Opponents of abortion rights have repeatedly said that if the procedure were ever banned, women wouldn't be prosecuted for having illegal abortions – only doctors performing them would be. “Women were not punished by the legal system before 1973’s Roe v. Wade decision and there is absolutely no drive to punish her now,” Marjorie Dannfelser, president of the anti-abortion group Susan B. Anthony List, wrote in a forum on the topic, to name one example.
But that’s not what happened in Indiana this week, according to the prosecutors in Indiana who successfully convicted Purvi Patel of feticide and neglect of a dependent. On Monday, Patel, a 33-year-old woman living with her parents near South Bend, was sentenced to 30 years in prison, of which 10 will be suspended. These prosecutors told msnbc that Patel had, in fact, been convicted of having an illegal abortion, which they said she had induced by pills ordered over the internet.
Ken Cotter, the prosecuting attorney of St. Joseph’s County, said one of Patel's crimes had been flouting the state's abortion laws.
“There are certain requirements that the legislature wants to make sure that you go through before an abortion is sanctified by society,” said Cotter. “If you don’t go through those procedures, then the legislature has determined that that’s a crime.”
In Indiana, those procedures mean making two visits to a doctor, 18 hours apart, and having an ultrasound whether you want it or not. Abortion is banned in Indiana after 20 weeks gestation. While there is dispute about how far along Patel was, she had in fact passed the 20 week mark.
"Every aspect of women’s reproductive lives becomes subject to potential criminal investigation."'
Patel showed up bleeding at a hospital after depositing what she said was a stillbirth in a dumpster. The prosecution presented email evidence that Patel had ordered pills from China typically used by a doctor to induce an abortion early in pregnancy, as well as text messages between Patel and her friend discussing taking the pills. Her lawyer has maintained that the state never proved the delivery was caused by the pills, and that a toxicology report did not show them in Patel's system.
Women’s rights advocates say the feticide charge was never intended to apply to the pregnant woman herself, but this is the second time in recent memory Indiana has brought criminal charges against a woman for ending her own pregnancy. Bei Bei Shuai, a Chinese immigrant, was charged in 2011 with feticide after she tried to commit suicide while eight months pregnant. In 2013, Shuai pled guilty to a lesser charge, but she had already spent over a year in jail.
Lynn Paltrow, executive director of National Advocates for Pregnant Women, said Patel’s case is the first time a feticide law has been used to charge a woman for an an attempted self abortion. “The entire case is based on the presumption that there’s a role for the criminal justice system in overseeing one’s pregnancy and decisions about pregnancy,” said Paltrow. “Every aspect of women’s reproductive lives becomes subject to potential criminal investigation.”
Indiana originally ramped up its felony feticide charge -- strengthening both the penalty and stages in pregnancy to which it applies -- in response to a plea from a bank teller who had been shot in a robbery while pregnant with twins, both of which she eventually lost.
Prosecuting pregnant women themselves was not part of the public discussion when the feticide law was being considered. But Cotter and chief deputy prosecutor Mark Roule, who handled Patel’s case, repeatedly said in an msnbc interview that the charge of feticide was, in fact, an illegal abortion charge.
“A more accurate title would be ‘unlawful termination of pregnancy,’” Cotter said.
The criminal justice system got involved in Patel’s case when one of the doctors who examined her at the Catholic hospital she went to for her hemorrhaging called the police. That doctor, Kelly McGuire, who had previously testified in support of anti-abortion laws and is a member of an anti-abortion doctors’ group, then did something unusual: He went out looking with the police for what he thought was a baby. (McGuire declined comment.) After the remains were found in a dumpster, Patel would continually be referred to as “mom of baby found in dumpster” in the local press.
Patel’s attorney, Jeff Sanford, argued at trial that Patel lived with her highly traditional Indian immigrant family who would have disapproved of her having premarital sex. That was why Patel had hidden the pregnancy from them and didn’t call for their help after her delivery, which then contributed to her conviction on the second charge, neglect of a dependent. That cultural context, Sanford implied, was why Patel felt she had no choice but to try to end the pregnancy in secret.
But Roule, the prosecutor, dismissed that argument, saying abortion clinics are required to abide by federal patient privacy laws. “People can get abortions without a lot of people knowing,” he told msnbc.
Abortion rights activists are highly skeptical of that claim, particularly in Patel's case. “That abortion clinic in South Bend is always protested,” said Sue Ellen Braunlin, co-president of the Indiana Religious Coalition for Reproductive Choice, who attended parts of Patel’s trial.
“This is Notre Dame land. There is a lot of stigma," Braunlin said, referring to the Catholic university that is South Bend’s biggest employer.
Sanford, Patel's attorney, tried to get the case dismissed by arguing that a woman who had been pregnant couldn’t be tried under the feticide law, but the judge rejected it. The law makes an exception for abortions performed that comply with existing law, but there is nothing in the Indiana law that explicitly states a pregnant woman can’t be prosecuted for harming her fetus.
“If the legislature would have intended not to have it apply to the mother or the person who is pregnant, they very easily could have included that language,” Cotter, the prosecutor, said. He added, “I don’t make the laws.”
Of course, a prosecutor does have discretion about what kinds of charges to bring in what context. “That’s a discretion that we have to go pretty carefully with, because otherwise I’m making the choice of the legislature,” Cotter said.
Sanford, who said his client will appeal, also argues that the second charge against Patel -- neglect of a dependent -- contradicts the first, feticide. If Patel was convicted of having an abortion -- leading to fetal demise -- how could she have neglected a living dependent?
Prosecutors said their reading of the law is that feticide could also include inducing a premature delivery, followed by that neglect after birth. And the jury agreed.
Paltrow and other advocates argue that such laws create a slippery slope, where every ambivalent woman with a problematic pregnancy outcome is subject to criminal suspicion. Her organization has represented women in other states who are prosecuted in connection with miscarriages or stillbirths often linked by law enforcement to drug use or refusing to have a caesarean.
Patel’s case comes as the specter of illegal or inaccessible abortion in the United States is no longer so abstract. According to search records presented at her trial, Patel had visited the site of Women on Waves, a Dutch activist group for women in countries where abortion is illegal whose website provides information on reducing the risks of self-inducing abortion. The group doesn’t recommend such measures in the United States: “Women who live in a country where they have the possibility to have a safe and legal abortion, should go to a doctor,” it says on its site.
But Patel wouldn’t be the first American woman to seek out such information online. Last year, a Pennsylvania mother was sentenced to up to 18 months in prison for ordering the pills for her teenage daughter. The woman said there was no clinic nearby. In another case, Jennie McCormack of Idaho was prosecuted under the state's 20 week abortion ban, before the 9th Circuit Court of Appeals said the law itself was unconstitutional.
Some abortion rights activists in border areas of Texas, where legal abortion clinics have been shuttered by state law, have also been sharing information with women on self-inducing abortion. They are seeking to make safer a practice that has become commonplace in Latin America. There, abortion is broadly banned, but misoprostol, one of the two pills used in a standard medication abortion early in pregnancy, is readily available as ulcer medication in pharmacies. In south Texas, such pharmacies, just across the Mexican border, are often closer and more accessible than legal abortion clinics.
Taking misoprostol is safer than other methods women have used to try to end their pregnancies, often through sharp objects or blunt force. But if Patel did take the pills, as the prosecution successfully argued, she learned the hard way, taking the pills later in pregnancy without a doctor’s supervision can be dangerous. In her case, that danger wasn’t just medical; unless she prevails on appeal, prosecutors have seen to it that she will pay with the next decades of her life.