Indiana has been making the news lately. In addition to its struggles over legislation concerning conflicts between the rights of LGBT people and religious liberty claimants, the state last month reportedly became the first in U.S. history to sentence a woman to prison for feticide. The woman in question, Purvi Patel, claims that she suffered a miscarriage and discarded the dead fetus (after trying unsuccessfully to resuscitate it), subsequently heading to the hospital for medical care, bleeding heavily. The prosecutor claimed (and successfully convinced a jury) that Patel deliberately and illegally attempted to bring about the death of her fetus but delivered a live fetus, a dependent whom she then neglected. For these crimes, she was sentenced to what amounts to 20 years’ imprisonment.
According to Purvi Patel, she miscarried her pregnancy. If she is telling the truth, then her conviction and sentence certainly represent grave injustice.
The prosecutor’s story is quite different. According to the prosecutor, Ms. Patel took drugs (though reportedly, no drugs were found in her system) to try to terminate her pregnancy at 25 weeks in a manner that amounted to “feticide,” defined by Indiana law as occurring when “[a] person . . . knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus . . .” provided that what occurred was not an abortion that complies with Indiana law regulating abortion. In addition, the prosecutor claimed that the fetus was born alive (evidenced by an arguably discredited “float test” that proved there was air in the fetus’s lungs, which might mean that the fetus took a breath after birth). If the fetus was alive at birth, then, the prosecutor contended, Ms. Patel’s discarding of the fetus (rather than, for example, taking it to the hospital) constituted the neglect of a dependent that led to its death.
Indiana is not the only state with a law prohibiting feticide. An overwhelming majority of states have passed such laws, and at least one reason offered for them has been the desire to protect fetuses from violent attacks on pregnant women by third parties. In an old California case from 1970, Keeler v. Superior Court, a man learned of his ex-wife’s former infidelity and pregnancy with another man’s child and went on to attack her and stomp on her belly, stating as he did so, “I’m going to stomp it out of you.” Since the woman in that case did not die, the attempt to prosecute her assailant for murder was a failure, despite the fact that he deliberately killed the late-term, viable fetus of a woman who had every intention of taking her pregnancy to term. This was because the fetus did not qualify as a “human being” within the meaning of the California statute. People of all political stripes could join hands in their disapproval for his getting away with what he did, and the prospect of other similar cases played some role in yielding laws prohibiting feticide.
What makes Ms. Patel’s case different from cases like Keeler is that even if the facts are as the prosecutor claims they are, Ms. Patel was not attacked by a third party. Instead, she—according to the prosecutor—decided to intentionally terminate her own pregnancy, albeit in a manner that did not conform to the laws regulating abortion. To the extent that feticide laws were intended to protect women and their wanted pregnancies against third party violence, the use of the law in this case plainly deviated from that intention.
Empathy for a Viable, Perhaps Sentient Fetus
Let us, however, put aside for a moment the objective of protecting pregnant women from violent third parties. Is it not independently legitimate for the law to aim to protect viable, sentient fetuses from violence, regardless of the source of that violence? The U.S. Supreme Court has said that at some point during pregnancy—viability—a woman no longer has the right to have an abortion. And surely, once a viable fetus has emerged from the womb alive, as the prosecutor in this case claims happened here, there would not appear to be a right on the part of the woman (or anyone else) to secure the fetus’s death by discarding its live body in a dumpster.
Instead, having given birth to a viable fetus, doesn’t a woman automatically become responsible for the care of that fetus? To put the point slightly differently, shouldn’t we care about the viable fetus whom, according to her conviction, Ms. Patel first tried to kill with abortifacient drugs and then discarded as trash without assistance after giving birth to it alive?
One answer to this question is “of course we should care.” To the extent that a 25-week-old fetus is already sentient and thus can experience pain and pleasure, he or she is a being worthy of moral consideration. One could argue (and I and others have argued) that given the enormous invasion of a woman’s bodily integrity that an unwanted pregnancy entails, she still should not be forced to remain pregnant, even when her fetus is sentient and viable. But one could respectably hold a different view, at this late stage in pregnancy, and Indiana law appears to hold that different view—one that Supreme Court precedent permits. Furthermore, if—as her conviction indicates—Ms. Patel’s fetus was born alive, then we are no longer talking about her interest in terminating an unwanted pregnancy at all. We are talking about the interests of a sentient infant-like fetus who was arguably entitled, at the very least, to be brought to a hospital into the able hands of medical practitioners.
I would not dispute that one could legitimately feel empathy for the fetus in this case. But the question remains whether the appropriate way to express that empathy is to imprison Purvi Patel for twenty years for what happened. My thinking is that the answer to this question is plainly no.
The pro-life movement has long attempted to prohibit abortion as an act of murder against an innocent human life. Yet even so, as I discussed in another column, people in the pro-life movement in the United States typically aim to criminalize the provision of abortion by third parties to women rather than criminalizing the acts of the women who are actually having the abortions.
One way of thinking about this distinction the movement draws between providers of abortion and the women who seek their services is that it perhaps reflects a recognition (if a rather minimal one) that a woman facing an unwanted pregnancy experiences great stress and pressure, mitigating forces that mean that she should not be treated as sharing the same culpability as third parties who are not in a similarly pressing situation. That is, even those in the United States who believe that abortion is murder appear to view the circumstances of the pregnant woman seeking a termination as reducing her responsibility and as calling for empathy.
Prosecuting Ms. Patel for feticide in connection with her attempting an abortion (assuming that she intentionally tried to terminate her pregnancy, as alleged by the prosecutor and accepted by the jury) denies Ms. Patel the force of that empathy and the corresponding recognition that she found herself in a painful, traumatic, and difficult circumstance that ought to have carried substantial weight in the decision whether to prosecute her criminally for her actions.
And what about her subsequent decision to discard her fetus in a dumpster rather than bringing it to the hospital? Again, from the perspective of the fetus, if it was in fact 25 weeks old, viable, and sentient, then what happened was a tragedy. But even if the fetus was alive, Ms. Patel was most likely confused and unable to clearly process what she was seeing, if we assume that she had previously taken abortion drugs that she believed would successfully terminate her pregnancy and thus kill her fetus. Ms. Patel was not, in other words, a woman having a home delivery of a baby whom she suddenly decided to abandon and to whom she denied maternal care. Even if we accept the prosecutor’s version of what happened, Ms. Patel was in a vulnerable state and might not have known what, if anything, she could have done to save a being whose state of development would have been visually so alarmingly different from that of a newborn baby. Hearing about what happened to Ms. Patel, on the prosecutor’s account, I cannot help feeling a combination of great sadness for the fetus and empathy for the woman. Prosecuting Ms. Patel strikes me as the wrong thing to have done.
It can be easy to forget that we cannot rectify every injustice with retribution and that retribution can sometimes augment rather than ameliorate injustice. Regardless of how one feels about Ms. Patel’s fetus (and regardless of whether one believes that she tried to have an abortion and/or that the fetus was truly born alive), one can see that Purvi Patel is not a “murderer” deserving of a twenty-year prison sentence. Compounding this sense is the knowledge that the last time Indiana prosecuted a woman for feticide, the target was a pregnant woman, Bei Bei Shuai, who attempted suicide and survived, though the fetus did not. Though certainly a different case, its consideration along with Ms. Patel’s highlights a failure of empathy for women in pain whose circumstances, at the very least, call for mercy rather than the pure retributive impulse that appears to be animating the State of Indiana.