Criminal Abortion Prosecution (VA)

State of Virginia v. Michelle Roberts

In March 2017 the state of Virginia indicted Michelle Roberts for the felony charge of “producing an abortion or miscarriage.” In early 2016 the Chesterfield, Virginia police department obtained a search warrant and found fetal remains buried in Ms. Roberts’s back yard. According to news reports, Ms. Roberts stated that she had experienced a stillbirth and that she and her adult daughter had placed the fetal remains in the ground behind her house.

NAPW, along with the ACLU of Virginia and the SIA Legal Team, assisted Ms. Roberts’s defense attorney in drafting a motion to dismiss the charges, arguing the Virginia statute could not be used to prosecute a woman in relation to her own pregnancy, and that if such an application of the law were permitted it would violate the U.S. and Virginia Constitutions.

After being jailed initially, Ms. Roberts was released on bond . Her motion to dismiss, however, was unsuccessful – the criminal court denied the motion in a lengthy decision.

Following the denial of the motion to dismiss, NAPW joined the case as co-counsel. We identified and worked with medical experts including a forensic anthropologist, a 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. Based on the strength of this scientific evidence, the prosecutor decided to stop pursuing the charge, and our client's legal ordeal finally reached an end when the court dismissed the case in September 2018.

This is one of several recent prosecutions that contradicts anti-abortion activists' claims that abortion in the U.S. can be made a crime without the women who have abortions being 2 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 a t risk of wrongful prosecutions and convictions.


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