Thursday, April 02, 2015

Meanwhile, in Indiana

Indiana has recently become famous for its particular version of the Religious Freedom Restoration Act which  has been widely criticized as a barely camouflaged attempt to give religious fundamentalists (and the firms they own) more scope to refuse service to people who might try to  order  cakes or flowers for same-sex wedding parties or who might try to renew their contraceptive pill prescriptions and so on.

Others have written about that in great detail.  What struck me when looking at the Indiana law was how it defined the "person" that the new law would provide with restored (refreshed! renewed!) religious freedom:

Sec. 7. As used in this chapter, "person" includes the following: 
(1) An individual.

(2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes.
(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:
(A) may sue and be sued; and

(B) exercises practices that are compelled or limited by a system of religious belief held by:
(i) an individual; or
(ii) the individuals;

who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.
Remember Hobby Lobby and the "closely held" companies?  This sounds similar, perhaps a child of that decision.  So now companies can be persons, too!

That's the background in my mind for thinking about the case of Purvi Patel, an Indiana woman who has been convicted* of feticide (based on an Indiana law Ind. Code Ann. § 35-42-1-6) and also of felony  neglect of a dependent.

The fetus Patel is argued to have killed AND then also neglected was her own. She received a thirty-year sentence for felony child neglect, ten of which were suspended,  and a six-year sentence, to be served concurrently, for feticide. 

The facts known about her case seem to be these:

Patel was arrested in July 2013 after she went to the emergency room, bleeding heavily, at St. Joseph Hospital in Mishawaka, Indiana. Despite initially denying the pregnancy, Patel eventually admitted to medical authorities that she had a miscarriage and threw the stillborn fetus in a dumpster.
According to Sue Ellen Braunlin, doctor and co-president of the Indiana Religious Coalition for Reproductive Justice, Purvi was most likely 23-24 weeks pregnant, although prosecutors argued Patel was 25 weeks along in the state's opening argument. The prosecution confirmed on Monday that the baby died within seconds of being born.
Patel's lawyers argued that she panicked when she realized she was in labor. Patel comes from a conservative Hindu family that looks down on sex outside marriage, and the pregnancy was a result of an affair Patel had with her co-worker.
Despite Patel's claim that she gave birth to a stillborn child, prosecutors argued that Patel gave birth to a live fetus and charged her with child neglect. Prosecutors also claimed that Patel ordered abortion-inducing drugs online and tried to terminate her pregnancy, but a toxicology report failed to find evidence of any drugs in her system.
Many have noted how odd the simultaneous application of the two grounds for the sentence looks to those of us who are not the judge in this case, Elizabeth Hurley, appointed by  governor Mike Pence**.  Judge Hurley found it completely logical that Patel could both have killed her fetus and neglected her child.    But:
"Feticide" would require Patel to have terminated a pregnancy while the fetus was still in the womb. On the other hand, "felony neglect of a dependent" requires delivering a live fetus and then neglecting it.
As Amanda Marcotte of Slate pointed out in February, Patel "was convicted both of killing a baby and killing a fetus."
What exactly happened is not something we can know.  But I find  the interpretation of the evidence and the way the case was prosecuted troubling.  It looks like Patel was tried and sentenced for putting the fetus into a dumpsterJudge Hurley:

A judge told a Granger woman she treated her child like “a piece of trash,” and she took away any chance at all that her baby could survive past the first few minutes of his life. 

But the fetus would not have been alive at the point of being left in the dumpster, right?  The defense argued that it was stillborn, the prosecution argued that it died within  seconds of being born, right?  In either case, what was left in the dumpster was a dead fetus, not a "living baby."

Judge Hurley's statement*** shows no understanding of why Patel would have tried to hide her pregnancy and  miscarriage/abortion from her conservative and strict Hindu family.  The stigma of being found out seems to be the most likely reason why she left the dead fetus in the dumpster and why she initially denied being pregnant at the hospital emergency room.

Yet Judge Hurley saw all that as a sign of bad moral choices:

When the outcome was different than Patel hoped or suspected it would be – meaning she delivered a fully developed baby boy – Hurley told Patel she had the choice to call 911 or for her family members but she did not.
“I do find troubling the fact that after that happened, after you decided you were going to take the affirmative step of cutting the cord or deciding you weren’t going to try to obtain any medical help, you ensured that baby’s death by placing him in the trash can with the other bathroom trash,” Hurley added.
The judge also addressed the fact that Patel was untruthful to emergency room nurses and doctors when she first arrived.
“You really cemented the fact that no one was going to be able to find him alive,” Hurley said.

The wider ramifications of this case are worth thinking about:

The Indiana feticide law has now been used twice against the pregnant woman herself, not to protect both "the mother" and "the unborn baby" as proponents of feticide laws have argued.  This opens up all sorts of sinister possibilities for future criminal investigations of miscarriages.  After all, every single one of them could be disguised feticide.

Then there's the fact that both Indiana cases have been about  immigrant women of color (Patel from India and Shuai from China).  When you put these two aspects together you get something very disconcerting:  

Meanwhile, some Indiana doctors also worry that pregnant women, especially from marginalized communities, may stop trusting the medical system altogether, and that could have huge implications for public health.
“Any time a pregnant woman does something that can harm a fetus, now she has to worry, ‘Am I going to be charged with attempted feticide?’” says Dr. David Orentlicher, a former state representative in Indiana. “If you discourage pregnant women from getting prenatal care, you’re not helping fetuses, you’re harming fetuses.”
So what does Patel's case have to do with  the  way the Indiana Restoration of Religious Freedom Act defines "a person" and the rights which go with that?

I'm not quite sure.   But it looks to me that when we keep stretching the concept of what a person is to cover fetuses and corporations that stretching causes a tension in the concept itself, ultimately creating rifts which leave some already-born and living human beings with less personhood than others, vulnerable to being sentenced on circumstancial evidence or to being refused basic economic services and common courtesy.

* Patel is the first woman convicted of killing her own fetus in Indiana, but not the first woman who has been charged for that:

Consider Bei Bei Shuai, the first woman charged under Indiana’s feticide law. Shuai had become so depressed during her pregnancy that she attempted suicide. Did the State of Indiana try to help Bei Bei Shuai, to use state funds to provide mental health services or other support?  No, Indiana used taxpayer dollars to charge and incarcerate Shuai on the grounds of feticide because the suicide resulted in the termination of her pregnancy. Because Shuai was charged with murder, she was denied bail. Shuai was locked up in jail, pending trial, for over a year until she was released in a plea deal. State funds that could have been used not only to help Shaui but other pregnant women facing depression were instead spent to prosecute and incarcerate Shuai—as though, incidentally, her persecution would somehow send a message to other suicidal pregnant women. To put it bluntly, threat of incarceration isn’t much of a deterrent to women whose goal is to kill themselves. 

**  Yes, the same Mike Pence who is now being pestered about the restoration of religious freedoms to corporations and such.

*** The comments in that link are...interesting.