How Indiana Is Making It Possible to Jail Women for Having Abortions

Even assuming Indiana’s feticide law could somehow become an abortion criminalization law, many people were initially baffled by how Patel could be charged with two seemingly contradictory charges: feticide for ending a pregnancy and also child neglect for giving birth to a baby and then failing to care for it. The state’s explanation took the interpretation of the feticide law to an even further extreme as prosecutor Ken Cotter argued, “a person can be guilty of feticide even if the fetus in question survives, as long as a deliberate attempt was made to ‘terminate’ the pregnancy ‘with an intention other than to produce a live birth or to remove a dead fetus.’”⁸

Put another way, Indiana’s feticide law is now an abortion criminalization law that not only can be used to punish a woman who ends her pregnancy, but also can be used to punish a woman who even attempts to end her own pregnancy.

This should raise alarm for numerous reasons. To begin with, attempts to end one’s own pregnancy are not extraordinary. One study of abortion patients found that 2.3 percent reported having used misoprostol or other substances, such as vitamin C or herbs, to attempt to end a pregnancy at some point in their lives.⁹ Another study found that the overall percentage to be higher at 4.6 percent, with even greater percentages in Texas,¹⁰ where more than half of all abortion clinics have been forced to close as a result of restrictive abortion legislation.¹¹ (Seven percent of abortion patients in Texas, and 12 percent of such patients near the U.S.-Mexico border, reported having first taken steps in an attempt to terminate their own pregnancies.¹²)

Another reason for concern is the vagueness of the interpretation of this law.

What constitutes “a deliberate attempt” to terminate a pregnancy? In another Indiana case, 34-year-old Bei Bei Shuai was arrested for attempted feticide because prosecutors construed her attempt to kill herself while pregnant as an attempt to terminate a pregnancy.¹³ Suicide is not a crime in Indiana or any other state. Nevertheless, Shuai, a Chinese immigrant who survived and gave birth to a baby who lived for several days, was arrested on both feticide and murder charges. Massive public pressure eventually helped get both charges dropped, but not before Shuai spent a full year locked up in state custody and another year under a form of house arrest that required her to wear an electronic monitor for which she had to pay $12 per day.¹⁴

There is also the matter of what else might constitute “a deliberate attempt” to end a pregnancy. If a woman suffers an unexplained miscarriage or stillbirth, would the fact that she had previously searched for information about using medications like misoprostol to end a pregnancy¹⁵ be used against her? In the Patel case, the state had no physical proof that Patel had actually taken—or even purchased—any medication, apart from text messages allegedly discussing these matters.¹⁶ (For the record, the state similarly had no actual proof that the fetus had been born alive, relying instead on a scientifically invalid and widely discredited “float test” to persuade the jury otherwise.¹⁷)

What the Patel case demonstrates is that both women who have abortions and those who experience pregnancy loss may now be subject to investigation, arrest, public trial and incarceration. Indeed, Patel has consistently said that she experienced a miscarriage¹⁸ that she, like most women in this situation, was unprepared to handle.¹⁹ Pregnancy loss is not uncommon: some 15-20 percent of all known pregnancies end in miscarriage;²⁰ one percent of pregnancies—approximately 26,000 each year—result in stillbirth.²¹ Following the Patel case, however, any miscarriage or stillbirth could be investigated as feticide (an “illegal” self-abortion).

While the scope of Indiana’s feticide law may be vague, the message the Patel case sends is anything but. As an NBC South Bend affiliate summarized it, the verdict broadcast the warning that “there is no room in society today for do-it-yourself abortions.”²²

The outcome of this case is noteworthy and alarming for another reason as well. It directly contradicts the repeated claims of anti-abortion leaders that their efforts will not lead to punishing women. Several years ago, 17 anti-choice leaders participated in an online symposium hosted by the conservative magazine National Review, addressing the question of whether there should be “jail time for women who seek abortions.”²³ Overwhelmingly the writers assured readers that this was not their goal and moreover, that it would never happen.²⁴ One of the contributors, Marjorie Dannenfelser, president of the national anti-choice group Susan B. Anthony List, argued that fears of women being prosecuted and jailed were just a pro-choice tactic to malign abortion opponents. ²⁵

“The fact of the matter is that compassion for women before abortion was legal and compassion for them after unborn protections are enforced will drive the law,” said Dannenfelser. “The focus of such laws is on protection, not punishment.”²⁶

Another essay contributor, Anne Hendershott, promised, “No one wants to send a woman who has had an abortion to prison—she will suffer enough from her decision.”²⁷ And Tom McClusky, vice president of government affairs for the Family Research Council, flatly called the threat of criminalizing abortion under feticide laws “ludicrous.”²⁸

These writers are not alone. Anti-abortion organizations have routinely downplayed or denied the threat. An Ohio Right to Life webpage, “Overturning Roe v. Wade,” assures readers that “no one is interested in sending women to jail.”²⁹ Generations for Life, the youth arm of the Pro-Life Action League, likewise insists that “the idea of punishing women who have abortions could not be further from anti-choicers’ minds.”³⁰ And legal advocacy organization Americans United for Life has maintained that, “if Roe is overruled, no woman would be prosecuted for self-abortion.”³¹

But in Indiana, the prosecution of Purvi Patel for an alleged self-abortion is exactly what happened.

It should come as no surprise that not a single national anti-choice group sounded an objection to the Patel prosecution and its use of Indiana’s criminal laws to punish a woman who allegedly sought to end her own pregnancy.³² A similar, deafening silence was heard when Jennie McCormack, a mother of three in southern Idaho—where there are no longer any abortion providers—was arrested after she used medication obtained online to end a pregnancy.³³

The anti-choice movement has not taken any steps to oppose prosecution of pregnant women, in spite of peer-reviewed research that I published with Jeanne Flavin³⁴ establishing that anti-abortion measures, including the feticide laws now in existence in 38 states, are providing the justification for the arrest of pregnant women, including those who have had or who attempted to have abortions.

It is likely that most people in the U.S., whether they identify as “pro-life” or “pro-choice,” don’t want to see any woman locked up for having an abortion³⁵ (including the more than 60 percent of women who have abortions who are already mothers).³⁶ Perhaps this is why anti-abortion organizations work so hard to deny the predictable and inevitable consequences of their efforts: women being locked up.³⁷

The anti-abortion organization Priests for Life insists the “pro-life position has always been that women are victimized by abortion. In fact, we have repeatedly rejected the suggestion that women should be put in jail.”³⁸ On Monday, Purvi Patel will find out at sentencing just how much time she will have to serve in jail or prison. But what the Patel case already demonstrates is that we cannot take Priests for Life and the other “pro-life” organizations at their word when they promise protection and not punishment for women.

Update

On March 30, 2015, the Indiana court sentenced Purvi Patel to 41 years for the crimes of feticide and neglect of a dependent (Patel will serve 20 of the 41 years in prison).