Chesterfield feticide involving woman charged with self-aborting could be precedent setting

Prosecutors on March 20 obtained an indictment against Michelle Frances Roberts on a charge of producing an abortion or miscarriage “with intent to destroy her unborn child,” a Class 4 felony.

After police learned of the situation in February 2016 from the mother of Roberts’ longtime boyfriend, an investigation ensued and authorities discovered fetal skeletal remains buried in the backyard of an address where Roberts was living in the 6200 block of Philbrook Road.

Police said Roberts acknowledged that the remains were, in fact, buried there when they confronted her at the start of the investigation. Authorities believe the remains had been buried about five to six months earlier, and that Roberts’ fetus was aborted during the third trimester of her pregnancy.

Police and prosecutors have not disclosed how they believe the fetus was aborted or provided a cause of death. The state medical examiner’s office apparently is withholding the cause and manner of death at the request of Chesterfield authorities.

Although the language is unclear, the statute under which Roberts was charged indicates it applies to a third party who induces an abortion or miscarriage on a woman but not the expectant mother herself.

The law, which dates to 1950, was used at least once previously in Virginia, to prosecute a mother in Suffolk who shot herself in the abdomen on Feb. 23, 2005, to end her full-term pregnancy.

But the charge was dismissed by Suffolk Circuit Judge Westbrook Parker, who said the law that prosecutors used against the defendant did not apply to expectant mothers but only to third parties.

The judge, however, said during the woman’s trial that he could not “help but feel moral outrage” at the defendant’s actions, according to news accounts.

A lower court judge had reached a similar conclusion to Parker’s several months earlier and dismissed the case, but prosecutors overrode him by obtaining a direct indictment from a grand jury.

The case caused a sensation in Suffolk and prompted Del. S. Chris Jones, R-Suffolk, to sponsor a bill during the 2007 General Assembly that would make it a felony for an expectant mother to produce her own illegal abortion. But lawmakers in the Senate Education and Health Committee rejected the bill because some feared it might be amended later to restrict abortion further.

Jones fine-tuned the feticide bill’s language and resubmitted it during the 2008 session, but it was again defeated. The bills in 2007 and 2008 passed in the House of Delegates but failed to do so in the Democratic-controlled Senate. Jones tried again in 2010 without success.

Attorney Kevin Martingayle, who represented the Suffolk woman a decade ago, was quoted in news accounts in 2007 saying that it’s easy to point to a particular act and say it should be illegal, “but it’s extremely difficult to draft a law that would catch only those who deserved to be prosecuted and no one else. “

Martingayle had argued in court that if his client could be prosecuted, it would open the door to other prosecutions in Virginia, and women whose fetuses died after the mothers drank alcohol or rode bicycles and fell could become vulnerable to prosecution.

But Suffolk authorities said the woman was being prosecuted because she clearly intended to kill the fetus. She bought a gun and persuaded an unwitting friend to load the weapon and instruct her how to use it.

The woman, then 23 and a single mother with two small children, called police at 4 a.m. to report falsely that she had been shot by a man and was lying in the parking lot of a car dealership. The woman later admitted she did not want the baby and had shot herself, on her due date, after feeling contractions.

John Rockecharlie, an attorney who has no specific knowledge of the case and is not representing the woman in Chesterfield, said he could not find any cases in Virginia in which someone was convicted of the offense and appealed.

“My interpretation (of the law) is that it refers to a third person assisting a woman and is not applicable to the mother,” said Rockecharlie, a former prosecutor in Richmond and Chesterfield.

“I can see where the commonwealth might argue that (Virginia law) states ... that an abortion in the third trimester can only be performed by a licensed physician, in a hospital, when the mother’s life is in jeopardy and that lifesaving measures for the fetus must be in place,” he added. “I’m assuming these measures were not in place in this case.”

Rockecharlie said the case may be a “difficult one” for a Chesterfield Circuit Court judge to decide, but based on the facts he read in a Richmond Times-Dispatch story about the case, he believes the statute under which the woman was charged does not apply.

Because the case is pending trial, Chesterfield prosecutors Shawn Gobble and Erin Barr have declined to discuss the matter or their interpretation of the law. H. Pratt Cook III, Roberts’ court-appointed attorney, also declined to comment.

According to court documents, the father of Roberts’ unborn baby is incarcerated in a Virginia prison, and Roberts was receiving low doses of methadone about four times a week from a Richmond treatment center during her pregnancy.

In the Chesterfield case, the Virginia ACLU last week lashed out at county authorities for charging Roberts.

“No woman should fear arrest or jail for ending her own pregnancy or for pregnancy loss,” said Gail Deady, the organization’s Secular Society Women’s Rights Legal Fellow, in a statement.

“The particular law implicated in this case does not apply to a pregnant woman — it applies to third parties only.”

Although Deady said it remains unclear what precisely happened, “it appears that this is another example of overreach and targeting of a pregnant woman in an attempt to shame and punish her for her circumstances.”

Victoria Cobb, president of The Family Foundation of Virginia, said a majority of Americans believe that abortion should be prohibited after the midpoint of a pregnancy “even if done by a so-called doctor, but killing an unborn child in the last weeks before they are born and burying their little body in the backyard is simply horrific.”

“In the past, the General Assembly has failed to adequately address this issue,” Cobb added. “Because abortion in the last weeks of a full-term pregnancy is so complicated and potentially dangerous, Virginia law requires it be done in a hospital.

“It is remarkable that anyone would find it safe or reasonable for someone to take the life of their unborn child at that point without even minimal medical supervision.”