A very undue burden

Remember Purvi Patel? I blogged about her case last March 30-April 1 – here, here, here, and here. She was sentenced to twenty years in prison for having a stillborn baby.

In October PRI reported on the appeal:

Patel has now filed an appeal of that conviction with the Indiana Court of Appeals. She’s represented pro-bono by Stanford Law professor Lawrence Marshall and Indiana University law professor Joel Schumm. Marshall’s representation, in particular, shows the precedent-setting importance of her case. Marshall previously founded the Center for Wrongful Convictions at Northwestern University.

“What I generally gravitate toward are cases where it seems like an intense passion has interfered with dispassionate interpretation and application of the law,” Marshall told the South Bend Tribune in April. “It struck me that this case may be a textbook example of that phenomenon.”

That tactic appears to underpin the appeal released today, in which Patel’s legal team writes, “Resolution of this appeal does not necessitate delving into any contentious issues. It requires nothing more than straightforward application of well-accepted neutral principles of law such as those this Court addresses every day.”

Patel’s lawyers argue “there are powerful reasons to challenge the conclusion there was a live birth.” But even if so, there’s little Patel could have done under such circumstances to save an extremely premature infant, the appeal states.

As for the feticide charge, the appeal argues that it was improperly applied to cover abortion, and that the conviction also violates Patel’s constitutional rights. Furthermore, Patel’s team writes, “the Feticide conviction depended on the plainly wrong position that one can be guilty of Feticide (i.e., the killing of a fetus) even if no fetus was killed (as the State adamantly maintains was true here).”

National advocacy organizations have authored two amicus briefs in support of the appeal. The first, by National Advocates for Pregnant Women and signed by several reproductive rights groups, states: “Allowing the judicial expansion of Indiana law to prosecute women in relation to their own pregnancies endangers public health and the civil rights of all people who are or may become pregnant.”

“While the Indiana General Assembly has unquestionably regulated abortion, and criminalized third parties who harm women’s pregnancies, it has not enacted a modern law that makes it a crime for a woman to have an abortion or experience a pregnancy loss,” the brief continues.

NBC News reported some days later:

Lawyers for Patel filed an appeal of her conviction in May. Her legal team, headed by Stanford Law professor Lawrence Marshall and Indiana University law professor Joel Schumm, stipulated in the brief, released Oct. 2, that multiple errors were made by the state of Indiana in the case against Patel that require the reversal of her conviction–and, furthermore, that the conviction of Patel went against the United States and the Indiana Constitutions.

Marshall and Schumm’s appeal outlines how applying the feticide statute to women who choose to have abortions is unconstitutional, explaining, “If the Court decides to grant relief on statutory grounds, the Feticide Statute must be invalidated as violating the United States and Indiana Constitutions. This is because the statute, as so interpreted, would place an ‘undue burden’ on women by exposing them to severe criminal penalties absent proof they had any idea they or anyone else were doing anything wrong.”

The Indiana attorney general’s office will file a brief in response to Patel’s attorneys in November. The appeals court will then decide if it will hold oral arguments.

And Purvi Patel will wait, in prison.


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