An Urgent Message
from VA State Delegate Bob Marshall
on the Morning After Abortion Pill

"The first law of history is not to dare to utter falsehood; the second, not to fear to speak the truth." Pope Leo XIII

There is something wrong when Planned Parenthood, Att. Gen. Jerry Kilgore, and Gov. Mark Warner agree that colleges can distribute so-called “Emergency Contraception” really, Morning Abortion Pills, to campus co-eds without telling them, it may cause an early abortion, according to Virginia’s Informed Consent law.

Please read the letter below, share it with you friends, and then contact Att. Gen. Kilgore at:

Office of the Attorney General
900 E. Main St.
Richmond, VA 23219
Fax: (804) 371-0200
Phone: (804) 786-2071


Del. Bob Marshall

Tuesday, May 20, 2003

Attorney General Jerry Kilgore
Office of the Attorney General
900 E. Main St.
Richmond, VA 23219

Dear General Kilgore:

The opinion issued by a subordinate in your office (5/9/03) regarding so-called “emergency contraception” and state colleges is lacking in clarity, scientific accuracy, conformity to the Code of Virginia as applied by the Virginia Department of Health and conflicts with the Supreme Court of the Commonwealth.

The Code states:

“Before performing any abortion or inducing any miscarriage or terminating a pregnancy as provided in §§ 18.2-72, 18.2-73 or § 18.2-74, the physician shall obtain the informed written consent of the pregnant woman. … ‘Informed written consent’ means the knowing and voluntary written consent to abortion by a pregnant woman … by the physician who is to perform the abortion or his agent. … This basic information shall include: 1. A full, reasonable and comprehensible medical explanation of the nature, benefits, and risks of and alternatives to the proposed procedures or protocols to be followed in her particular case; … 4. A statement of the probable gestational age of the fetus at the time the abortion is to be performed;” (VA Code 18.2-76)

Unlike your subordinate, who cited no case law to support his speculating of what a judge may or may not do regarding the definition of “pregnancy,” the Health Department did not accept competing definitions of pregnancy in applying HB 2570, as your office did.

The Virginia Department of Health published a booklet on fetal development and another on abortion which cites portions of the Code of Virginia to assist women in making an informed decision regarding abortion. (The booklet identifies 3 to 4 weeks implantation as 1-2 weeks after fertilization.)

“Fetal Development: Understanding the Stages

There are two distinct ways in which medical professionals figure the age of a pregnancy: weeks after the first day of the last menstrual period, or menstrual weeks, and weeks after fertilization. … For example, 6 menstrual weeks is the same as 4 weeks after fertilization. …

Definition of Terms

FERTILIZATION: The point at which a woman’s egg is penetrated by the male sperm providing the necessary male and female components for a fetus.

FIRST TRIMESTER: The first three months of a woman’s pregnancy.

GESTATIONAL AGE: The age of a developing embryo or fetus, stated in either menstrual weeks or weeks after fertilization.

WEEKS AFTER FERTILIZATION: The age of an unborn child measured from the estimated day of fertilization.”

The Department prepared a second publication briefly describing “the various methods of abortion commonly used.” (It is not an exhaustive description of abortion techniques.)

“Abortion: Making an Informed Decision

It is a woman’s right to be fully informed about the procedures, complications, and risks involved in an abortion. It is a doctor’s legal responsibility to provide that information.

Definition of Terms:

ABORTION: Induced abortion is the act of ending a pregnancy either through surgery or by taking medication. The intention is not to have the fetus born alive.

EMBRYO: After fertilization, the combined egg and sperm is called a zygote. The zygote quickly divides into a cluster of different types of cells which form the embryo.

FIRST TRIMESTER: The first three months of a woman’s pregnancy.

GESTATIONAL AGE: The age of a developing embryo or fetus, stated in either menstrual weeks or weeks after fertilization.

WEEKS AFTER FERTILIZATION: The age of an unborn child measured from the estimated day of fertilization.”

While some (Virginian Pilot, Roanoke Times) have suggested that the information contained in these booklets is political or motivated by religion, the VDH (That’s Virginia—not Vatican—Department of Health) acknowledged Dr. Christine Peterson for her “professional assistance in reviewing the contents of the booklet.” Dr. Peterson is U VA Director of Gynecology, Department of Student Health. She supports furnishing Preven or Plan B to students. So, while the Virginia Department of Health is telling women one thing about informed consent for abortion, your office is telling college presidents quite another.

Your office speaks of “unprotected sex” as if this were a neutral legal or medical term, when in fact it assumes that pregnancy is a disease, a dysfunction, or a pathology. Your office also claims “the pregnancy of the woman must be proved” for the law to apply. But the Code applies to an “attempt to terminate a human pregnancy … by performing an abortion or causing a miscarriage on any woman during the first trimester of pregnancy.” (VA Code 18.2-72) (Injecting a gratuitous proof of pregnancy requirement not found in the Code raises problems not addressed here.)

The Virginia Supreme Court ruled that:

“The law of prenatal injuries has changed considerably in recent years. … The first American decision on the subject apparently was Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242 (1884). … an opinion by Justice Oliver Wendell Holmes, established the rule of nonliability for prenatal injuries. This decision was widely followed by the courts but was criticized by the commentators. … This criticism, together with developments in medical science, especially in the field of embryology, prompted reconsideration of the precedent. … While a fetus is not a "person," it is not a nonentity. For example, an unborn child is protected by the criminal law on abortion. Code §§ 18.2-71 to -76.1. The unborn child is afforded property rights under the statute of descents, Code § 64.1-8.1, and under the statutes on wills, Code § 64.1-70. Such a child is afforded dependency status under the workers' compensation law, Code § 65.1-66. Therefore, in the context of this case, there is no requirement that the plaintiff be in existence at the time of the negligence …” [Kalafut v. Gruver, 239 VA 278, 1990].

I noted for your office the availability of experienced, degreed experts in this field. They were not utilized. Ignoring our Supreme Court’s advice, your office declined to look at “developments in medical science, especially in the field of embryology,” as no embryology texts are cited. In fact, your office uses terms and/or approves terms for patient informed consent which are rejected by professional embryologists as undesirable. (R. O’Rahilly, Md., D. SC, Dr. H.C., at al, Human Embryology and Teratology, 3d Ed. Wiley-Liss, page 12.)

The Department of Health states that medical professionals date pregnancy from the day of the last menstrual period, or from fertilization. Your office chose a definition of pregnancy devised by abortionists who were aware that women made a moral distinction between preventing a new life, and ending one. Your office declined to identify what a contraceptive is, or provide any definitions, where you were eager elsewhere to supply them.

Dr. Richard Sosnowski, head of the Southern Association of Obstetricians and Gynecologists, an affiliate of ACOG, stated:

“I do not deem it excellent to play semantic gymnastics in a profession … It is equally troubling to me that, with no scientific evidence to validate the change, the definition of conception as the successful spermatic penetration of an ovum was redefined as the implantation of a fertilized ovum. It appears to me the only reason for this was the dilemma produced by the possibility that the intrauterine contraceptive device might function as an abortifacient.” (R. Sosnowski, “The Pursuit of Excellence: Have We Apprehended and Comprehended it?” Am. Jour. of Obstetrics and Gynecology, Vol. 150, No. 2, Sept. 15, 1984, 117.)

Even abortion-leaning scientists at Planned Parenthood can find it in themselves to tell the truth when pregnancy is being discussed in other mammals, such as the rat:

“Normally, fertilized rat eggs take about 3 days to pass through the oviduct, and on the 4th day of pregnancy, they enter the uterus. … Day 5, attachment of the blastocyst to the uterine epithelium starts, and this we consider the beginning of implantation.” [Z. Dickermann, V. J. De Feo, “The Rat Blastocyst During Normal Pregnancy and During Delayed Implantation …” Journal of Reproduction and Fertility, official journal of the Society for the Study of Fertility, Biological Science Committee of the International Planned Parenthood Federation, Vol. 13, (1967):3-9.]

Virginians deserve better than the misleading opinion from your subordinate. Failure on your part to correct this error-laden opinion can only undermine the credibility and authority of your office. I urge you to reject the memo of Assistant Attorney General Forehand, and do the right thing.


Delegate Bob Marshall