In a small town in southern Virginia, in February of 2016, a young woman had a stillbirth. Katherine Dellis was 30 to 32 weeks pregnant when she passed out in her bathroom. When she woke up, the fetus was lying next to her on the bathroom floor. She wrapped the remains in a bathmat, put it in a trash bag, and put another trash bag around it. Her father, oblivious to what was inside, deposited the bag in a public dumpster, according to court documents.
Later, at an emergency room, the physician treating Dellis heard her story and called the police. An autopsy would later reveal that the fetus’ lungs had never breathed air, confirming that it had expired before leaving the womb. Even so, Dellis was arrested and charged with a felony. Her crime? Concealing a dead body. Dellis entered a conditional guilty plea that allowed her attorney to continue arguing that the statute she supposedly violated does not apply to her case. One year after her stillbirth, she was sentenced to five months in jail.
The Washington Post called attention to Dellis’ case on Wednesday in a piece about a recent Virginia Court of Appeals decision that upheld her conviction. She and her attorney contend that because the fetus was never alive, it cannot be considered dead. In Dellis’ first trial, prosecutors argued that a fetus can meet the statutory definition of a dead body, as evidenced by the fact that a medical examiner could determine that the fetus died “less than several days” before it left Dellis’ body. If physical evidence can prove when a fetus expired, then, for the purposes of the law, prosecutors said, it can be dead.
In their opinion, the three appellate judges (one of whom, Rossie Alston, has been nominated by Donald Trump for a federal judgeship) wrote that the statute regulating the disposal of dead bodies serves two purposes: to prevent cover-ups of criminal activity and to protect public health. The judges concluded that the statute should apply to fetuses as well, because fetal remains could pose the same public health risks as dead bodies and there’s nothing to say that concealing them wouldn’t indicate evidence of criminal activity.
The opinion is unpublished, which means it cannot be cited as precedent in future court cases. But the argument it advances—that a fetus that has never lived outside a womb should be treated the same as a human being who has—is troubling. In recent years, several states have enacted regulations requiring fetal tissue from abortions to be buried, “entombed,” or “cremated.” Such laws in Texas and Indiana have been permanently blocked by federal judges.
The language in these provisions is intentionally misleading: Medical waste is often incinerated anyway, but calling it cremation evokes the death of an adult. When fetal remains aren’t incinerated, they’re disposed of in medical landfills. In Texas, where a federal judge ruled the state’s fetal burial and cremation law unconstitutional, the law still would have allowed medical practitioners to dispose of fetal remains in landfills—only post-cremation, in ash form. Defending the law in court, a Texas health official said she’d envisioned the fetuses buried in a mass grave, for a cost of $2 apiece. Conservatives defend such regulations as ways to give “dignity” to fetal remains, but the ends produced by those rules don’t support that goal at all. Instead, reproductive-rights advocates argue, such laws are written to instill shame in women seeking abortion care and enshrine fetal tissue with humanity in the public consciousness.
These laws, and the Virginia Court of Appeals’ ruling on the case of Katherine Dellis, also give credence to the idea that fetuses deserve the same rights as living people. More than 90 percent of abortions in the U.S. take place within the first 13 weeks of pregnancy, when the average fetus is less than 3 inches long. A state that requires anything akin to death rites for fetal tissue is one step closer to arguing, as “personhood” laws do, that these fetuses have a right to tax-free college savings accounts, that contraception is murder, and that embryos should be able to sue the woman from whose egg they developed.
The opinion in Dellis’ case also envisions a society in which a person who has a miscarriage must involve authorities in the aftermath and proceed with the same urgency and care as if she’d happened upon a dead body in her backyard. Around 1 in 5 recognized pregnancies end in miscarriage, and about 24,000 stillbirths—fetuses lost after the 20th week of pregnancy—occur in the U.S. each year. The impact of a court precedent or more explicit regulation that recognized miscarried fetuses as dead bodies would be vast and punishing. The anti-abortion activists applauding the Virginia court’s decision seek to impose a brutal burden on pregnant women, who would be forced to worry about the legal ramifications of their miscarriages in addition to the physical and emotional ones. In addition to restricting the rights of women who wish to end their pregnancies, they would have the state penalize women who don’t, whose pregnancies end prematurely and against their will.
Countries with abortion restrictions far stricter than those in the United States routinely interrogate or jail women for having miscarriages if a doctor or witness believes they may have self-induced an abortion. In El Salvador, for instance, miscarriages are shrouded in suspicion; the already-painful medical event has become a site of blame, anxiety, and violence. A country that begins jailing women for traumatic stillbirths they did not induce risks treading the same cruel path.