INDIANAPOLIS (AP) — A judge on Indiana's Court of Appeals pointedly questioned an attorney for the state Monday on whether there was evidence a woman found guilty of neglect and feticide in a self-induced abortion knew she had given birth to a live child.
Judge Nancy Vaidik noted during the hearing on Purvi Patel's bid to have the charges thrown out that no evidence was presented at trial that the 35-year-old northern Indiana woman knew she had delivered a live child. Such evidence would help support her conviction on a charge of neglect of a dependent resulting in death.
"You can't endanger a dead baby, can you?" Vaidik asked deputy attorney general Ellen Meilaender, who presented the state's arguments.
One of Patel's attorneys, Stanford University law professor Lawrence C. Marshall, told the court that the charges aren't supported by the evidence in the 2013 death of her premature child after Patel ingested abortion-inducing drugs.
"Multiple independent reasons compel reversal of both counts here," Marshall told the court.
Patel was sentenced last year to 20 years in prison on the neglect charge and six years in prison on the feticide charge, with the terms to be served concurrently.
Patel's appeal contends prosecutors failed to prove she knew she had delivered a live baby or that she could have done anything to save his life. It argues that summoning medical help would have been "futile," citing a forensic pathologist's testimony that the infant likely would have died within about a minute.
Her appeal also says that Indiana's feticide law was "passed to protect pregnant women from violence" that could harm their developing fetus, not to prosecute women for their own abortions. The state argues that the law "is not limited to third-party actors" and can apply to pregnant women.
Patel, of Granger, was arrested in July 2013 after she sought treatment at a local hospital for profuse bleeding after delivering a 1½-pound infant boy and putting his body in a trash bin behind her family's restaurant. Court records show Patel purchased abortion-inducing drugs online through a pharmacy in Hong Kong, took those drugs and delivered a premature baby in her home bathroom.
Patel lived with her parents and grandparents, and she feared her family would discover she had been impregnated by a married man, according to court documents.
Two dozen women's advocacy groups, as well as Planned Parenthood and the American Civil Liberties Union, all have filed friend-of-the-court briefs siding with Patel.
Judge Vaidik told attorneys for both sides at the end of the hearing that they had given the court "a lot to think about" and said the panel would rule as soon as it can.
At least 38 states have fetal homicide laws, according to the National Conference of State Legislatures. But the Patel case was the first time a state feticide law has been used against a woman specifically because of "an alleged self-induced abortion," said Jill E. Adams, executive director of the abortion rights advocacy group Center on Reproductive Rights and Justice.
Indiana's feticide statute, enacted in 1979, made it a crime to "knowingly or intentionally" end a pregnancy with a goal other than to produce a live birth or to remove a dead fetus. The law does not apply to abortions performed in compliance with Indiana's abortion statutes.
Attorneys for the state argue that Patel's infant was at least 25 weeks into gestation, just beyond the threshold of viability, and had taken at least one breath before dying. The state's brief also argues that Patel "has not met her heavy burden to prove that Indiana's feticide statute constitutes an undue burden on the right to obtain an abortion."
In its brief, the state argues that prosecutors were "not required to prove that an attempt to obtain medical care would have saved the baby's life, only that Defendant placed her baby in appreciable danger by not obtaining medical care for him."