The Indiana Court of Appeals has reversed the February 2015 conviction of Purvi Patel, an Indiana woman sentenced to 30 years in prison with 10 years suspended for allegedly taking black-market abortion pills. Patel became the first woman in the country to be convicted of “feticide” for self-inducing an abortion.
Patel’s case has become a major flashpoint in the abortion debate: Abortion rights activists have said that she exposed the hypocrisy and lies of an anti-abortion movement that claims to want to punish abortion providers, not abortion seekers. The case also provided an example of how fetal-rights laws, purportedly written to punish criminals who assault pregnant women, can easily be used to incarcerate women and intimidate them out of perfectly legal abortions.
Prosecutors said that Patel ordered abortion pills from Hong Kong and took them during her second trimester in 2013, when her fetus was barely past the threshold of viability. Using texts Patel sent to a friend, they pieced together a story that had Patel taking the pills, delivering a live fetus, then failing to seek medical attention for it, leading to its death.
Patel denied that the fetus was alive when it entered the world; after she showed up at a hospital with vaginal bleeding, she told doctors she’d delivered a stillborn fetus and left it in a dumpster. State prosecutors argued that the fetus took at least one breath, making it a live child. Thus, Patel was found guilty of the puzzlingly contradictory charges of fetal homicide and felony child neglect, essentially punishing her for killing a fetus, then also killing a baby through inaction.
There were many problems with the prosecutors’ case against Patel. They found no evidence that she actually bought the pills, much less took them, beyond the text messages. Their claim that the fetus was born alive and viable rested on a widely discredited “lung float test.” “Abortion is supposedly legal in Indiana,” wrote Amanda Marcotte after Patel’s conviction, “but here is a woman going to jail because she told a friend that she hoped some pills she swallowed would cause an abortion.”
On Friday, Patel saw her feticide conviction overturned and her child neglect conviction reduced from a class A felony to a class D, a switch that will likely result in a new sentence of six months to two and a half years, all or much of which Patel will have already served.
But as long as laws granting personhood rights to fetuses remain on the books, other women will most likely follow in her wake. National Advocates for Pregnant Women has compiled hundreds of examples of other pregnant women who’ve been detained, arrested, and/or incarcerated for allegedly violating the rights of their own fetuses. Fetal rights measures are often justified with arguments about illegal-abortion doctors and abusive boyfriends, but they’ve been twisted to punish women who try to end their own pregnancies. (Barack Obama predicted this exact legal quandary as a 29-year-old law student.)
Patel’s case also points to an uncomfortable truth about prosecuting women for obtaining illegal abortions. Misoprostol, one of the drugs Patel allegedly took, is a legal drug that can be used for a few different purposes, one of which is abortion. In a society that asks medical practitioners to keep an eye out for illegal, self-induced abortions, even women who get a misoprostol prescription for other reasons (like an incomplete miscarriage) are at risk of harassment and discrimination from doctors or pharmacists who have moral qualms about abortion or a fear of prosecution. Patel’s case raised the profile of black-market medical abortions and stirred up suspicion around women who need those drugs. The fact is, it can be hard for a doctor to tell whether a patient has attempted a self-induced abortion or undergone a partial miscarriage. That’s why, in El Salvador, where abortion is illegal, women have been jailed for presenting with the conditions of a miscarriage.
But U.S. abortion policies are not El Salvador’s, or so we’d like to think. Anti-abortion activists routinely claim that they’d never want to punish women for seeking illegal abortions, just the doctors who provide them. (Donald Trump made the mistake of botching this logic-bending talking point in May, and he couldn’t deny it fast enough.) Patel’s vacated feticide conviction, then, is sure to inspire a celebratory statement commending the Indiana court for granting her justice. I’ll wait.
