Most of the world recognizes it’s wrong to criminalize women for having an abortion, what about Indiana?

Cross-posted on Human Rights at Home Blog: 

Most of the world recognizes it's wrong to criminalize women for having an abortion, what about Indiana?, by Cynthia Soohoo

On Monday, the Indiana Court of Appeals will hear oral argument to determine if Purvi Patel was wrongly convicted and sentenced to 20 years in prison for seeking to terminate her own pregnancy. Through a questionable reading of Indiana law, the prosecution was able to convict Patel of two inconsistent crimes: feticide and child neglect. If affirmed, Indiana’s expansion of these crimes will pose a serious threat to women’s constitutional right to choose to terminate a pregnancy and will place all women who fail to deliver a healthy baby in danger of criminal prosecution.

Patel was convicted of feticide for purchasing drugs over the internet to induce an abortion. Yet, Indiana’s feticide law was never intended to apply to abortions. The law was passed following the shooting of a pregnant woman that caused a stillbirth. Recognizing feticide as a crime was intended to protect women by punishing criminals who commit violent acts against them that result in the loss of a pregnancy. However, prosecutors in Patel’s case were able to convince the trial judge that the feticide provision also applied to abortions that failed to comply with Indiana’s abortion law. Among other requirements, Indiana abortion law required that abortions be performed by a physician and prohibited the administration of abortion inducing drugs later than 9 weeks.

Not only is Patel’s conviction inconsistent with a fair reading of the feticide statute, it opens the door to the prosecution of other women who chose to have abortions if they fail to follow the exact requirements of Indiana’s abortion laws. This creates a real danger of unfair prosecutions because Indiana, like many other states, has imposed detailed requirements for legal abortion. Some are legitimate health regulations necessary to protect women’s health, but others are onerous and arcane requirements designed to discourage women from having abortions or make it more difficult to obtain them. Ironically, unnecessary and burdensome requirements probably increase the likelihood that women will decide to terminate a pregnancy on their own as Patel is accused of doing. Indeed many women in the U.S. feel that clinical abortion care is out of their reach because of cost, increased restrictions, limited access and increased travel distance to clinics. Others may opt for self-induction because of mistrust of, or difficulties navigating, the formal healthcare system.

Criminal prosecution of women for terminating their own pregnancies is relatively rare outside of the U.S. As discussed in an amicus brief filed by CUNY Law School’s Human Rights and Gender Justice Clinic, international human rights experts on health and women’s rights have recognized that imposing criminal penalties on women who have abortions violates their human rights. It also places women’s health at risk because women who experience serious medical complications after an abortion or miscarriage may be too afraid to seek medical help. Although this may sound far-fetched, Patel was arrested at the hospital after she sought treatment for hemorrhaging that resulted in the loss of 20% of her blood.

Even in countries with laws that criminalize abortions, it is very rare for women to be prosecuted for ending pregnancies or obstetric emergencies. The reluctance to prosecute women results from recognition that when pregnant women are criminally prosecuted under homicide, feticide, manslaughter or criminal abortion laws, there is a high risk that the laws will be unfairly and selectively enforced. Many pregnancies naturally end in fetal demise and in many places in the world and in minority communities in the U.S. infant mortality rates are unacceptably high. When women are prosecuted for abortion, feticide and homicide, all women who do not deliver healthy babies are turned into potential criminal suspects.

El Salvador criminalizes abortion in all circumstances, even if a woman’s health or life is endangered by the pregnancy, if she is the victim of rape or incest or if she cannot afford or is unable to care for a child. And, it is one of a small number of countries that actually prosecutes women. As a result, many women are forced to get clandestine and possibly unsafe abortions. The law also creates a real danger of prosecution for women who don’t deliver healthy babies. Many of the women who end up being prosecuted are poor women who have sought medical help in public clinics following miscarriages. Several highly publicized cases involving the imprisonment of poor women for homicide following miscarriages, stillbirths and obstetric emergencies have led to widespread international criticism from human rights organizations and U.N. human rights experts.

As states across the country continue to pass laws that make it more difficult for women to access safe and legal abortion, let’s hope that the Indiana Court of Appeals recognizes that hospital waiting rooms should not be turned into crime scenes and that women should not be criminalized for terminating their own pregnancies or for failing to deliver a healthy baby.