An appeals court is considering whether to overturn the 2015 felony conviction of a 33-year-old woman who committed a late-term self-abortion, left her child to die when it was born alive and then lied about it when she went to a hospital. Purvi Patel’s baby was eventually found in a dumpster outside a restaurant.

Patel’s case has been a cause celebre for abortion advocates, who claim she is being unfairly targeted under Indiana’s feticide law. The law prohibits “knowingly or intentionally terminat[ing] a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus,” but like most states exempts legal abortions.

Patel was convicted of feticide for using illegal abortion drugs to kill her child after the legal deadline of 28 weeks’ gestation, and of neglect after it was determined the child likely took a breath. She was sentenced to 20 years.

Indiana Deputy Attorney General Ellen Meilaender told judges on Monday that the conviction should stand. “It’s the defendant’s failure to seek medical treatment, to provide that care for the baby, that led to all of the things that resulted in the baby’s death,” Meilaender said, according to court documents cited by The Indianapolis Star. “The jury could reasonably infer that somebody who was holding a live baby in her hands would be aware that it was alive.”

Patel’s attorney Lawrence Marshall disagreed, arguing that “Not a single expert ever said — in any sort of declarative way — that yes, this infant would have survived had Ms. Patel done differently.” He also said that the feticide law wasn’t meant to apply to pregnant women, and that no evidence had been presented to show Patel knew her illegally aborted child was alive.

The Judges Press

The three judges pressed both attorneys on their stances, with one, Nancy Vaidik, questioning whether the baby’s questionable chances of survival should be a factor in the appeals court’s decision. “Someone is about ready to die of cancer, and someone shoots them. That person is guilty of murder,” Vaidik told Marshall. “I mean, we don’t say, ‘Oh, they only had another five hours to live.’ And that’s what I’m struggling with.”

She also pressed Meilaender, saying, “This is what the state has to prove beyond a reasonable doubt: that she knew that this baby was breathing and alive.”

Another judge compared taking the illegal drugs, which were designed to work together to end Patel’s pregnancy, to drinking alcohol and smoking cigarettes. “One pack of cigarettes a day, or a fifth of whiskey a day?” L. Mark Bailey asked. “I mean, what is it that we’re going to start prosecuting here?”

Patel’s case has been complicated from the beginning. According to court documents, she showed up to a hospital in 2013, bleeding profusely. She initially denied being pregnant, then admitted she had been with child. She subsequently said she was early in the pregnancy and miscarried, but doctors eventually concluded she had been pregnant for more than 28 weeks.

The child’s death was caused by two illegal drugs Patel used to end her pregnancy. One of them didn’t work, causing the complications that led to the child’s likely live birth and Patel’s hospital visit.

The Evidence

While abortion backers, including signers of a petition to President Obama (which got less than one-fifth of the needed 100,000 signers for a presidential response), claim the prosecution convicted Patel on “unscientific ‘evidence” related to the alleged breath taken by her child, the prosecutor’s pathologist said there was strong evidence that the baby had taken a breath.

Though the “lung float test” can’t be trusted by itself, Joseph Prahlow said, it may “provide corroborating evidence” when combined with such evidence as the inflation of the lungs and the presence of blood in the vessels in the lungs. “I can’t come up with any other explanation other than that this baby was born alive,” saw Prahlow, according to a Patel supporter who cited his testimony.

Patel’s backers claim there was no medical evidence that Patel took abortion-inducing drugs. However, prosecutors used texts from Patel to prove she self-aborted. One text from early July 2013 reads that “these pills taste like #$&%. If these pills don’t work…I’m gonna be mad.”

Indiana’s feticide law has an exception for women who get abortions, according to the National Council of State Legislatures, and the state’s laws indicate abortions are required to be done by abortionists. Prosecutors originally brought the conflicting feticide and neglect charges in order to raise the chances of conviction.