The following is an excerpt from chapter five of Crow After Roe: How “Separate But Equal” Is the New Standard in Women’s Health and How We Can Change That (Ig Publishing) by RH Reality Check‘s Robin Marty and Jessica Mason Pieklo.
Bei Bei Shuai never believed she would find herself on her knees, sobbing and begging her lover not to leave her. A recent Chinese immigrant to this country, Shuai was eight months pregnant when her boyfriend, Zhiliang Guan, informed her that he wasn’t actually planning to get a divorce and marry her as he had promised, but was instead returning to his wife. Shuai was heartbroken and believed there was nothing left for her. On December 23, 2010, she left a suicide note saying that she would “take this baby with me to Hades” and ingested rat poison, intending to end her own life.
Luckily, friends discovered Shuai and convinced her to go to a hospital, where doctors worked quickly to save her life. While Shuai was physically unharmed, sadly, the same could not be said for her baby. The infant girl Shuai would call Angel was monitored in utero for over a week, but on December 31, doctors became concerned for her condition and performed a Caesarean section. Angel came into the world on New Year’s Eve at thirty-three weeks gestation. Two days later, she was discovered to have a massive bleed in her brain and was removed from life support.
If Shuai had been brokenhearted after her lover left her, it was nothing compared to how she felt after the death of her child. After Angel was removed from life support, Shuai cradled the baby in her arms for the five hours the tiny infant held on, offering in prayer to give up her own life if her daughter could be spared and demanding that the baby not be taken from her.
When Angel died on January 3, 2011, Shuai was immediately transferred to the mental health wing of the hospital, grief stricken and under heavy sedation. She remained there until March, undergoing treatment. Upon her release, she was charged with murder and thrown in jail.
When Angel died, the coroner indicated the cause of death as the rat poison taken by Shuai, despite the fact that cerebral bleeding is a common condition in babies born before thirty-four weeks gestation. In addition, Child Protection Services had immediately been alerted when Shuai entered the hospital. Based on these actions, the Indianapolis police arrived at the hospital shortly after Angel’s death to conduct interviews to determine whether they would charge Shuai with murder or feticide. In 2009, in response to a robbery that caused a pregnant woman to lose the twins she was carrying, the Indiana house had voted unanimously to strengthen the state’s “feticide” law to include any action that causes an unborn child to die, excluding abortion. The law was meant to add additional punishment to crimes that involved pregnant women, with a sentence of up to twenty years in prison if a pregnancy ended as the result of an illegal act. No one had considered that the law could also be used on a pregnant woman herself, especially not one who had committed her own “crime” as a result of mental illness.
At first, the police believed that Shuai had taken the poison in an attempt not to kill herself but to terminate her pregnancy. Initial news reports made no mention of suicide or of her sudden breakup with Guan. The police didn’t even seem sure about a motive behind the act. “It is a very unfortunate situation, very rare circumstances that someone would take rat poison in an attempt to either harm themselves or their unborn baby,” said Kendale Adams, public information officer for the Indianapolis Police Department, when discussing the case on the local ABC affiliate a few hours after the investigation had begun. “The fact that there was no licensed physician supervising in a particular case means that the act of abortion is a criminal offense,” former Marion County judge Gary Miller told ABC.
What is most puzzling, however, was why, once it became clear that Shuai was indeed trying to end her own life and that the death of Angel was not her intent, prosecutors refused to drop the charges. In fact, the longer the investigation went on, and the more people and groups who came to Shuai’s defense, the more the state seemed to dig in its heels. Prosecutors claimed they’d thought long and hard about the circumstances before deciding to charge the mourning mother. “This is a very unique case,” David Rimstidt, Marion County chief trial deputy, told WRTV Indianapolis. “Every charging decision is very difficult and goes through a process where we consider all the facts, all the circumstances, and under this situation, we believe we’ve charged the two charges we can prove.”
In April, Shuai’s lawyer, Linda Pence, asked a judge to set bond, a request that was denied. The judge said that no one in the state who had been charged with murder had ever been offered bond, and Shuai’s case shouldn’t be any different. Pence appealed the ruling in June, but bail was again denied. The judge also denied a motion to dismiss the case, despite a friend-of-the-court brief filed by more than eighty pregnancy, women’s and civil rights groups—including the American College of Obstetricians and Gynecologists—in support of Shuai.”This was a depressed, seriously depressed woman who acted out of an irrational despair and tried to kill herself and, unfortunately, the fetus was harmed,” Dr. David Orentlicher, a law professor at the Indiana University School of Law and an adjunct professor of medicine at Indiana University School of Medicine, told the local ABC news affiliate. “She had no intent to harm her fetus. That was not the reason she did this.”
The basic argument of the prosecution was that the murder and feticide charges were appropriate because the same laws were being applied to Shuai as a pregnant woman that would be applied to anyone else who had caused the death of a fetus past viability. Shuai’s attorneys and supporters, on the other hand, countered with the claim that the law was being applied to her differently as a pregnant woman, as her actions couldn’t be separated from the events that may or may not have caused the death of her baby. Was Shuai in fact being held to a different standard by virtue of being pregnant? After all, if she had not been pregnant, the state would not have charged her with attempted murder for trying to kill herself, as suicide is not a crime in Indiana. If the fetus had died in utero, as opposed to surviving birth, Shuai at the very least would not have been looking at a murder charge and probably would have been granted bail while she awaited trial for feticide. Even if she had sought an abortion so late in her pregnancy, while those performing the procedure would have been charged with a crime, Shuai herself wouldn’t have been. But prosecutors were using the suicide as the “crime” on which they were pinning the feticide charge. However, it was because she had done everything in her power to save both herself and Angel that Shuai was facing so much time in prison. Emma Ketteringham, the director of legal advocacy for the National Advocates for Pregnant Women, said that Shuai had been a model patient and mother: “[Shuai] consented to everything the hospital suggested. She agreed to have a C-section and to let the hospital do whatever tests they wanted to do.”
In refusing to dismiss the charges against Shuai, the state of Indiana was in essence saying that unborn children had rights and that those rights outweighed those of the mother. “Prosecuting women based on the outcomes of their pregnancies violates their constitutional rights and is cruel and unusual punishment. And yet, this is what is happening,” wrote author Soraya Chemaly, who followed the Shuai case closely. “In this environment, and with no confidence that their rights will be respected and protected, pregnant women will continue to be jailed, in ever increasing numbers, in unexpected ways that violate their rights. Fear of imprisonment will result in women compromising their health and the health of their fetuses by avoiding pre-natal care, treatment for addiction and medical help if they fear they are miscarrying. They will have more abortions to avoid penalization.”
This is why Shuai had no choice but to fight the charges. Constitutional guarantees of due process ensure that no one “may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Yet Shuai was denied notice of what the law forbade, as she couldn’t have known that attempting suicide would subject her to criminal liability; not even the Indiana legislature had contemplated such an outcome when writing and passing the state’s “feticide” law. As her attorneys noted, there was not one single case in Indiana in which a woman had been charged with murder or feticide based solely on allegations that she did or did not do something during pregnancy. Nor had the homicide laws of the state ever been applied to the substantial number of pregnant women who experienced a stillbirth or miscarriage each year, or to other pregnant women in Indiana who had attempted suicide.
Shuai’s lawyer, Linda Pence, has accused Marion County prosecutor Terry Curry of attempting to enforce his own version of the feticide law in order to criminalize the failure to protect a fetus while pregnant. Looking specifically at Shuai’s situation, it seems clear that prosecutors were seeking out a “test case” for such a charge. Alerting Child Protective Services when Shuai arrived at the hospital, despite the fact that no child had been born yet, was in itself unusual. That police arrived soon after Angel’s death and began interviewing hospital staff is another clue. Curry has been accused of building his case solely on an inaccurate, unscientific and discredited autopsy report by a pathologist employed by a private entity named Biblical Dogs. According to a briefing filed by Shuai’s attorneys, the pathologist who performed the autopsy offered only a simple inferential analysis of the cause of the baby’s hemorrhage based upon nothing more than temporal events and non-medical hearsay statements. In other words, merely because Ms. Shuai ingested poison, that must have caused and thus was the cause of the death of her child. Significantly, the pathologist was not aware that Ms. Shuai had received indomethacin prior to caesarean surgery which has direct side effects upon the fetus alone, including hemorrhaging, and never reviewed Ms. Shuai’s medical records, thus precluding her from identifying other issues that could have caused fetal demise, such as a lack of oxygen to the brain. The prosecutor’s chief witness did not rule out, nor did she even consider other possible causes of death, never performed research or scientific studies relating to newborn brain bleeds, the effects of blood thinners on persons, pregnant women, or fetuses, nor did she review the medical research in these fields.
Ultimately, Shuai’s case leaves pregnant women exposed to the subjective, scientifically unsound opinions of law enforcement and the state. It raises severe equal protection concerns as well, since prosecutors have effectively made suicide a crime that applies only to pregnant women. Furthermore, a state engages in gender discrimination when it places additional restrictions on women from which men are exempt, which is unconstitutional under both state and federal law. Shuai did not become pregnant by herself, and, in fact, the father of her child, who promised to care for her and their baby and instead abandoned them, was the catalyst of her emotional breakdown. Yet he was not prosecuted despite the fact that “a person who intentionally causes another human being, by force, duress, or deception, to commit suicide commits causing suicide,” a Class B felony in the state of Indiana. The inescapable conclusion of the Shuai case was that in Indiana, a pregnant woman now had a fundamentally different relationship to the criminal justice system than did the father of the child.
The right to procreational privacy includes the right to carry a pregnancy to term. Indeed, this is the fundamental truth to women’s liberty interests: the ability to be free from state-determined procreation. What the state of Indiana was saying with the Shuai prosecution was that women with histories of mental health issues, addictions and other health conditions that might prevent them from being able to ensure a healthy birth outcome, as well as women who could not afford comprehensive prenatal care, drug treatment and mental health services, could now face prison time if they experienced a miscarriage, stillbirth, or neo-natal death. And what happens to those women the state determines are a risk for endangering future pregnancies? In the past, the United States has forcibly sterilized entire generations and categories of women. How can we be sure this country will not go to a similarly dark place again?
After an enormous outpouring of support, as well as pressure on the state, Bei Bei Shuai was finally released on $50,000 bail on May 22, 2012, 435 days after she had been arrested. She moved in with friends and wore an ankle monitor, awaiting her trial date. In July the prosecution suddenly offered Shuai a deal—plead guilty to feticide, and they wouldn’t try her for murder. The offer was tempting. With a feticide plea, though Shuai could conceivably serve twenty years in prison, the sentence could be as little as six years, and, if she was highly cooperative, she could receive a suspended sentence. If she didn’t take the plea and she was found guilty of murder, she could potentially spend most of the rest of her life in prison. Was the prosecution offering a nearly irresistible plea deal in the hopes that despite everything, they could still get a feticide precedent on the books? Had the murder charge always been just a threat to get Shuai, a grief-stricken immigrant still new to the country, to agree to a lesser charge? Whatever the prosecution’s motives, Shuai refused the deal. According to her attorney, Shuai is ready to fight not only to prove her own innocence but to ensure that no other woman in her circumstances is ever punished for the death of her baby if something happens during her pregnancy. She may never be able to bring her Angel back, but Bei Bei Shuai can still fight for her reputation and try to free herself from the stigma of guilt.