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This has NEVER happened before

Last updated on: April 10, 2015 18:49 IST

Purvi Patel is the first woman in America to be sentenced to prison for foeticide. Chaya Babu/Rediff.com reports on the verdict and the ripples of shock and fear it set off.

Purvi Patel, who was convicted in February on charges of foeticide and neglect of a dependent, was sentenced March 30 by an Indiana judge to a total of 41 years.

She was facing up to 70 years for what she has maintaining consistently was a miscarriage.

Prosecutors in the case claimed Patel, 33, attempted to terminate her own pregnancy, an act sufficient to be charged under the state’s foeticide law, and then gave birth to a child whom she allowed to die. She is the first woman in the United States to be charged, convicted, and sentenced for foeticide, an act that causes death to a foetus and a crime around which the laws have been a hot-button issue between reproductive rights and right-to-life advocates.

“Indiana has now made its foeticide law a tool for punishing women who attempt to terminate their own pregnancies and women who suffer miscarriages and stillbirths,” Lynn Paltrow, executive director, National Advocates for Pregnant Women, told Rediff.com. “The prosecution, the verdict, and the sentence in this case demonstrate that despite the claims to the contrary, the real result of the anti-abortion movement, if not its actual intended goal, is to punish women for terminating pregnancies.”

Patel was arrested in July 2013 after going to the emergency room at St JosephRegionalMedicalCenter in Mishawaka, Indiana. She was bleeding heavily after delivering a premature foetus, which she said was not alive. Though she initially denied having been pregnant, she ultimately told the emergency care attendants that she had a miscarriage and disposed of the dead foetus in a dumpster on her way to the hospital. The St Joseph medical staff called the police, who interrogated Patel while she was still admitted at the hospital, secured her cell phone records, and recovered the foetus.

The state of Indiana contends that Patel’s text messages to a friend prove that she purchased and took abortion drugs in an attempt to end her pregnancy, and that when those attempts were unsuccessful, the foetus she delivered was not only alive but had a viable chance of living.

Critics of the case asserted that the scientific and medical evidence available was not sufficient to prove this: Namely that toxicology tests found no traces of either abortion drug she was alleged to have taken in her bloodstream, that the methodology utilised to determine whether the foetus was alive was a widely discredited one, and that even if the foetus had been born alive, at that early stage of gestation, it’s very likely it would not have been viable.

Reproductive justice and women’s rights’ activists around the country were outraged by the case. The facts of the case as well as the circumstances surrounding it led to a wide range of groups and organisations working to support and advocate for Patel through raising their voices and petitioning the court for leniency in her sentencing.

Sara Ainsworth, also of NAPW, said that the organisation wrote an amicus brief on behalf of 25 public health organisations outlining how cases like Patel’s discourage women from getting prenatal care, undermine public health, and, most simply, are cruel.

The court rejected the brief. And in the end Patel was sentenced to 30 years for neglect, six years for foeticide, and five years of probation adding up to 41 years. She was ordered to serve the two sentences concurrently, with 10 years suspended, making her effective time in prison 20 years.

“It’s absolutely horrible,” said Reverend Marie Siroky of the Indiana Religious Coalition for Reproductive Justice, who was at the hearing March 30. “At first I was hopeful that she was going to get probation or community corrections. I can’t imagine that she has 20 years. She’s 33. Twenty years for basically neglecting less than a minute of life. It sounds odd, but really, that’s what it is.”

According to Rev Siroky, the justifications given for the sentence were biased. She explained that the judge pointed out more than once that Patel was an educated woman of means who could have had a safe and legal abortion but instead chose to take matters into her own hands.

“(The judge) said that, in listening to the testimony, she believed that Patel thought the doctor might tell her that she was too far along to do what she wanted, and that’s not looking at the facts -- that’s the judge’s opinion of what she thought Purvi was thinking in not seeing an OB doctor,” Rev Siroky told Rediff.com. “And she went on to say several times that, ‘...You had his life in your hands and you chose not to give him any chance’.”

But medical experts have differed. Though the prosecution initially stated that the pregnancy was 28 weeks along, autopsy reports later showed that 23 to 24 weeks was more accurate, and Dr Jen Gunter, an OBGYN who has written about Patel’s case, explained that this early stage is considered on the cusp of viability, and even if Patel had delivered at a hospital, she would have had the legal right to decline resuscitative care for the foetus.

“I’ve never heard a judge stipulate so many facts not in evidence, if you will, in her sentencing,” Rev Siroky added. “I was amazed at how much her emotions came into her sentencing. That was very hard. And it was very hard for the family as well to hear.”

Rev Siroky and others also noted the peculiarity of Patel’s case -- the contradictory charges of felony neglect, for which she received 30 years (10 of them suspended), and foeticide, for which she received six years that will be served concurrently. Even assuming Indiana’s foeticide law could be loosely interpreted as an anti-abortion law, many were confused at how Patel could be charged with seemingly opposing crimes.

“It was very disheartening, very upsetting,” Ami Gandhi, executive director, South Asian American Policy & Research Institute, said of the sentencing. “I’m an attorney too and I definitely value the rule of law but this is very much a misuse of the legal system and an unduly harsh punishment given the loss and trauma that Purvi has already suffered.”

Patel helps run her family’s restaurant, and the pregnancy resulted from an affair with a married co-worker. Her lawyers and other supporters argued that as an Indian-American woman, Patel is from a background that frowns upon sexual relationships outside of marriage. The cultural issues at play and the desire to hide the pregnancy as a result of them may have played a role in Patel’s decision not to seek medical care. Yet, they said, rather than providing her with resources following what was likely a gruelling ordeal both physically and emotionally, the state punished her.

This is not the first time, however, that a woman has been charged under Indiana’s foeticide law. In 2011, state prosecutors charged Bei Bei Shuai, a Chinese woman who suffered from depression and attempted suicide while pregnant. She survived, but her foetus did not. The state’s response was to criminalise her and keep her in prison for a year until the foeticide charges were dropped when a plea deal was reached.

Shivana Jorawar, reproductive justice programme director, National Asian Pacific American Women’s Forum, said it does not come as a shock that both Patel and Shuai are Asian American women.

“Across the board, when you look at the types of women who are being charged and criminalised for these so-called foeticide laws, they’re disproportionately low-income women and women of colour, and I think this really speaks to a pattern of who we criminalise in the United States,” she said. “Unfortunately it’s not surprising that it is women of colour who we see most mostly charged with this.”

According to a 2013 study in The Journal of Health Politics, Policy and Law, approximately 71 percent of arrests and forced interventions on pregnant women in the US were low-income women, and 59 percent were women of colour.

Gandhi added that these women as well as immigrant women and others from disenfranchised backgrounds already faced barriers to the healthcare system. This is going to serve as further disincentive, she said: “To me, that’s very concerning: that when someone goes to seek medical care, to try to do the best they can in a terrible situation, they can then be criminalised for it while going through a traumatic health situation.”

Currently, 37 US states have foetal homicide laws. Typically they are framed in such a way that their aim is to punish those who commit a crime against a pregnant women that results in the loss of the pregnancy; Indiana’s application of the law illustrates that the state can use a broad interpretation.

The groups who have been raising red flags around Patel’s case for months say we have reason to fear what this could lead to for pregnant women. “Purvi’s is an important story to tell because she is the first woman to be convicted and sentenced for foeticide in this way,” Jorawar said. “Now there is precedent for turning any woman who experiences a miscarriage or a medical emergency into a murderer in the eyes of the law.”

“Opponents of reproductive rights have always insisted that their efforts are meant to protect, not harm, women. This is a message that they have had to use for what they are doing to be politically palatable, as most of the public -- even those who oppose abortion rights -- does not want to see women criminalised for abortion. As such, abortion restrictions typically penalise doctors, but not women seeking abortion care. What is happening in Indiana shows that their real purpose is to punish abortion, even if women suffer in the process.”

Patel plans to appeal her sentence. The US-based National Advocates for Pregnant Women, Indiana Religious Coalition for Reproductive Justice, National Asian Pacific American Women’s Forum, the South Asian American Policy & Research Institute, and others will continue to gather support from the wider community for her and her family.

Neha Gill of Apna Ghar, which has been involved in fundraising for Patel’s legal defence fund along with RH Reality Check, said they had worked with a diverse national coalition of pregnancy rights, religious groups, women’s rights and South Asian serving groups to organise on the ground and “highlight all the problems with the case -- the law itself, the prosecution, the subsequent conviction and now sentencing. Criminalising pregnancy amounts to denying women their basic human rights, and the especially problematic aspect is that only two women have been charged under the foeticide laws in Indiana -- both were Asian and the only one convicted is South Asian. We are asking that this conviction be overturned and that the law itself be repealed.”

Simultaneously, community representatives said, there was a lot of work to be done in this arena to fight the shame associated with these issues.

Jorawar, noting that Asian American youth report the strongest amount of stigma around sex and reproductive health of any group, and that Asian American women also have one of the highest suicide rates in the country, said, “Our community needs to be more intentional and open about having conversations around reproductive and mental health. We know that our community is very progressive on the issue of abortion… However, despite our supportive values, we are not openly discussing reproductive health. As a community, we need to begin taking steps to de-stigmatise reproductive health and mental illness.”

Gandhi echoed Jorawar: “We definitely acknowledge that that stigma and difficulty exist, and we feel it very tangibly in our work that we do. But what we also have noticed is that many South Asian community members -- and that includes both those born here and those who came as immigrants -- are actually very supportive of women’s health and autonomy, especially as we talk to people one on one and we look at some of the data.”

According to nonpartisan data like statistics from a 2013 PewResearchCenter report, 54 percent of Asian Americans said that abortion should be legal in all or most circumstances, which is higher than the national average of 51 percent.

According to the 2012 National Asian American Survey, 78 percent of Asian Americans supported some form of legal abortion and 69 percent agreed that abortion was a private matter -- not a decision for the government to interfere in.

Gandhi also said that what she had seen on this front in the recent weeks had brought some light into a dark story.

“Indian and Pakistani community members and others with roots in Indiana, including elders and first-generation immigrants have expressed support and concern about this case and were very alarmed at the idea of her getting a large sentence,” she explained, adding that the element of the case that most resonated with her own parents and others of their generation was that they could easily see their daughters in Patel’s shoes.

“It made me think that if this many aunties and uncles feel so strongly and want to support Purvi and her family, maybe the next time a difficult situation comes along for a young woman in our community, maybe there is some hope that she can actually talk to her parents or talk to her community and get the help she needs before the situation becomes worse.”

Photograph: (above) Purvi Patel. Illustration (top) by Dominic Xavier/Rediff.com

Chhaya Babu/Rediff.com in New York