July 25, 2016 — The Indiana Court of Appeals on Friday ruled 3-0 to overturn the 2015 feticide conviction of an Indiana woman, the AP/Indianapolis Star reports (Eason/Disis, AP/Indianapolis Star, 7/22).
The court left in place a felony conviction for neglect of a dependent (Davies, AP/St. Louis Post-Dispatch, 7/22). According to the AP/Star, the case will now return to the lower court for resentencing for the neglect conviction (AP/Indianapolis Star, 7/22).
Background on fetal homicide law
Indiana's fetal homicide law prohibits "knowingly or intentionally" terminating a pregnancy with an aim other than delivering an infant alive or removing an unviable fetus. The law, enacted in 1979, has an exception for abortion care provided in compliance with the state's laws on abortion.
At least 38 states have feticide laws. Abortion-rights supporters argue that such laws were designed to prosecute illegal abortion providers, not pregnant women. Jill Adams, executive director of the Center on Reproductive Rights and Justice at the University of California-Berkeley School of Law, said the Indiana lawsuit marked the first instance of a state feticide law being used against a woman explicitly because of an "alleged self-induced abortion."
The woman, Purvi Patel, was arrested in July 2013 after she presented at a hospital to seek treatment for profuse bleeding resulting from the termination of a pregnancy. According to court records, Patel had ingested abortion-inducing drugs that she had obtained online. After ingesting the drugs, Patel discarded the remains of her pregnancy. Court documents show that when Patel presented at the hospital, she told doctors that she had delivered a stillborn infant.
The state alleged that Patel was 25 weeks into her pregnancy when she tried to self-induce an abortion and contended that she delivered a viable infant requiring immediate medical care.
Last year, Patel was convicted of neglect of a dependent resulting in death, as well as a charge under the feticide law for terminating her pregnancy. Although neither conviction carries a mandatory prison sentence, Judge Elizabeth Hurley sentenced Patel to six years on the feticide charge and to 30 years on the neglect charge, with 10 years of the latter charge suspended. Patel was serving the sentences concurrently.
In May, the Indiana Court of Appeals heard Patel's appeal of both convictions. Patel in her appeal was represented by Lawrence Marshall, a professor at Stanford Law and co-founder of the wrongful conviction project at Northwestern University, and Joel Schumm, a professor of law at Indiana University.
In the appeal, Marshall argued that the feticide law was "passed to protect pregnant women from violence," not to punish women for their actions during pregnancy or decision to terminate a pregnancy. Marshall also challenged the state's case that Patel was guilty of neglect. Marshall said the state never called on experts to testify as to whether the infant would have shown any signs if it were not stillborn.
Marshall and Schumm also noted that the state's charges of feticide and child neglect are contradictory, as the former charges Patel for illegally terminating a pregnancy and the latter depends upon the infant having been viable at birth. Patel's lawyers also contended that the state at trial failed to prove that Patel could have intervened to save the infant's life.
The state argued that the evidence presented at trial last year is sufficient for the court to uphold the convictions. Further, Indiana Deputy Attorney General Ellen Meilaender claimed it was appropriate for the state to charge Patel under the feticide law. Under questioning from the judges, Meilaender acknowledged the state at trial had not proved Patel had delivered a live infant in need of medical care.
Judge Nancy Vaidik questioned how the state can support its case for the neglect charge without conclusive proof that the infant was alive and required medical attention. In addition, the judges questioned what precedent the conviction under the feticide law would set, including whether the conviction could lead to a pregnant woman being prosecuted for substance use that some consider harmful to the fetus (Women's Health Policy Report, 5/25).
Court overturns feticide conviction
In its decision last week, the appeals court overturned the feticide conviction, ruling that the Indiana feticide statute was not meant to be used against a pregnant woman who terminates her own pregnancy. The court called the application in this case an "abrupt departure" from the statute's normal application of the law, which is usually applied when a third party inflicts violence against a pregnant woman. Judge Terry Crone wrote that given court precedent, "The state's about-face in this proceeding is unsettling, as well as untenable."
Further, the court said it was unlikely that state lawmakers had written the feticide statute with the intention of it being used to prosecute a woman who seeks abortion care, noting that many state abortion laws explicitly bar enforcement against a pregnant woman (AP/Indianapolis Star, 7/22). The judges added that the language in Indiana's law regarding illegal abortion demonstrates that the state Legislature "intended for any criminal liability to be imposed on medical personnel, not women who perform their own abortions" (AP/St. Louis Post-Dispatch, 7/22).
Neglect conviction stands
The appeals court acknowledged Patel's argument that the neglect conviction conflicted with the feticide conviction. However, it dismissed Patel's argument that neglect conviction should be overturned.
Crone acknowledged the evident conflict, stating, "In this case, the apparently absurd outcome is a woman being convicted under both the neglect of a dependent statute, which requires a live infant, and the feticide statute, which does not require a dead infant." Nonetheless, in rejecting Patel's argument about the conflict between the two convictions, Crone wrote that the state was not required to adhere to the dictionary definition of "feticide" (AP/Indianapolis Star, 7/22).
The judges held that Patel endangered the infant by not immediately seeking out medical care, but the state did not demonstrate that the alleged endangerment caused the infant to die (AP/St. Louis Post-Dispatch, 7/22).
Unless the case is appealed, Patel will now be resentenced for the neglect conviction, the AP/Star reports. Kate Jack, an attorney who works with National Advocates for Pregnant Women, said Patel likely will be released given the time she has already served.
While abortion-rights advocates praised the court's decision to overturn the feticide conviction, they said upholding the neglect conviction relayed a "mixed message" to pregnant women and could force a "dangerous divide" between patients and providers, the AP/Star reports.
Shelly Dodson, director of All-Options Pregnancy Resource Center, stated, "The research is clear. If pregnant people fear criminal consequences, they don't go to the doctor." She noted, "The state of Indiana is sending a clear message to anyone who is or might be pregnant that 'you don't deserve help, you don't deserve support -- you deserve jail.'"
Separately, Jack said the court's decision to overturn the feticide conviction, as it stands now, "should give Indiana prosecutors pause before bringing any feticide charges against pregnant women" (AP/Indianapolis Star, 7/22).