Mimesis Law
22 January 2017

Indiana Court of Appeals Aborts Purvis Patel’s Sentence

July 29, 2016 (Fault Lines) — Purvi Patel wanted an abortion. She had had an affair with a married man who worked with her at a Mexican restaurant. At first she was in denial about being pregnant, reporting spotting and cramps, but unable or unwilling to admit it. She didn’t want people to know—especially her parents, who were devoutly Hindu. So she ordered some drugs from a Hong Kong pharmacy for $72.00, followed the directions, and terminated her pregnancy.

The State charged her with feticide, and with child neglect. A week ago, the Indiana Court of Appeals reversed or modified those convictions, holding that the feticide statute was never meant to apply to a woman who aborted her own child, and that a modification from the common-law rule that women could not be prosecuted for abortion would require a clearer law. It also held that the State couldn’t prove Patel did anything to neglect her child after it was born because there was no evidence it would have survived if it had received prompt medical care.

So, of course, this is a wedge case. The fetus was anywhere from 25 to 30 weeks along when Patel took the pills—well past Indiana’s 20-week limit.. The State relied upon some fairly controversial evidence that the child had been born alive, arguing that because the lungs floated and felt to the medical examiner that they were full of air, it had taken at least one and possibly several breaths before expiring.

Depending on how you look at it, this was either the cold-blooded murder of a viable child who could have been given up for adoption (“she took care of herself while her baby lay dying,” the prosecutor argued) or the inevitable result of policies aimed at preventing poor women from getting medical help.

But no matter what side you take, the question you’re left with is the same: what the hell was the point of prosecuting this case?

Was it to deter other women, far along in their pregnancies, from taking pills to induce an abortion that a doctor would not be allowed to provide? Maybe. But how many women in that sort of desperate situation are paying close attention to who gets prosecuted in their state? And let’s be honest here, the real lesson that Patel sends, if any, is that you should not go to the hospital after you’ve induced your abortion and cut your umbilical cord, because the risk of sepsis might be more acceptable than the risk that you’d spend the rest of your life in prison.

Was it to stop Patel from doing this again? Self-induced abortions aren’t the sort of thing that governments generally track for recidivism, but it sounds like a terrible experience all by itself. There probably aren’t a lot of people who would want to ride this particular roller coaster again.

So what does that leave? Sure, some argument for proportionality, maybe the infant suffered, maybe we need to balance those scales. But mostly, retribution—that warm feeling deep in our guts when someone we don’t like suffers for what they’ve done. This is the quintessential case of prosecuting those we are mad at rather than those we’re afraid of.

Now maybe readers who disagree with this sort of prosecution might take some comfort from the court’s thorough parsing of the facts, allowing Patel to receive a slighter punishment than the prosecutor hoped for. But everything that went wrong for the government in this case can be fixed in one legislative session.

We are well past the point where criminal laws in this country are aimed solely at truly immoral conduct. Still, people can generally agree that paying taxes, driving the speed limit, and not littering are good things. But when we veer so far into laws that people find personally controversial, it stops being about the common good. It starts to be about “making a statement.”

And lately, now that all the necessary laws have been written, it seems like “making a statement” is the main reason we criminalize anything. We don’t like moms bullying teenagers, so we create “cyber-harassment” laws awaiting a case that may never materialize. We don’t like people shooting cops, or even being mean to them in online comments, so we give them a separate and superior bill of rights—we turn a protector class into a protected class. But maybe there’s a greater statement made by laws left unwritten, by the hope that some social norms might be enforced by our common decency.

Maybe we aren’t so wicked that prison is the only way to make us behave.

There are some people who might believe that Patel’s prosecution was a good thing. That it served to protect a child. But we shouldn’t be so comfortable living in a country where being in the majority on an issue lets us lock the other 49% away. Without government intervention, Patel would still be suffering. But it wouldn’t be because we like seeing her do it.

2 Comments on this post.

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  • losingtrader
    29 July 2016 at 10:25 am - Reply

    At least she has the perfect first name for a child abuse conviction.

  • Wrongway
    29 July 2016 at 9:42 pm - Reply

    That girl was caught in a very tough situation. Any move she made in any direction would have not pissed off someone.
    And now she’s in jail. And, no that doesn’t help her or anyone else either.

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