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ACLU questions prosecution of mother charged with producing an abortion

Updated: Apr. 7, 2017 at 4:05 PM EDT
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CHESTERFIELD, VA (WWBT) - It's a crime that shocked Philbrook Road on Monday: a former neighbor, Michelle Roberts, was charged with purposely ending her own pregnancy, after fetal remains were found buried in her yard.

Gail Deady, the Secular Society Women's Rights Legal Fellow for the ACLU of Virginia, finds the charge troubling. She says it's not right for Roberts, nor any woman, to be prosecuted for ending their own pregnancy.

"The Supreme Court of Virginia has made it very clear that this law is intended to protect pregnant people from the actions of others," said Deady.

Roberts faces a felony charge of producing an abortion or miscarriage. Deady says this law has been on the books since 1849 but was never intended to punish an expectant mother for terminating her own pregnancy.

She points to two Virginia Supreme Court Cases, "Anderson v. Commonwealth" in 1950 and "Miller v. Bennett" in 1949, that support this reading of the statute.

"If this law were to apply to a pregnant woman who ends their own pregnancy, then that would mean that anyone who had a miscarriage or stillbirth would be at risk of being reported to the police, investigated, thrown in jail, prosecuted," Deady says.

NBC12 legal analyst Steve Benjamin says it's not so simple. He agrees the law was written to protect against someone other than a doctor performing an abortion.

"The cause of concern, back in the old days, were the butchers in the darkened alleyways who used coat hangers and other barbaric means, because physicians were not allowed to do this," Benjamin said.

However, Benjamin says a 2008 state Supreme Court case ended up giving prosecutors more leeway to interpret this law.

"Under Virginia case law dealing other crimes, you could now interpret the abortion statute as making it a crime for a woman to terminate her own pregnancy - even though it wasn't meant to be," said Benjamin.

According to Benjamin, Roberts is the first expectant mother in Virginia to be charged under this statue. He contends that reading the law this way is a slippery slope.

"If a woman fell down the stairs while pregnant, her intent to terminate the pregnancy could be inferred by the prosecution, even though it wasn't her actual intent," he said.

Roberts is due in court later this month.

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