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Purvi Patel, the Indiana woman who was convicted of feticide after self-inducing an abortion in 2013, received a partial vindication last week when an appeals court threw out that charge. The court also reduced a second charge of neglecting a dependent.
Now, the politically charged case — set in the home state of Republican vice presidential nominee Mike Pence, and evoking presidential nominee Donald Trump’s since-retracted comments that women should be “punished” for having an abortion — is at a crossroads.
The case could quietly end here, or it could go a lot further.
Because of the mixed results of the appeals court decision, both sides have 30 days from the July 22 ruling to take the case to Indiana's highest court. Under Indiana’s rules, doing so would dissolve the appeals court decision, and would potentially restore a jury's conviction for which Patel faced twenty years incarceration. Patel has been in prison since she was sentenced in March 2015, and would not be eligible for bail in the meantime. Still, for Patel, who insisted she had a stillbirth and did not know how far along her pregnancy was, an appeal would offer the chance to clear her name entirely.
"It may be risky to appeal," said Kathrine Jack, Indiana counsel for the National Advocates for Pregnant Women, which filed a friend-of-the-court brief on Patel's behalf. "The Indiana Supreme Court could say the trial court was right. But some people would appeal because they wouldn’t want a felony charge on their record or as a matter of principle."
If Patel does not appeal, she could be released from prison as early as this September, assuming she gets the maximum sentence under the charge the appeals court ordered.
If the state appeals on the grounds that it has the right to charge with feticide women who end their pregnancies, the proceedings could reignite a national debate over prosecuting women under laws passed with the intent to protect them.
In the part of the decision that got the most attention, the three-judge panel of Indiana's Court of Appeals ruled that Patel shouldn’t have been prosecuted under the state feticide law for trying to end her pregnancy. “We hold that the legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions,” they wrote.
While the feticide charge was the biggest lighting rod, the neglect charge brought with it the most prison time. The appeals court reduced that charge, concluding that the state hadn’t proved that Patel’s behavior after she gave birth led to the death of a baby, while still faulting her for not seeking immediate medical care. (The jury sided with the state’s claim that Patel had given birth to a live, potentially viable baby, which she disputed at trial. Her attorneys also argued she did not know how far along her pregnancy was.)
Patel’s attorney, Stanford Law School professor Lawrence Marshall, said he and his client were still reviewing their options. A spokesman for the Indiana Attorney General’s Office said there was no new information about the state’s intentions beyond its statement issued on July 22.
That statement was unusually long and philosophical. “For the public, this case involves an emotional subject for many,” it read in part. “One of the strengths of our system of justice is that it affords the opportunity through an appeal to test whether a trial court’s proceedings were fair or not, and reverse or modify an incorrect decision or uphold a correct decision. In every appeal, both sides have the right to be heard; and we urge everyone to respect the roles of the investigators, prosecutor, trial court, jury and later the Court of Appeals when each were confronted with the tragic circumstances of this case.”
According to the National Advocates for Pregnant Women, Patel was the first woman in the country to be convicted and sentenced under a state feticide law for having an unlawful abortion. Such laws were passed in states across the country with the rationale of protecting pregnant women from attackers by adding sentences for harming their fetuses. But in pursuing Patel's case, Indiana pointed to the lack of an explicit exception in its law that would bar pregnant women themselves from prosecution.
Marshall argued that it was contradictory to charge Patel of both feticide and neglect of a dependent.
The case drew widespread attention from advocates for pregnant women and Asian-American groups, who said they feared a slippery slope and disproportionate enforcement against women of color. Lakshmi Sridaran, director of national policy and advocacy at South Asian Americans Leading Together, told NBC News when the appeals court decision came down, “It’s important to remember that Indiana has enforced its feticide law against two pregnant women, both of whom are Asian American.” The other was Bei-Bei Shuai, who was prosecuted after a suicide attempt while pregnant and pleaded guilty to a lesser charge.
“We hope the strong precedent set in Patel’s appeal will protect women of color in states like Indiana and others where laws that should protect them often end up criminalizing them instead,” Sridaran said.
The question of prosecuting pregnant women for outcomes in their pregnancies was vaulted into the national debate when Trump told MSNBC's Chris Matthews in March that banning abortion means “there has to be some form of punishment” for the woman. Under protest from anti-abortion groups they insisted they see women who have abortions as victims, Trump released a statement saying, “The doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman.” In Patel’s case, and that of women like her, who order abortion-inducing pills online and take them alone, there is no doctor to prosecute.
For now, said Jack, "if the opinion stands, there’ll be a precedent stating that women cannot be prosecuted for feticide as it relates to their own pregnancy." But, she added, "In other states... sometimes that’s not enough to stop the prosecutions."