In April 2008, a masked gunman shot Katherin Shuffield, a teller working at Indiana’s Huntington Bank, in the abdomen. While Shuffield survived the encounter, the twin girls she was five months pregnant with did not [1]. Indiana State Law, requiring a fetus to have attained viability in order for murder charges to be brought against a suspect, prevented prosecutors from charging the shooter with murder for the killing of the twins [2]. Instead, the perpetrator was charged with two counts of feticide, defined by Indiana Code 35-42-1-6 as “A person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth, or to remove a dead fetus” [3]. At the time of the shooting, feticide was considered a Class C Felony, carrying a penalty of 2-8 years in prison [4]. As a result of the incident, Indiana Senate Bill 236, significantly enhancing the penalty for the crime of feticide, was signed into law in 2009 [5]. On the books, S.B. 236 appeared to embody the underlying principle of protecting pregnant women from violence. However, in action, the law has taken on a radically different meaning in the eyes of some state prosecutors, who have used it to criminalize women for terminating their own pregnancies.

The penalties faced by the perpetrator in the 2008 Shuffield case were widely perceived as lenient and drew criticism from many Hoosiers including Senator Jim Merritt, a father of twins himself [6]. In direct response to the shooting, Senator Merritt authored Senate Bill 236 [7], a bill that would amend the crime of feticide from a Class C to a Class B Felony and thereby increase the possible prison terms to 6-20 years. The legislation also allowed the state to seek an additional term of imprisonment if a person, while committing or attempting to commit murder, caused the termination of a pregnancy, regardless of whether or not the defendant was cognizant of the pregnancy. The bill passed with wide support and in Merritt’s own words, “sailed through the legislature,” gaining a vote of 44-2 during its final reading in the Senate before being signed into law by Governor Mitch Daniels [8].

S.B. 236 was passed with bipartisan support and avoided legislative clashes between reproductive rights and anti-abortion activists, unlike similar legislation introduced in the past. Lawmakers said that they had decided to increase the sentences under current laws, rather than expand other laws to cover all stages of pregnancy, in an effort to avoid a debate over when life begins [9]. This decision proved to be successful as both Planned Parenthood, a pro-choice organization, and Right to Life, a pro-life organization, signed off on the bill [10]. The intent of the legislation appeared evident: to ensure that fetal homicide by a third-party, regardless of the victim’s stage of pregnancy, would be adequately punished the next time around.

The history of Indiana’s feticide law can be traced back to 1979, when it was initially incorporated into the State’s Criminal Law and Procedure. House Bill 1414 [11], authored by Representative Burton, allowed for criminal charges to be brought against individuals responsible for the death of a fetus at any stage of pregnancy. Heavily backed by pro-life organizations [12], the bill was passed into law in April 1979. The law garnered little attention for nearly three decades, until the 2008 tragedy thrust it back into the spotlight.

Fetal rights have historically been a topic of contention between pro-choice and pro-life advocates, and the issue of fetuses killed by violence against pregnant women has been swept up in that debate [13]. While pro-life advocates support laws ascribing individualistic rights to the fetus, pro-choice advocates have felt that they could become a slippery slope and interfere with a woman’s right to abortion [14]. In 1996, the American Civil Liberties Union released a report, “What’s Wrong With Fetal Rights?” [15], verbalizing the concern that legislation designed to protect fetuses “can endanger women’s rights by reinforcing claims of ‘fetal rights’ in the law” [16]. The ACLU states that in order to conform with the constitutional right established in Roe v. Wade, fetal protection legislation must exempt abortion from punishment and “the exemption should explicitly cover: 1) abortions performed by health care workers with the consent of the woman or in medical emergencies; and 2) self-abortions” [17]. While Indiana’s statute specifies that it does not apply to legal abortion [18], it lacks language ensuring that it will be used solely to prosecute third parties and not pregnant women themselves. Consequently, state prosecutors, responsible for charging suspects and implementing the statute, have had wide discretion in choosing against whom, and under which circumstances, to charge the crime of feticide.

Senate Bill 236 raised the stakes of the Indiana statute and revived an age-old question: would the law be used to protect pregnant women, or would it be enforced against them? Although, on the books, the feticide statute appears to be a mechanism for protecting women from third-party assailants, in action, it has been enforced against those it ostensibly protects. The enforcement of the feticide law has relied uniquely on the decisions and discretion of medical personnel and state prosecutors. Facts established by medical personnel, such as the status of a victim’s pregnancy after a violent crime, have proven critical in determining whether or not feticide has occurred. More controversially, medical staff have been known to alert police of self-terminated pregnancies under the State’s mandatory child abuse reporting laws [19]. In State v. Patel, Dr. Kelly McGuire, a member of a pro-life organization, was heavily criticized for reporting Patel’s self-induced abortion to law enforcement due to the fact that her actions clearly did not fit the criteria of child abuse [20]. State prosecutors have unequivocal power in the execution of the law, as they decide if and when to bring feticide charges. The statute’s ambiguous language, lacking an explicit exemption for women who terminate their own pregnancies, has enabled prosecutors to interpret the law as they see fit; both to protect women and to prosecute them [21]. Prosecutors have also been known to threaten defendants with feticide charges in order to encourage plea deals [22].

Since the initial enactment of the feticide law in 1979, there have been several court decisions that have critically affected its implementation. In 2005, in Baird v. State [23], Arthur Baird, charged with murder and feticide for killing his pregnant wife, argued on appeal that the statute “was enacted to punish those who perform illegal abortions” and therefore could not be applied in his case [24]. The Indiana Supreme Court disagreed, stating that “a proper construction of the feticide statute … requires that it be viewed not as an illegal abortion statute, but as an extension of the laws of homicide” [25]. The Court’s decision was seemingly indicative of legislative intent, and the law continued to serve the sole purpose of prosecuting third parties for nearly two decades, as exemplified in cases such as State v. Shane and State v. Hicks [26]. Adherence to this standard enabled S.B. 236, significantly strengthening the feticide law, to gain widespread support in 2009.

In 2011, in State v. Shuai [27], Shuai was charged with attempted feticide for an attempted suicide that resulted in the death of her baby [28]. After a year of incarceration, Shuai’s charge was eventually dropped in a plea deal [29]. Despite its inability to set precedent, the case was significant in that it was the first indication that the feticide law could potentially be used to criminalize women for terminating their own pregnancies.

In 2012, State v. Purvi marked the first case nationwide of a woman being convicted of feticide for a self-induced abortion [30]. Patel was convicted of feticide for ingesting drugs to terminate her pregnancy and subsequently sentenced to 20 years in prison [31]. A myriad of civil rights and human rights organizations, including the American Civil Liberties Union and Amnesty International, signed amicus briefs in support of Patel [32], arguing that the Court’s decision disregarded the precedent set by Baird and would enable the criminalization of women based on their behavior during pregnancy [33]. In 2016, an appeals court overturned Patel’s conviction, stating, “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” [34]. By explicitly stating that the feticide law was not intended to be used to prosecute self-induced abortions, the Court’s decision has virtually ensured that similarly situated women will not be charged with the crime in the future.

Despite the statute’s history of arbitrary enforcement, there has been one consistent pattern: when used against women in the context of self-terminated pregnancies, Asian women have been disproportionately targeted. Although Asians constitute only 2.1% of Indiana’s population [35], Shuai, a Chinese immigrant [36], and Patel, a South Asian American [37], represent the only women charged with feticide in the state. Nimra Chowdry, a Reproductive Justice Fellow with the National Asian Pacific American Women’s Forum, and Lisa Sangoi, a Staff Attorney for National Advocates for Pregnant Women, argue that there is a discrepancy in the severity of charges brought against women of color and white women, for pregnancy-related crimes [38]. This is evident, for example, in the case of Alicia Keir; a white woman who plead guilty to involuntary manslaughter in the death of her newborn and only spent one day in jail [39]. This racial disparity can be attributed to stereotypes of Asians as intolerable and “sex-selective,” or in other words, more likely to abort female fetuses [40].

Broadly, S.B. 236 has been effective in its initial intent of protecting women, as well as counterproductive. Indiana’s murder and homicide laws, carrying lengthy sentences, require a fetus to be viable for charges to be brought against a suspect. By increasing the penalties for feticide to 6 to 20 years in prison, S.B. 236 lessened the disparity between sentences associated with killing a less-developed fetus and a viable one, providing protection for women throughout all stages of pregnancy [41]. Additionally, as S.B. 236 was passed in response to the killing of a woman’s unborn twins [42], it has provided defense councils in both Shuai and Patel with means to argue legislative intent [43]. It is also notable that in the 37 years that the feticide law has been in effect, the vast majority of charges have been brought against third-party offenders [44].

On the other hand, Indiana’s feticide law, as it was implemented in Shuai and Patel, can be understood as having had a negative impact on public health, with effects that may live on despite the precedent set by Patel. The incarceration and media-brutalization of Shuai and Patel not only wreaked havoc upon their lives, but also made them examples for the broader community. Shelly Dodson, director of All-Options Pregnancy, states, “The research is clear. If pregnant people fear criminal consequences, they don’t go to the doctor” [45]. Women, particularly low-income women of color, may be deterred from seeking necessary medical care during pregnancy, in fear of being criminalized as Shuai and Patel were [46].

As the precedent set by Patel is very recent, the need for statutory reform is still uncertain. In my interview [47] with Kathrine Black, the defense attorney who represented Shuai, Black explained that she is fairly confident that the Patel precedent has eliminated the need to reform the feticide statute. Black acknowledged that unlike other states, Indiana’s law does not include an explicit exception for pregnant women, however, she stated, “the Patel case, I would argue, created that same exception by case law” and “as an aside, I would say that we don’t know what we would get if they did tinker with it,” suggesting that reforming the law’s language may actually have counterproductive effects. In regards to whether the State’s manipulation of the law, to prosecute pregnant women themselves, could withstand the new precedent, Black finds it unlikely, but stated, “it has happened in other states, where there is a clear precedent, but there is some kind of highly charged emotional case, and the charge is filed anyway, and it will eventually get thrown out but it still happens.” Ultimately, while there may not appear to be an imminent need, it would be ideal for the law’s language to include an explicit exemption for pregnant women, in order to further reduce the likelihood of history repeating itself.

On the books, Indiana Senate Bill 236, revitalizing the penalties of the 1979 feticide statute, appeared to have the intent of adequately protecting pregnant women and their fetuses from third-party assailants. In action, the State has manipulated the law to criminalize pregnant women, specifically Asian women, who have terminated their own pregnancies. While the Court’s decision in Patel v. State has set a valuable precedent, virtually preventing the state from bringing charges of feticide in cases of self-induced abortions, the overarching, nationwide battle over reproductive rights is far from over. The prosecution and conviction of Purvi Patel occurred under the state governorship of now Vice President-elect, Mike Pence, whose election has been referred to as a “doomsday scenario for reproductive rights” [48]. It is alarming to consider that Indiana’s feticide cases may have provided the nation with a mere glimpse into what is to come against women’s reproductive rights, under the new administration.


References

[1] Lewis, K. (2013, July 17). Stiffer Penalty for Feticide. Retrieved September 11, 2016, from http://www.wndu.com/home/headlines/Stiffer-penalty-for-feticide-thanks-to-2009-state-law215747851.html

[2] Merritt’s Bill to Enhance Penalties for Feticide Passes Indiana House. (2009, April 6). Retrieved September 11, 2016, from http://www.in.gov/portal/news_events/37749.htm

[3] Feticide, Indiana Code Ann. § 35-42-1-6.

[4] C.C.E.C. Review of Criminal Code. (2012, July). Retrieved September 11, 2016, from http://www.in.gov/legislative/interim/committee/reports/CCECFB1.pdf

[5] SENATE ENROLLED ACT No. 236. (2009). Retrieved October 21, 2016, from http://www.in.gov/legislative/bills/2009/SE/SE0236.1.html

[6] Merritt’s Bill to Enhance Penalties for Feticide Passes Indiana House. (2009, April 6). Retrieved September 11, 2016, from http://www.in.gov/portal/news_events/37749.html

[7] SENATE ENROLLED ACT No. 236. (2009).

[8] Lewis, K. (2013, July 17). Stiffer Penalty for Feticide. Retrieved September 11, 2016, from http://www.wndu.com/home/headlines/Stiffer-penalty-for-feticide-thanks-to-2009-state-law215747851.html

[9] STATE POLITICS & POLICY. (2009, April 23). Retrieved September 11, 2016, from http://go.nationalpartnership.org/site/News2?abbr=daily2_&page=NewsArticle&id=16667

[10] Merritt’s Bill to Enhance Penalties for Feticide Passes Indiana House. (2009, April 6). Retrieved September 11, 2016, from http://www.in.gov/portal/news_events/37749.html

[11] HB 1414. (n.d.). Index to House and Senate Journals 101st General Assembly, 169-169. Retrieved October 21, 2016.

[12] Bill to Fund Curbing of Abortions is OKd. (1979, February 21). The Indianapolis Star. Retrieved September 11, 2016.

[13] Fetal Homicide State Laws. (2015, March 4). Retrieved September 11, 2016, from http://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx

[14] Fetal Homicide State Laws. (2015, March 4). Retrieved September 11, 2016, from http://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx

[15] What’s Wrong With Fetal Rights? (n.d.). Retrieved September 11, 2016, from https://www.aclu.org/other/whats-wrong-fetal-rights

[16] What’s Wrong With Fetal Rights? (n.d.). Retrieved September 11, 2016, from https://www.aclu.org/other/whats-wrong-fetal-rights

[17] What’s Wrong With Fetal Rights? (n.d.). Retrieved September 11, 2016, from https://www.aclu.org/other/whats-wrong-fetal-rights

[18] Feticide, Indiana Code Ann. § 35-42-1-6.

[19] Indiana Statutes: Mandatory Reporters of Child Abuse and Neglect. (n.d.). Retrieved October 31, 2016, from https://www.childwelfare.gov/

[20] Conrad, D. (2015, April 5). Who is the doctor who paved the way to prison for Purvi Patel? Retrieved October 21, 2016, from http://www.pri.org/stories/2015-04-03/doctor-who-called-police-purvi-patel-listed-pro-life-medical-association-member

[21] Rowan, A. (2015, September 22). Prosecuting Women for Self-Inducing Abortion. Retrieved October 21, 2016, from https://www.guttmacher.org/about/gpr/2015/09/prosecutingwomen-self-inducing-abortion-counterproductive-and-lacking-compassion

[22] Mann Sehvilla Mann, S. (2013, August 6). Expert. Retrieved October 21, 2016, from http://indianapublicmedia.org/news/expert-rat-poison-plea-deal-shows-case-failure-53694/

[23] Arthur P. Baird v. State of Indiana (July 19, 2005).

[24] Arthur P. Baird v. State of Indiana (July 19, 2005).

[25] Arthur P. Baird v. State of Indiana (July 19, 2005).

[26] Purvi Patel v. State of Indiana (Court of Appeals of Indiana July 22, 2016).

[27] Bei Bei Shuai v. State of Indiana (Court of Appeals of Indiana February 8, 2012).

[28] Bei Bei Shuai v. State of Indiana (Court of Appeals of Indiana February 8, 2012).

[29] Mann Sehvilla Mann, S. (2013, August 6). Expert. Retrieved October 21, 2016, from http://indianapublicmedia.org/news/expert-rat-poison-plea-deal-shows-case-failure-53694/

[30] 20 Years in Prison for Miscarrying? (2015, April 2). Retrieved October 22, 2016, from http://www.democracynow.org/2015/4/2/20_years_in_prison_for_miscarrying

[31] Purvi Patel v. State of Indiana (Court of Appeals of Indiana July 22, 2016).

[32] Purvi Patel Case Returns to Courts. (2016, May 23). Retrieved October 23, 2016, from http://wfhb.org/news/purvi-patel-case-returns-to-courts-for-first-appeals-hearing/

[33] BRIEF OF AMICUS CURIAE OF NATIONAL ADVOCATES FOR PREGNANT WOMEN (n.d.). Retrieved October 23, 2016, from http://advocatesforpregnantwomen.org/NAPW Patel v Ind Final Amicus Brief 10.1.15.pdf

[34] Purvi Patel v. State of Indiana (Court of Appeals of Indiana July 22, 2016).

[35] Population Estimates. (2015, January 15). Retrieved October 23, 2016, from http://www.census.gov/quickfacts/table/PST045215/18

[36] Rovner, J. (n.d.). Health News From NPR. Retrieved October 31, 2016, from http://www.npr.org/sections/health-shots/2012/05/18/153026015/bail-granted-forindiana-woman-charged-in-attempted-feticide

[37] News, B. N. (2012, May 18). National Asian Pacific American Women’s Forum. Retrieved October 31, 2016, from https://napawf.org/2016/06/opinion-purvi-patels-case-is-part-of-an-unjust-pattern/

[38] Women’s Health Policy Report. (2012, June 6). Retrieved October 31, 2016, from http://www.womenshealthpolicyreport.org/articles/ind-feticide-asian-oped.html?referrer=https://www.google.com/

[39] Women’s Health Policy Report. (2012, June 6). Retrieved October 31, 2016, from http://www.womenshealthpolicyreport.org/articles/ind-feticide-asian-oped.html?referrer=https://www.google.com/

[40] Zhang, D. (2016, March 17). The Abortion Ban Based on Racist Stereotypes Against Asian Women. Retrieved October 31, 2016, from http://www.alternet.org/personal-health/abortion-ban-based-racist-stereotypes-against-asian-women

[41] Indiana Code 2016. (n.d.). Retrieved October 31, 2016, from http://iga.in.gov/legislative/laws/2016/ic/titles/035/

[42] Merritt’s Bill to Enhance Penalties for Feticide Passes Indiana House. (2009, April 6). Retrieved September 11, 2016, from http://www.in.gov/portal/news_events/37749.html

[43] Purvi Patel v. State of Indiana (Court of Appeals of Indiana July 22, 2016).; Bei Bei Shuai v. State of Indiana (Court of Appeals of Indiana February 8, 2012).

[44] Purvi Patel v. State of Indiana (Court of Appeals of Indiana July 22, 2016).

[45] Purvi Patel’s Reduced ‘Feticide’ Sentence Is A Victory-But Not Enough – The Establishment. (2016, July 23). Retrieved October 31, 2016, from http://www.theestablishment.co/2016/07/23/purvi-patels-reduced-feticide-sentence-is-a victory-but-not-enough/

[46] Purvi Patel’s Reduced ‘Feticide’ Sentence Is A Victory-But Not Enough – The Establishment. (2016, July 23). Retrieved October 31, 2016, from http://www.theestablishment.co/2016/07/23/purvi-patels-reduced-feticide-sentence-is-a victory-but-not-enough/

[47] Jack, K. (2016, November 2). Interview with Kathrine Jack, Defense Attorney for Bei Bei Shuai [Interview by H. Amin].

[48] Cauterucci, C. (2016, November 10). Women Are Preparing for Trump and Pence’s Inevitable Assault on Reproductive Rights. Retrieved December 01, 2016, from http://www.slate.com/blogs/xx_factor/2016/11/10/women_are_preparing_for_trump_and_pence_s_inevitable_assault_on_reproductive.html

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