Feticide laws force birth and punish women

A 33-year-old woman in Indiana, Purvi Patel, presented to an emergency room with vaginal bleeding and when it was obvious that she had very recently delivered a baby the doctors on call notified the authorities. The body of her 28-week gestation infant was recovered. The pathologist believed the baby had taken a breath so Ms. Patel was with charged with neglect of a dependent. Sometime later the police realized she had purchased two “prescription” medications online for abortion and feticide charges were added. As an OB/GYN I see this case very differently than the prosecutor in St. Joseph’s county. Here’s why.

Ms. Patel is charged with neglect because she did not call an ambulance or seek medical care “immediately” when she delivered prematurely, resulting in the death of the newborn. While we may never know what was going through Ms.Patel’s mind as she delivered alone and unassisted, when this happened to me I was paralyzed by fear and shock and I am an OB/GYN. While the circumstances were slightly different for my delivery (I was also very premature, but my baby was wanted) the only thing I could do was scream and cry. I’m not sure I could have composed myself enough to get to a phone for some time so how would a woman who likely thought she was nowhere near the third trimester with no medical background be expected to act? Calm and collected? She may have been weak from blood loss, confused, or even passed out after she delivered. Never mind the fear that she might have felt due to Indiana’s history of persecuting women in similar desperate circumstances. Keep in mind this is a state that prosecuted Bei Bei Shua for feticide when her fetus died as the result of her suicide attempt and a state that jailed a pregnant woman for two days when she sought care for falling down the stairs and had confided to her nurse that she was ambivalent about her pregnancy.

What if Ms. Patel had called an ambulance? There is no way to know if an extremely premature baby who delivered at home unaided could even have been resuscitated by paramedics. Extremely premature babies typically require immediate neonatal intensive care, so the baby may have died in the time it took Ms. Patel to recover enough from the delivery to having a look. As the pathologist commented that most of the blood had been drained as the cord had not been clamped the baby likely died almost immediately after delivery and there would have been no chance of resuscitation outside of a hospital.

It is then clear why the prosecutor added feticide. The jury might very well believe that Ms. Patel wasn’t guilty of neglect, that perhaps she wanted to call for help but was simply too scared, in shock, or bleeding too much. The jury might also not believe the pathologist, raising reasonable doubt that the baby was born alive. The jury might also believe that an unassisted home birth is traumatic and the very fragile umbilical cord of an extremely premature baby could easily snap at delivery and unless a skilled team had been on the scene at that time there was no hope of survival. So, if a conviction is to be secured a second charge must be added. Hence feticide from the drugs bought online.

However, it is very likely Ms. Patel never even took an abortifacient. Many (if not most) online pharmacies selling “abortion” drugs are profiting from counterfeit medication, sugar pills, expired product, or even an entirely different drug altogether. Womenonwaves.org has an incredibly long list of pharmacies that sell bad abortion medications. A desperate market is a profitable one. To whom exactly would a pregnant woman complain when she doesn’t complete what the state has deemed an illegal abortion? It is most likely (far beyond a reasonable doubt) that Ms. Patel took anything but an abortifacient. Testing other drugs from the same online pharmacy won’t reveal anything. Every pill might contain something different. That’s what happens without regulation.

So if Ms. Patel didn’t take an abortifacient why did she deliver prematurely? We don’t what she really took or the time frame from ingesting this medication until her delivery, but we do know that it appears she had the single biggest risk factor for a premature delivery: no prenatal care. It is far more likely that she delivered early because of her lack of prenatal care than ingesting anything she bought online.

The feticide charges have ramifications far beyond this case. What is stopping a prosecutor from charging a woman with feticide if she smokes during pregnancy and has a stillborn? Smoking is likely far more fetotoxic that whatever online pharmacies are selling to desperate women. What about obesity, another major risk factor for stillbirth? If feticide laws are about protecting fetal life doesn’t all fetal life matter? The prosecutor in the Bei Bei Shua case tried to allay concerns that the state of Indiana wants to “monitor pregnancies”and while I am in no way suggesting that maternal behavior in pregnancy be criminalized to say that fetal life only matters when abortion is involved is a very challenging construct. It is clear these feticide laws exist not to save babies but to force birth and punish women.

When a woman desperately doesn’t want to be pregnant and the state has limited her options she will resort to almost anything. Ms. Patel’s case is evidence of that. Feticide laws will not stop a woman from sticking a sharp object blindly into her vagina in the hopes that she punctures her uterus, prevent her from going to a doctor who purports to be able to help but is really quite dangerous, or from buying drugs online. Sending a woman to trial for feticide only drives unsafe abortion further underground. Given Ms. Patel faces the possibility of decades in jail because she failed to call an ambulance after her unassisted premature delivery of an infant that likely could never have been resuscitated by paramedics even if they had been on the scene do you think the next time a woman in Indiana attempts a home abortion (because there will be a next time) that she will be more or less likely to deliver at home, attempt to cover it up, and bleed to death on her floor?

Jennifer Gunter is an obstetrician-gynecologist and author of The Preemie Primer. She blogs at her self-titled site, Dr. Jen Gunter.

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