TPM Cafe: Opinion

When 'Feticide' Is Just Another Word For Unlawful Abortion

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AP Photo / Charles D. Wilson

This also wasn’t the first time that the state of Indiana tried to charge a pregnant person with feticide after not producing a live birth. The state was already years deep into the case of Bei Bei Shuai (pictured, right, with her attorney), a Chinese immigrant being charged with feticide when her premature infant died a few days after her birth, which prosecution claimed was caused by Shuai’s ingesting of rat poison in an attempt to kill herself. Those charges against Shuai were dropped in a plea deal that was finalized just a few weeks after Patel received her preliminary feticide charge.

At first glance, the two cases have little in common besides the feticide charge itself. One is a woman just a month shy of full term, suffering from depression but carrying a wanted child, who, once she entered the hospital did every thing the doctors asked in order to try to deliver her child in a healthy way and then keep that baby alive. The other, just barely out of her second trimester, allegedly sought and took drugs meant to induce a miscarriage and end the pregnancy, then according to police took repeated steps to hide the delivery, then lied to hospital personnel when she went in for follow up care due to vaginal bleeding.

A closer look shows these two feticide examples are very similar, however, and that they are setting a troubling precedent both for potential pregnant people in Indiana and, maybe, across the United States. Both women were charged on mostly circumstantial evidence (Shuai on the medically unproven assertion that the poison crossed the placental barrier, and a suicide note that said she was killing herself and taking the baby with her, Patel on text messages claiming she was purchasing medication from Hong Kong to try to self-abort), and both had hospital staff that alerted the police to alleged criminal conduct when the women came in for life saving care.

In fact, in the case of Patel, it was an additional doctor, who was brought in to provide a second opinion, which spun her medical emergency into a criminal case. After admitting she delivered at home to a stillborn fetus, which she said she put in a bag and placed in a dumpster, her new doctor went in search of the body. “Fearing for the child, Dr. McGuire then drove to the Super Target and began searching in the dumpsters,” states the police report. “He also called St. Joseph County Police, who joined the search. After searching numerous dumpsters, officers located the body in a dumpster behind Moe’s Southwest Grill. Dr. McGuire examined the body and determined it was deceased. After examining the body, Dr. McGuire’s opinion was that the child was pre-mature and roughly 30 weeks from conception. His external examination noted no reason why the child would not have survived but cautioned that it was based only upon an external examination.”

The fact that hospital staff are policing pregnant women for potential crime should terrify anyone who believes not just in bodily autonomy, but in the idea of hospitals as a place of safety and trust, not suspicion and punishment. The hospital staff had all of the information from Patel that they needed in order to treat her immediate medical emergency, but, because she arrived with signs of labor and delivery but no infant, they began their own investigation and contacted police in order to find the “missing” child and to gather evidence against Patel.

Even the two separate charges filed in the case – feticide and felony neglect – show that the state was determined to charge her with some crime, leaving options open for whether or not the fetus could be determined to be alive at the time of birth or not. As Sally Kohn explains at the Daily Beast, “Upon examination of the fetus by police and medical staff, prosecutors initially charged Patel with felony neglect, a class A felony in Indiana that carries a 20- to 50-year prison sentence. And yet under Indiana law, Patel could only be convicted of neglecting her dependent child if prosecutors could prove she gave birth to a live baby. So, to cover their bases, prosecutors also charged Patel with feticide, a class B felony.”

“The legal knot here is dumbfounding,” continued Kohn. “The State of Indiana intends to convict and incarcerate Purvi Patel one way or another, whether the fetus she delivered was alive or not—never mind the fact that the facts necessary for filing the one charge (that the fetus have been alive) entirely contradict the facts necessary for filing the other (that the fetus have been dead) and vice versa.”

Patel’s lawyer has told The Guardian that the return of the feticide charge is a sign that the state can’t prove felony neglect, which involves a living child. “I don’t think the state can prove a live birth,” he said. But as local lawyer Katherine Jack also told The Guardian, “[T]he state’s feticide law had never been intended to apply to pregnant women. It was initially framed to catch illegal abortion providers, and later expanded to include men who domestically abused their pregnant partners.”

That original use – to catch illegal abortion providers – is likely exactly where the state wants to go. Unlike the pre-Roe era, where a significant portion of those who sought illegal abortions received the procedure via outside illegal providers, today’s world of illegal abortions will be mostly self-induced miscarriages, making the pregnant person herself the “illegal provider” that must be charged.

We already saw Idaho dip their toe in the water on jailing pregnant women for self-induced miscarriage when they tested out “unlawful abortion” charges on Jennie Linn McCormack back in 2011. Prosecution had to drop the charges because they couldn’t find evidence proving that she did actually take medication, nor that even if she had, the medicines actually lead to her miscarriage of a roughly 20 week fetus. The Patel case, where there also appears to be no substantial proof that she took any abortion inducing drugs and, even if she had, her pregnancy was likely far too be certain the drugs actually could cause a miscarriage, could potentially end the same way.

Idaho called it “unlawful abortion” – an act meant to end a pregnancy that is performed by someone other than a licensed medical professional. Indiana is calling it “feticide” – knowingly or intentionally terminating a human pregnancy. In both cases, the statutes were written not to charge those who were pregnant, but to jail someone who might consider performing an illegal abortion on them. However, by whatever name a state picks, what is clear is that there is a growing movement to punish a person who chooses – whether out of financial necessity, lack of accessible clinics, mistrust of the medical profession or some other reason – to take self-abortion into her own hands. And yes, that means putting a person in jail if she is caught.

Even more disturbingly, they appear to be drawing hospital staff into their quest. Sadly, when a hospital can’t be trusted to treat a complication without opening a police report, we truly have a crisis on our hands.

Robin Marty is a freelance writer, speaker and activist. Her current project, Clinic Stories, focuses on telling the history of legal abortion one clinic at a time. Robin's articles have appeared at Rolling Stone, Bitch Magazine, Ms. Magazine, In These Times, Truth Out, AlterNet, RH Reality Check and other publications.