In Dellis’s case, the medical examiner found the fetus was 30 to 32 weeks along — a gestational age that is viable with the right care. But the medical examiner determined the fetus had died in her womb.
The Virginia Court of Appeals recently upheld the conviction, placing the state in the middle of a heated national debate about how to handle fetal remains, particularly in the case of abortions.
The unpublished opinion does not carry the weight of precedent in Virginia, but it still troubled abortion rights groups and cheered those who believe in affording greater rights to unborn children.
Tarina Keene, executive director of NARAL Pro-Choice Virginia, said the ruling effectively punished a woman for having a miscarriage, the outcome of roughly 20 percent of pregnancies.
“The appellate panel’s opinion, taken on its face, would lead to the absurd conclusion that any time a person has a miscarriage they have to follow the same procedures as if they found a dead human body,” Keene wrote in a statement.
Victoria Cobb, president of the Family Foundation in Richmond, countered that through the ruling the court affirmed “that Virginia law requires that regardless of the circumstances of demise, every deceased unborn infant must be treated with dignity and respect.”
Dellis, 26, of Rocky Mount, Va., and her attorney did not return calls for comment.
The appeals court wrote in its little-noticed opinion on April 24 that the placenta separated from the wall of Dellis’s womb, leading to the death.
Dellis went into labor at home and passed out, according to the ruling. When she awoke, she found the dead fetus on the bathroom floor next to her and cut the umbilical cord.
Dellis disposed of the fetus in a trash bag and later sought treatment in an emergency room, according to the opinion. The doctor became concerned after talking with Dellis about the birth and notified police.
Authorities recovered the fetus from a dumpster, and an autopsy was performed. The medical examiner concluded the lungs had never been exposed to air, meaning the fetus died up to three days before birth, according to the opinion.
Dellis was charged in Franklin County with concealing a dead body. She entered a conditional guilty plea in December 2016, a legal move that allowed her attorney to make further arguments that the remains should never have been considered a body.
She was sentenced to five months in February 2017.
She appealed her conviction on the grounds that the fetus “was never alive,” so “it cannot be dead.” The Virginia attorney general’s office, led by Democrat Mark R. Herring, argued to uphold the conviction, saying the state legislature intended to treat fetuses the same as dead bodies. Herring’s office declined to comment.
There has been a flurry of activity in recent years around the regulation of fetal remains, one of the newer fronts in the debate over abortion.
A handful of states have enacted or considered laws requiring the burial or cremation of aborted fetuses, while others have restricted experiments or the sale of those remains. The laws have been controversial, and many have been challenged in court.
Last month, a federal appeals court ruled unconstitutional an Indiana law requiring fetuses be buried or cremated. The measure was signed into law by then-Gov. Mike Pence (R), now the vice president.
One of the judges on the Virginia Court of Appeals who heard the case was Rossie Alston, a conservative who has been nominated by President Trump to serve as a federal judge in the Eastern District of Virginia.
Virginia state Sen. Scott A. Surovell (D-Fairfax) expressed concern that the case could spur stricter regulation of abortion in the commonwealth.
“It is one more step towards the judicial codification of personhood for fetuses,” Surovell wrote in an email.
Dellis has until May 24 to appeal the ruling to the Supreme Court of Virginia.