INDIANAPOLIS (WISH) - Since suicide isn't a crime, there's no way a Chinese immigrant could have known she would be charged with murder and feticide for trying to kill herself while she was pregnant, her attorney told the Indiana Court of Appeals on Tuesday.
Bei Bei Shuai, 34, was 33 weeks pregnant when she ate rat poison Dec. 23 after her boyfriend broke up with her. Attorneys say she was attempting suicide in the midst of major depression. Shuai was hospitalized, and doctors tried to treat her for the poison. Court records show doctors told Shuai they detected little problem with the fetus until days later, when the premature baby girl was delivered by cesarean section on Dec. 31.
The child, named Angel Shuai, died three days later from bleeding in the brain after she was removed from life support. Shuai was charged in March.
Her attorney, Linda Pence, who had filed a pre-trial appeal, asked the three-judge panel to order the charges dismissed or at least allow Shuai to be released on bail.
"While it was a tragic decision, it was not unlawful," Pence said. She argued that Indiana's feticide and murder laws were written or amended to protect fetuses from violence from third parties, not from their own mothers. She said suicide isn't a crime and Shuai couldn't have expected to be arrested for attempting to kill herself.
"No pregnant woman has been put on notice that if they are depressed and try to do harm to themselves that they would be charged with feticide," Pence said.
Judge Edward Najam said that raised the argument that Shuai's due process rights had been violated. But he said the court would try first to decide the case on statutory, not constitutional, issues.
"At the heart of your case is due process," Najam said. "Your argument is that she only found out it was a crime after the fact."
Deputy attorney general Ellen Meilaender said that the case wasn't about suicide. She told the court that Shuai was charged because she "took another viable life."
"The crime is harming someone else in the context of your suicide," Meilaender told the panel, which included one man and two women.
The state has contended for months that Shuai intended to kill her unborn baby, not just herself.
Meilaender refused to concede that the statute might be vague. "It's very clear that just because you're trying to commit suicide at the time you take another life that that doesn't excuse you of liability," she said.
Pence argued that similar cases in other states had been decided in favor of the mothers. "Other states' courts seem to come to the conclusion that this is wrong and they get rid of it however they can," she said. "They realize this is a bad, bad action to charge and it doesn't belong in the criminal system." She questioned how murder and feticide laws could apply to pregnant women without also applying to legal abortion.
The judges also questioned both attorneys on how the law could apply since the infant was a fetus when Shuai allegedly ate poison, but didn't die until after she had been delivered. But Meilaender said the fact that the child was born alive didn't lessen the crime, and evidence showed without medical intervention the fetus would have died.
Najam said the judges would decide the case as soon as possible. He warned both sides not to interpret the judges' questions as a sign of which way they were leaning. "We don't know what we're going to decide," he said.
Indiana Attorney General Greg Zoeller said in a statement issued after the hearing that the charges should remain intact so Shuai's trial could proceed.
"This case generates strong opinions but the state's position adheres to the longstanding principle that a jury must weigh any facts, even those that go to the defendant's intent, and therefore the trial court is where this case belongs," he said in the statement. "The defense can argue its interpretation of the facts to the jury but the county prosecutor need not accept at face value the defense's assertions."
Groups including the American Medical Women's Association, National Advocates for Pregnant Women and the American Civil Liberties Union have filed legal briefs on Shuai's behalf.
Pence said afterward that she thought the hearing had gone well and the judges had asked pointed questions. "The judges had clearly read, really reviewed the briefs," she said.
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