The state of Indiana rightly found itself in the center of widespread controversy this week, as an important battle raged over Indiana's Religious Freedom Restoration Act (RFRA). Meanwhile, with far less fanfare, the state sentenced a woman to 20 years in prison for miscarrying a pregnancy.
Purvi Patel is the first woman to be jailed for feticide—illegal self-abortion—in the United States, and her sentencing this week sets one of the most dangerous precedents in our recent legal history. Patel's conviction and the law that enabled it must be overturned.
Patel, 33, was charged with both child neglect and feticide. I'm not the first to note that this is wildly contradictory: child neglect entails that Patel neglected a live infant, while feticide would mean that the baby was born dead. The conviction seems to posit a bizarre Schrödinger's cat birth—the baby would have to have been both alive and dead at the same time for both of Patel's charges to logically stick in tandem. But blatant contradictions don't matter, of course, when conservative moralism is at the core of a judicial case. The state, however, argued both charges could apply by expanding the notion of feticide to an unsuccessful attempt to end a pregnancy.
Patel insists that she miscarried and, in a panic, abandoned the stillborn fetus in a dumpster. She was reported to the authorities by a doctor from St. Joseph Regional Medical Center, where she arrived in July 2013, bleeding heavily with a protruding umbilical cord. We can't know the precise truth about Patel's pregnancy, or whether she did something that caused the miscarriage. But the potential reverberations of her case are huge. As Lynn M. Paltrow, Executive Director of National Advocates for Pregnant Women, wrote, "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."
At the same time that access to legal abortion is threatened on a grand scale—a new law could reduce the number of abortion clinics in the entire state of Texas to 10—draconian feticide laws criminalize desperate women driven to last resorts when legal abortion is de facto banned. Patel is the first woman to be jailed for feticide, but not the first convicted—an earlier Indiana case saw Bei Bei Shuai charged with murder and feticide and sentenced to time served when her attempted suicide allegedly led to the death of her fetus.
Feticide laws, which aren't confined to Indiana, have also been used to punish pregnant drug users as murderers. Rennie Gibbs was charged with murder in Mississippi in 2006 for having a stillborn daughter while addicted to cocaine. The charges were dismissed when experts later determined that the baby had likely not died of cocaine toxicity. But a perturbing judicial logic was at play nonetheless: a woman can legally and intentionally end a pregnancy, but to unintentionally do so, as in Gibbs's case, can be criminal.
The feticide law in Indiana was originally intended to criminalize the intentional termination, outside of legal abortion, of another person's pregnancy. For example, if an act of violence were carried out against a pregnant woman in the knowledge that it would terminate the pregnancy, then both woman and fetus could be legal victims. Paltrow noted that "turning this law into one that can be used to punish a woman who herself has an abortion is an extraordinary expansion of the scope and intention of the state’s law."
Patel's two-decade sentence sends a chilling message about the extent to which a woman can be reduced in the eyes of law to a reproductive vessel, and brutally punished if she fails to perform as such. It’s emblematic of the shape of U.S. justice: deny people (specifically poor communities and people of color) access to necessary resources, ensure desperation, then criminalize desperate acts and, of course, abundantly incarcerate. It is anti-choice in the most totalizing, dystopian sense: to reduce and reduce a woman's ability to choose so completely that there are no choices left, and she is literally put in a cage.