A SETBACK FOR FETAL RIGHTS IN WISCONSIN ALCOHOL CASE

In a legal battle that pitted the rights of pregnant women against those of
their unborn children, a Wisconsin
appellate court ruled Wednesday that a woman who drank herself into a
stupor in her ninth month of pregnancy cannot be charged with attempted
murder of her fetus.

"We are persuaded that the term `human being' (as used in the relevant
criminal statutes) was not intended to refer to an unborn child and
that (the woman's) prenatal conduct does not constitute attempted
first-degree intentional homicide and first-degree reckless injury,"
the 2nd District Court of Appeals said in reversing a lower-court ruling.

Deborah Zimmerman, 37, of Franksville, Wis., was charged in 1996,
shortly after giving birth to a daughter. The newborn, who attorneys
said is now healthy and living with a foster family, suffered from low
birth weight and was found to have a blood-alcohol level of 0.199 percent.

Zimmerman's blood-alcohol level exceeded 0.3 percent at the time of
delivery, three times the legal standard for intoxication in Wisconsin.

At the hospital, according to prosecutors, Zimmerman reportedly told a
nurse, "I'm just going to go home and keep drinking and drink myself
to death and I'm going to kill this thing because I don't want it anyways."

Her lawyer, however, said she was not trying to harm the
child.

The state appellate court's action is far from unique. Courts in 21
other states have rejected criminal prosecution of pregnant women for
behavior that harms their fetuses, said Priscilla Smith, deputy
director of litigation at the Center for Reproductive Law and Policy
in Washington.

The only state that criminalizes such behavior is South Carolina. In
1996, that state's Supreme Court upheld the child-neglect prosecution
of Cornelia Whitner, who had used crack cocaine while pregnant. The
court accepted the argument of state Atty. Gen. Charlie Condon that
Whitner's fetus was "a fellow South Carolinian" entitled to protection
even from its mother.

The U.S. Supreme Court has been silent on the issue, declining to hear
an appeal in the Whitner case. But in Roe vs. Wade, the 1973 decision
guaranteeing women a constitutional right to abortion, the justices
ruled that fetuses are not "persons."

Wisconsin recently became the third state, after Minnesota and South
Dakota, to allow judges to commit pregnant substance abusers for
inpatient treatment. "But they can't send them to jail," Smith said.

Smith acted as lead counsel for Zimmerman, who remained in jail while
lawyers battled the legality of the charges against her.

The state of Wisconsin had argued that Zimmerman should be prosecuted
for attempted murder based on its "born alive" law. The law says a
person can be charged with murder if he harms a pregnant woman and if
her fetus subsequently is born alive but then dies. Prosecutors argued
that the law should be extended to attempted murder if a fetus is born
with injuries but survives.

The appellate court, in Wednesday's decision, said that was not the
legislature's intent.

The decision was supported by public health organizations,
abortion-rights advocates and civil liberties groups.

Doctors' organizations, including the American Medical Association,
oppose punitive policies against pregnant women who abuse drugs or
alcohol because they are concerned that people would be discouraged
from seeking prenatal care altogether, or wouldn't tell their doctors
the truth about their behavior.

Civil libertarians argue that such laws violate the constitutional
rights of pregnant women. As the appellate court stated Wednesday, if
Zimmerman could be prosecuted for drinking, "a woman could risk
criminal charges for any perceived self-destructive behavior during
her pregnancy," including smoking, excessive exercise or dieting.

Even some anti-abortion groups oppose criminalizing harmful behavior
by pregnant women, for fear such legislation would prompt women to
have abortions rather than face prosecution.

Courts and legislatures across the country have confronted the
question of whether, and when, states may restrict women's behavior to
protect their unborn children.

In the mid-1980s a California woman, Pamela Rae Stewart, was jailed
for contributing to the death of her newborn son. Prosecutors argued
she withheld medical care from the unborn child by failing to obey a
doctor's orders to stay off her feet and refrain from taking drugs and
having sex with her husband during her pregnancy. But a municipal
judge later ruled Stewart had committed no crime.

Three years ago, Florida's Supreme Court ruled that Kawana Ashley, a
pregnant woman who had shot herself in the stomach, could not be
charged under a homicide statute.

In Illinois, the Winnebago County state's attorney tried to bring
manslaughter charges in 1989 against Melanie Green of Rockford, who
the prosecutor said had caused the death of her 2-day-old daughter by
taking illegal drugs during her pregnancy. But a grand jury refused to
indict.

It's not a crime in Illinois for a pregnant woman to harm her unborn
child, but state law does protect fetuses from harmful actions by others.

A 1986 law allows criminal charges to be brought for death or injury
to a fetus. Under that law, a driver may be prosecuted for reckless
homicide if he broadsides the car of a pregnant woman and causes her
to miscarry, even if she isn't otherwise hurt.

Another Wisconsin law also is under judicial scrutiny this week. A
trial to determine the constitutionality of the state's so-called
partial-birth abortion law is scheduled to begin Thursday in U.S.
District Court in Madison.

The law, which calls for mandatory life imprisonment for abortion
providers, went into effect last May. It was immediately challenged by
several doctors and clinics, who argued the statute is
unconstitutionally vague and appeared to criminalize all abortions,
not just late-term procedures.

District Court Judge John Shabaz refused to block implementation of
the law, prompting Wisconsin physicians to stop performing all
abortions for several days. The federal Court of Appeals in Chicago
subsequently reversed Shabaz and enjoined the law, pending trial.

Lawyers for the clinics have promised to return to the Court of
Appeals if Shabaz rules for the state and lifts the injunction.

Similar legal battles are going on in other states, including
Illinois. Twenty-eight states have passed laws banning what they call
partial-birth abortions. But because they are so broadly worded,
courts in 19 states have blocked or severely limited their
implementation.