WAYNE GRAND JURY INDICTS WOMAN WHO INJECTED OXYCONTIN DURING PREGNANCY

In a case that could push the boundaries of state law, Wayne County
grand jurors have charged a woman with abusing her unborn baby by
shooting up drugs while pregnant.

The Kentucky Supreme Court rejected an abuse charge in a similar case
in 1993, drawing in part on an earlier opinion in which the high court
said a fetus is not a person. That is still the status of criminal law
in Kentucky.

But Commonwealth's Attorney Larry Rogers said the court should take
another look at the issue of prosecuting people who hurt unborn
babies. "This is an area of the law that's evolving all the time,"
Rogers said yesterday. "I think it's time for the court to revisit
this."

A grand jury indicted Misti Harris, 26, of Wayne County on one count
of first-degree criminal abuse this week. Harris allegedly illegally
injected OxyContin, a powerful synthetic morphine, throughout her
pregnancy. She even shot up Feb. 13, the day she delivered a boy,
Rogers said.

Harris is a felon who pleaded guilty to possession of forged checks
last October and was on probation, Rogers said.

The prosecutor said Harris never told doctors during her pregnancy
that she was abusing OxyContin, nor did she ask for help with her drug
problem.

Harris had been released from jail yesterday and was not available for
comment.

Rogers learned of the birth and drug abuse in a report from social
workers, who apparently were called in by doctors. The report said the
baby showed signs of drug withdrawal, including being jittery and
irritable, and social workers took emergency custody of the infant,
Rogers said.

It's too soon to know whether the baby suffered any long-term damage,
Rogers said.

Mike Jennings, spokesman for the state Cabinet for Families and
Children, said he could not comment on any specific case.

Criminal charges based on injuries or deaths involving fetuses has
been controversial in Kentucky and across the country, in part because
it crosses into the emotionally charged debate over abortion.

The state Senate has passed a bill that would define fetuses at any
stage of development as human beings. Senate Bill 115 would include
fetuses under Kentucky homicide law so people whose actions terminated
a pregnancy could be prosecuted, though it would exempt mothers in all
circumstances and doctors who ended a pregnancy through abortion, in
vitro fertilization and other legal, consensual procedures.

The House is likely to approve the measure, too.

Rogers stressed he is not prosecuting Harris as part of any attempt to
limit abortion, but because she endangered the baby. "To me,
intravenously shooting up drugs ... crossed the line," he said.

That was the same issue that confronted the Supreme Court in a case
out of Boyd County in 1993. A woman named Connie Welch was charged
with second-degree criminal abuse for shooting oxycodone, a
painkiller, into her jugular vein while she was eight months pregnant,
according to the opinion in the case.

The Supreme Court ruled 5-2 that the criminal abuse statute did not
apply to Welch.

In fact, the justices noted the state legislature specifically said in
a 1992 bill aimed at reducing prenatal drug and alcohol abuse that the
best way to deal with drug-abusing mothers is through education and
treatment, and that "punitive actions" would discourage women from
getting help.

The court majority noted an argument from the defense on how difficult
it would be to draw the line if police started charging women with
abusing unborn babies. Would it apply to smoking, downhill skiing,
speeding?

The court also cited its opinion in another case -- a Wayne County
case, by coincidence -- in which a man named Robert Hollis was charged
with murder after he forced his hand inside his estranged, pregnant
wife, killing the unborn baby.

The court overturned the murder charge, ruling that state law does not
define a fetus as a person, so Hollis hadn't killed a person.

Justice Donald Wintersheimer wrote a blunt dissent in the 1993 case.
Civil law recognizes an unborn child as a person and criminal law
should do the same, Wintersheimer said in an opinion joined by Justice
Joseph Lambert.

Wintersheimer and Lambert are still on the court, with Lambert as
chief justice. The five justices on the other side of the 1993 case
are no longer on the court.

Rogers said he was familiar with the 1993 case, but that views on the
issue are changing. Also, the facts in the new case are different,
including that Harris did nothing to seek help, Rogers said. He
wouldn't want to prosecute if Harris had tried to help the baby, he
said.

Another Kentucky case on the issue is pending. Charles C. Morris of
Pike County pleaded guilty last year to running a red light and
ramming a car in which a pregnant woman was riding, killing her and
the fetus.

Morris pleaded guilty in both deaths, but is appealing the homicide
charge related to the fetus.

Rogers acknowledged that the charge against Harris may get thrown out,
but felt the issue was worth pursuing.

The case also involves concern about growing abuse of OxyContin in the
area. Abuse of the drug has become a significant problem the last
couple of years in Wayne County -- as in other areas of southern and
Eastern Kentucky -- contributing to overdose deaths and crimes such as
theft and prescription fraud, Rogers said.

"I think there needs to be a stand taken. It's an epidemic," he
said.