On August 31, 2016, Purvi Patel walked out of the Indiana Women’s Prison, after fighting a conviction and 20-year sentence for attempting to have an abortion. By the time she won her appeal, she had already spent over a year in prison.
While the fight for reproductive rights is generally thought of as one about access to abortion and contraception, it is increasingly clear that attacks on reproductive rights also often involve the use of the criminal legal system.
In Patel’s case, she suspected that she might be pregnant in 2013. She did not want to be pregnant, and thinking she was still early in her pregnancy, she took medication she obtained online that could safely and privately end her pregnancy. She was, however, much further along in her pregnancy than she had realized. At approximately 25 weeks of pregnancy, she delivered what she believed to be a stillborn fetus at home. Following the delivery, she disposed of the fetal remains, and sought assistance at a local hospital.
By the time she arrived at the hospital, she had already lost 20 percent of her total blood volume. After some questioning and an initial physical examination, hospital staff began to suspect that she had delivered and abandoned a newborn. While Patel was in surgery, one of the OBGYNs who examined her called the police and left the hospital to search for what he believed might be a live infant.
Patel awoke from surgery to find two police officers by her bedside. They interrogated her. Shortly thereafter, they charged her with the crime of neglect of a dependent. When further police investigation found evidence that Patel used medication in an effort to end her pregnancy, she was also charged with feticide. The prosecution argued that the feticide law, passed to deter harm to pregnant women, could also be used to punish a woman for having or attempting to have an abortion.
That a woman herself could face criminal penalties for having or attempting to have an abortion outraged many and challenged the claim by leading right to life organizations that laws they support will not result in punishment of pregnant women themselves.
Patel is just one of a growing number of women in the United States whose pregnancies have led to arrest, prosecution, conviction, and incarceration. The 1973 Roe v. Wade Supreme Court decision is commonly thought to have decriminalized abortion, but many abortion laws today continue to allow criminal penalties. Although these penalties are generally directed to doctors, a handful of states — including Delaware, Idaho, Nevada, New York, Oklahoma, South Carolina, and Utah — have laws on the books that specifically permit punishment of women when they have an abortion in certain circumstances. More significantly, 38 states have feticide laws. And every state has scores of criminal laws that prosecutors may misuse or already have misused to punish pregnant women.
For example, in 2015, a Georgia woman who allegedly attempted to terminate her pregnancy at home was arrested on a charge of malice murder. She continues to face a charge of possession of a “dangerous drug” — which in her case is the safe, effective, and widely used medication misoprostol that, among other things, can end a pregnancy. In Arkansas the same year, a woman who allegedly terminated her pregnancy outside of a hospital is appealing her conviction for “concealing a birth.” And in Tennessee, a woman who allegedly used a coat hanger to try to end her pregnancy was initially arrested for attempted murder. She remains charged with the crime of “fetal assault” — a law passed under the guise of addressing issues involving pregnant opioid-using women.
Since 1973, at least 1,000 women have been subjected to arrests or equivalent deprivations of liberty in which it is clear that but for pregnancy, their conduct would not have been investigated or punished. Otherwise non-criminal acts such as attempting suicide, falling down a flight of stairs, drinking alcohol, failing to get bed rest, not consenting to surgery, and using drugs (as opposed to possessing drugs) become criminal acts because the woman is pregnant.
Women who have had stillbirths and miscarriages have been charged with homicide and feticide. Women who have gone to term and given birth but allegedly risked harm by drinking alcohol or using a controlled substance have been charged with crimes such as child abuse, delivery of drugs to a minor (through the umbilical cord), and chemical endangerment of a child. And like Patel, women have been charged with a variety of crimes for having or attempting to have an abortion.
Those targeted for arrest are overwhelmingly low income and a disproportionate number are women of color
Fortunately, the Indiana Court of Appeals reversed the feticide conviction for Patel, holding that the feticide law was not intended to punish women who have or attempt to have abortions. The Court also downgraded the neglect of a dependent conviction, holding that nothing about her pregnancy, including her decision to end that pregnancy, could be used as evidence of neglect of a child after it was born. The Court based its decision in part on an earlier case, State v. Heron, in which it rejected the use of the state’s child neglect statute to punish a woman who went to term and had allegedly used cocaine while pregnant.
But hundreds of other pregnant women, whose cases did not generate the same public outcry and media attention, have been arrested or remain vulnerable to prosecution for otherwise lawful acts simply because they are pregnant. The fight for reproductive rights thus involves much more than removing obstacles to abortion services. It demands that we recognize and challenge how the criminal legal system is being used to deny pregnant women equal treatment under the law.
Lynn M. Paltrow, J.D., is the Founder and Executive Director of National Advocates for Pregnant Women (“NAPW”).
Lisa K. Sangoi was formerly a law fellow and staff attorney with the National Advocates for Pregnant Women. She is now a Soros Justice Fellow at the NYU Law Family Defense Clinic.