The XX Factor

Somehow, Indiana Managed to Convict a Woman of Both “Feticide” and Child Neglect

Will the E.R. become an interrogation room for women who suffer miscarriages?

Photo by Cate Gillon/Getty Images

Indiana’s getting a lot of national attention lately because of its new “religious freedom” law, which critics say will shield businesses that discriminate against LGBT people. But there’s another reason Indiana has moved to the front of the pack in the race for most retrograde state in the nation. Purvi Patel, the first woman in the country to be convicted of “feticide” for attempting to abort a pregnancy, has been sentenced to 30 years in prison, 10 of which were suspended.

Patel stood accused of ordering black-market abortion drugs to abort a pregnancy caused by her affair with a married man. Sometime in her second trimester, Patel gave birth to either a stillborn baby or a baby who only lived a few moments, and Patel threw the baby’s body into a dumpster. She was subsequently charged both with feticide and child neglect—charges that contradict each other, as I reported in February. But with the double charge, the prosecution managed both to maximize the potential sentence (rendered as six years for feticide and 30 for child neglect, to be served concurrently) and advance the drive to criminalize abortion in the U.S.

“In order to support the contradictory charges of feticide and felony neglect of a dependent,” legal analyst Imani Gandy explains at RH Reality Check, “the state was required to prove that Patel both ‘knowingly or intentionally’ terminated her pregnancy ‘with an intention other than to produce a live birth or to remove a dead fetus,’ and that she neglected a dependent.” That “intent” language became the centerpiece. Relying on Patel’s text messages to a friend as evidence, the prosecution argued that by intending to terminate, Patel broke the law. This is troubling, because there’s no medical evidence proving that the pills—which she bought illegally, and which could have been anything—actually caused the miscarriage. Abortion is supposedly legal in Indiana, but here is a woman going to jail because she told a friend that she hoped some pills she swallowed would cause an abortion. (Incidentally, the evidence that Patel gave birth to a live baby is paper-thin.)

Patel isn’t the most sympathetic character, of course. It’s hard for most of us to imagine throwing a dead fetus in the trash like she did. On the other hand, it’s not as if most of us have any idea what to do with the remains of an at-home miscarriage. And as the number of legal abortion options for women has continued to decline, there has been a concurrent rise in the availability of black-market or off-label abortion drugs like the ones Patel tried to obtain—misoprostol is particularly popular, since it has multiple uses and is easy to get. Despite Indiana’s win in the Patel case, there’s no reliable way to tell whether a woman who shows up at the emergency room with an incomplete miscarriage has self-induced an abortion or is suffering a miscarriage, which is an incredibly common occurrence. As we’ve seen in countries like El Salvador, there’s a cloud of suspicion over these women. Miscarriage is hard enough— physically, emotionally, and financially—without having to worry about police rifling through your text messages, looking for signs of ambivalence.