METH DEATH RAISES LEGAL QUESTIONS

Baby Boy Hernandez never drew a breath, yet his silent death -
stillborn after being poisoned by methamphetamine in the womb - could
speak volumes about fetal rights.

The child's mother, Theresa Lee Hernandez, is facing a murder charge.
It is the first case of its kind in Oklahoma and among only a few nationwide.

The baby's death could have broad consequences. If the case is
prosecuted, it could set a precedent. And the charges are the newest
wrinkle in the exploding meth epidemic in Oklahoma, which consistently
ranks among the top states for meth abuse and meth lab seizures.

Oklahoma County District Attorney Wes Lane filed the charge against
the boy's mother. He is considering a second, similar case.

"I will not tolerate any parent murdering their child so they can get
their next drug fix," he said.

For a child without a name, Baby Boy Hernandez has a lot to
say.

No tolerance On April 17, Hernandez, 28, gave birth at the Children's
Hospital at OU Medical Center. She was 32 weeks into her pregnancy,
and her blond-haired, blue-eyed son was stillborn.

A day later, court records show, Oklahoma City police were called to
the hospital because Hernandez's blood tested positive for
methamphetamine and medical workers noted needle marks and collapsed
veins.

Hernandez "admitted to a patrol supervisor that she had used
methamphetamine several times during the pregnancy," records state.

Because of the test results and her own admission, her son was
autopsied.

Generally, stillbirths do not warrant that sort of attention, said
Kevin Rowland of the state medical examiner's office. Of the 97
stillborns reported in 2003, for example, only 12 required autopsies.

"It really falls into the same thing as any other death," Rowland
said. "If the death appears to be natural and the doctor attends it,
then it's not required. But if it appears to be because of trauma or
drugs or foul play, those are required to be sent to us."

The autopsy results were startling.

Over years of abuse, Lane said, Hernandez had built up such a
tolerance to meth that she could consume quantities that would have
been lethal to most.

The developing child inside her didn't have the same
tolerance.

The baby had enough meth in his system, Lane said, to kill two normal
adults.

The medical examiner's office found the child died of acute meth
intoxication. The manner of death was homicide.

Big distinction Lane announced the "ground-breaking" charges against
Hernandez at a news conference Sept. 8, saying his decision to
prosecute the case was dictated by the autopsy findings.

"Any time the medical examiner brings me an autopsy that reflects a
homicide has taken place, if I find there is a good faith reason and
there is evidence to support a charge being filed, a charge will be
filed," Lane said later.

He said it already has been established that a person responsible for
the death of a viable fetus -- one that has survived into its 24th
week of gestation -- may be convicted of murder.

"We've seen that," Lane said. "Terry Nichols was convicted of one
count of that."

But he admitted the case is hardly business as usual.

"If it is precedential," he said, "it's only in that we are holding
responsible this time the mother and not a third party."

That shift is significant.

"There is a big distinction," said Doug Parr, president of the
Oklahoma Criminal Defense Lawyers Association, "between a third person
killing a mother and an unborn child and charging a mother with murder
for the death of her child in utero.

"There's a big, big difference between those two situations, so to say
that this particular situation isn't precedent-setting is not
well-founded."

Traditionally, states have been reluctant to prosecute women for their
behavior during pregnancy, even when that behavior affects the health
or development of their unborn children.

In the 1992 case of Jaurigue v. California -- in which a woman faced
homicide charges for prenatal drug use leading to the stillbirth of
her child -- the state's superior court found no grounds to prosecute
her for murder.

"We would have to follow that construction to its logical conclusion,"
the judge said, "and murder charges could result from smoking,
drinking, working in (a) contaminated atmosphere, failure to follow
doctor's orders and many other circumstances."

In a 1997 case, a Florida court found that a woman in her third
trimester who intentionally shot herself in the stomach to terminate
her pregnancy could not be prosecuted for murder or
manslaughter.

Priscilla Smith, director of the domestic legal program for the
pro-choice Center for Reproductive Rights, said courts in 21 of 22
states in which cases have been appealed have rejected prosecutions of
women for behavior that harmed fetuses.

"They held that those prosecutions were either unconstitutional or
just not the intention under the statutes," she said. "Legislatures
did not intend to punish prenatal conduct in this way."

No Crusade

In the Hernandez case, Lane has a potentially unsympathetic
defendant and a tragic victim -- a combination that could be
tailor-made for a controversial conviction.

At 28, Hernandez has a drug history and five children in state
custody. The children, all younger than 10, have been wards of the
court since 2000, and she lost all parental rights in May.

"I think it's interesting to note that this particular woman ... had a
lengthy history of effort on the part of the community to help her,"
Lane said. "I think quite frankly that is strong evidence of the
willfulness on her part or the degree of neglect on her part."

She has been charged with first-degree murder, which hinges on
willfulness, or second-degree murder, which keys on neglect.

And hers may not be the only case.

Oct. 5, Oklahoma City police announced an investigation into the
stillbirth of Cecilia Marie Preston, who was born dead Dec. 18. Meth
was found in her system, and her death was ruled a homicide.

Charges have not been filed. Lane said the case is under
consideration.

For now, Hernandez is being held without bail. She was represented at
her arraignment by a public defender.

"She's just going to be treated like everyone else," Lane said. "No
better, no worse. This case isn't about some crusade. This is just
about enforcing the laws of this state."