Loophole lets Va. woman kill baby, go free
Posted on Jan 7, 2010 | by Michael Foust
RUSTBURG, Va. (BP)--In a case that some say illustrates just how liberal the nation's abortion laws have become, a Virginia woman who allegedly suffocated her newborn baby isn't being charged because the umbilical cord was still attached and the placenta still in the mother, making the murder legal under state law.
The shocking case took place in mid-December in Rustburg, Va., and has left pro-lifers, some legislators and the state's governor-elect calling for a change in law to close the loophole.
As first reported by WSLS-TV in Roanoke, the baby's grandmother called 911 around 11 a.m. Dec. 11, saying her daughter was in labor. But deputies who went to the house soon learned that the mother had gone into labor some 10 hours earlier and that the dead baby was under bedding, its airway still blocked. The baby, still connected to the woman, was full-term and due to be born only four days later.
Campbell County investigator Tracy Emerson said he wants to see the law changed but added there's little he can do.
The question is: Under Virginia law did the baby have a separate and independent existence? Emerson said no.
"In the state of Virginia as long as the umbilical cord is attached and the placenta is still in the mother, if the baby comes out alive the mother can do whatever she wants to with that baby to kill it," Emerson told WSLS. "She could shoot the baby, stab the baby. As long as it's still attached to her in some form by umbilical cord or something, it's no crime in the state of Virginia."
It's at least the second horrific case out of Virginia in recent years to involve a mother allegedly killing her full-term baby. In 2006, a pregnant woman survived when she shot herself in the stomach on her due date, killing the baby. The Commonwealth of Virginia filed charges against her, saying it was an illegal abortion, but a judge disagreed and dropped the charges, ruling it was not illegal for a woman to perform her own abortion.
Victoria Cobb, president of the pro-life Family Foundation of Virginia, said her organization unsuccessfully tried to change the law after the 2006 case but was rebuffed by pro-choice legislators. The two cases likely have different legal remedies -- one baby was inside the mother, the other outside -- but the appalling nature of the latest case might put more pressure on legislators.
The case, Cobb said, needs to get more nationwide and statewide attention.
"The real issue here is that our society has been so desperate to protect the act of abortion in law that we have created situations like this and others where criminal murder codes are no longer being applied," Cobb told Baptist Press. "... The history of abortion law is that these codes get written to make sure that the mother can never be charged. That's the challenge. It's almost like we've precluded the possibility that a mother would actually kill her child at full term or her child after it's been born. That's what's happened in both of these cases."
Cobb said she isn't certain there is a gap in the law -- attorneys are still examining it -- but she said that if there is, the law should be changed. But she added that it appears that under Virginia law there is a "gap of time" after the baby is born before the murder statutes apply.
State Sen. Steve Newman, a Republican, told WSLS he will work to change the law during the next session, which begins Jan. 13.
"It is difficult to believe that the current Code could have such a flaw that would allow anyone to take the life of a born child," Newman said in a statement. "While I will not comment at this time on the case in Campbell County, it is abundantly clear that Virginians will demand a legislative cure to this loophole."
Gov.-elect Robert F. McDonnell, a Republican, said he would sign the bill.
"To me that's the same as any other kind of murder and needs to be covered and punished appropriately," McDonnell said. "... If the existing law would not cover that as a crime, then I think obviously most citizens would agree that's something that needs to be changed."
Newman serves on the Senate Education and Health Committee, where Democrats hold a 10-5 edge and which defeated the most recent effort to change the law so that a woman couldn't -- as in the 2006 incident -- perform her own late-term abortion.
"The committee is stacked against pro-lifers," Cobb said. "We were shocked that a woman could shoot herself in the stomach and not be prosecuted and the law would not be immediately fixed. ... This case will give those legislators another opportunity to fix the loophole in the law."
Democrats control the Virginia Senate, 21-19. Republicans control the House.
"No reasonable person can make the argument that a woman should be allowed to kill her nearly born or newly born child for any reason," Cobb said. "It transcends the abortion debate. These are children that must be protected in law."
Michael Foust is an assistant editor of Baptist Press.