Anti-choice activists and politicians tend to say that, if abortion were banned, they would not want women jailed for the crime, only providers. Women, after all, are “victims” of abortion. But the case of Purvi Patel, who was found guilty of both felony child neglect and fetal homicide in Indiana on Tuesday, suggests that women are in far more danger of going to jail for failing to have living babies than activists and legislators let on.
Patel showed up at an emergency room in South Bend, Indiana, in July 2013 with heavy vaginal bleeding. She eventually told doctors that she had been pregnant, gave birth to a stillborn, and threw the fetus in a dumpster. Prosecutors claim that Patel had sent text messages indicating that she had purchased black-market abortion drugs, but there's no evidence that she took the drugs, as they didn't show up in blood tests.
But even if Patel had deliberately aborted a pregnancy illegally, this case is outrageous. That's because she was convicted both of killing a baby and killing a fetus. The problem with this verdict, as Ed Pilkington of the Guardian explained before it was delivered, is that it really should have to be one or the other:
The two charges that Patel now faces – the initial count of neglect of a dependent, and the new charge of feticide – appear to be legally contradictory. Under Indiana law, a woman can only be convicted of neglecting a dependent if it can be proved that she gave birth to a live baby.
By contrast, feticide requires the baby to have been born dead. Its definition in Indiana law is that the woman “knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus."
That the jury convicted Patel of two crimes when only one was possible suggests that this was an attempt to punish Patel for failing to meet a social ideal of pregnancy more than any actual crime. The fetal homicide law in Indiana was supposedly passed in order to punish people who cause miscarriage by assaulting pregnant women, but Patel is the second woman in the state to be prosecuted under it for failing to give birth to a live baby.
“Indiana should not join these countries where young pregnant girls are committing suicide at alarming rates; pregnant women are avoiding medical care for fear that any problem in pregnancy will be reported to law enforcement; and mothers are not only going to jail for having abortions, but also for suffering miscarriages and stillbirths,” Sara Ainsworth of the National Advocates for Pregnant Women argued in December. As I wrote in October 2013, the situation in El Salvador has become particularly ugly, with young women living in terror of going to hospitals when they miscarry for fear of being accused, often on no evidence at all, of illegally aborting their pregnancies. Look, we don’t know what Patel did or did not do. But the fact that she was convicted even though her body only showed evidence of miscarriage suggests that this might become a problem in the United States.