WRONG REMEDY FOR WRONGFUL ACT

What she is alleged to have done, attempt to drink herself and her fetus to
death, was appalling and wrong. Nonetheless, the state appeals court had
little choice last week but to dismiss a charge of attempted homicide
against a Racine County woman.

The decision was clearly not an easy call but, like the state Supreme
Court's ruling in the so-called cocaine-mom case in 1997, it was the
correct one. In the cocaine mom case, the high court ruled that the state
children's code and other provisions of the law aimed at protecting abused
and neglected children did not apply to the fetus of a woman who
repeatedly used cocaine while pregnant.

In the case of the Racine woman, the appeals court ruled that, under
Wisconsin law, the term "human being" was not intended to refer to a fetus.
Consequently, the woman's conduct "does not constitute attempted
first-degree intentional homicide and first degree reckless injury,"
concluded the court.

The facts in this case are grim. The woman, Deborah J. Zimmerman, had been
drinking at a bar in March 1996. Her daughter was born later that day.
Zimmerman later told hospital officials that she had tried to "kill this
thing"; the baby was born with symptoms of fetal alcohol syndrome.
Zimmerman is scheduled to be released in September from Taycheedah
Correctional Institution, where she is serving a two-year term for bail
violations.

A prosecutor said she hoped the latest ruling would spur the Legislature to
make it a crime for a pregnant woman to harm a fetus through her use of
alcohol or drugs. But others point out, more persuasively, that addiction
should be addressed through the public health system, not the criminal
justice system. In fact, there already is a law that grew out of both this
case and the cocaine-mom incident that allows judges to order pregnant
women with drug and alcohol problems into treatment centers.

Especially troubling is the notion that a woman could be held criminally
liable for prenatal behavior. While that may seem to make sense under
circumstances such as those in the Zimmerman case, the practice has
chilling constitutional implications under other circumstances. If a woman
could be charged with a crime for harming a fetus, how could she not be
charged with a crime if she chose to have an abortion, a right the courts
have consistently upheld, though with modifications, since 1973?

Yes, there is a difference between a woman responsibly choosing to have a
physician perform an abortion and a woman recklessly attempting to drink
her fetus to death. But opponents of abortion would point out that both
acts cause harm to the fetus, so why is abortion legal?

Zimmerman has since lost custody of her daughter, a decision that was
justifiable. Convicting her of attempted homicide, however, would have done
nothing to protect her child and, unfortunately, would have set a
disturbing legal precedent.