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Gov. Northam pardons fetus defendant

Gov. Ralph Northam has granted an absolute pardon erasing the conviction of a Franklin County woman for discarding the remains of a stillborn fetus. The case, little noticed at first, became a lightning rod in the abortion rights debate after the conviction was affirmed by the Virginia Court of Appeals.

Northam’s June 1 pardon followed a May 25 formal opinion from state Attorney General Mark R. Herring in which he renounced his office’s earlier defense of the conviction of Katherine Dellis. Herring said the state statute that criminalizes concealment of a “dead body” does not apply to a stillborn fetus.

Northam said that, after his review of the matter, “I have decided it is just and appropriate to grant this ABSOLUTE PARDON that reflects Ms. Dellis’ innocence of the charges brought against her pursuant to § 18.2-323.02 of the Code of Virginia and of which she was convicted ….” The pardon noted that Dellis had served her five-month active sentence.

Dellis’ lawyer, Will Davis of Rocky Mount, said he did not file a formal petition for clemency. “I simply sent a letter to the governor,” he said.

He said Dellis’ lawyers welcomed the change in the position of Herring’s office.

“The initial position of the attorney general in the Court of Appeals would have condemned as criminals thousands of women … who experienced spontaneous miscarriages in their earliest days of pregnancy for failure to notify the proper authorities of such occurrences. Unfortunately, the attorney general’s new position comes too late for Ms. Dellis, who served prison time for an event that was never a crime to begin with,” Davis said in a June 3 emailed statement.

The Dellis case drew criticism from advocates of reproductive rights, and the Herring turnabout and the Northam pardon were welcomed by Tarina Keene, executive director of NARAL Pro-Choice Virginia.

“Today’s pardon corrects a grave error that resulted in a deep injustice for Katherine Dellis. Punishing a woman for her miscarriage and equating a stillborn fetus to a dead body sets a dangerous precedent that Governor Northam and Attorney General Herring have worked hard to correct,” Keene said in a statement released June 1 by the NARAL office.

“People who face these tragedies should receive support and care, not prosecution,” she added.

State Sen. Scott Surovell tweeted his approval: “Failure to report a miscarriage shouldn’t be a felony.”

Dellis acknowledged she had given birth to a stillborn fetus and disposed of the remains in the trash. She was charged with concealment of a dead body. Her lawyers argued the concealment law did not apply to a stillborn fetus, but the trial judge and the Court of Appeals decided it did.

Dellis was sentenced Dec. 8, 2016, to five years in prison with all but five months suspended. On appeal, a lawyer from Herring’s office argued the conviction was appropriate. Herring’s new position came in a formal opinion requested by Northam.

Updated June 3 to add comment from Davis.

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