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Appeal for Indiana woman convicted for having an abortion

Opponents of abortion rights say women won't be prosecuted under an abortion ban. So why is this woman facing 20 years in prison?

Purvi Patel was bleeding through her layers of clothing when she arrived, alone, at the emergency room in Mishawaka, Indiana on the night of July 13, 2013. “I was feeling very disoriented, weak,” she later testified. “Physically, I was in pain.” She told medical staff she had passed “clots.” She said she thought she was 10 to 12 weeks pregnant.

For weeks, Patel, who lived with her religious, Indian immigrant parents and disabled grandparents, had been texting her friend Fay about cramps and missed periods. Maybe it was just stress, she said. Patel had been keeping her relationship with a coworker secret from her family. Her friend knew. She convinced Patel to take a pregnancy test, which came out positive. “My Fam would kill me n him,” Patel texted her friend, according to court filings. “I’m just not ready for it.”

At the hospital that night, she kept texting her friend, which the medical staff found strange for a woman in distress. They later described her as having a “flat affect.” Examining her, the obstetrician-gynecologists became alarmed: they saw signs of a far more developed pregnancy. Where was the baby? Had it been moving when it was born? Patel said it had not. She had placed the remains in a dumpster. 

By then, Patel had lost about 20 percent of her blood, and needed surgery for the placenta that she had not yet passed. Shortly before rushing out of the hospital to search for what he believed could be a live baby, one of the doctors called the police.

When Patel woke up from sedation, there was a police officer stationed by her bed. Now, as the first woman in the United States to be convicted of feticide for having an illegal abortion, she faces 20 years in prison. Judges will hear her appeal Monday.

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Last March, Republican frontrunner Donald Trump told MSNBC that if abortion is banned, “there has to be some form of punishment” for the woman. Anti-abortion groups protested that they had no intention of prosecuting women for having abortions under their desired ban — only doctors who allegedly victimize them. Trump eventually released a prepared statement to the same effect: “The doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman.”  

Patel’s case shows that the lines are not so clear. In the contemporary reality of illegal abortion, the woman and the provider are often one and the same. According to public health experts, a hundred thousand women have covertly tried to ended their pregnancies themselves in Texas alone, and legal abortion clinics closing across the country may make matters worse.  

RELATED: Women are already being prosecuted for having abortions

What happened before Patel got to the hospital remains fiercely disputed, including how far along her pregnancy was and whether she delivered a stillbirth or a live baby. But both sides concede that Patel ordered pills from, similar to ones doctors administer for early abortions, and took them alone in her room. There was no back-alley butcher or a doctor defying criminal sanction. When she showed up at the hospital bleeding, she and no one else was charged.   

Or as one of the prosecutors in Patel’s case succinctly put it in a hearing, “When she does the act, she is the performer.” 

Abortion is legal in Indiana. But in 2009, after the shooting of a pregnant bank teller, Indiana legislators decided to stiffen the penalties for causing the death of a gestating fetus. The bill’s sponsor touted support from both Planned Parenthood and Right to Life. It is that law that Indiana prosecutors now say gives them the right to charge Patel.

Patel’s attorneys argue in her appeal that the law was intended to punish people who harm pregnant women, not the women themselves; attorneys for Indiana counter that there’s nothing in the law to stop them from prosecuting women.

That’s what worries women’s health advocates and supporters of abortion rights, who have rallied to Patel’s side. “These laws were meant to protect women,” said Miriam Yeung, executive director of the National Asian Pacific American Women's Forum, which filed a brief in Patel’s appeal. “And now they’ve turned around and sent Purvi Patel to jail.”

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At the trial in St. Joseph County — home of the University of Notre Dame — prosecutors told jurors a story of a cold and unfeeling woman who put herself first, lacking any maternal instinct. “The defendant took care of herself while her baby laid dying,” prosecutor Aimee Herring told the jury in her opening statement. 

“On July 13, a little boy was born on a cold, hard bathroom floor,” prosecutor Mark Roule said in his closing statement. “The only touch he got from his mother was to move him from the bathroom floor to a garbage can.”

Patel, Roule declared, “decided to do what was easiest and most comfortable for her, even if it was not legal.” She waited until after a business trip to Chicago to take the pills she ordered, Roule said, because “it’s just not convenient so she decides to wait even longer to let the baby develop even more.” Roule even speculated Patel had avoided seeing a doctor because she feared being told she had passed Indiana’s 20-week limit and telling her parents she was pregnant. 

“There is no do it yourself abortion,” Roule told jurors. “Not what is legal.” There were many mentions of all the dumpsters that had been searched until the body was found.

The prosecution’s experts testified that Patel had likely given birth to a live baby who took a breath, who was at least 25 weeks and thus could have survived with prompt medical attention. The defense’s witness testified that the key expert had relied on a discredited test of whether the baby had breathed, and saw no evidence of a live birth. 

To Yeung, the portrayal of Patel in the trial and the media smacks of stereotype. “There is a false narrative about Asian American women that we don’t care about our babies,” Yeung said. Even the repeated emphasis by prosecutors on Patel’s demeanor, Yeung contended, has “a racist context. Another stereotype of Asian Americans is that we’re inscrutable.” Her group’s brief notes that immigrant women in particular mistrust the medical system in part because of a history of abuses here or at home. 

Indiana previously prosecuted a Chinese immigrant, Bei Bei Shuai, for feticide. (Shuai pled guilty to a lesser charge and is now free.) Patel was born in the United States, but Yeung argued, “Seeing both Bei Bei and Purvi as un-American contributes to harsher sentencing." 

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In countries where abortion is fully illegal, women have found other ways that don’t involve the proverbial coat hanger. One half of the pill regimen that doctors administer to end pregnancy, known as Misoprostol, is likely to induce miscarriage. (Patel stands accused of taking both halves of the regimen.) In Mexico, all it takes to get the pill is walking into a pharmacy, where it is sold as ulcer medication. An online network of guerrilla abortion-rights activists, Women on Web, mails misoprostol to women in countries where it is banned, along with instructions about how to end a pregnancy safely – or at least, more safely than even more desperate means. Brazilian authorities recently seized almost all packages of abortion pills meant for pregnant women fearing the Zika virus there, who have no access to legal abortion.

Still, Women on Web does not work in the United States, and its site exhorts that “women who live in a country where they have the possibility to have a safe and legal abortion, should go to a doctor.” 

Getting a legal abortion in Indiana means a required ultrasound and two separate visits to a clinic, possibly one surrounded by protesters. This year, after 30 years in business, the abortion clinic in South Bend, in the county where Patel lived, permanently closed. The same month, Governor Mike Pence, who made his name in Congress investigating Planned Parenthood, signed a host of new restrictions into law. They include regulations on abortion providers similar to the Texas law currently being considered by the Supreme Court, which could lead to the closure of more clinics.

According to a 2013 study published in the Journal of Health Politics, Policy, and Law, since 1973 – the year the Supreme Court struck down state abortion bans in Roe v. Wade – law enforcement and the courts have still arrested and prosecuted hundreds of women for pregnancy losses or poor pregnancy outcomes. Some cases involve drug use and the perceived harm to fetuses; others involve allegations of trying to end a pregnancy illegally. “These measures create a ‘Jane Crow’ system of law, establishing a second class status for all pregnant women and disproportionately punishing African American and low-income women,” the study’s authors, Lynn Paltrow and Jeanne Flavin, argued.

Paltrow’s group, National Advocates for Pregnant Women, also filed a brief in Patel’s appeal. “Stillbirths, miscarriages, abortions (including those that are self-induced and do not conform to abortion regulations), and women’s mental health during pregnancy are health issues, not matters for the criminal justice system,” they wrote. To involve the criminal justice system, according to the brief, would result in the “perpetuation of second-class status for women, and the likelihood that such prosecutions will target poor women and women of color, who are already disproportionately subject to law enforcement surveillance, arrest, and punishment.”

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Patel comes to her appeal with a new legal team, including Stanford professor Lawrence Marshall, who founded Northwestern’s famous Center on Wrongful Conviction. In their appeal brief, they argue that the state failed to bring evidence that Patel knew how far along she was. They also say that the charges make no sense: How could the state argue that Patel committed feticide – causing the death of a fetus -- when they also say she had a live birth whom she neglected? And even if the baby had been born alive, Patel’s attorneys argue, the state didn’t show that her seeking immediate medical attention would have made a difference. 

At the heart of the appeal is whether, indeed, the state can prosecute a pregnant woman herself under a feticide law, when the abortion statute currently says a woman can’t be prosecuted for having an abortion.

RELATED: How Indiana's pregnancy law targets women

Indiana prosecutors say Patel simply causing the end of her pregnancy amounted to feticide, even if there was no actual fetal demise. As for whether she herself could be put on trial, “the legislature has never included an exception in the feticide statute to prevent it from being applied to the pregnant woman herself,” the state wrote in its appeal.

In fact, the state’s attorneys added, before Roe v. Wade, Indiana, among other states, had a history of prosecuting women themselves for illegal abortion: “Enacted in 1881 and continuing in effect for almost 100 years, Indiana had a statute making it a criminal offense for a pregnant woman to solicit an abortion,” they wrote.

The state’s message was clear. Women once could be prosecuted for abortion. So why not again?