two crimes when only one was possible suggests that this was an attempt to punish Patel for failing to meet a social ideal of pregnancy more than any actual crime,” Amanda Marcotte wrote in Slate after Patel’s conviction.

But Indiana prosecutor Ken Cotter said that a person can be found guilty of feticide even if the fetus survives, and Judge Elizabeth Hurley ultimately rejected the defense’s argument. A jury found Patel guilty on both counts in early February, though Patel’s attorney plans to appeal the verdict.

At the sentencing Monday, Hurley said that Patel was in a position to legally end her pregnancy, but opted for an illegal method, and later “ensured that baby’s death by placing him in the trash can with the other bathroom trash.”

The decision has activists like Sara Ainsworth, director of legal advocacy at National Advocates for Pregnant Women, worried that women will be less likely to seek out doctors in cases of abortions or miscarriages.

“Indiana should not join these countries where young pregnant girls are committing suicide at alarming rates; pregnant women are avoiding medical care for fear that any problem in pregnancy will be reported to law enforcement; and mothers are not only going to jail for having abortions, but also for suffering miscarriages and stillbirths,” she said in a statement after Patel was charged.

David Orentlicher, a medical ethics specialist and former Indiana state representative, echoed that fear.

“Any time a pregnant woman does something that can harm a fetus, now she has to worry, ‘Am I going to be charged with attempted feticide?’” he told PRI. “If you discourage pregnant women from getting prenatal care, you’re not helping fetuses, you’re harming fetuses.”