Selective Applications of the Law in Indiana Part 2

Who do our medical laws really protect? Image from Wikimedia, in the public domain.

As described in part 1 of this post, Indiana’s Religious Freedom Restoration (RFRA) law selectively grants protections to some sexual minorities but not others – and that by region, as well. In this post I’ll discuss another problematic application of the law, specifically, the feticide law affecting Purvi Patel.

Indiana resident Patel was just sentenced to 20 years in prison for the death of her premature infant, the first time a state feticide law has been used to convict the woman carrying the fetus that has been harmed. Normally these laws exist to protect pregnant women. Indiana’s law defines feticide as when a “person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus” acts on this impulse (though the law contains an exemption for legal abortion).

One of the reasons this case is difficult to discuss is that the facts are very murky. It’s unclear whether the fetus was viable, whether Patel attempted to self-induce abortion or had a miscarriage, and whether the prosecution was using accurate tests and information or not.

According to the Washington Post, Patel communicated via text message about taking abortion-inducing drugs, but “a toxicologist was unable to find evidence of drugs in Patel’s or her baby’s body.” However, this was still apparently enough to convict her of feticide.

In another disturbing instance of contradictory applications of accepted standards, a prosecuting pathologist used the largely discredited “floating test” to argue that the fetus was born able to breathe, hence viable. As this Slate article asserts, “It’s far from clear, however, that the test can be trusted,” going on to cite other pathologists who view the test with skepticism.

Also? It seems completely contradictory to me to simultaneously charge her for feticide and child neglect. I’m not the only one to notice this discrepancy; Slate blogger Amanda Marcotte points out that “this case is outrageous…because she was convicted both of killing a baby and killing a fetus.” And, as stated in the Guardian: “Child neglect would require the baby to have been alive and viable, while the feticide charge would require the fetus to have died in utero.” It seems that the prosecution was intent on having it both ways, and punishing Patel no matter how things played out.

Attorney Katherine Jack, quoted in this Guardian article, states that the ruling “sends a message to pregnant women in Indiana that if they have still-birth, or miscarriage, or in some cases seek an abortion they could be criminally investigating and charged for feticide…I’m afraid pregnant women in Indiana are going to fear going to the doctor.”

This New York Times post ominously points out that Patel’s case could be “just the beginning” of a large-scale criminalization of women who lose fetuses under suspicious circumstances. What will the implications be of making miscarriages part of the criminal justice system’s reach? Am I the only one with flashes of Margaret Atwood’s post-apocalyptic novel The Handmaid’s Tale going through my mind?

There’s also the risk that this ruling continues the momentum of feticide laws establishing fetal personhood which is problematic from a pro-choice perspective. And if you’re paying attention to intersectionality, you’ll know that this isn’t the first case in Indiana where a woman of color has been accused of feticide: Chinese Indiana resident Bei Bei Shuai was charged with attempted feticide after her suicide attempt killed her fetus. However, she was not convicted, instead reaching a plea agreement with the state.

Further, I worry that this case doesn’t take into effect the destabilizing effects of trauma. According to Patel’s testimony as reported in the Washington Post, she was in shock and didn’t know what to do. That’s why she didn’t call 911 right away, and that’s why she abandoned the fetus, only later seeking emergency care because she’d continue to bleed. People undergoing trauma do not always react as they might otherwise; this has to do with how the brain processes trauma (or rather, how it fails to). Thus, a law that does not take into account a person’s trauma reaction is flawed, and punishes people when they’re at their most vulnerable.

To reconnect with my concerns about RFRA as expressed in part 1 of this post, I’m extremely concerned about how the state of Indiana is selectively applying laws to people who are often the most vulnerable to discrimination and harm. Criminalizing miscarriage is a terrible idea to begin with – since it’s so often a traumatic situation for the pregnant woman – but why are we only seeing women of color being prosecuted for it? Allowing discrimination for religious reasons is obviously a bad idea – and yet why is our state giving it a pass in cities that don’t have more explicit LGBTQ protection clauses already in effect? And why is there broad enough language in RFRA to permit discriminatory action by individuals and businesses based on any religious belief, no matter how bigoted?

Hopefully by discussing the glaring inconsistencies in these legal and criminal issues, we can raise awareness and begin to fight for the rights of all Indiana residents to be fairly and inclusively treated under the law.

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