Ever since news about the case of Purvi Patel broke I've felt like a passerby during a bad car accident--terrified but transfixed.
Patel is the 33-year-old Indiana woman of Indian ancestry who was sentenced to 20 years in prison last week for feticide and neglect of a dependent causing death. Her nightmare began in August 2013 when she walked into a hospital for vaginal bleeding and revealed that she'd delivered a fetus earlier that did not survive. Whether her pregnancy ended in a natural miscarriage/stillbirth or an illegal self-induced abortion depends on what you believe about the facts of her case. The prosecution and defense don't even agree about how far along Patel was and the prosection's pathologist used a widely condemned medical test developed in the 1700s to determine whether the fetus was born alive.
We've seen for decades--basically since the day after Roe vs. Wade was passed--how people who oppose abortion have used all means possible to restrict women's access to the procedure. When these laws shut down clinics, my stomach drops. When these laws scare providers out of practice, my heart races. But when these laws start putting women in jail for the outcome of their pregnancy, I start to feel panicked.
Whatever caused the death of Patel's fetus, a 20-year prison sentence is frightening. It represents the next step in the worse-case scenario of anti-choice sentiment in the United States: the incarceration of women for the outcome of their pregnancies.
In many ways, this is already the case. Last summer I wrote about Tennessee's efforts to criminalize substance abuse during pregnancy and how that carries on the legacy of the crack baby phenomenon of the 1980s. A 2013 article published by Lynn Paltrow and Jeanne Flavin in the Journal of Health Politics, Policy and Law outlines 413 documented cases of arrest and forced intervention on pregnant women in the U.S. since 1975.
Just as Patel's case is murky on the true cause of her fetus' death, it's murky about whether racism impacted her prosecution and sentencing. While there isn't any overt evidence of this, we know that women of color are more likely to be prosecuted than white women. And the only other person prosectued under the state's feticide law was Bei-Bei Shuai, a woman of Chinese descent. She faced similar charges after a suicide attempt during pregnancy. Shuai reached a plea deal, which saved her from serving any jail time. It's hard to look away from the fact that these two women are Indian and Chinese--from two countries often cited for male-son preference and alleged sex-selection through abortion.
Indiana has made various attempts at legally prohibiting both sex- and race-selective abortions. In February of this year, a sex-selective and disability abortion ban passed the state Senate (a similar bill failed in 2013). It's possible that the outcome of these two women's pregnancies faced more scrutiny than a white woman's might have because of racist assumptions that these biases were at play, despite little evidence to support sex-selection among Asian communities in the United States.
Whether racial bias played a role in Patel and Shuai's cases doesn't change the fact that if we see more intervention by the criminal legal system into the outcome of women's pregnancies, it's likely that women of color will face a larger burden of these prosecutions and incarcerations.
Even if only a small number of women are prosecuted in these kinds of circumstances, knowing that they could serve time for the outcome of their pregnancies could keep women from seeking medical care when they are suffering from miscarriage or abortion complications. This phenomenon has been documented in countries where abortion is illegal. And postpartum hemorrhage is the leading cause of maternal death worldwide. If Patel had not sought medical care for the bleeding she was experiencing, could she have died?
I have serious concern that we're moving back toward the pre-Roe era, where abortion is illegal and miscarriage is suspect. Add to that the fact that we're in the context of a three-fold increase in the prison population since that time; the legal consequences of self-induced abortion or a suspect miscarriage could be much much worse. Patel is experiencing just how frightening it is firsthand.