In February, 33-year-old Purvi Patel of southern Indiana became the first woman in the United States to be convicted of feticide for attempting to induce her own abortion. In late March a St. Joseph County judge sentenced Ms. Patel to a six-year prison term for feticide, a 20-year prison term for felony child neglect, 10 more years’ suspended sentence on the neglect count, and five years probation, for a grand total of 41 years of punishment for what may well have been a spontaneous stillbirth. Ms. Patel will serve the prison terms for feticide and neglect concurrently.
The ordeal began when Ms. Patel went into premature labor at home and delivered what she described as a dead fetus. Experts offered wildly divergent estimates of how far along Ms. Patel was in her pregnancy. The size and length of the fetus are consistent with a fetus of 23-24 weeks’ gestation, but fetal size is an imperfect measure of gestational age. No one really knows because Ms. Patel hid her pregnancy to shield herself from the disapproval of her conservative Hindu parents, with whom she lived. We know that Ms. Patel discarded the fetus in a dumpster behind her family’s restaurant and later went to a hospital where she underwent surgery to remove a potentially life-threatening retained placenta.
At trial, prosecutors did not claim that Ms. Patel killed her fetus in utero. They maintained that she attempted to induce an abortion with drugs and then neglected a living baby by failing to call 911. |
Ms. Patel’s lawyer maintains that feticide and child neglect are mutually incompatible and many reproductive rights activists are echoing his argument. He argues that Patel can’t be simultaneously guilty of feticide and child neglect, because if Patel killed her fetus in utero, there would have been no child to neglect.
This airtight logic ignores the letter of Indiana law, which is not logical at all. You may be surprised to learn that feticide in Indiana doesn’t require that a fetus die in utero, or die at all. To commit feticide in Indiana is to “knowingly or intentionally terminate a human pregnancy” with an intention other than to cause a live birth, remove a dead fetus, or perform a legal abortion. The law doesn’t include an exemption for women who self-abort, or try to. On the contrary, Indiana’s feticide law seems tailor-made to catch self-abortionists, and attempters.
That’s certainly how Ken Cotter, prosecuting attorney for St. Joseph’s County, understands the state legislature’s intent. “There are certain requirements that the legislature wants to make sure that you go through before an abortion is sanctified by society,” Cotter told Irin Carmon of MSNBC. “If you don’t go through those procedures, then the legislature has determined that that’s a crime.”
At trial, prosecutors did not claim that Ms. Patel killed her fetus in utero. They maintained that she attempted to induce an abortion with drugs and then neglected a living baby by failing to call 911.
Ms. Patel’s case is a travesty because state proved neither feticide or neglect beyond a reasonable doubt. There’s no proof that the pills caused Ms. Patel’s early delivery, and there’s no proof that the fetus was born alive. It was either born dead, as Ms. Patel has always maintained, or it died shortly thereafter from some combination of birthing complications and extreme prematurity. The fetus weighed just 1.5 pounds at autopsy. In order to convict Ms. Patel of felony child neglect, the state had to prove that Ms. Patel’s failure to summon medical attention caused the death of the fetus, but they didn’t meet this burden. If it wasn’t born dead, there’s a good chance that it would have died no matter what she did.
Ms. Patel probably tried to self-abort with pills she bought online. The jury saw a redacted “receipt” for abortion-inducing drugs from a pharmacy in Hong Kong recovered from Ms. Patel’s iPad, and a text message from Ms. Patel to a friend in which she described how bad the pills tasted a few days before she delivered. However, the judge cautioned jury that the receipt was not evidence that Ms. Patel bought the drugs, merely evidence that she could have done so without a prescription. The defense cast doubt on the claim that Ms. Patel paid for the drugs, or received them in the mail.
Even if she took the pills, Ms. Patel could be facing a six years in prison for a coincidence. Internet pharmacies are notorious for adulterating and counterfeiting drugs. The non-profit group Women on Waves keeps a long list of pharmacies known to sell worthless abortion drugs, or take money for pills they never mail. No drugs were detected in Ms. Patel’s system or in the fetus, because the toxicologist was unable to test for them. Investigators never found any leftover pills or packaging, so there’s simply no way to know what Ms. Patel took. Moreover, spontaneous stillbirths are common and often medically inexplicable. We know that Ms. Patel was at increased risk of spontaneous stillbirth, having had no prenatal care.
The pathologist who performed the autopsy failed to pinpoint the cause of the fetus’s death, and he found no evidence that Patel did anything to harm it after birth. Even according to the prosecution’s theory, the baby died within seconds of being born.
The state used a discredited “lung float” test in an attempt to show that the fetus was born alive. It’s a test that’s been around since the 17th century: the examiner drops the lungs in
“It’s an absolutely discredited test,” Gregory Davis, a professor of pathology and laboratory medicine at the University of Kentucky told Leon Neyfakh of Slate. “It boggles my mind that in the 21st century … this test is still being relied upon to determine whether a baby is born alive or dead.” Mr. Neyfakh went on to cite two leading forensic pathology textbooks that declare the lung float test invalid as a test of live birth. The pathologist who performed the test admitted to Emily Bazelon of the New York Times that the lung float test is unreliable and said that it could only provide corroborating evidence for other findings.
Even if Ms. Patel’s fetus breathed (or reflexively gasped) outside the womb, that doesn’t mean she criminally neglected it. Patel may have mistakenly believed the fetus was dead.
For deliveries at the edge of viability, the line between stillbirth and live birth can be blurrier than most people realize. In 2012, a 1-pound premature baby was mistakenly declared stillborn in a hospital. Dr. Yao Sun, a neonatologist who did not treat the baby, explained to the LA Times very premature babies can be born with such weak vital signs that even doctors can’t perceive them. In the hospital, doctors might try a high-tech resuscitation on a seemingly dead baby, just in case. Or, they might not, depending on the parents’ wishes. If Patel had delivered in the hospital, she could have declined resuscitation, as many parents of very premature infants do.
Purvi Patel is a convenient villain. As an unmarried woman with a secret pregnancy, she was already a social deviant in the eyes of her deeply conservative community. Ms. Patel will spend the next 20 years incarcerated for disposing of a dead fetus in a dumpster, which is the one crime of which she’s clearly guilty. Failure to obtain a death certificate for a stillborn fetus in Indiana can be a Class B misdemeanor, an offense on par with public intoxication. The authorities decided that Patel needed to spend a long time in prison, and stacked the charges to make it happen, whether they fit the facts or not.
Lindsay Beyerstein is an investigative journalist in Brooklyn, N.Y., who writes about criminal justice and women’s health.
