Over the course of his campaign for the presidency, Donald Trump has made scores of derogatory comments about women. Detailing them here would exceed our word limit. But we will mention one of his claims—his suggestion that women should face criminal sanctions for abortions. Activists and the media properly skewered Trump for this idea. The criticism of Trump ignored one big thing, however: we already punish women for having abortions.
Today, the Court of Appeals of Indiana will hear the case of Purvi Patel. Patel is serving a 20-year prison sentence for neglect of a dependent and feticide. Patel became pregnant during an affair she had with a man from work. After failing to menstruate for several months, and at the encouragement of a friend, Patel took a pregnancy test that revealed her pregnancy. In July 2013, Patel ingested an “abortifacient”—a substance that induces abortions—that she’d ordered online and began to miscarry. After delivering the fetus, which she perceived to be dead, she placed it in a plastic bag and put the bag in a dumpster. She then went to the hospital. Once there, two physicians examined her. Patel described the incident and told them that she’d been 10-12 weeks’ pregnant, which is well within the time period for a legal abortion. One of the physicians went looking for the fetus, aided by the police.
Upon finding the fetus, the state’s pathologist determined the fetus had been born alive, established by a process known as the “floating lung test.” The test involves taking a piece of the lung and putting it in water. If the lung floats, a breath was taken. If the lung sinks, then no breath occurred and the fetus was never alive. Yes, that’s the test: modern-day “science” with echoes of medieval practices.
Pathologists disagreed as to the age of the fetus in the Patel case. The pathologist for the defense testified the fetus had not been born alive and deemed the floating lung test unreliable. The pathologist for the prosecution insisted the fetus was 25 weeks, and with the evidence the lungs could float, argued the fetus was born alive.
In the context of a forensic test reminiscent of the Salem Witch Trials, and pathologists who clashed about the status of the fetus, the case became a referendum on Patel’s credibility. To the prosecution, Patel was a cold-blooded killer—a woman who gave birth at home, looked at her baby, and let the child die. Yet, the charges themselves, the first of which (neglect of a dependent) relies on the assumption that there was a child and the second of which (feticide) assumes a fetus, belie the State’s confusion about what it was exactly that Patel did wrong. Further, Patel’s account is dramatically different from the theory entertained by the prosecution: she had missed two periods so the fetus had to be between 10-12 weeks. Once delivered, the body of the fetus was limp and dead. In a state of shock, she drove to the hospital, discarding the fetus along the way. She arrived at the hospital covered in blood and immediately disclosed she had a miscarriage.
The Patel case reveals the dark side of how we treat pregnancy and pregnant women in this country. For women’s rights advocates, the Patel case means we must ask troubling questions.
For Patel, and many other women who seek assistance during their pregnancies, hospitals are not safe havens for medical care, but danger zones where they might encounter the police. There is a long history of this: from the discredited “crack baby” epidemic until today, tales of women arriving at hospitals to give birth only to find themselves ensnared in a criminal justice system that targets badly behaving pregnant women to punish them. Determinations of bad and good behaviors during pregnancy have long been racialized; it does not seem incidental that Patel is of South Asian descent.
The Patel case reveals the dark side of how we treat pregnancy and pregnant women in this country. For women’s rights advocates, the Patel case means we must ask troubling questions. Is it safe to go to the hospital if you have had a still birth at home, let alone if you took an abortifacient and worry about the consequences? Is it safe to go to a hospital if you made a mistake during your pregnancy—perhaps you took drugs—and wanted to ensure your pregnancy remained healthy? The answer to these questions, depending on who you are and where you are, may very well be no.
Donald Trump is escalating the war on women with his rhetoric. The reality, though, is the war is in full swing. And one battleground concerns the criminalization of women who do not conduct their pregnancies in the way society considers most appropriate.
Aziza Ahmed and Daniel Medwed are professors at Northeastern University Law School.