PROSECUTION IN 'ICE' PREGNANCY TRIGGERS DEBATE

City prosecutors are stepping into unchartered legal territory in Hawai'i
with the upcoming trial of Tayshea Aiwohi, a 31-year-old Kane'ohe woman
charged with poisoning her baby by using crystal methamphetamine while
pregnant.

Hers is the first prosecution here based on a pregnant woman's treatment of
her fetus.

City Prosecutor Peter Carlisle insists that state law permits prosecution,
and says his office might even consider assault prosecutions of "meth moms"
and heavy alcohol abusers whose babies are born injured and do not die.

Aiwohi's lawyer, Todd Eddins, a deputy public defender who calls the
prosecution of his client "perverse," said Carlisle's interpretation of the
law could lead prosecutors to bring charges against pregnant women who
engage in legal but unhealthy practices during pregnancy.

"Next he'll be adding in the women who don't eat right," he said.

Aiwohi pleaded not guilty Thursday to the manslaughter charge of recklessly
killing her 2-day-old son, Treyson. She is accused of using methamphetamine,
or ice, during the last days of her pregnancy. Treyson died July 17, 2001,
less than a day after mother and son were released from Kaiser Medical
Center. A deputy medical examiner said high levels of the drug caused his
death.

The indictment comes at a time of heightened concern in Hawai'i over the
abuse of methamphetamine. State legislators have held hearings, and Edgy
Lee's film "Ice: Hawai'i's Crystal Meth Epidemic" was broadcast last month
by television stations across the state.

Lynn Paltrow, a lawyer with National Advocates for Pregnant Women, which
helps defend pregnant women charged with drug-related offenses, said more
than 200 cases have been prosecuted nationwide based on women's behavior
during pregnancy. Most have been overturned by appeals courts, she said.

"Every legislature in the country has considered a proposal to punish
pregnant women for conditions in pregnancy," she said. "Every legislature in
the country -- including Hawai'i's -- has rejected it."

Prosecution Wins

South Carolina prosecutors obtained a murder conviction against a woman
whose baby was stillborn after she used cocaine during pregnancy.

The U.S. Supreme Court refused to hear an appeal of the woman's conviction
just days before Aiwohi was indicted by the O'ahu grand jury Oct. 9.

The court's refusal does not make the South Carolina case applicable
throughout the country, but it does allow the prosecutor's interpretation --
that a mother can be charged with murder because of unlawful actions toward
a fetus -- to stand in that state.

City prosecutors said the Supreme Court decision in that case had no impact
on their decision to prosecute Aiwohi.

City Deputy Prosecutor Glenn Kim, who will take Aiwohi's case to trial, has
said the prosecution has no evidence she smoked methamphetamine after her
baby's birth.

He would not say whether prosecutors intend to introduce evidence that
Aiwohi breastfed Treyson while the drug remained in her body, transferring
the drug to him -- a contention medical authorities say would be hard to
prove in a child who died two days after birth.

Carlisle said it didn't matter whether Aiwohi passed methamphetamine to her
baby before or after birth. Hawai'i's reckless manslaughter law, listed
among "offenses against the person," defines a person as "a human being who
has been born and is alive."

"Once you have a human being born alive," Carlisle said, "as long as the
reckless behavior caused the death, then that is all you need."

'Perverse' Reading

Pursuing such cases falls within a prosecutor's legal and moral obligations,
Carlisle said, particularly in a state where methamphetamine use has reached
epidemic proportions.

"When a mom makes a choice between the proper care of her child and drugs,"
he said, "and as a result a child is killed, then that case needs to be
examined.

"There are drug mothers who are impairing the welfare of their children," he
said. "This is not something you can turn a blind eye to."

Eddins disagreed vehemently with Carlisle's reasoning.

He said Carlisle's interpretation of the law is "perverse,
counterproductive, mean-spirited" and an encroachment on the territory of
the state Legislature.

He added that a logical extension of Carlisle's interpretation would allow
prosecutors to bring charges against pregnant women for activities such as
smoking, drinking and not keeping prenatal doctor appointments.

Carlisle characterized Eddins' comments as "ranting and raving."

He said he would not prosecute women who engaged in conduct that was not "a
gross deviation from the standard of conduct that a law-abiding person would
observe in the same situation" -- the legal standard for crimes in which
recklessness is alleged.

In addition to considering assault prosecutions of "meth moms" whose babies
are born injured, Carlisle said he might consider charging a pregnant woman
who drank to the point of giving birth to a child with fetal alcohol
syndrome.

"There it is," Eddins said after hearing of Carlisle's statements. "That
slippery slope."

Prenatal Care Suffers

Paltrow, the lawyer with NAPW, said that while the issue might eventually
extend to abortion rights, the dangers of prosecuting pregnant drug addicts
is more immediate.

"This is not women's rights ideology," she said. "To treat behavior during
pregnancy as a crime is bad for babies. You deter women from going in for
healthcare. You limit doctors who want to provide healthcare and not act as
agents of the police."

Paltrow said the infant mortality rate in South Carolina had gone up since
prosecution of pregnant women began in 1997, and she and others who have
studied the issue think it is because pregnant drug abusers are avoiding
prenatal care to avoid being turned in by doctors for prosecution.

"If that prosecutor (in Hawai'i) is serious about protecting children,"
Paltrow said, "he will drop this prosecution immediately."

More than 20 professional medical associations, including the American
Medical Association, American Academy of Pediatrics, American College of
Obstetricians and Gynecologists, American Nurses Association and American
Public Health Association, have released policy statements in the last two
decades -- beginning with the prosecution of "crack baby" moms in the 1980s
- -- opposing prosecution of drug-addicted pregnant women.

"Criminal prosecution of chemically dependent women will have the overall
result of deterring such women from seeking both prenatal care and chemical
dependency treatment," according to a statement by the American Association
of Addiction Medicine, "thereby increasing, rather than preventing, harm to
children and to society as a whole."

"These women are addicts who become pregnant," reads a statement by the
National Association for Perinatal Addiction Research and Education, "not
pregnant women who decide to use drugs and become addicts."