Virginia Attorney General Mark Herring has issued an official, but shocking opinion that a state law prohibiting the concealment of dead bodies does not apply to stillborn fetuses. The opinion comes after remains of a fetus were found discarded in a Rocky Mount, Virginia dumpster.
Recently, the Virginia Court of Appeals upheld a controversial conviction of a southern Virginia woman who was found guilty under Section 18.2-323.02 of the Virginia Code which provides that, “Any person who transports, secretes, conceals or alters a dead body…with malicious intent and to prevent detection of an unlawful act or to prevent the detection of the death or the manner or cause of death…”
According to The Washington Post, the woman disposed of her fetus that had died in her womb, leading to a miscarriage. She was sentenced to five months in jail.
The woman appealed the conviction with the argument that the “fetus was never alive,” therefore, “[it] cannot be dead.”
In recent years, the handling of fetal remains has been fiercely debated. Both supporters and opponents of abortion rights have taken an interest in the case, even though abortion was not involved.
Herring, a Democrat, disagreed with the decision that the woman should be prosecuted and sentenced. Through a statement, Herring said, “Virginia law does not criminalize women who have a miscarriage, and as attorney general I have an obligation to clarify any ambiguity and correct any impression or statement to the contrary.”
Nevertheless, Herring issued his opinion just one day after the deadline expired for the woman to appeal her case to the Virginia Supreme Court. No appeal was filed against the lower court ruling.
The ruling from the Court of Appeals stated that the woman’s, “placenta separated from the wall of her womb in February 2016, triggering a miscarriage.” She then, “passed out in her bathroom and awoke to find the stillborn fetus on the bathroom floor next to her.”
Furthermore, the woman, “then cut the umbilical cord, wrapped the fetus in a bathmat and disposed of it in a garbage can,” according to the ruling. After a time, the woman sought medical care, and a doctor alerted local authorities after becoming concerned of the situation.
After the remains were extricated from a dumpster, a medical examiner performed an autopsy, stating the fetus was between 30 to 32 weeks old, as stated in the Court’s ruling. A fetus of that age is well within the spectrum of viability, but the examiner found that the fetus’s lungs had never been exposed to air and that it had died in the womb up to three days before the miscarriage.
Herring’s opinion stated that the legislature, “never intended the statute to apply to the remains of stillborn babies.” He claims that elsewhere in the Virginia Code the law distinguished between a dead body and a fetus.
However, the opinion states that, “The term ‘a human body’ is not defined in § 32.1-249 or anywhere else in the Code of Virginia. Nor has the Supreme Court of Virginia previously construed the term ‘a human body,’ either as used in § 32.1-249 or elsewhere in the Code.”
“There is considerable reason to doubt that the ordinary meaning of the words ‘a human body,’ standing alone, would be understood as including a fetus,” Herring’s opinion reads.
The question here is what the definition of a human is for Attorney General Herring. Apparently, for Herring, being a member of the species Homo sapiens doesn’t necessarily mean that one will draw protection under the Virginia Code.
