20 Years in Prison for Miscarrying? The Case of Purvi Patel and the Criminalization of Pregnancy

NERMEEN SHAIKH: We turn now to Indiana, which has been in the spotlight this week over its new anti-LGBT, so-called, religious freedom law. But, the historic application of another law in the state has received far less attention. On Monday, Purvi Patel, an Indian-American woman, became the first person in U.S. history sentenced to prison for feticide, for ending her own pregnancy. In 2013, Patel arrived at a hospital, bleeding. She told doctors she had had a miscarriage and disposed of her stillborn fetus in a trash receptacle. Under questioning by police, Patel said she had believed she was about two months pregnant. After miscarrying in the bathroom, she said she tried unsuccessfully to resuscitate the fetus, which wasn’t moving. She told police, “I assumed because the baby was dead there was nothing to do.” Bleeding, in shock, and not wanting her conservative Hindu parents to find out, she disposed of the fetus and went to the hospital.

AMY GOODMAN: Prosecutors would later accuse Patel of taking drugs to try to end her pregnancy, based on text messages to a friend where she discussed buying the drugs online. But no evidence of abortion drugs was found in her body. The prosecutors also used a discredited “float test” to claim Purvi Patel’s fetus, which they said was between 25 and 28 weeks, was born alive. So, in addition to feticide, Patel was charged and convicted of “neglect of a dependent.” On Monday, a judge sentenced Patel to serve 20 years in prison. In total, her sentences actually add up to 41 years, but will be served concurrently, with 10 years suspended.

The sentencing comes amidst a growing, ongoing crackdown on reproductive rights. According to RH Reality Check, lawmakers in states across the country have introduced at least 235 bills to restrict abortion in 2015 alone. To talk more about this issue we are joined here in New York by Lynn Paltrow, Founder and Executive Director of National Advocates for Pregnant Women. What happened to Purvi Patel?

LYNN PALTROW: Well, Purvi Patel is an amazing example of the fact that it’s not just reproductive rights that are under attack, it is the personhood of people who can get pregnant, that this case demonstrates that we are not going back to some — going through some time warp to a time before Roe, that women’s pregnancies are now becoming the subject of policing, prosecution, and severe sentences in an age of mass incarceration. So, here’s a woman who goes to the hospital for help because she has a miscarriage, and ends up being sentenced to jail for 20 years. They charge her with feticide, and originally people were very confused. It’s like, how can you be charged with both feticide and neglect of a dependent because feticide is understood as causing the death of a fetus, but the prosecutors says, in Indiana, no, our law means any deliberate attempt by a woman to terminate her own pregnancy is a crime. It didn’t succeed, so we convinced — they then used —- deliberately used a invalid scientific test to convince the jury that the baby had been born alive and neglected. So, here you have -—

AMY GOODMAN: What is the float test?

LYNN PALTROW: Float test, as I understand it — and Dr. Gregory Davis at the University of Kentucky is the real expert — is that —- it’s a test that suggests that you take the lungs out of the fetus, or the newborn, and if they float, there was air in them, and the baby took a breath. However, it has been known for a hundred years that air can get into lungs in other ways. So, it is an invalid test used, for example, in countries like El Salvador to convict women of illegal abortion who have actually suffered miscarriages and stillbirths. But, the Indiana case says, look, if you are a woman who even does re—- has a miscarriage and has done research to see if, perhaps, you could have had an abortion — women who suffer miscarriage and stillbirth, and women that have precipitous home births all now can go to jail, essentially, as murderers.

NERMEEN SHAIKH: Could you explain then, what is it about Indiana’s feticide law that enabled the prosecutors to convict Purvi on both these, seemingly contradictory, counts: neglect of a dependent and feticide? And is it very similar in other states or anywhere?

LYNN PALTROW: Well, I would say there is nothing unique about Indiana’s feticide law. What is unique is the judge allowed this case to go forward in spite of a motion to dismiss, in spite — rejected an amicus brief that we prepare on behalf of numerous health groups. Thirty-eight states have feticide laws. Many of them — most of them explicitly say what they all were passed — how they were all passed, which is, they were all past or amended in the wake of violence against pregnant women, with the promise that it would protect pregnant women and so-called unborn children from violence. In fact, in many states, as my research with Jeanne Flavin has shown, it has been used to arrest woman who delayed having Cesarean surgery. A woman in Iowa who fell down a flight of stairs while she was pregnant was arrested for attempted feticide. Indiana’s law is somewhat different from other states, but it is not really about the language of the statute, it’s about the commitment of the prosecutors and the state to use it as a mechanism for depriving pregnant women of their human rights.

AMY GOODMAN: During the sentencing, the chief deputy prosecutor, Mark Roule, insisted the charges, aborting a fetus and neglecting a child, were separate and distinct. He told reporters the feticide charge against Patel requires only intent to unlawfully terminate a pregnancy and in this case the pregnancy was terminated with a live birth triggered by abortion pills. Roule went on to say, “What is the reason she chose to terminate her pregnancy in the manner with which she did so? Preference and convenience,” he said. After the sentencing, Roule briefly spoke with a reporter fromWSBT.

PROSECUTOR MARK ROULE: It was against the law. That’s all we need to say about it.

KELLI STOPCZYNSKI: A lot of people in the public have asked why not murder?

PROSECUTOR MARK ROULE: The charging decision was made more than a year ago, and there were a lot of factors in that and we’re just — we’re going to deal with the charges that we have.

AMY GOODMAN: That was the Chief Deputy Prosecutor Mark Roule. Your response, Lynn Paltrow.

LYNN PALTROW: Well, I think there is an implication — in this case, the woman who was targeted is Indian-American, and the suggestion of preference is an issue that NAPWand others are addressing in terms of the suggestion that Asian-American women, in particular, can’t be trusted around their reproductive decision-making, but, more importantly this — or, not more importantly, but as part of this question of fairness and human rights, the claim by those that support feticide laws, antiabortion leaders like Marjorie Dannenfelser and others, have said over and over again, when we put unborn protections into the law it will result in compassionate protection for pregnant women. It will not result in punishment. And if there is any doubt among people that the result, and perhaps intent, of the antiabortion, anti-fairness efforts in this country will be women becoming part of this system of massive incarceration, they should and those doubts. That, what this prosecutor is saying is that they could use their feticide law to re-criminalizing abortion and punish women who have miscarriages.

NERMEEN SHAIKH: Could you talk about, Lynn, the case of Bei Bei Shuai, also in Indiana and the parallels between the two; Purvi Patel and Bei Bei Shuai?

LYNN PALTROW: Well, obviously, they are targeting ,first, women of Asian descent, an immigrant woman, more vulnerable women, to establish a precedent that they can apply them to all women. In her case, she was pregnant. The man she thought was going to raise this child with abandoned her. In an act of desperation she attempted suicide. She survived, she agreed with her friends to go to the hospital to get help. She wanted her baby to survive. She did everything they asked her to do, including undergoing Cesarean surgery. The baby was born alive and did not survive, and she was arrested for attempted feticide and murder of a viable fetus. She was put in jail, held there without bail for more than a year, and then, after we helped to win bail for her, they held her under a kind of house arrest with a kind of electronic monitor for over a year before public pressure and other things got them to, at least, drop those charges.

But, two very important things about that case: one is it’s not a crime in any state of the U.S. to attempt suicide, but, they used their feticide law to argue that there is a separate and unequal law for pregnant women who can go can go to jail for unique crimes because they become pregnant or have the capacity for pregnancy, and it also exposes something very disturbing about what the prosecutor said over and over again. At Purvi Patel’s trial, apparently, he said over and over that she violated one simple rule — she should have gone to the doctor. Well, Bei Bei Shuai went to the doctor, did everything they asked her to do, and what happened? She got arrested. Purvi Patel went to the doctor to seek help, and what happened? She got arrested. And if you believe that you can arrest a pregnant woman because she didn’t go to the doctor, then that leads doctors to think, as they did in Florida with Samantha Burton, that you can force her to go to the doctor. Samantha Burton went to the hospital, they said you are miscarrying, you must stay here. And she said, look, I got two little girls at home, if God wants to take this baby, God can take this baby, and they held her at the hospital, forced her undergo Cesarean surgery, and she still lost the pregnancy. So, that the — what people have to fight for is dignity and fairness for pregnant women with absolutely no role for police and prosecutors in overseeing prenatal care.

AMY GOODMAN: How do you link this, in Indiana, as we wrap up here Lynn, to what’s going on there, what everybody is hearing about, the the so-called religious freedom law?

LYNN PALTROW: Well, these are issues of basic human rights, and what people often forget is that the laws that have been described simply as antiabortion, and we tend to defend abortion, but what’s at stake is the human rights of women, or the people who have the capacity for pregnancy. So, we have rights around lesbian, gay, trans people, we have human rights about anybody who has the capacity for pregnancy and this case is about is not just depriving people of reproductive rights, but liberty, the most basic freedom articulated in the Constitution, which now, in Indiana, they say you can lose if you have a pregnancy and you cannot ensure a healthy birth outcome, or you don’t go to the doctor.

AMY GOODMAN: Well, Lynn Paltrow, we want to thank you very much for being with us. Lynn Paltrow, Founder and Executive Director of National Advocates for Pregnant Women here in New York. This is Democracy Now!, democracynow.org, The War and Peace Report. When we come back, an NYU, New York University professor joins us. When he tried to go to the satellite campus of NYU in Dubai, he was stopped. Then he learned not only was he being followed by a private investigator, but so was the New York Times reporter that reported on his study of the abuse of workers in the Gulf state of The United Arab Emirates. Stay with us.