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Patel decision restricts feticide prosecutions

August 10, 2016

Lawyers who succeeded in persuading the Indiana Court of Appeals to reverse a Granger woman’s feticide conviction for taking drugs that resulted in an induced abortion hailed the decision they say restricts the misapplication of state law.

“I think it sends a very strong message to prosecutors,” said Indianapolis attorney Linda Pence, who drafted an amicus brief for the Innocence Network in Purvi Patel’s appeal and years earlier represented Bei Bei Shuai of Indianapolis in a similar case. “I think it does kind of put these kinds of prosecutions behind us. I’m just thrilled to death with this, because that’s the right outcome.”

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St. Joseph County Prosecutor Kenneth P. Cotter, whose office prosecuted Patel after charges were brought by former Prosecutor Michael Dvorak, said it would be unethical for a prosecutor to bring a feticide charge in a case such as Patel’s in light of the Court of Appeals ruling. “I don’t have the luxury of being able to charge something our courts are saying are not crimes,” Cotter said. “I don’t think any prosecutor ever would.”

Cotter said he hasn’t decided yet whether to seek an appeal, but he appreciated the policy determination the court made that clarified the Legislature’s intent. “If this stands, then we now have a framework in which to operate.”

Patel’s case was bolstered by more than two dozen friends of the court whose positions were submitted in briefs on her behalf.

“It generated a lot of interest, and that just shows why prosecutions like this are a bad idea,” said Greenfield attorney Kathrine Jack, who wrote an amicus brief in Patel’s case for the National Advocates for Pregnant Women, health and bioethics experts, and women’s rights and reproductive justice organizations.

Pence said that like Shuai, Patel became pregnant under difficult circumstances and, while in great distress, chose to end her pregnancy. Patel ordered RU-486 and another drug from an online pharmacy, took them and delivered a baby at about 25 to 30 weeks. She disposed of the baby in a Dumpster near a Mishawaka restaurant where she worked, then went to the hospital for treatment of severe bleeding. Hospital staff called police, and Patel was charged with Class B felony feticide and Class A felony neglect of a dependent. A jury convicted her, and she was sentenced to serve 20 years in prison.

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A Court of Appeals panel last month reversed the feticide conviction, reduced the Class A felony neglect conviction to a Class D felony, and remanded for resentencing accordingly. Patel already has served one year and four months in the Indiana Women’s Prison.

“(W)e hold that the legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions,” Judge Terry Crone wrote for the panel in a 42-page opinion in Purvi Patel v. State of Indiana, 71A04-1504-CR-166.

“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,” 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 wrote. The Indiana Supreme Court in Baird v. State, 604 N.E.2d 1170 (Ind. 1992), disagreed with a 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.  

“Assuming the opinion stands, I think it’s a step forward because of all the public health reasons that are cited in our brief,” Jack said. “Women who are having any kind of medical issue in their pregnancy should be able to seek treatment without fearing arrest. Here we have a woman who went into a hospital bleeding, seeking medical care, and it ended up in a criminal probe. We don’t want women to be afraid to go to the doctor or hospital for any reason.”

The office of Indiana Attorney General Greg Zoeller would represent Cotter if the prosecutor asks for a rehearing or petitions the Indiana Supreme Court to grant transfer. “The Attorney General’s Office will review the Court’s opinion in the Patel v. State case and confer with its clients and decide on next legal steps, if any, by the appropriate deadlines,” spokesman Bryan Corbin said in a statement after the ruling.

Patel’s attorneys, Indiana University Robert H. McKinney School of Law professor Joel Schumm and Stanford Law School professor Lawrence Marshall, declined to comment.

Jack said she also was pleased with the decision’s language regarding the neglect charge the COA reduced. Crone cited Herron v. State, 729 N.E.2d 1008, 1010 (Ind. Ct. App. 2000), which held that an unborn child isn’t considered a dependent under the neglect statute.

While the state presented sufficient evidence to find Patel was aware the baby was born alive and that she endangered the baby by failing to provide medical care, the state could not prove her failure to provide care resulted in the death of the baby that weighed less than one-and-a-half pounds.

“The State chides Patel for ‘deliberately induc[ing] the premature delivery of her baby’ with no ‘medical supervision and in a setting where there would be no … medical help available for the child,” Crone wrote. “But these conditions are invalid under Herron, in which we stated that the plain language of the neglect statute ‘contemplates only acts that place one who is a dependent at the time of the conduct at issue in a dangerous situation — not acts that place a future dependent in a dangerous situation.”

“We’re pleased that the appellate court upheld the jury determination that she neglected the child,” Cotter said. He said the evidence leading the jury to conclude the child was alive when born was based on solid science.

While the COA decision makes a future feticide prosecution of a pregnant mother unlikely, Cotter said he would never second-guess his predecessor’s decision to file the charge against Patel. “I had zero problem going forward with the charges,” he said.

Pence said if lawmakers wish to charge women who induce abortions, they may do so by passing laws criminalizing that conduct after an argument on the merits. “But don’t take these statutes that were created without any of these prosecutions (of pregnant women) in mind and then misconstrue that statute. … Everything isn’t supposed to wind up in the criminal system.”•

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