Indiana court to hear woman’s appeal of feticide conviction

Attorneys for an Indiana woman found guilty of killing the premature infant she delivered after ingesting abortion-inducing drugs will ask an appeals court Monday to throw out the convictions that led to her 20-year prison sentence.

At issue is Indiana's feticide law, which the defense says was "passed to protect pregnant women from violence" that could harm their developing fetus, not to prosecute women for their own abortions. The state argues that the law "is not limited to third-party actors" and can apply to pregnant women.

Attorneys for 35-year-old Purvi Patel will urge the Indiana Court of Appeals to reverse her 2015 convictions on charges of feticide and neglect of a dependent resulting in death. The state's attorney general's office will defend the northern Indiana jury's decision.

Patel, of Granger, was arrested in July 2013 after she sought treatment at a local hospital for profuse bleeding after delivering a 1½-pound infant boy and putting his body in a trash bin behind her family's restaurant. Court records show Patel purchased abortion-inducing drugs online through a pharmacy in Hong Kong, took those drugs and delivered a premature baby in her home bathroom.

Patel lived with her parents and grandparents, and she feared her family would discover she had been impregnated by a married man, according to court documents.

Patel's attorneys contend her convictions are not supported by the evidence and that the laws prosecutors used don't apply to her alleged actions in the child's premature delivery.

Two dozen women's advocacy groups, as well as Planned Parenthood and the American Civil Liberties Union, all have filed friend-of-the-court briefs siding with Patel.

At least 38 states have fetal homicide laws, according to the National Conference of State Legislatures. But the Patel case was the first time a state feticide law has been used against a woman specifically because of "an alleged self-induced abortion," said Jill E. Adams, executive director of the abortion rights advocacy group Center on Reproductive Rights and Justice.

"Prosecutors have been very creative and very egregious, stretching far beyond the letter of the law and even the legislative intent behind the law," she said of efforts by prosecutors in some states to use a variety of laws to criminalize self-induced abortions.

Becky Rogness, a spokeswoman for the anti-abortion group Indiana Right to Life, declined to comment on the Patel case.

Indiana's feticide statute, enacted in 1979, made it a crime to "knowingly or intentionally" end a pregnancy with a goal other than to produce a live birth or to remove a dead fetus. The law does not apply to abortions performed in compliance with Indiana's abortion statutes.

In 2009, Indiana lawmakers increased the possible prison terms for feticide convictions to between six years and 20 years, up from the previous two years to eight years. The change was prompted by the 2008 bank robbery shooting of an Indianapolis bank teller who was five months pregnant with twin girls. The woman survived after being shot in the abdomen, but she lost her twins.

Attorneys for the state argue that Patel's infant was at least 25 weeks into gestation, just beyond the threshold of viability, and had taken at least one breath before dying. The state's brief also argues that Patel "has not met her heavy burden to prove that Indiana's feticide statute constitutes an undue burden on the right to obtain an abortion."

Bryan Corbin, a spokesman for Indiana's attorney general's office, said that in all appeals the "defendant has the burden of proof on appeal."

One of Patel's attorneys, Stanford University law professor Lawrence C. Marshall, declined to comment, saying Patel's "position is contained in the briefs and the arguments that will be delivered Monday."

Patel's appeal also contends she should not have been convicted of neglect, arguing prosecutors failed to prove she knew she had delivered a live baby or that she could have done anything to save its life. It argues that summoning medical help would have been "futile," citing a forensic pathologist's testimony that the infant likely would have died within about a minute.

In its brief, the state argues that prosecutors were "not required to prove that an attempt to obtain medical care would have saved the baby's life, only that Defendant placed her baby in appreciable danger by not obtaining medical care for him."

This story will be updated. Read more about the Patel case and arguments in the June 1 issue of Indiana Lawyer.