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Ind. court hears appeal in feticide case

The Indiana Court of Appeals on Monday heard an appeal from a woman who last year was convicted under Indiana's feticide law, The Guardian reports (Redden, The Guardian, 5/23).

According to the Indianapolis Star, it is unclear when and how the court will rule (Disis, Indianapolis Star, 5/24). Several advocacy groups, including the National Asian Pacific American Women's Forum (NAPAWF) and the National Advocates for Pregnant Women (NAPW), have filed amicus briefs in support of the woman, Purvi Patel (Kai-Hwa Wang, NBC News, 5/24).

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.

According to the AP/Bee, a minimum of 38 states have feticide laws (Callahan, AP/Sacramento Bee, 5/23). Abortion-rights supporters argue that such laws were designed to prosecute illegal abortion providers, not pregnant women (Indianapolis Star, 5/24). 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."

Case background

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 (AP/Sacramento Bee, 5/23). Court documents show that when Patel presented at the hospital, she told doctors that she had delivered a stillborn infant (Indianapolis Star, 5/24).

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 (AP/Sacramento Bee, 5/23). 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 is serving the sentences concurrently.

Patel's appeal

Patel in her appeal is 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 IU (The Guardian, 5/23). 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 (AP/Sacramento Bee, 5/23).

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 (Indianapolis Star, 5/24). According to The Guardian, Marshall and Schumm also noted that the state's charges of feticide and child neglect are paradoxical, as the former charges Patel for illegally terminating a pregnancy and the latter depends upon the infant having been viable at birth (The Guardian, 5/23).

Patel's lawyers also argued that the state at trial failed to prove that Patel could have intervened to save the infant's life. Lawrence cited a forensic pathologist's testimony that the infant likely would have died within one minute of the umbilical cord being cut (AP/Sacramento Bee, 5/23). Lawrence and Schumm also voiced concerns about the "lung float test," which is the forensic test the state used to claim the infant was viable. Extensive research into the test has debunked its accuracy, The Guardian reports (The Guardian, 5/23).

Marshall stated, "The evidence in this case was not there whatsoever." He continued, "Not a single expert ever said -- in any sort of declarative way -- that yes, this infant would have survived had Ms. Patel done differently" (Indianapolis Star, 5/24). He added, "Multiple independent reasons compel reversal of both counts here" (AP/Sacramento Bee, 5/23).

State's arguments

The state on Monday contended 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 (Indianapolis Star, 5/24). According to state officials, the law can be used to prosecute Patel because it "is not limited to third-party actors."

Under questioning from the judges, Meilaender acknowledged the state at trial did not prove Patel had delivered a live infant in need of medical care. Judge Nancy Vaidik questioned Meilaender about how the state can support its case for the neglect charge without conclusive proof that the infant was alive and required medical attention (AP/Sacramento Bee, 5/23).

According to the Star, 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.

Comments

Lisa Sangoi, an attorney with NAPW, said while she does not know how the court will rule, abortion-rights supporters "do know ... that the people of Indiana, and the Indiana state legislature, have not permitted the punishment ... of women for having or attempting abortions under the feticide law. So we are certainly hopeful this court will take the lower court to task" (Indianapolis Star, 5/24).

Separately, NAPAWF Executive Director Miriam Yeung discussed the racist implications of the lawsuit. Citing Patel and Bei Bei Shuai, an Asian American woman who faced feticide charges in 2011 that were later dropped, Yeung said, "Even though only two percent of Indiana's population is Asian American, the only women ever charged with feticide in that state are Asian American."

Yeung added, "Indiana is not the only place where prejudice is a problem ... A study of arrests and forced interventions on pregnant women shows that approximately 71 percent of these women are low-income and 59 percent are women of color. Asian American and Pacific Islander women are especially at risk of targeting because of racist myths about our reproductive decisions" (NBC News, 5/24).