Here’s What Happens When Pregnant Women Lose Their Rights

Photo: Robert Franklin/AP

In a ruling that’s already caused uproar across the country, Purvi Patel was sentenced on Monday to 20 years in prison for committing feticide. Patel, a 33-year-old woman from Indiana, was accused of illegally inducing her own abortion and subsequently having a baby she allowed to die. Last July, Patel visited an emergency room with severe bleeding and eventually told doctors she’d miscarried. When questioned about the location of the fetal remains, she said she was unsure what to do, so she wrapped the fetal remains in a bag and threw the bag in a Dumpster. Patel was then living with her conservative Hindu parents and in a relationship with a married co-worker, which helps explain why she felt it necessary to hide the pregnancy and dispose of the remains so quickly.

While Patel has maintained that she miscarried and delivered a stillborn baby, prosecutors insisted that she induced a late-term abortion with pills she ordered on the internet and gave birth to a living fetus that died almost instantly. A toxicology report produced no evidence of such drugs in her system, but prosecutors pointed to texts Patel exchanged with a friend in which she claimed to have ordered pills from a pharmacy in Hong Kong. Because the age of the fetus was heavily contested, it’s possible that had she gotten a prescription for the pills in the U.S., the pregnancy termination (if that’s what happened) would have been legal. It remains illegal to order such pills online.

If Patel did self-induce an abortion, it’s essential to understand the legal restrictions she faced as a resident of Indiana. The state has only 11 abortion clinics and an exhaustive list of abortion restrictions. Indiana prohibits certain qualified health-care professionals from performing abortions, restricts young women’s access to abortion by requiring parental consent, subjects abortion providers to targeted (and burdensome) regulations not applied to other medical professionals, subjects women to biased counseling and mandatory delays, has passed unconstitutional bans on abortion, prohibits certain state employees and organizations with state funding from referring women to abortion services, restricts access to other reproductive health care, and restricts low-income women’s access to abortion.

As New York Times staff writer Emily Bazelon points out, “If this case were only about a woman who clearly gave birth to a live baby and then killed her child, it would be clear cut.” But it’s not. A lung float test produced by the prosecution indicated that the fetus had breathed, yet the test itself has been largely discredited by modern science. A widely used forensic textbook notes that “there are too many recorded instances when control tests have shown that stillborn lungs may float and the lungs from undoubtedly live-born infants have sunk, to allow it to be used in testimony in a criminal trial.” Because it’s simple and clear (the lungs would presumably float if they contain oxygen, which indicates breath and therefore life) prosecutors love to use it. A medical expert testifying for the defense said that, at 24 weeks, the fetus wasn’t viable and wouldn’t have been able to survive outside the womb for any period of time.

Patel was arrested under the contradictory charges of feticide and child neglect. While feticide requires the fetus to have died in utero, child neglect requires the baby to have been alive and viable. On Monday, a jury convicted her on both charges.

Indiana’s 1979 feticide law was meant to provide legal recourse when pregnant women are injured or killed by third parties, like abusive partners. It was never meant to criminalize pregnancy or stigmatize abortion. In its limited use, it’s done both. In 2011, Bei Bei Shuai, a Chinese immigrant living in Indiana, attempted suicide by swallowing rat poison. She survived, but the fetus she was carrying did not. She was charged with murder and attempted feticide, and after spending 435 days in jail was released with time served on the lesser — but still absurd — charge of criminal recklessness.

It’s easy to read these cases as outliers in an overly zealous and conservative state, but the criminalization of pregnancy — especially among poor women and women of color — has ramped up significantly in the past decade. Criminalizing miscarriages has become a way to punish women suspected of self-abortion. Efforts to ban abortion are increasingly tied into legal quests for personhood rights extending to fetuses, fertilized eggs, and even embryos.

A peer-reviewed study documented 413 arrests or similar interventions targeting women because of their pregnancy between 1973 (when Roe v. Wade was decided) and 2005. There were hospital detentions and compelled treatments, arrests because pregnant women were allegedly consuming some amount of alcohol or drugs, and legal interventions restricting the movement of pregnant women.

In 2003, Regina McKnight, a 23-year-old black woman in South Carolina, suffered a miscarriage, only to be charged with murder when Mississippi prosecutors discovered she was addicted to cocaine. Though it was later proven that the miscarriage was the result of an infection, she was arrested and charged with homicide by child abuse. A jury found her guilty after a 15-minute deliberation, and she served eight years in prison before her conviction was overturned. (Current research suggests that cocaine use is no more dangerous to a fetus than nicotine, poor nutrition, or lack of prenatal care.) A year later, a judge in Rochester, New York, ordered a homeless woman not to get pregnant again without court approval. In another case, a judge forced a pregnant and seriously ill cancer patient to have a C-section against her wishes. The fetus didn’t survive, and the mother died.

Since the 2005 study, National Advocates of Pregnant Women (NAPW) has already documented an additional 380 cases, including incidents where women were forcibly strapped down, driven to the hospital, and made to receive C-sections; cases where accidents resulted in pregnant women being charged with “attempted fetal homicide”; and many women spending time in jail before being cleared of charges after suffering a miscarriage or stillbirth.

In an op-ed published in the New York Times, NAPW founder Lynn M. Paltrow and president of the board Jeanne Flavin wrote of the danger criminalization of pregnancy presents: “These cases, individually and collectively, highlight what is so often missed when the focus is on attacking or defending abortion, namely that all pregnant women are at risk of losing a wide range of fundamental rights that are at the core of constitutional personhood in the United States.” In such cases, the criminalization of pregnant women pits the fetus against the woman, endangering healthy pregnancies, pregnant women, and any woman seeking to control her reproductive decisions.

Patel’s case sets a dangerous precedent and could scare pregnant women from seeking medical assistance — lest they suddenly find themselves facing prosecution. So, despite claiming to protect fetuses, such laws can actually endanger pregnancies. But most important of all, getting pregnant shouldn’t mean losing your rights.

When Pregnant Women Lose Their Rights