Indiana Court Overturns Purvi Patel’s Feticide Conviction

Originally published in The American Prospect on July 25, 2016.
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The Indiana Court of Appeals last week overturned the 20-year prison sentence for Purvi Patel, the first woman in the United States to be convicted under a feticide law for having an abortion. The 3-0 decision marks a victory for reproductive rights advocates, who argued that using feticide laws to convict women who end their pregnancies sets a dangerous precedent for abortion rights and criminalizing the procedure.

Legal experts warned that if the conviction were upheld pregnant women would be prosecuted for all sorts of things—from self-inducing an abortion to smoking cigarettes, or even slipping down the stairs. Feticide laws are on the books in 38 states, and were originally passed to protect pregnant women who were victims of domestic violence.

Indiana strengthened its feticide law in 2009, after a pregnant Indianapolis bank teller was shot during a bank robbery, and lost the twin girls she was carrying. In the appeals decision, the judges wrote, “We 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.” They called Patel’s conviction under a feticide statute “an abrupt departure” from earlier cases.

However, while Patel’s Class A felony charge was vacated, the judges did not drop the second charge in the case. She is still left with a neglect conviction—a felony offense—though the court said it should be reduced from a Class A neglect charge to a Class D one. The minimum sentence for a Class D neglect felony is six months, and the maximum is three years. Patel has already been sitting in jail for more than a year.

Attorneys for both sides continue to review the decision; neither has indicated whether they planned to appeal to the state’s Supreme Court.

Kate Jack, an Indiana-based attorney who has provided legal advice to the National Advocates for Pregnant Women, told The Indianapolis Star that while the issue is not entirely closed, she does think the decision “will really give pause” to anyone considering bringing future feticide charges against pregnant women.

The decision comes on the heels of the Republican National Convention, where Donald Trump picked Indiana Governor Mike Pence as his running mate. Reproductive rights groups have already been organizing against Trump’s incendiary rhetoric around women and abortion rights, and the selection of Pence as his vice president has only angered advocates further.

Aside from being the chief executive of the only state to convict a woman who ended a pregnancy under a feticide statute, Pence has also achieved notoriety for supporting other reproductive health-care limitations. While serving in the U.S. House of Representatives he backed an unsuccessful 2011 federal effort to defund Planned Parenthood. When Pence became governor of Indiana in 2013, he continued to attack the organization. By 2014, state funding for Planned Parenthood had been reduced by nearly half of its 2005 funding levels: Nearly a decade of cuts forced the closure of five clinics.

In March, Pence went even further, signing an omnibus bill that included some of the strictest abortion measures in the country, including a ban on women who wish to end their pregnancy if their fetus has genetic abnormalities, such as Down syndrome. The law also called for prosecuting doctors who provided abortion services to women suspected of wanting to terminate a pregnancy based on genetic problems. A federal judge blocked this law from taking effect last month, saying it was likely unconstitutional.

While reproductive rights groups say they are heartened that the court reversed Patel’s feticide conviction, they disagree with the judges’ decision not to drop the neglect conviction. Yamani Hernandez, the executive director of the National Network of Abortion Funds, issued a statement saying that the court’s new decision does not go far enough to restore full justice. By allowing the prosecutors’ argument that Patel could have prevented the death of her child to stand, Hernandez says, the judges have rejected “both medical science and compassion for a woman who needed medical care, not to be sent to prison.” She argued that ultimately people of color will “bear the brunt of unscientific laws and misplaced moral outrage.”

Patel remains in prison for now, and advocates are continuing to call for her release. Reproaction, a group focused on abortion access and reproductive justice, released a statement calling upon Mike Pence “to be pro-life for real and release her immediately.” They add that the state of Indiana “owes Purvi Patel a profound apology.”

Time for a Plan C

Originally published in The Washington Monthly on November 26, 2013.
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After years of fighting to make Plan B available without a prescription to girls of any age, the discouraging announcement that Norlevo, a European drug identical to Plan B, loses effectiveness in women who weigh more than 165 pounds and is completely ineffective for women who weigh more than 176 pounds, casts a dark shadow on what was previously celebrated as a victory for women’s health and empowerment. The racial and economic disparities of those who can benefit from Plan B turn out to be much starker than previously understood.

Manufacturers of the European drug announced that they will be updating their packaging information to reflect the weight limits, but it’s unclear yet whether the U.S. will make similar changes to the American version.

When the Obama Administration decided this past June to allow a federal district judge’s ruling to stand—which said that girls younger than 17 should be allowed to purchase plan B over the counter—it seemed like hard-won triumph for the scientific community and women’s rights organizations.

Planned Parenthood Federation of America president Cecile Richards, called the government’s decision to drop the appeal “a huge breakthrough for access to birth control and a historic moment for women’s health and equity.”

Yet this turns out to be a far greater “breakthrough” for some women than for others.

People knew Plan B was hard for poor people to access before this announcement. It’s expensive! One package typically costs between $30 to $65, which can be hard to raise on very short notice. In an economy where nearly 2/3 of the 3.6 million minimum wage workers are women, the affordability of Plan B is already a difficult if not impossible expense.

And, as one might expect, American women often come in over this new weight range. According to the Centers for Disease Control and Prevention, the average weight of American women during the years of 2007-2010 was 166.2 pounds. The average weight of non-Hispanic black women aged 20-39 was 186 pounds, and among Mexican-American women, 78 percent were overweight or obese.

To sum up: Plan B is an ineffective and often unaffordable emergency contraceptive for many American women, particularly minorities.

According to the Guttmacher Institute, in 2006, black women had the highest unintended pregnancy rate of any racial or ethnic groups. At 91 per 1,000 women aged 15-44, it was more than double that of non-Hispanic white women.

Plan B is not an abortion pill, like RU-486, which must be administered in a doctor’s office. Instead, it prevents the fertilization of an egg—which is why it must be used within about 120 hours of intercourse. The drug has been available by prescription since 1999, and contains levonorgestrel, a synthetic version of the hormone progestin. Levonorgestrel has been used in birth control pills for more than 35 years; Plan B contains a higher dose and is taken as two separate doses 12 hours apart.

But drug makers say they’re unsure if increasing levonorgestrel levels further would boost its effectiveness for women over 165 pounds. A spokeswoman for the European drug said, “A dose increase of levonorgestrel is not proven to be a solution for this problem.”

The spokeswoman recommended women with higher weight consider intrauterine devices (IUDs) as an alternative. Yet IUDs are even more expensive, costing anywhere from $500-$1000.

As the abortion fight wages on around the country, with more and more states and cities looking for ways to limit access to abortions or ban them entirely, the fact that a safe and legal abortion alternative is ineffective for many women is rotten news.

At least under the Affordable Care Act, women do have more options than they did several years ago. Birth control and preventive services like mammograms are now covered (barring more legal challenges); insurance premiums are now equal across genders.

But unplanned pregnancy is still a problem—even birth control isn’t 100% effective.

The U.S. Department of Health and Human Services’ Healthy People 2020 campaign aims to reduce unintended pregnancy by 10%, from 49% of pregnancies to 44% of pregnancies, over the next 10 years. According to the Guttmacher Institute, about half of the 6.7 million pregnancies in the United States each year (3.2 million) are unintended.

An emergency contraceptive that disproportionately benefits wealthier and skinnier Americans cannot be the only (relatively) affordable option. If we truly want to help reduce unplanned pregnancy and improve all women’s health and equality, then we need a plan C.