An Indiana woman named Purvi Patel was recently sentenced to over two decades in prison after being convicted on charges of feticide, or the unlawful termination of a fetus, and neglect of a dependent. How can those two charges co-exist in a criminal case in a country where abortion is legal you might ask. In July of 2013 Patel went to the emergency room because of sustained vaginal bleeding as a result of a miscarriage of a stillborn fetus. Not knowing what to do Patel told the medical staff at the hospital that she disposed of the stillborn fetus, though the prosecution claimed that the fetus was born alive, in a dumpster and came to the E.R. once realizing that she could not put an end to the bleeding. The police discovered text messages exchanged between Patel and a friend of hers in which Patel claimed to have attempted to purchase abortion-inducing pills from Hong Kong. Under Indiana law it is illegal to purchase these legal drugs online.
The pathologist who examined the evidence and testified for the defense argued that the fetus was approximately 23-24 weeks old and so its lungs were too underdeveloped to survive outside the womb. The pathologist testifying for the prosecution argued that the fetus was actually 25-30 weeks old and was born alive, using the “lung float test” –whereupon one places the lungs in a tub of water and if they float they supposedly have air in them and that air was supposedly acquired through breathing- to make this determination. However, this methodology, going back some three hundred years, and has not been considered scientifically valid for a century, given the variety of ways that air can enter the human body; even the pathologist who posited the theory to the jury as evidence of a live birth admitted that the lung float test is, in and of itself, unreliable. Frankly, it is disturbingly reminiscent of the Trial by Ordeal methods used to determine whether a woman was a witch by throwing her in a body of water to see if she would float or sink.
The prosecution’s pathologist claims there was other evidence indicative of a live birth such as the “weight of the lungs and the other organs, the inflation of the lungs and the air sacs, the presence of blood in the lung vessels and the ‘relative maturity’ of the lungs…along with a lack of blood in the baby’s body”. To the defense’s pathologist this same evidence was inconclusive. Also, the government’s own toxicologist could find no evidence of the abortion pills they claimed Patel took to induce her miscarriage. So, there was no actual direct evidence that supported the charges made by the state, and yet a woman will likely spend the next two decades behind bars.
Then there are the violations of her civil and legal rights. She was interrogated by police after being anesthetized, after losing a substantial amount of blood with the volume percentage of red blood cells present in her body at 22.1%, never having been read her Miranda rights and the judge permitting her illegally and unethically acquired statements to police to be entered into evidence at trial. All this fails to include that a politically active anti-choice OBGYN was permitted to testify in court that the fetus was 30 weeks old despite the fact that OBGYN’s “are not experts in assigning gestational age at birth”.
If one were attempting to scientifically determine the age of the fetus, which was “male and was 12.2 inches (30.99 cm) long and weighed 1.46 pounds (662 g). The body had exsanguinated so we should add about 100 ml/kg of blood, or 70.17 g (the weight of 66.2 ml of blood) to achieve a birth weight of 732.17 grams. Using average fetal growth curves for a male fetus (these are well known) the length is equivalent to 23 weeks gestation and 1 or 2 days and weight of 24 weeks and 3 or 4 days gestation”. Therefore if had experienced her miscarriage in the hospital instead of in her home she would not be in jail now because “at 23-24 weeks a woman is allowed to decline resuscitation” for extremely prematurely delivered fetuses whose viability outside the womb is highly unlikely.
This is not the only case in the United States where people have been arrested, charged, prosecuted, and convicted in the wake of the miscarriage of their pregnancy. Here are seven other cases:
“1. A critically ill, 27-year-old Washington D.C. woman was 26 weeks pregnant when a judge ordered her to have a Cesarean section. He did so with the understanding that the procedure would very likely kill her. It did. The baby died as well.
2. A pregnant woman in Iowa fell down a flight of stairs and went to the hospital. The hospital reported her to the police who arrested her for “attempted fetal homicide.”
3. A Utah woman gave birth to twins, one of which was stillborn. Her doctors blamed the death on her decision to delay a C-section. She was arrested for fetal homicide.
4. A Louisiana woman checked in to a hospital due to vaginal bleeding. She was locked up for a year on charges of “second-degree murder before medical records revealed she had suffered a miscarriage at 11 to 15 weeks of pregnancy.”
5. A Florida woman “was held prisoner at a hospital to prevent her from going home while she appeared to be experiencing a miscarriage. She was forced to undergo a Cesarean.” She still lost the baby, and her two small children at home were left without her while she was held. A state court ruled that this detention was wrong, although it would have been fine if she were further along in her pregnancy.
6. Another Florida woman who went into labor at home was picked up by a sheriff, driven to the hospital and forced to have a Cesarean against her will. She filed suit, and the court concluded that the woman’s personal constitutional rights “clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child.”
7. A severely depressed, pregnant 22-year-old woman in South Carolina tried to commit suicide. She was jailed for child abuse.”
It is unlikely that this trend will stop of its own accord. Since the anti-choice misogynists are unable to outright criminalize abortion they have taken to targeting pregnant people and their abortion rights in less direct ways by passing feticide laws, medically unnecessary clinic regulations, created delays between appointments and procedures, etc., etc., etc. Ultimately this issue is about self-determination and autonomy. But this is not the only issue where beliefs about women and self-determination intersect. Frankly, any conversation about women, but particularly about female sexuality, is littered with ideas intended to restrain a woman’s autonomy. Examine any conversation and it becomes strikingly obvious that value judgments are routinely made to restrain, restrict, or justify a particular legal or moral consideration about women and how they manage their bodies and their lives. Whether it is about contraceptives, consensual sexual activity, number of sexual partners, sexual assault, abortion, clothing, employment, family, and on, and on.
Recently a new phrase entered the American lexicon, the “War on Women”. This phrase, and its emergence in American culture, is both laudable and frustrating. Calling these activities a “War on Women” belies the reality that this is the status quo throughout the world. The “War on Women” did not begin with the election of the Republican Party to the majority position in nearly two-dozen states and the national Congress, and it will not end if Hilary Clinton is elected President in a few years. The banal regularity of patriarchy is precisely what makes it so destructive, and yet so difficult to combat. It must be challenged every day, in every venue, and the people most needed in this fight are men. We are the problem. Certainly there are women who perpetuate this antagonism, but regardless of their behavior the structural inequality between men and women remains. It is real, concrete, and institutionalized; protected by law, politics, religion, education, the police, the courts, and the broader culture. While progress has been made in important ways there is no conceivable reason any fair minded person could believe there has been enough.