COA tosses feticide conviction, says statute doesn’t apply to self abortion

The Indiana Legislature did not intend for the state’s feticide statute to apply to pregnant women or illegal abortions, including the one a northern Indiana woman executed by taking drugs ordered from Hong Kong, the Court of Appeals held Friday.

Purvi Patel, of Granger, became pregnant after having a relationship with a married man. She did not tell her family and instead purchased mifepristone and misoprostol online from a Hong Kong pharmacy and used the drugs to terminate the pregnancy at home. She delivered a baby believed to be approximately 25 to 30 weeks, then put the baby in a bag, drove to a Dumpster behind her work, and disposed of the baby. She then went to the hospital, where staff there determined she had been farther along than she claimed and called police.

The state charged Patel with Class A felony neglect of a dependent, alleging she failed to provide medical care to her baby immediately after his birth, which resulted in his death; and Class B felony feticide, alleging she knowingly terminated her pregnancy with the intention other than to produce a live birth or remove a dead fetus. She was convicted by a jury last year and sentenced to 20 years executed in prison and 10 years suspended on the neglect charge and six years for feticide, to be served concurrently.

She appealed her convictions, which led to many national groups joining as amicus parties, including the National Advocates for Pregnant Women and the National Asian Pacific American Women’s Forum. Those groups claimed that upholding Patel’s convictions would criminalize women for their pregnancy or childbirth outcomes.

In Purvi Patel v. State of Indiana, 71A04-1504-CR-166, the appellate court unanimously vacated both of Patel’s convictions.

“Since the legislature enacted the feticide statute in 1979, it has been used to prosecute third parties who knowingly terminate pregnancies by using violence against the expectant mother without her consent. This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” Judge Terry Crone wrote.

The judges found this case to be an “abrupt departure” from other cases, including Kendrick v. State, 947 N.E.2d 509 (Ind. Ct. App. 2011), in which the state used the feticide statute to prosecute a bank robber who shot a pregnant teller in the abdomen, leading to the death of her twins.

“The State’s about-face in this proceeding is unsettling, as well as untenable under Baird,” Crone continued. The Indiana Supreme Court in Baird v. State, 604 N.E.2d 1170 (Ind. 1992), disagreed with a man’s contention that the feticide statute is used to punish people who perform illegal abortions, not those who kill a pregnant woman with no intent to harm the fetus.  

Based on language used in I.C. 16-34-2, the Legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions, Crone wrote.

The judges also held the state presented sufficient evidence for the jury to find Patel was subjectively aware that her baby was born alive and that she knowingly endangered the baby by not providing medical care. But, the state did not prove beyond a reasonable doubt that the baby would not have died but for Patel’s failure to provide medical care. The judges ordered Patel’s Class A felony conviction vacated and remanded for the court to enter the conviction as a Class D felony and resentence her accordingly.

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