Legalizing Infanticide
In 1988, archaeologists made a horrifying discovery beneath an ancient Roman bathhouse in Ashkelon, a coastal city in what is now Israel. Buried in a sewer drain were the bones of nearly 100 newborn babies.
The remains dated to the fourth century AD, and researchers suspected that the infants had been discarded shortly after birth.
Years later, DNA testing identified fourteen boys and five girls among nineteen infants whose sex could be determined. Why so many boys?
Nobody knows. Some researchers suggested the building had operated as a brothel, but that interpretation is disputed. There is no reliable evidence establishing why the infants ended up in the drain, who was responsible, or whether they were deliberately killed.
Infanticide was not unique to Ashkelon. Historical records from Greece, Rome, and other civilizations describe newborns being killed or abandoned, sometimes with the approval of prevailing laws and customs. Poverty, disability, inheritance, family circumstances, and cultural beliefs all played a role. The spread of Judaism and later Christianity helped change these attitudes by emphasizing the sanctity of human life and the obligation to protect even the most vulnerable children.
Which brings us to Virginia in 2026.
On November 3, Virginia voters will decide whether to amend the state constitution to establish a fundamental right to reproductive freedom, including abortion. Virginia already permits third-trimester abortions when continuing the pregnancy poses a serious threat to the mother’s life or health. What the amendment would change is the legal standard.
Instead of requiring three physicians to certify a substantial and irremediable threat to health, the amendment would protect abortions that a single physician considers medically indicated to protect physical or mental health, without defining a minimum level of impairment. It would also place these protections in the Virginia Constitution, making them much harder for future lawmakers to change.
Jill and I live in Madison County, Virginia, and we will be voting in this election. As we examined the amendment, we found ourselves returning to a question societies have struggled with for centuries: At what point does the life of a child deserve legal protection, independent of the wishes of the adults making decisions about that child?
When Does a Child Become a Person?
Infanticide is generally defined as the killing of a child after birth. Killing a child before birth is classified as abortion or feticide, even when the pregnancy has progressed far enough that the baby could survive outside the womb. Under this terminology, an abortion at 34 weeks is not infanticide.
But where did that distinction come from?
Much of it can be traced to English common law. Centuries ago, courts struggled to establish whether a fetus had been alive when injured or whether an injury caused its death. Without ultrasound, fetal monitoring, or modern obstetrics, proving those facts was difficult. The law eventually adopted what became known as the born-alive rule, distinguishing between a child who died before birth and one who was born alive and subsequently died from injuries suffered in the womb.
This was partly a practical legal distinction shaped by the limits of medical knowledge. It was never evidence that a child suddenly became biologically human at birth. Yet centuries later, the law still relies heavily on that distinction when determining what protections apply to a child before and after birth.
Today, physicians routinely monitor fetal heartbeats, observe fetal development through ultrasound, and successfully care for babies born months prematurely. Yet the terminology separating abortion from infanticide continues to depend largely on whether the child has been delivered. Modern medicine has made enormous advances, while the ethical debate over ending a viable pregnancy remains unresolved.
There is another complication. Some modern philosophers have questioned whether birth itself should confer the moral rights associated with personhood.
In 2012, the Journal of Medical Ethics published a paper titled “After-birth abortion: Why should the baby live?” Its authors, Alberto Giubilini and Francesca Minerva, argued that newborn infants do not possess the same moral status as persons and that killing a newborn should be permissible in circumstances where abortion would be permitted.
Philosopher Peter Singer advanced related arguments decades earlier. Singer distinguishes between being biologically human and being a person in the philosophical sense. In his view, personhood involves rationality, self-awareness, and the ability to understand one’s existence over time. Because newborn infants have not developed these abilities, he argues that they do not have the same inherent claim to continued life as self-aware individuals.
The disturbing implication is that infanticide becomes not an absolute moral wrong, but an ethically defensible choice.
Nor is the debate confined entirely to philosophy. In the Netherlands, physicians may deliberately end the lives of newborns suffering from certain severe medical conditions under strict requirements developed from the Groningen Protocol. A separate Dutch procedure also covers some children between the ages of one and twelve who experience unbearable suffering without prospect of improvement. These are narrowly defined medical circumstances, not permission to kill healthy newborns, but they demonstrate that the deliberate ending of an infant’s life has become a legally regulated practice in at least one modern country.
The distinction between abortion and infanticide is largely a legal one, not a biological one. A viable child does not suddenly become more human simply by being delivered. Modern medicine can keep some babies born at 22 or 23 weeks alive, and their chances of survival increase dramatically with each additional week of pregnancy. A baby at 34 weeks is the same developing human being moments before and after delivery. Yet the law can treat the deliberate ending of that child’s life very differently depending on which side of birth it occurs.
Why should the deliberate ending of a viable child’s life be judged so differently depending on whether that child has been born?
Virginia’s Constitutional Amendment: What Would Actually Change?
On November 3, Virginia voters will decide whether to amend the state constitution to establish a fundamental right to what the amendment calls “reproductive freedom.” The language covers contraception, prenatal care, childbirth, abortion, miscarriage management, and fertility care. But one of its most consequential provisions concerns abortion in the third trimester, when a developing child may already be capable of surviving outside the womb.
The first thing to understand is that this is not an ordinary law. It is a proposed constitutional amendment. If approved, it would become part of Virginia’s Bill of Rights. A future governor or General Assembly could not simply repeal it. Changing it would require another constitutional amendment, approved by two separately elected General Assemblies and then by Virginia voters. Any existing law that conflicts with the new constitutional language could be challenged in court.
Virginia already permits third-trimester abortions under specific medical circumstances. The proposed amendment would change the legal standard governing those procedures.
Under current law, a third-trimester abortion generally must be performed in a licensed hospital. The attending physician and two consulting physicians must certify that continuing the pregnancy would likely cause the woman’s death or substantially and irremediably impair her physical or mental health. The law also requires life-support measures to be available and used when there is clearly visible evidence of viability.
The proposed amendment replaces that demanding medical threshold with a much broader standard. It would prohibit the Commonwealth from banning a third-trimester abortion when a physician determines that the procedure is medically indicated to protect the woman’s life or physical or mental health.
Three physicians become one. A requirement for substantial and irremediable impairment becomes a physician’s judgment that an abortion is medically indicated to protect health. No specific degree of mental-health impairment is defined.
Consider what this means at 34 weeks of pregnancy. At that stage, a baby is ordinarily capable of surviving outside the womb. Delivery does not suddenly make that child biologically human. The child was already a living human organism before birth. Yet the legal treatment of ending that life can change dramatically depending on whether delivery has occurred.
There is another provision that deserves close attention. The amendment expressly prohibits Virginia from prosecuting, penalizing, or otherwise taking adverse action against “any individual” who assists another person in exercising the constitutional right to reproductive freedom, provided that person voluntarily consents. Notice what is missing. The language does not say “licensed physician,” “nurse,” or even “medical professional.” It says “any individual.” Nor does this protection expressly require medical training or compliance with existing licensing requirements. This amendment allows someone performing an abortion without a medical license to claim constitutional protection.
And unlike an ordinary statute, the resulting constitutional standard would not be something the General Assembly could simply rewrite if serious problems emerged.
That is the significance of what Virginia voters are being asked to put into their constitution.
Mental Health: Where Is the Line?
The phrase mental health deserves particular attention.
The amendment does not require a specific psychiatric diagnosis, establish a minimum degree of psychological impairment, or mandate an independent mental-health evaluation. It leaves the medical determination to a physician’s professional judgment.
Mental health covers a broad range of conditions. There is an enormous difference between a woman experiencing anxiety about an unexpected pregnancy and one suffering from a severe psychiatric illness that places her life in danger. Yet the amendment does not expressly establish where the threshold lies.
The amendment leaves the determination of medical necessity to a single physician. It does not require a diagnosed psychiatric disorder, an independent psychiatric evaluation, or evidence that continuing the pregnancy would cause substantial and irreversible psychological harm. Anxiety, depression, financial stress, and fear of being unable to care for another child all affect mental health. The physician must still exercise professional medical judgment. The practical question is how broadly that judgment could be exercised under the new constitutional standard, particularly by clinics willing to interpret its protections expansively. The third trimester of pregnancy begins at 28 weeks, almost all fetus are viable outside the womb at that age.
There is also the question of physicians who refuse.
Virginia currently protects healthcare professionals who decline to participate in abortions on personal, ethical, moral, or religious grounds, subject to the law’s written-objection requirements. The proposed amendment neither expressly repeals nor reaffirms those protections.
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