A Victory in the Fight for Justice for Pregnant Women

On September, 13, 2018, prosecutors in Chesterfield County, Virginia finally dropped the criminal charge of "producing an abortion," a class 4 felony, filed against Michelle Roberts. Almost three years ago Ms. Roberts had experienced a stillbirth at home and placed the fetal remains in the ground behind her house. In February 2016, police received information suggesting they look in the back yard. They retrieved the remains and prosecutors, relying on a wholly inadequate forensic medical examination, came up with the far-fetched theory that Ms. Roberts had not experienced a stillbirth but instead had intentionally aborted a late-term fetus.

Pregnancy Justice and our allies recognized that Virginia’s felony abortion statute, still on the books, was never intended to be used as a basis for arresting a woman who experienced a pregnancy loss or had an abortion. And regardless of the statute’s original intent, a law permitting criminal penalties against the woman herself would be unconstitutional. Ms. Roberts’s defense attorney sought to have the charges dismissed on these grounds but was rebuffed by the trial court judge. Following the denial of the motion to dismiss, Pregnancy Justice joined the case as co-counsel. We identified and worked with medical experts including a forensic anthropologist, medical examiner, and a Professor of Obstetrics and Gynecology and Psychiatry. Three experts examined the evidence the prosecutor was relying on and concluded in sworn written statements that there was no medical or scientific support for the prosecution's claims. Last week, based on the strength of this scientific evidence, the prosecutor decided not to pursue the charge and our client’s legal ordeal finally reached an end.

Ms. Roberts’s case is one of several recent prosecutions that contradicts anti-abortion activists’ claims that abortion in the U.S. can be a crime without the women who have abortions being criminally investigated and prosecuted. This case also demonstrates that laws criminalizing abortion are not limited to the issue of abortion. Such laws sweep women who wish to remain pregnant but experience miscarriage or stillbirth into the criminal law system. In addition, this case demonstrates the importance of zealous criminal defense and the extent to which, through the combination of pregnancy and junk science, women are at risk of wrongful prosecutions and convictions.