Judge Overturns Purvi Patel's Feticide Conviction

In 2015, an Indiana woman became the first person in the United States to be convicted of feticide for allegedly self-inducing an abortion; she was sentenced to 20 years in prison. On Friday, an Indiana judge overturned Purvi Patel's feticide conviction, stating that the charge was never meant to apply to women who self-terminated their own pregnancies. It's a major break for reproductive justice activists, who argued that Patel's fate set a precedent for state legislatures to target and penalize women who have either attempted to self-induce an abortion, or have suffered a miscarriage or premature delivery.

Patel was convicted of both feticide and neglect of a dependent in March 2015, almost two years after she endured a premature delivery in the bathroom of her parents' home in Granger, Indiana. After trying to resuscitate the fetus on her bathroom floor, Patel wrapped the fetus in a plastic bag and placed it in a Dumpster near her family's restaurant. She then drove to the emergency room to seek medical help. According to court documents, Patel still had a section of the umbilical cord attached to her body when she arrived at the hospital. The documents also claim the fetus was at least 23 weeks gestational age, but the exact age of the fetus could not be determined during Patel's trial.

In an order released Friday, Judge Terry A. Crone of the Indiana Court of Appeals vacated Patel's feticide conviction, and downgraded her neglect of a dependent conviction from a class A to a class D felony. Crone wrote:

As for the feticide conviction, we hold that the legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions. Therefore, we vacate Patel’s feticide conviction.

This clarification of Indiana's heavily scrutinized fetal homicide law was desperately needed. The state places several codes on feticide, including: "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." However, the code explicitly says that fetal homicide provisions don't apply to abortion.

"We are pleased that the Indiana appellate court clarified the meaning of feticide, but this extremely aggressive prosecution should never have happened," Sue Ellen Braunlin of the Indiana Religious Coalition for Reproductive Justice told Bustle in an email.

So why, then, was Patel convicted of feticide? Prosecutors alleged that Patel took abortion-inducing drugs with the intention of killing the fetus. Although there was evidence that Patel purchased abortion-inducing pills online from Hong Kong, it was never proven during her trial that she swallowed these pills. Patel did, however, text her friend that she took mifepristone and two misoprostol pills. Two days later, Patel texted her friend: "just lost the baby."

Still, it doesn't matter if Patel took abortion-inducing drugs or if she suffered an unexpected premature delivery: Women in America are not criminalized for abortion or sudden pregnancy loss.

Judge Crone seemed to agree, writing:

Given that the legislature decriminalized abortion with respect to pregnant women only two years before it enacted the feticide statute, we conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place.

There were other problems with the prosecution, too. Indiana's fetal harm codes stipulate that a fetus must be at the point of viability — at least 24 weeks — for the feticide charge to apply. The age of Patel's fetus was never determined; medical experts who provided testimony said the fetus could have been as young as 23 weeks or as much as 30 weeks.

Patel herself was convinced that she wasn't that far along, telling hospital workers that she believed she was only 10 or 12 weeks pregnant at the time of the stillbirth. When Patel became pregnant, she was engaged in a relationship with a married man and living with her strict, religious parents. She had not gone to the doctor during her pregnancy.

Some legal experts were also confused by the feticide charge coupled with the neglect of a dependent charge; the former applies to a fetus in the uterus, while the latter only applies to a living entity. The charges seemed contradictory — was it the killing of a fetus or was the baby alive? And could you neglect a possibly non-viable, non-living fetus?

For the purpose of the appeal, lawyers for Patel asserted that the baby may have been alive and took at least one breath. Judge Crone agreed, writing in his order: "The State presented sufficient evidence for a jury to find that Patel was subjectively aware that the baby was born alive."

However, Crone downgraded the neglect charge because of lack of medical evidence:

[W]e conclude that the State failed to prove beyond a reasonable doubt that Patel’s failure to provide medical care resulted in her baby’s death. Therefore, we vacate Patel’s conviction for class A felony neglect of a dependent and remand to the trial court with instructions to enter judgment of conviction for class D felony neglect of a dependent and resentence her accordingly.

Although Patel is not yet totally free, her advocates are positive that this brings her even closer to justice. Overturning the feticide charge, too, is integral to protecting the rights of pregnant women in America.

"It should not be so difficult and dangerous for a woman to manage her own fertility," Braunlin told Bustle on Friday. "We call on lawmakers — and on doctors — to stop this criminalization and enact law and policy grounded in public health and human rights."

Since Patel's case garnered national attention, the purpose and reach of these varying state fetal homicide laws have been called into question by reproductive health advocates and legal experts. Following GOP presidential nominee Donald Trump's recent assertion that women who have abortions should be thrown in jail, prosecuting women for having abortions or enduring miscarriages under fetal homicide provisions seemed more and more likely in a not-so-distant America.

This court order should be a warning to Trump, Indiana Gov. Mike Pence, and anti-abortion activists: Throwing women in prison for abortion or sudden pregnancy loss is not an American value.

As for Patel, Braunlin said she and her colleagues hope Patel will be returning home soon. "Purvi and her family are grateful for the good will and prayers of her supporters," Braunlin said.