Fetal Personhood, Legal Substance Abuse, and Maternal Prosecutions: Child Protection or "Gestational Gestapo"⁽¹⁾?

  Introduction

Crime and bad lives are the measure of a State's failure, all crime in the end is the crime of the community.⁽²⁾

When H.G. Wells wrote these words almost one hundred years ago, he most certainly was not referring to the relatively new problem of legal maternal substance abuse.⁽³⁾ Nonetheless, community remains a key and integral part to understanding this problematic issue.⁽⁴⁾ Maternal substance abuse and suggested criminal sanctions have been the subject of great debate in legal circles.⁽⁵⁾ Recently, however, the focus has shifted to address the difficult issue of legal substance abuse by pregnant women, particularly alcohol abuse.⁽⁶⁾ Consider the following examples.

In Wisconsin, an alcoholic waits for a bar to open.⁽⁷⁾ Later that evening, intoxicated and belligerent, she gives birth shortly after announcing her intention to drink herself and the baby to death.⁽⁸⁾ The baby girl appears to have fetal alcohol syndrome.⁽⁹⁾

In New Hampshire, police are called to investigate a domestic disturbance.⁽¹⁰⁾ The fighting couple are stunned when the inebriated woman is arrested for endangering the welfare of her fetus.⁽¹¹⁾ What's the problem, she argues, when she was planning on having an abortion anyway?⁽¹²⁾

This Note seeks to explore the complex issue of prosecuting such women for the injuries caused to their fetuses through the use of legal substances. Part II examines the recent cases that have fueled the latest wave of the debate.⁽¹³⁾ Part III discusses the problems caused by a mother's alcohol consumption during pregnancy,⁽¹⁴⁾ how some communities have reacted to solve the problem,⁽¹⁵⁾ and the implications of the decision to prosecute legal substance abuse.⁽¹⁶⁾ Part IV examines the fetus as a separate legal entity.⁽¹⁷⁾ Part V views the development of criminal actions on behalf of the viable fetus.⁽¹⁸⁾ Part VI provides an overview of how the courts have viewed the nonviable fetus.⁽¹⁹⁾ Part VII discusses the statutory scheme of fetal homicide.⁽²⁰⁾ Part VIII conducts an analysis of the problems encountered when prosecuting maternal legal substance abusers and suggests alternative methods to address the problem.⁽²¹⁾ Lastly, Part IX concludes that traditional criminal law may not provide the optimal solution.⁽²²⁾

  The Issue in Cases Today

A.  Zimmerman v. Wisconsin

Zimmerman v. Wisconsin⁽²³⁾ addresses the explosive issues of legal substance abuse and maternal liability to her fetus. Deborah Zimmerman was a thirty-five-year-old life-long alcoholic⁽²⁴⁾ with a prior conviction for vehicular homicide while intoxicated.⁽²⁵⁾ On March 16, 1996, Zimmerman, in her ninth month of pregnancy, entered a lounge in downtown Racine, Wisconsin when it opened at 2:00 p.m.⁽²⁶⁾ She was on her second three-liquor drink when she casually told the bartender, "I have a secret. I'm pregnant."⁽²⁷⁾ The bartender immediately gave her a soda,⁽²⁸⁾ but it was too late. Zimmerman had apparently been drinking elsewhere before her visit to the Westside Lounge.⁽²⁹⁾ When Zimmerman's mother came to get her, she found her daughter already intoxicated and drove her to the hospital.⁽³⁰⁾ Doctors determined that an emergency caesarean section was necessary.⁽³¹⁾

At the hospital, Zimmerman argued with surgical aide, Julie Maher, as Maher tried to attach a fetal monitor to the struggling woman.⁽³²⁾ Zimmerman said, "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."⁽³³⁾ Shortly before the caesarean section birth of her daughter Meagan, Zimmerman's blood alcohol level was measured at 0.30.⁽³⁴⁾ Meagan was born with a blood alcohol level of 0.199, twice the legal limit for an adult under the state's drunk driving statutes.⁽³⁵⁾ Meagan was also undersized and demonstrated slightly irregular features consistent with fetal alcohol syndrome.⁽³⁶⁾ Zimmerman was later charged with one count each of attempted first-degree intentional homicide and first-degree reckless injury.⁽³⁷⁾

Wisconsin does not currently have a feticide statute, nor does it recognize the fetus as a human being under its criminal laws.⁽³⁸⁾ Prosecutors in the Zimmerman action hope the legislature will use the case as an impetus for revising its criminal liability statutes, and more specifically, to define prohibited behavior by expectant mothers.⁽³⁹⁾ Detractors of such legislation argue that, in addition to the troubling legal issues that such legislation presents, the effect of this legislation would be to frighten troubled mothers away from seeking help.⁽⁴⁰⁾ At the hospital where Meagan was born, approximately one baby per week is born with traces of cocaine in its system.⁽⁴¹⁾ Four to six babies born there every year have fetal alcohol syndrome.⁽⁴²⁾

This case has attracted a lot of publicity because of its implications for maternal liability to the fetus and women's privacy rights.⁽⁴³⁾ The question of legislating such behavior is controversial.⁽⁴⁴⁾ As one commentator noted:

If the father had done to that little girl what Zimmerman did, he would be assumed to be a brute, a bully and a thug. But because Zimmerman is a mother, this case of clear abuse has become an issue of rights. I don't believe the government has the right to tell a pregnant woman she can't have a drink or a cigarette during her pregnancy. This case isn't about a glass of wine, however, it's about a little girl who was poisoned.⁽⁴⁵⁾

Sally Hoelzel, Zimmerman's attorney, believes her client will ultimately be acquitted.⁽⁴⁶⁾ Citing the lack of statutory and common law support for the prosecution, Hoelzel noted that the only fact alleged in the complaint was Meagan's high blood alcohol level.⁽⁴⁷⁾ According to Hoelzel, this fact does not support a finding of "great bodily harm" as required by statute.⁽⁴⁸⁾ Assistant District Attorney Joan Korb countered that Zimmerman's intent was to kill the child, as demonstrated by her statement at the hospital.⁽⁴⁹⁾

Circuit Judge Dennis Barry apparently agreed with Korb.⁽⁵⁰⁾ On September 18th, he refused to dismiss the case against Zimmerman and supported both counts.⁽⁵¹⁾ In an eighteen page decision, Judge Barry conceded that while Wisconsin law on viable fetus injury has not always been clear,⁽⁵²⁾ "[t]here is no question that the young victim was born alive and qualifies as a human being under Wisconsin's homicide laws."⁽⁵³⁾

As to the specific nature of the charge against Zimmerman, Judge Barry elaborated:

The instrumentality of the attempted homicide in this case was not the shooting of a bullet or the plunging of a knife. Instead, it was the massive consumption of a potentially deadly quantity of alcohol. . . . The convergence in time of the instrumentality of murder [alcohol] with the victim being born was not instantaneous such as when a bullet is fired from a gun toward a human target. Nevertheless, the convergence occurred and the elements of the crime have been established for probable cause purposes. . . . Others who endanger life by acting under the influence of alcohol or drugs are held accountable for their behavior, including parents who jeopardize the safety of their children. Why should a woman carrying a viable fetus escape responsibility for intentional or reckless acts?⁽⁵⁴⁾

B.  State v. Rosemarie Tourigny

Zimmerman has not been the only intoxicated pregnant woman in the news.⁽⁵⁵⁾ On August 9, 1996, New Hampshire police were summoned to a New Hampshire hotel to investigate complaints that a woman living there was intoxicated and disturbing the peace.⁽⁵⁶⁾ Rosemarie Tourigny was indeed intoxicated, with a blood alcohol level of 0.21, but police discovered that she was also twelve weeks pregnant.⁽⁵⁷⁾ Tourigny was arrested and charged with endangering the welfare of a fetus.⁽⁵⁸⁾ Tourigny argued, "[t]his is my body. If I choose to abort; if I choose to do anything to my body, it's my body."⁽⁵⁹⁾ Arresting officer Lester Fairbanks responded, "[s]he can pickle herself all she wants, but that child doesn't have an opportunity to decide whether it's going to be retarded or not. . . . Someone has to have responsibility for her unborn child."⁽⁶⁰⁾ In his motion to dismiss, Tourigny's attorney, Richard Samperil, argued that Fairbanks "made up a law out of thin air."⁽⁶¹⁾ The case was eventually dismissed.⁽⁶²⁾ Nonetheless, the case has received considerable attention from the media as part of a growing legal trend towards recognizing rights of the fetus over those of the mother.⁽⁶³⁾

C.  Whitner v. State

Wisconsin will undoubtedly introduce the recent South Carolina decision, Whitner v. State,⁽⁶⁴⁾ in its case against Zimmerman.⁽⁶⁵⁾ In Whitner, the defendant, Cornelia Whitner, ingested crack cocaine during the last trimester of her pregnancy, and her baby was born with cocaine traces in its system.⁽⁶⁶⁾ Whitner originally pled guilty as charged under South Carolina's criminal child neglect statute.⁽⁶⁷⁾ The statute provided:

Any person having the legal custody of any child or helpless person, who shall, without lawful excuse, refuse or neglect to provide . . . the proper care and attention for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court.⁽⁶⁸⁾

Whitner received a sentence of eight years.⁽⁶⁹⁾ Shortly thereafter, she filed a petition for post conviction relief.⁽⁷⁰⁾ She argued that her conviction was based on ineffective counsel, since her attorney had not advised her that the child neglect statute might apply to a prenatal fetus.⁽⁷¹⁾

The court reviewed its common law for actions against viable fetuses. Like many states, South Carolina recognizes prenatal injury under its wrongful death statute.⁽⁷²⁾ Under the state's interpretation of its wrongful death statutes, an injured viable fetus who dies after birth as a result of injury is a separate being from the mother and is therefore a person for whom an action may be brought.⁽⁷³⁾

South Carolina had previously recognized the viable fetus as a person for its criminal statutes in State v. Horne.⁽⁷⁴⁾ In affirming the decision to hold Whitner criminally responsible without clear precedent, the court compared its common law decisions on feticide to a jurisdiction with similar case law: Massachusetts.⁽⁷⁵⁾ While conceding that Commonwealth v. Cass⁽⁷⁶⁾ and Commonwealth v. Lawrence⁽⁷⁷⁾ were consistent with the decision in Horne, the Whitner court distinguished itself from the Massachusetts holding in Commonwealth v. Pellegrini.⁽⁷⁸⁾ The Whitner court noted that in Pellegrini, the Massachusetts court held that, while the fetus was a person for purposes of its vehicular homicide and murder statutes, this was only so when an interest of the mother or both parents was asserted via the state action.⁽⁷⁹⁾ Pellegrini held that the state itself had no such interest.⁽⁸⁰⁾ In distancing itself from the Pellegrini decision, the Whitner court expressly refused to recognize a distinction made by Massachusetts and other jurisdictions: that third party injury to the fetus is actionable, but injury by the mother is not.⁽⁸¹⁾

The Whitner court also rejected Whitner's argument that by categorizing her prenatal drug intake as "criminal child abuse," the statute would have the effect of criminalizing behavior clearly not intended by the legislature to be criminalized.⁽⁸²⁾ Whitner argued that such behavior might include smoking or drinking during pregnancy.⁽⁸³⁾ The court noted that as the statute was currently interpreted, after the child is born, "a parent who drinks excessively could, under certain circumstances, be guilty of child neglect or endangerment even though the underlying act--consuming alcoholic beverages--is itself legal."⁽⁸⁴⁾ Therefore, the court concluded that the legislature would approve of a similar action brought where the "child" was a viable fetus.⁽⁸⁵⁾

Justice Moore, in his dissent, recognized the implications of the Whitner decision and the consequences of the court's legislative interpretation.⁽⁸⁶⁾ He was also disturbed by the inconsistencies raised in the decision with respect to both the illegal abortion statutes and the harm done to the fetus in the nonviable stage.⁽⁸⁷⁾

The holding of Whitner will be given great emphasis by the prosecution in the Zimmerman trial.⁽⁸⁸⁾ Prosecutor Korb believes the two cases are "very similar in some respects."⁽⁸⁹⁾ The prosecution will argue that by drinking in the manner that she did, Zimmerman intentionally endangered the life of her child and thus should be held criminally responsible.⁽⁹⁰⁾ As the Whitner court held, the factual difference between Zimmerman and Whitner--that drinking alcohol is a legal activity and ingesting crack cocaine is not--is irrelevant.⁽⁹¹⁾ The legality of the underlying activity will not mitigate the resultant harm to the state.⁽⁹²⁾ In Zimmerman, the resultant harm was the injury to Meagan; specifically, Zimmerman attempted to end her child's life and caused her child potentially permanent injury, to wit Fetal Alcohol Syndrome, through her excessive drinking.⁽⁹³⁾

  The Problem of Legal Substance Abuse

A.  Fetal Alcohol Syndrome and Fetal Alcohol Effect

Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effect (FAE) are permanent disabilities present at birth, caused by a mother's intake of alcohol during her pregnancy.⁽⁹⁴⁾ Researchers believe that alcohol is more dangerous to a fetus than drugs.⁽⁹⁵⁾ The alcohol appears to primarily attack the brain and central nervous system of the developing fetus.⁽⁹⁶⁾ Its effect may be to actually kill the brain cells, or it may just interfere with the normal migratory patterns of the cells.⁽⁹⁷⁾ This effect leads to a variety of far ranging symptoms, including, but not limited to: mental retardation; cerebral palsy; poor sucking reflex; strabismus (crossed eyes); near-sightedness; heart defects; eye abnormalities; musculoskeletal problems and attention disorders.⁽⁹⁸⁾ At birth, physical characteristics used to diagnose these children include below normal birth weight, small heads and eyes, and flat faces.⁽⁹⁹⁾

It is estimated that 40,000 children per year are born with FAS in the United States, or approximately one out of every 750 births.⁽¹⁰⁰⁾ It is thought that similar figures exist for children born with FAE.⁽¹⁰¹⁾ FAS was first observed in the late 1960s (the term FAS was officially coined in 1973), making it a relatively recent health problem.⁽¹⁰²⁾ Health officials believe that FAS developed after World War II, when it became more socially acceptable for younger women to drink alcohol.⁽¹⁰³⁾ The problem grew quickly; the number of children born with FAS in 1992 was four times the 1979 rate.⁽¹⁰⁴⁾

Unless a child with FAS or FAE receives early diagnosis, the cost to society is great.⁽¹⁰⁵⁾ Even with early intervention, however, permanent problems remain.⁽¹⁰⁶⁾ The children born with FAS or FAE are often hyperactive, have minimal attention spans and are prone to learning disorders.⁽¹⁰⁷⁾ Consequently, they are generally poor students who require special education and constant attention.⁽¹⁰⁸⁾ It is estimated that FAS babies cost the United States $2.7 billion per year, with lifetime care for one FAS child at approximately $1.4 million.⁽¹⁰⁹⁾

B.  Current Solutions to FAE and FAS

Since it is not known exactly how much alcohol consumption will cause FAE or FAS, the best policy for the expectant mother is complete abstinence.⁽¹¹⁰⁾ The latest available evidence indicates that approximately three-quarters of all pregnant women in the United States consume at least one alcoholic beverage during their pregnancy.⁽¹¹¹⁾ FAS experts believe that punishing the mothers of FAS and FAE children through the criminal justice system would be counterproductive.⁽¹¹²⁾ These experts believe that resources need to be concentrated on women who are at a high risk of having children with FAS or FAE--often women who already have a child with the disability.⁽¹¹³⁾ Women who have FAS or FAE babies come from all social strata, but most share a common history of emotional problems and substance abuse.⁽¹¹⁴⁾

Researchers also cite the importance of social pressure on the mother as an effective means of prevention.⁽¹¹⁵⁾ FAS births have been reduced by 400% in northern Scandinavian villages.⁽¹¹⁶⁾ A similar reduction occurred in Alaskan villages.⁽¹¹⁷⁾ By letting a high risk mother know how important a healthy baby was to the future of the village, the mother was "gently hassled" by fellow villagers into changing her destructive behavior.⁽¹¹⁸⁾

The community hassling approach has been used effectively elsewhere as well.⁽¹¹⁹⁾ In the Northwest Territories of Canada, it is estimated that up to fifty percent of the children may have been affected by their mothers' drinking during pregnancy.⁽¹²⁰⁾ In response, the Northwest Council on the Status of Women reached out to the community for assistance.⁽¹²¹⁾ The popular Tulugak Bar responded by stopping service of alcoholic beverages to pregnant women two years ago, and the bar believes that this policy made it easier for the pregnant women to buck the then-existing social pressure on them to drink alcoholic beverages.⁽¹²²⁾ A Tulugak bartender noted that the shift in focus from profit to concern for the unborn child was the result of heightened awareness about the problem.⁽¹²³⁾ The bar remains a popular place for pregnant woman to congregate, although now "they tend to sit with other pregnant women and young mothers."⁽¹²⁴⁾

C.  Other "Legal Harms"

Critics of the Zimmerman prosecution argue that if a legal activity like alcohol intake is prohibited for pregnant women, any kind of maternal behavior that could potentially injure the fetus could legally be proscribed.⁽¹²⁵⁾ These critics argue that cigarette smoking would almost certainly be banned.⁽¹²⁶⁾ Smoking during pregnancy has been linked to low birth weight and miscarriages.⁽¹²⁷⁾ Less certain are risks posed to the fetus by the mother's poor diet, exercising, or disregarding her doctor's orders during pregnancy. While conclusive statistics are not available for the probabilities of harm associated with these legal activities, such maternal conduct does pose some risks for the developing fetus.⁽¹²⁸⁾ Proponents of the Zimmerman prosecution reject this argument, stating that Zimmerman's intent to injure her child, not the activity she was engaged in, is the governing factor in her prosecution.⁽¹²⁹⁾ Unquestionably, FAS and FAE are well documented legal harms that have created serious health and social problems.⁽¹³⁰⁾ More difficulty arises when framing the issue in a legal context. The legal relationship between mother and child must be examined. Whether the state has a right to protect the fetus from the actions of the mother is the question that must be answered.

  The Fetus and the Law

A.  What Is Fetal Personhood?

At least one commentator has defined fetal personhood as occurring "when a fetus becomes a `person,' worthy of the protection of the law."⁽¹³¹⁾ The question of fetal personhood is not limited to criminal law.⁽¹³²⁾ In fact, most advances in fetal personhood law first developed in the area of tort.⁽¹³³⁾ By first including a viable fetus as having a cause of action in tort, usually a wrongful death action, several jurisdictions then made the segue into criminal law by punishing crimes against the viable fetus.⁽¹³⁴⁾

Several commentators have noted the vast disparity between jurisdictions in addressing wrongs committed against the fetus.⁽¹³⁵⁾ These jurisdictional inconsistencies call into question whether any consensus is at all possible on the subject of fetal personhood.⁽¹³⁶⁾

B.  The Viable and the Nonviable Distinction

Since Roe v. Wade,⁽¹³⁷⁾ legal analysis of statutes concerning the fetus and fetal rights has made a distinction between a viable and nonviable fetus.⁽¹³⁸⁾ Thus, when reviewing a state's right to regulate its interest in a fetus, the discussion generally includes a separate analysis of viable and nonviable fetus law, simply because most states treat the two as entirely different legal entities.⁽¹³⁹⁾ When tracing the development of fetal personhood, the threshold question must be: is the fetus viable?⁽¹⁴⁰⁾

For over twenty years, the Supreme Court has recognized the right of a woman to terminate her pregnancy before viability.⁽¹⁴¹⁾ While this right is not "absolute,"⁽¹⁴²⁾ courts have generally interpreted the holdings of Roe v. Wade⁽¹⁴³⁾ and its progeny to permit previability abortion with few governmental restrictions.⁽¹⁴⁴⁾ Thus far, Roe's fundamental holding, that previability abortion is a woman's constitutionally protected choice,⁽¹⁴⁵⁾ remains undisturbed. The post-Roe cases, however, are often viewed as "chipping away" at that holding.⁽¹⁴⁶⁾ While Roe held that a nonviable fetus was not a person under the Fourteenth Amendment,⁽¹⁴⁷⁾ this holding is seemingly in contradiction with the more recent decision of Planned Parenthood of Southeastern Pennsylvania v. Casey.⁽¹⁴⁸⁾ Casey held that the state's interest in the fetus begins at conception.⁽¹⁴⁹⁾ More importantly, Casey reduced the standard against which proposed legislation proscribing previable abortions is measured.⁽¹⁵⁰⁾ While the standard in Roe was strict scrutiny, which requires that the legislation in question both advance a compelling state interest and be narrowly drawn to serve that interest, Casey permits legislation proscribing previable abortions as long as the legislation does not impose an "undue burden" on the woman's right to choose.⁽¹⁵¹⁾ This new standard has led some commentators to see it as "an attempt at a compromise between pro-life and pro-choice extremes."⁽¹⁵²⁾

Since the Casey decision, the Supreme Court has not clearly specified what state interests may be asserted on behalf of the nonviable fetus.⁽¹⁵³⁾ However, some commentators have long held that Roe v. Wade and its progeny touch upon fetal rights only with respect to abortion.⁽¹⁵⁴⁾ In other words, the state must wait to advance the compelling state interest after viability only in the narrow context of safeguarding the mother's right to a previable abortion.⁽¹⁵⁵⁾ These commentators argue that, absent the abortion issue, the state may have a compelling interest in the fetus before viability.⁽¹⁵⁶⁾

C.  Fetal Personhood: Criminal v. Tort Law

Maternal prosecutions by the state are criminal actions.⁽¹⁵⁷⁾ Thus far, most of the cases advancing fetal personhood have been tort actions.⁽¹⁵⁸⁾ While the two types of law have similarities, they are different in both their goals and structure in American jurisprudence.⁽¹⁵⁹⁾

Simply stated, the goal of tort law is to compensate the victim.⁽¹⁶⁰⁾ The goal of criminal law is to protect the state and the public against harm.⁽¹⁶¹⁾ Because punishment under criminal law may involve depravation of liberty, the punishment is viewed as more severe than monetary tort damages.⁽¹⁶²⁾ Therefore, it is especially important that criminal laws are clearly written so that would-be offenders know explicitly what behavior is forbidden.⁽¹⁶³⁾ As a result, criminal law is most commonly found in the form of statutes, followed by administrative regulations, constitutions, and occasionally common law decisions.⁽¹⁶⁴⁾

Criminal law demands strict construction of its statutes.⁽¹⁶⁵⁾ Accordingly, criminal statutes are carefully drafted to ensure that little ambiguity exists.⁽¹⁶⁶⁾ Despite this philosophy, a small number of jurisdictions have developed their criminal law, and questions of fetal personhood, through the common law.⁽¹⁶⁷⁾ The common law decisions of Commonwealth v. Cass,⁽¹⁶⁸⁾ State v. Horne,⁽¹⁶⁹⁾ and Hughes v. State⁽¹⁷⁰⁾ are often cited when analyzing the historical background and legal development of crimes against the fetus.⁽¹⁷¹⁾ These cases provide further insight by their statutory interpretations and their discussions contrasting the law in other jurisdictions.⁽¹⁷²⁾

  The Viable Fetus and Common Law Criminal Decisions

A.  The Beginning: Some Courts Reject The "Born Alive Rule"

At least two states have recognized the viable fetus as a "person" for common law homicide.⁽¹⁷³⁾ While some states have previously recognized viable fetuses as people for purposes of its tort law, usually in wrongful death statutes, the viable fetus did not have a cause of action in criminal law unless it was born alive, thus becoming a "person" as recognized under the applicable statute.⁽¹⁷⁴⁾

The cases of Commonwealth v. Cass and State v. Horne were the first to expressly reject the "born alive" rule by holding that injury to viable fetuses were common law crimes against the state, regardless of whether the viable fetus was later "born alive."⁽¹⁷⁵⁾ While Horne remains a heavily cited case, it is not cited as frequently as Cass.⁽¹⁷⁶⁾ One factor contributing to the frequent citation of the Cass opinion is its "concise, logical, and tightly reasoned analysis" expressly rejecting the born alive rule.⁽¹⁷⁷⁾ Another factor is the Cass court's novel use of "conclusive medical testimony"⁽¹⁷⁸⁾ and the use of this medical evidence to "prove the constituent elements of the crime."⁽¹⁷⁹⁾

1.  Commonwealth v. Cass

Commonwealth v. Cass was a criminal action brought under a Massachusetts vehicular homicide statute.⁽¹⁸⁰⁾ The victim, an unnamed female pedestrian, was eight and one-half months pregnant when she was struck by Cass's vehicle.⁽¹⁸¹⁾ Her fetus died in the womb.⁽¹⁸²⁾ A subsequent autopsy found that the fetus had been viable but died of injuries sustained as a result of the collision.⁽¹⁸³⁾

In Cass, the court performed an in depth statutory analysis.⁽¹⁸⁴⁾ The court began by noting that the vehicular homicide statute was enacted shortly after a Massachusetts decision holding that a viable fetus was a "person" for purposes of the wrongful death statutes.⁽¹⁸⁵⁾ Because the legislature was presumed to have had knowledge of that decision,⁽¹⁸⁶⁾ the court reasoned that it was the legislature's intent to similarly include viable fetuses as "persons" for the vehicular homicide statute.⁽¹⁸⁷⁾

The Cass court then offered a further "alternative" statutory analysis.⁽¹⁸⁸⁾ It believed that even if the legislature had not intended earlier common law decisions to be incorporated into newer legislation, the legislature did expect the courts to interpret legislation based on the common law.⁽¹⁸⁹⁾ This role as interpreter was especially relevant in defining the frequently ambiguous terms of murder and manslaughter statutes.⁽¹⁹⁰⁾ The court also looked to other jurisdictions and concluded that there existed three prevailing views rejecting the viable fetus as a person for homicide statutes.⁽¹⁹¹⁾ The court addressed each one in turn.⁽¹⁹²⁾

The court held that many jurisdictions reasoned that their courts did not have the authority to define ambiguous terms because such interpretation was left solely to the discretion of the legislature.⁽¹⁹³⁾ These jurisdictions believed that the legislature intended to occupy "the entire field of criminal law."⁽¹⁹⁴⁾ The Cass court held that this might be true of jurisdictions adopting versions of the Model Penal Code, but not of Massachusetts or other jurisdictions whose criminal law was largely established by common law.⁽¹⁹⁵⁾ Consequently, the Cass court did not believe its hands were tied by the legislature to reject a viable fetus as a person under the vehicular homicide statute.⁽¹⁹⁶⁾

The courts from the second group of jurisdictions reasoned that the legislature enacts a statute using a particular term because of an attempt to halt the further development of the term under common law.⁽¹⁹⁷⁾ Such action by the legislature would have the effect of not expanding the term once the statute is adopted.⁽¹⁹⁸⁾ Finally, the third group of jurisdictions heavily favored a "strict construction" view of statutory analysis.⁽¹⁹⁹⁾ This construction has courts look to the "traditional" view of the term and, in criminal statutes, seek an interpretation that favors the defendant where any ambiguity exists.⁽²⁰⁰⁾ The Cass court rejected the arguments of both of these groups as well.⁽²⁰¹⁾

Finally, the court acknowledged that no other jurisdiction has allowed a cause of action in homicide for a viable fetus not actually born alive.⁽²⁰²⁾ Citing medical advances and the futility of maintaining laws that "`persist from blind imitation of the past,'"⁽²⁰³⁾ the Cass court held that injury to the viable fetus that leads to its death is homicide, regardless of whether or not the child is born alive.⁽²⁰⁴⁾

2.  State v. Horne

In State v. Horne, Terrance Horne attacked his estranged wife, who was nine months pregnant, with a knife.⁽²⁰⁵⁾ Mrs. Horne was stabbed in the abdomen and rushed to the hospital, where doctors determined that the fetus was still alive.⁽²⁰⁶⁾ The doctors performed a caesarean section, but the child was dead when removed from the uterus.⁽²⁰⁷⁾ An autopsy later confirmed that the child had died as a result of Mrs. Horne's injuries.⁽²⁰⁸⁾ South Carolina chose to prosecute Mr. Horne for the murder of the fetus despite the fact that South Carolina had never considered a fetus to be a person under its statutory definition of murder.⁽²⁰⁹⁾ The Horne court noted that under the state's wrongful death statute, a viable unborn fetus is considered a person.⁽²¹⁰⁾ To reconcile this inconsistency, the court held that an action for homicide of a viable fetus could be maintained, provided that the state could prove viability beyond a reasonable doubt.⁽²¹¹⁾

The Horne opinion was released just one day after Commonwealth v. Cass was decided by the Supreme Judicial Court of Massachusetts. Thus, South Carolina joined Massachusetts as the second court to expressly reject the born alive rule and extend common law criminal protection to unborn viable fetuses.⁽²¹²⁾

B.  The Conflict Between Jurisdictions Today: Common Law Criminal Actions Brought Against the Mother on Behalf of Her Viable Fetus

While both the Cass and Horne decisions did not apply to the respective defendants because of constitutional considerations,⁽²¹³⁾ the cases are still good law in Massachusetts and South Carolina.⁽²¹⁴⁾ Only two other jurisdictions, Kansas and Oklahoma, have similarly rejected the common law "born alive" rule.⁽²¹⁵⁾ The remaining jurisdictions have either retained the "born alive" rule, enacted feticide statutes or redrafted their existing homicide statutes to include the terms "fetus" or "unborn child."⁽²¹⁶⁾ Because Massachusetts was one of the few jurisdictions that did interpret a fetus to be a person under its criminal homicide statutes, the Pellegrini decision, as noted in Whitner, has been viewed as an oddity.⁽²¹⁷⁾

1.  A Mother Is Not Criminally Liable to Her Viable Fetus: Commonwealth v. Pellegrini

Despite the statutory construction set forth in Cass , the Massachusetts court, in Pellegrini, refused to take that analysis further by finding criminal liability for maternal substance abuse.⁽²¹⁸⁾ Josephine Pellegrini was arrested and charged with distribution of a controlled substance to a minor after her son was born with cocaine metabolites in his system.⁽²¹⁹⁾ The Pellegrini court held that to find a mother criminally liable for injury to her fetus caused by her own substance abuse was unconstitutional because such a decision would violate her right to privacy.⁽²²⁰⁾

The Pellegrini court held that the constitutional right to privacy extended to decisions relating to procreation.⁽²²¹⁾ Therefore, the court reasoned that if Pellegrini was to be found guilty, her prosecution under the statute must meet a "strict scrutiny" test, requiring both a compelling state interest and a narrowly drawn regulation to advance that interest.⁽²²²⁾ The court held that neither prong of the "strict scrutiny" test was met.⁽²²³⁾

The court placed particular emphasis on how the Pellegrini prosecution failed the "narrowly tailored means" prong of the test.⁽²²⁴⁾ The court noted:

The Commonwealth can develop an alternative means to effectuate its purposes, one which does not interfere with a woman's right to privacy or destroy the fundamental relationship between mother and her fetus, as this prosecution threatens. The Commonwealth may effectuate its stated interest in protecting viable fetuses through less restrictive means, such as education and making available medical care and drug treatment centers for pregnant women. The Commonwealth's interest in protecting potential human life should not be effectuated with the imposition of criminal sanctions. By imposing criminal sanctions, women may run away from seeking prenatal care for fear of being discovered, thereby undermining the state's asserted interests. The state's interests would be further undermined when women seek to terminate their pregnancies for fear of criminal sanctions.⁽²²⁵⁾

Finally, the Pellegrini court believed that to prosecute maternal substance abusers was against public policy.⁽²²⁶⁾ The court stressed its opinion that a decision to criminalize this type of behavior was distinct from the issue of fetal viability and personhood in tort law.⁽²²⁷⁾ The Pellegrini court concluded that the only remedy to the problem rested with the legislature.⁽²²⁸⁾

2.  A Mother Is Criminally Liable to Her Viable Fetus: State v. Ashley

A more recent controversial decision on maternal criminal liability towards the viable fetus occurred in State v. Ashley.⁽²²⁹⁾ Kawana Ashley was twenty-five to twenty-six weeks pregnant when she shot herself in the stomach in an attempt to "hurt the baby."⁽²³⁰⁾ The baby, Brittany, was delivered by caesarean section but died fifteen days later due to problems associated with premature birth.⁽²³¹⁾ Ashley was charged with manslaughter and third-degree felony murder.⁽²³²⁾ The court approved the charge of manslaughter by what appeared to be almost a process of elimination.⁽²³³⁾

Because manslaughter could have been found by "culpable negligence"⁽²³⁴⁾ of the defendant, Ashley argued that if she were convicted, other pregnant women might face prosecutions for negligently ignoring their doctor's advice.⁽²³⁵⁾ Although the court believed this unlikely after the holding of Johnson v. State,⁽²³⁶⁾ it went on to hold that "[w]hile we recognize that the relationship between mother and fetus is unique, we are not persuaded that based upon this relationship, a mother's duty to her fetus should not be legally recognized."⁽²³⁷⁾ The court further noted that if the mother behaved negligently towards the child after birth in such a way that caused injury to the child, that injury would properly be redressed by a cause of action.⁽²³⁸⁾ It would be illogical, then, not to redress such injury merely because it occurred

months, days or mere hours before the child's birth. . . . We disagree that our decision today deprives a mother of her right to control her life during pregnancy; rather, she is required to act with the appropriate duty of care, as we have consistently held other persons are required to act, with respect to the fetus.⁽²³⁹⁾

The decisions of Ashley and Whitner indicate that courts are willing to find criminal maternal liability brought on behalf of the viable fetus.⁽²⁴⁰⁾ In Zimmerman and the other FAS cases, however, the state's concern is that the harmful effects of alcohol are felt more severely by the nonviable fetus.⁽²⁴¹⁾ Unless an action can be brought for actions against the nonviable fetus, FAS will remain an unsolved problem.⁽²⁴²⁾

Actions on Behalf of the Nonviable Fetus

A.  Tort Actions on Behalf of the Nonviable Fetus

1.  Wiersma v. Maple Leaf Farms

Fetal personhood before viability is beginning to amass its own controversial case law. In Wiersma v. Maple Leaf Farms,⁽²⁴³⁾ Beth Wiersma was 7.3 weeks pregnant when she contracted salmonella poisoning from a frozen food product manufactured by the defendant and miscarried.⁽²⁴⁴⁾ The court conducted a statutory analysis and concluded that the fetus was a person with a cause of action under South Dakota's wrongful death statutes.⁽²⁴⁵⁾

Maple Leaf argued that it was legally inconsistent to allow a mother the unilateral decision to terminate the pregnancy by abortion before viability, yet to impose liability on a third party who also terminated such a nonviable pregnancy.⁽²⁴⁶⁾ The court disagreed, explaining that only the mother's decision to abort, and not that of a third party, is constitutionally protected.⁽²⁴⁷⁾

In closing, the court discussed the concept of viability and the difficulties of interpretations based on this standard:

'Viability' as a developmental turning point was embraced in abortion cases to balance the privacy rights of a mother as against her unborn child. For any other purpose viability is purely an arbitrary milestone from which to reckon a child's legal existence. Viability of course does not affect the question of the legal existence of the unborn, and is therefore of the defendant's duty, and it is a most unsatisfactory criterion, since it is a relative matter, depending on the health of the mother and child and many other matters in addition to the stage of development.⁽²⁴⁸⁾

2.  Farley v. Sartin

West Virginia also recently found a cause of action for the nonviable fetus in its wrongful death statutes in Farley v. Sartin.⁽²⁴⁹⁾ Cynthia Farley was killed in an automobile accident with defendant Billy Sartin.⁽²⁵⁰⁾ Ms. Farley was "probably eighteen weeks and a few days" pregnant when she was killed.⁽²⁵¹⁾ Her husband brought a wrongful death action against Sartin for the death of the unborn child, "Baby Farley."⁽²⁵²⁾ The court believed that "at best, [the fetus was] of questionable viability in light of the evidence presented."⁽²⁵³⁾ The Farley court traced the purposes of its wrongful death statutes and voiced its own dissatisfaction with the viable and nonviable distinction.⁽²⁵⁴⁾ It also noted that its decision was not inconsistent with Roe v. Wade, holding that Roe was addressed to nonviable fetuses strictly in an abortion context and was not applicable to nonviable fetuses in a wrongful death context.⁽²⁵⁵⁾ Wiersma and Farley appear to represent a trend towards recognizing causes of action for nonviable fetuses in tort law.⁽²⁵⁶⁾ As the Farley court noted, a similar trend occurred for recognizing viable fetuses for wrongful death statutes, which are now recognized in every jurisdiction.⁽²⁵⁷⁾

B.  Criminal Actions on Behalf of the Nonviable Fetus: People v. Davis

Perhaps the most controversial case involving the nonviable fetus concerns an action in criminal law--the California decision of People v. Davis.⁽²⁵⁸⁾ In Davis, the defendant shot a pregnant woman during the course of a robbery.⁽²⁵⁹⁾ Maria Flores was then twenty-three to twenty-five weeks pregnant.⁽²⁶⁰⁾ Flores survived, but her fetus did not.⁽²⁶¹⁾ While testimony varied widely on the chances of the infant's survival outside of the womb, neither side claimed that the fetus was conclusively viable.⁽²⁶²⁾ The California feticide statute in question did not specifically state that the fetus must be viable.⁽²⁶³⁾ The jury received the controversial instructions that if they found the fetus had even the possibility of survival, then they could find the defendant guilty of homicide committed in the course of a robbery.⁽²⁶⁴⁾ Because the Davis conviction was based on a felony murder theory, under the applicable California felony murder statute if special circumstances existed, the sentence was either life without parole or the death penalty.⁽²⁶⁵⁾ In Davis, the Supreme Court of California agreed that because of the new interpretation of the statute, it would violate due process to convict the defendant on the felony murder charge.⁽²⁶⁶⁾ Nevertheless, the far reaching implications of the decision were immediately apparent.⁽²⁶⁷⁾

Similar to the defendant in Wiersma, Davis argued that it was legally inconsistent to allow an abortion of the nonviable fetus yet condemn him, potentially to death, for killing the nonviable fetus.⁽²⁶⁸⁾ The Davis court's response was familiar as well; the constitutional protection granted in Roe v. Wade is only given to the mother against her fetus, not to a third party.⁽²⁶⁹⁾ The court held that this view was also consistent with two recent decisions in other jurisdictions with similar statutes.⁽²⁷⁰⁾

The Davis court concluded that the future definition of fetus under California criminal statutes would be, as medically defined, "'unborn offspring in the postembryonic period . . . seven or eight weeks after fertilization.'"⁽²⁷¹⁾ Whether this time period had occurred would be determined by the trier of fact.⁽²⁷²⁾ In a vigorous dissent, Justice Mosk argued that the majority ignored the intent of the legislature by including nonviable fetuses within the scope of the murder statute.⁽²⁷³⁾

  Specific Legislation for Fetal Injury: Feticide Statutes

Currently, twenty-three states have statutes making it a specific crime to kill an unborn child or fetus.⁽²⁷⁴⁾ As discussed, four other states hold the viable fetus to be a person under their common law decisions.⁽²⁷⁵⁾ The remaining twenty-three states retain the common law "born alive" rule, which provides that it is not a homicide of any sort to kill a fetus.⁽²⁷⁶⁾ Of the twenty-three states that do have statutes proscribing fetal homicide, there is little consistency.⁽²⁷⁷⁾ To clarify this, Justice Mosk compared the required gestational age of the fetus in these feticide statutes to the Davis standard of seven to eight weeks, and determined that there were three distinct categories.⁽²⁷⁸⁾ His analysis of the body of statutory law is especially helpful in grasping the divergent viewpoints on this emerging issue.⁽²⁷⁹⁾

The first category consists of states that impose criminal liability for crimes against the fetus or unborn child, when the fetal age is greater than California's fetal age of seven to eight weeks.⁽²⁸⁰⁾ Ten states are included in this category.⁽²⁸¹⁾ Of these ten, Iowa's feticide statute recognizes liability if the gestational age of the fetus is beyond the second trimester.⁽²⁸²⁾ New York's homicide statute requires that the fetus be beyond twenty-four weeks in gestational age.⁽²⁸³⁾ The remaining eight states in this category have criminal statutes for the killing of "an unborn quick child."⁽²⁸⁴⁾ Of these eight, Nevada, Washington, and Oklahoma find liability for any injury occurring to the mother of the unborn quick child that leads to its death.⁽²⁸⁵⁾ In the other five jurisdictions--Florida, Georgia, Michigan, Mississippi, and Rhode Island--the injury occurring to the mother must be murder or attempted murder.⁽²⁸⁶⁾ However, of these eight jurisdictions, only Georgia considers the crime to be a feticide punishable as murder; in the others, the crime is considered manslaughter.⁽²⁸⁷⁾

In Mosk's second category are states in which the language of the statute clearly specifies that the gestational age of the fetus is irrelevant.⁽²⁸⁸⁾ Of the seven states in this category, three--Arizona, Arkansas and New Mexico--treat the death of the nonviable fetus as a lesser offense.⁽²⁸⁹⁾

The other four states in this second category do view the act as a homicide, but again, the statutes vary in circumstances.⁽²⁹⁰⁾ For example, Ohio and Illinois will not impose liability unless the actor actually knew the woman was pregnant.⁽²⁹¹⁾ Minnesota will impose liability as a homicide if the act is done with premeditation, or where there is intent to murder either the unborn child or someone else, or while the actor is committing other felonies listed in the statute.⁽²⁹²⁾ The North Dakota statute offers its strictest sanctions against those who act while committing certain listed felonies or who act with malice, express or implied.⁽²⁹³⁾

The third and final category of states is silent as to the gestational age when criminal liability for the death will attach. Prior to Davis, California was such a jurisdiction.⁽²⁹⁴⁾ Utah has a statute similar to California's: it deems the homicide of an unborn child as a capital offense if done "intentionally or knowingly" while committing a felony.⁽²⁹⁵⁾ The remaining four jurisdictions in this third category treat the crime as a separate offense with lesser sanctions.⁽²⁹⁶⁾ Indiana requires that the act be an intentional or knowing termination of the pregnancy, and is punishable by four years and a potential fine not to exceed $10,000.⁽²⁹⁷⁾ Louisiana also has an intentional element in its feticide statute, although the intent element is not required if the feticide is committed in the commission of a listed felony. This is considered first degree feticide and punishment will not exceed fifteen years.⁽²⁹⁸⁾ South Dakota makes it a felony to intentionally kill a fetus by injury to the mother, punishable by ten years imprisonment and a potential fine of $10,000.⁽²⁹⁹⁾ New Hampshire requires purposeful or "knowing" injury to another that leads to miscarriage or stillbirth, punishable by no more than fifteen years and a potential find of $4000.⁽³⁰⁰⁾ The different views of these jurisdictions indicate the range of emotion inherent in decisions concerning fetal personhood.

VIII. Analysis: Why a Statute Criminalizing Maternal

Substance Abuse Won't Work

At the very least, FAS and FAE pose serious and clearly avoidable injury to the developing fetus and, consequently, to society.⁽³⁰¹⁾ There is evidence to support the position that maternal smoking during pregnancy is similarly harmful.⁽³⁰²⁾ As discussed, traditional jurisprudence dictates that society seek a remedy for such behavior through its criminal law.⁽³⁰³⁾ Crimes have historically been proscribed through strict statutory constrictions.⁽³⁰⁴⁾ Tackling the problem of fetal alcoholism through legislation however presents several inherent difficulties.⁽³⁰⁵⁾

A.  A Statute Criminalizing Legal Substance Abuse Will Lose a Void-For-Vagueness Challenge

Any legislation that would restrict a mother's right to drink during her pregnancy must be unambiguous to successfully withstand a void-for-vagueness challenge.⁽³⁰⁶⁾ The proposed legislation, to be effective, must give fair notice⁽³⁰⁷⁾ to those persons who would be subject to it and must also adequately guard against arbitrary and discriminatory enforcement of the legislation.⁽³⁰⁸⁾

1.  Fair Notice: General Considerations

Because drinking alcohol, or even smoking cigarettes, is an otherwise legal activity, an especially difficult hurdle is presented to the drafter trying to avoid a "fair notice" challenge.⁽³⁰⁹⁾ The statute will apply not only to the pregnant women, but might extend to those who sell these legal substances.⁽³¹⁰⁾

The latest available information on FAE and FAS indicates that even a small amount of alcohol consumed during pregnancy may have harmful effects on a fetus.⁽³¹¹⁾ Therefore, the proposed statute must expressly forbid the service of any alcoholic beverages to pregnant women. Additionally, because the server of alcohol, or cigarette salesman, cannot reasonably be expected to know how much of these substances would harm the fetus, further support is lended to such a complete ban.⁽³¹²⁾ Alternatively, to draft a statute placing the burden on the server of alcohol or cigarette salesman to judge how much of the substance(s) the pregnant woman had consumed would severely impede the effectiveness of any legislation.⁽³¹³⁾

Legal substance abuse legislation would also have to prohibit pregnant women from acquiring the alcohol or cigarettes in any place.⁽³¹⁴⁾ For example, with alcohol, the ban must include package stores as well as restaurants.⁽³¹⁵⁾ While it would be easier to detect that the pregnant woman was going to have a drink in the context of a restaurant setting, where a law enforcement agent can actually see that the woman herself will drink the beverage, to apply it only to restaurants would not discourage some women from going to a package store.⁽³¹⁶⁾ With smoking, how could we monitor cigarette machines?⁽³¹⁷⁾

2.  Problems with Fair Notice and Third Party Liability

Again, shifting the burden from the pregnant woman to the server of alcohol or cigarette vender makes little sense.⁽³¹⁸⁾ For a woman in the first three months of pregnancy, there are few outside indicators to make a vendor aware that such a person is at risk.⁽³¹⁹⁾ Such legislation puts an unacceptable burden on these service industries unless the server is aware that the woman is pregnant.⁽³²⁰⁾ Thus, inclusion of third party liability in the statute would render it largely ineffective.⁽³²¹⁾

3.  The Problem with Arbitrary and Discriminatory Enforcement

Such proposed legislation might also have void-for-vagueness problems with respect to guarding against arbitrary and discriminatory enforcement difficulties.⁽³²²⁾ How could such a statute be enforced against a woman who is early in her pregnancy and does not show? Alternatively, what if a woman is overweight and appears to be pregnant? How can the server of alcohol, or seller of cigarettes, be put in the position of having to determine this?⁽³²³⁾ For that matter, the woman herself may not even know she is pregnant.⁽³²⁴⁾

4.  The Problem of Intent

One way to circumvent the difficult issue of having laypersons determining whether or not the woman in question is pregnant is to require an element of intent in the proposed statute.⁽³²⁵⁾ Strict liability for such an offense, while effective, would probably be rejected as an unconstitutionally harsh standard, particularly when applied to a woman who did not know she was pregnant but would consequently face sanctions for a relatively serious crime.⁽³²⁶⁾ Such legislation could include a higher level of intent, such as knowingly, but this may render the statute mostly ineffective if the woman claims not to have known that she was pregnant, or alternatively, that she did know she was pregnant but did not know she was harming her fetus.⁽³²⁷⁾ Moreover, women who have substance abuse problems or addictions are likely to continue to procure these substances, regardless of criminal sanctions.⁽³²⁸⁾

B.  A Criminal Statute Forbidding Legal Maternal Substance Abuse at the Nonviable Stage Is Irreconcilable with Roe v. Wade

It is difficult to argue that criminal actions brought on behalf of the nonviable fetus are legally consistent with the Roe and Casey decisions.⁽³²⁹⁾ For whatever they may not explicitly forbid, Roe and Casey clearly hold that before viability, the mother has a fundamental privacy right to terminate her pregnancy.⁽³³⁰⁾ This decision is ultimately hers to make; the government cannot place an undue burden on this choice.⁽³³¹⁾

Consequently, proposed legislation to forbid pregnant women with nonviable fetuses to drink or smoke is legally inconsistent with Roe if the woman is choosing to terminate her pregnancy anyway.⁽³³²⁾ It is difficult to argue that a pregnant woman cannot order a glass of wine with dinner because it might harm her fetus, when that same woman is also legally entitled to have an abortion the following day.⁽³³³⁾ While the counter argument runs that the state has the right to regulate the potentiality of life until a woman makes this decision, such a distinction is thin and dangerous.⁽³³⁴⁾ Should such legislation proceed on this distinction, it may leave the holdings of Roe and even Casey open to serious review with the potential for an overruling of Roe.⁽³³⁵⁾

1.  Problems with the Statute Before Viability: A Hypothetical

To illustrate the problems with a criminal statute forbidding the mother's legal substance abuse before viability, consider the following hypothetical, loosely based on the Rosemarie Tourigny fact pattern.⁽³³⁶⁾ Assume the woman, Ms. X, is arrested because she is two months pregnant and intoxicated in violation of the law in state Y. What then, is there to prevent Ms. X from claiming that she was planning to have an abortion? This hypothetical situation illustrates the "slippery slope" argument advanced by many opponents of the Zimmerman-type prosecutions.⁽³³⁷⁾ Consequently, State Y must first decide when to arrest and charge Ms. X. If Ms. X is arrested at the time she violates the law and subsequently opts to have an abortion, it could be argued that she did it to avoid the legal responsibility.⁽³³⁸⁾ Surely the state will not, for policy reasons, want to put itself in the position of encouraging this course of action.⁽³³⁹⁾ Additionally, will the state want to tie up its limited resources to prosecute someone for "injury" to another, when technically the injured party may no longer exist?⁽³⁴⁰⁾

Alternatively, assume Ms. X decides to continue her pregnancy and delivers at term before state action occurs. If the baby is born healthy, a court may not wish to support a prosecution if they believe that the only injury the child will sustain is to be separated from its mother, particularly when the mother's punishment involves jail time.⁽³⁴¹⁾ On the other hand, if the baby is born with FAS or FAE, the mother may argue that she changed her mind and decided to keep her baby. The court may have difficulty with punishing a person who chooses to continue her pregnancy when, at the nonviable stage, she had the legal option of abortion.⁽³⁴²⁾

2.  The Conflict With Illegal Abortion Statutes

Finally, there are inconsistencies currently present in criminal law with respect to illegal abortions.⁽³⁴³⁾ While many states have statutes criminalizing illegal abortions, the penalties are generally imposed on the abortionist.⁽³⁴⁴⁾ As discussed in Ashley, courts are reluctant to assess any blame towards the woman seeking the illegal abortion, arguing that she is the victim of such a crime.⁽³⁴⁵⁾ Like the Ashley and Whitner courts, other courts may have difficulty trying to reconcile the imposition of serious criminal charges on mothers who injure their children through legal substance abuse when relatively minimal sanctions are imposed on women who seek illegal abortions.

3.  Wrongful Death Actions Address an Injury to the Parent, Not to the State

It is difficult to legally reconcile the concept of not recognizing the nonviable fetus in criminal law while concurrently accepting the decisions of the wrongful death cases covered earlier.⁽³⁴⁶⁾ While the courts in the wrongful death cases were explicit in stating that their holdings are specific to a third party who has taken the life and are not applicable to state abortion statutes,⁽³⁴⁷⁾ the decisions do, in effect, recognize the nonviable fetus as a life.⁽³⁴⁸⁾ While only a small number of jurisdictions recognize wrongful death actions for nonviable fetuses, many commentators see a parallel trend between tort recoveries for the nonviable fetus and eventual criminal sanctions for injury to the nonviable fetus.⁽³⁴⁹⁾

Wrongful death allows a cause of action for the estate, as in both the Wiersma and Farley cases where the action was brought by a parent.⁽³⁵⁰⁾ While a cause of action for wrongful death technically recognizes the life of the child, both the Wiersma and Farley decisions emphasize that the compensation was for the parents' loss, consistent with the goals of civil law.⁽³⁵¹⁾ Theoretically, the state suffers no loss in a wrongful death itself; rather, it is the family's loss that is compensated.⁽³⁵²⁾

Additionally, it is difficult to prove that drinking earlier in the pregnancy causes the more severe cases of FAS and FAE, when the fetus is not as developed and is more dependent on the mother biologically.⁽³⁵³⁾ As discussed, due to the difficulty in enforcing such a statute and the onus it places on third parties to diagnose a nonviable pregnancy, legislation at the nonviable stage would be void-for-vagueness.⁽³⁵⁴⁾

Finally, there is a wealth of information which indicates that such legislation, and subsequent prosecutions, will not solve the problem.⁽³⁵⁵⁾ Unlike illegal substance abusers, legal substance abusers have not yet engaged in criminal behavior, and may be unwilling to risk the stigma of being labeled a potential criminal.⁽³⁵⁶⁾ It is feared that such high risk mothers will simply stay at home and drink away their fears rather than confront this very real problem.⁽³⁵⁷⁾

C.  A Criminal Statute Forbidding Legal Substance Abuse for Women at the Viable Fetus Stage is Also Problematic

Casey and Roe held that after viability the state may have a compelling state interest in protecting the unborn child.⁽³⁵⁸⁾ Legislation monitoring the behavior of women with viable fetuses is much less legally objectionable than that concerning nonviable fetuses.⁽³⁵⁹⁾ Such legislation may have a positive effect on the problem, but some considerations remain.

1.  The Problem of Detection Still Remains

A line drawn at viability does not eliminate the inherent problem of detecting the pregnancy. Current medical knowledge places the fetus as viable at twenty-four to twenty-six weeks when the woman is usually showing and her condition more readily apparent.⁽³⁶⁰⁾ However, in People v. Davis,⁽³⁶¹⁾ while Flores was approximately twenty-four to twenty-five weeks pregnant when shot, testimony was presented indicating that her condition was not readily apparent due to her obesity, which can obscure such conditions.⁽³⁶²⁾ More problematic is the growing realization that, as scientific knowledge progresses, the fetus may be viable at even earlier stages of gestation.⁽³⁶³⁾ As viability arrives earlier in the pregnancy, the problem of detecting pregnancy that now exists at the nonviable stage will present itself at the viable stage as well.

2.  The Problem of Equal Protection

Legislation forbidding the sale of legal substances attempts to classify all pregnant women who are not similarly situated and may thus constitute gender based discrimination violating equal protection.⁽³⁶⁴⁾ For example, such legislation would preclude a non-drinking pregnant woman from buying her husband some beer at a package store.⁽³⁶⁵⁾ While this is admittedly a small intrusion, the government must show there is at least a rational relation to this charge in order to guard against a constitutional challenge.⁽³⁶⁶⁾ It may not meet this challenge in that, beyond viability, the most harmful affects of FAE and FAS may have already occurred.⁽³⁶⁷⁾

D.  Zimmerman Fact Pattern Prosecutions Can Be Successful

The Zimmerman case offers such an extreme case of maternal indiscretion that there may be a successful prosecution without resorting to a maternal legal substance abuse statute.⁽³⁶⁸⁾ First of all, Zimmerman's subjective and objective intent was clearly to injure her child.⁽³⁶⁹⁾ By not only her actions, but by her actual words, she exhibited an intent to harm her baby.⁽³⁷⁰⁾ Her baby appears to have FAS, most certainly FAE, and will be damaged for the rest of her life.⁽³⁷¹⁾

There is little question that Judge Barry's ruling was correct in identifying alcohol as the instrumentality of injury.⁽³⁷²⁾ Similar to the breakthrough decisions of Cass and Horne, a common law interpretation should be able to weave the elements of intent and instrumentality into a successful prosecution.⁽³⁷³⁾ Like Cass, rather than by strict statutory construction, the facts and circumstances of the individual case would be weighed by each court.⁽³⁷⁴⁾ Finally, Zimmerman's defense that she is an alcoholic would be insufficient, certainly from a legal standpoint.⁽³⁷⁵⁾ Courts have long refused to recognize vindication from criminal liability based on arguments of voluntary intoxication.⁽³⁷⁶⁾ Unfortunately, while a prosecution may save the future children of Deborah Zimmerman, it may ultimately do little to solve the larger problem of legal substance abuse.⁽³⁷⁷⁾

E.  Alternative Methods to Preventing Fetal Alcohol Syndrome and Effect

1.  More Information and Education is Needed

Because of the relative novelty of FAS and FAE, more information is needed on these problems in order to effectively combat them.⁽³⁷⁸⁾ More research is needed on these women who continue to have several children with the disability.⁽³⁷⁹⁾ More studies are needed to find, objectively, the best way to prevent FAS and FAE from happening.

One thing that is certainly needed is more community education.⁽³⁸⁰⁾ There are very few public service announcements on TV about the types of damage associated with FAE and FAS can cause.⁽³⁸¹⁾ A recent survey of children aged thirteen to twenty showed that only three quarters had ever heard of fetal alcohol syndrome and more than one-third incorrectly believed that it describes a baby born addicted to alcohol, that it is inherited and that it can be cured.⁽³⁸²⁾ People need to be educated that if they, or someone they know, drinks during their pregnancy, they run the high risk of causing permanent and irreversible harm to the child. The community hassling that worked so well in Scandinavia and Alaska should be remembered and attempted at some level to permeate the inner city areas.⁽³⁸³⁾

2.  The Liquor Industry Needs to Participate

Many believe the liquor industry has a substantial obligation to participate in the fight against FAS and FAE, particularly from a financial standpoint.⁽³⁸⁴⁾ These critics argue that the liquor industry has a social responsibility to remedy and prevent the problems associated with FAS and FAE--problems the liquor industry has both helped to create and profited from.⁽³⁸⁵⁾ The response from the liquor industry thus far has been ineffective and limited.⁽³⁸⁶⁾ The liquor industry has used its powerful lobbying position to fight more comprehensive measures.⁽³⁸⁷⁾ One option is to further tax this industry and direct the revenue towards finding solutions for FAE and FAS. Legislation could also be used to force larger labels, ideally with pictures on the warning labels to indicate the harmful effects of alcohol to the pregnant woman and her unborn child.⁽³⁸⁸⁾

Conclusion

Ultimately, the problem of legal substance abuse and fetal personhood comes back to society's view towards it.⁽³⁸⁹⁾ While one trend in society appears to be towards a greater recognition of fetal rights, important considerations of personal autonomy remain.⁽³⁹⁰⁾ Because the issue of fetal rights is such an emotional and controversial area of the law, it would not appear that the problem of legal maternal substance abuse is best addressed by traditional criminal law and strict statutory construction.⁽³⁹¹⁾ Alternative avenues should be explored.⁽³⁹²⁾ Legal substance abuse, fetal personhood and their nexus to maternal liability are complex issues demanding more research.⁽³⁹³⁾ Until then, cases like Zimmerman are best resolved by utilizing a case-by-case facts and circumstances approach, rather than settling for an easy fix.⁽³⁹⁴⁾

Alison M. Leonard^*

1. Robin Abcarian, Unwelcome Intrusions into a Pregnancy, Plain Dealer (Cleveland), Nov. 26, 1996, at 5E.

2. H.G. Wells, A Modern Utopia ch. 5, § 2 (Univ. of Neb. Press 1967) (1905).

3. See infra notes 94-109 and accompanying text.

4. See infra Parts III, VIII.

5. Compare James Denison, Note, The Efficacy and Constitutionality of Criminal Punishment for Maternal Substance Abuse, 64 S. Cal. L. Rev. 1103 (1991), with Shona B. Glink, Note, The Prosecution of Maternal Fetal Abuse: Is This the Answer?, 1991 U. Ill. L. Rev. 533, and Molly McNulty, Note, Pregnancy Police: The Health Policy and Legal Implications of Punishing Pregnant Women for Harm to Their Fetuses, 16 N.Y.U. Rev. L. & Soc. Change 277 (1987-88).

6. See infra notes 23-63 and accompanying text.

7. See infra notes 26-29 and accompanying text.

8. See infra notes 32-37 and accompanying text.

9. See infra notes 36, 94-124 and accompanying text.

10. See infra note 55 and accompanying text.

11. See infra notes 55 and accompanying text.

12. See infra notes 59-60 and accompanying text.

13. See infra notes 23-93 and accompanying text.

14. See infra notes 94-109 and accompanying text.

15. See infra notes 110-24 and accompanying text.

16. See infra notes 125-30 and accompanying text.

17. See infra notes 131-72 and accompanying text.

18. See infra notes 173-242 and accompanying text.

19. See infra notes 243-73 and accompanying text.

20. See infra notes 274-300 and accompanying text.

21. See infra notes 301-88 and accompanying text.

22. See infra notes 389-94 and accompanying text.

23. No. 96-CF-525 (Wis. Cir. Ct. filed July 3, 1996).

24. See David Daley, Racine Case Embodies Debate Over Fetal Rights: Whether Mother or Prosecutors Win, Case is Likely to Go to High Court, Milwaukee J. Sentinel, Sept. 8, 1996, at B7.

25. See id.

26. See Edward Walsh, In Case Against Alcoholic Mother, Underlying Issue Is Fetal Rights; Attempted Murder Charge Presents `Minefield' of Legal Questions, Wash. Post, Oct. 7, 1996, at A4.

27. Today (NBC television broadcast, Sept. 5, 1996) (quoting Matt Meltzer) (on file with the New England Law Review).

28. See id.

29. See Walsh, supra note 26, at A4.

30. See Daley, supra note 24, at B7.

31. See Don Terry, In Wisconsin, a Rarity of a Fetal-Harm Case, N.Y. Times, Aug. 17, 1996, at A6.

32. See id.

33. Id.; see also Brief in Support of Defendant's Motion to Dismiss Information for Failure of the State to Adduce Probable Cause at the Preliminary Hearing at 2, Wisconsin v. Zimmerman, No. 96-CF-525 (Wis. Cir. Ct. 1996) [hereinafter Zimmerman Motion to Dismiss].

34. See Memorandum of Law in Support of State of Wisconsin's Criminal Complaint at 2, Zimmerman v. Wisconsin, No. 96-CF-525 (Wis. Cir. Ct. 1996) [hereinafter Wisconsin Memorandum of Law].

35. See Walsh, supra note 26, at A4; see also Wis. Stat. Ann. § 346.63(1)(b) (West 1996).

36. See Wisconsin Memorandum of Law, supra note 34, at 2. "[The child] was born suffering fetal alcohol effects, including mild dysmorphic features consistent with fetal alcohol effect." Id.

37. See Media in Frenzy Over Fetus Case: Homicide Try Via Drinking Charged, Cap. Times (Madison), Aug. 29, 1996 at 4A [hereinafter Media in Frenzy]; see also Wis. Stat. Ann. § 939.32(3) (West 1996) (defining attempt as requiring "that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor"); id. § 940.01(1) (describing first-degree intentional homicide as a crime in which the actor "causes the death of another human being with intent to kill that person"); id. § 940.23(1) (defining first-degree reckless injury when the actor "recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life").

38. See Media in Frenzy, supra note 37, at 4A; see also Wis. Stat. Ann. § 939.22(16) (defining a human being under its criminal statutes to be "one who has been born alive"). Wisconsin is one of the many states that still recognize the common-law "born alive rule," prohibiting criminal actions in homicide unless the victim is born alive. See Wayne R. LaFave & Austin W. Scott, Criminal Law § 7.1(c), at 607 (2d ed. 1986). "Being born alive required that the fetus be totally expelled from the mother and show a clear sign of independent vitality, such as respiration, although respiration was not strictly required." Id. at 607 & n.12.

39. See Terry, supra note 31, at A6. Assistant District Attorney Joan Korb explained, "You look for cases that will help make good law. . . . Hopefully we'll start holding women accountable for the harm they do their unborn children." Id.

40. See id. Linda Kaplan, Executive Director of the National Association of Alcoholism and Drug Abuse Counselors, says she is "concerned that more and more women will run away and hide and not seek treatment if these prosecutions continue." Id.

41. See id.

42. See id.

43. See Abcarian, supra note 1, at 5E; see also Daley, supra note 24, at B7; Media in Frenzy, supra note 37, at 4A; Terry, supra note 31, at A6; Walsh, supra note 26, at A4.

44. See Walsh, supra note 26, at A4.

45. Debra J. Saunders, Drawing the Line on Abusing the Unborn, The Oregonian, Aug. 26, 1996, at B6.

46. See Terry, supra note 31, at A6. Ms. Hoelzel noted that Wisconsin does not have a statute prohibiting pregnant women from drinking. See id. She also believes Zimmerman needs treatment for her alcoholism and not a criminal prosecution. See id.

As of this writing, the Zimmerman case is still pending in the Wisconsin Court of Appeals. In March 1997, Zimmerman was sentenced to four years imprisonment for violating her bail conditions by continuing to drink and leaving an alcohol treatment facility while awaiting trial. See Alcoholic Mom Gets Four Years for Bail Abuse, Chi. Trib., Mar. 26, 1997, at 14.

47. See Wisconsin Mother Charged After Baby Girl is Born Drunk, Cap. Times (Madison), July 5, 1996, at A1.

48. Id.; see also supra note 37 and accompanying text.

49. See State of Wisconsin's Brief in Opposition to Defendant's Motion to Dismiss the Information for Failure of the State to Adduce Probable Cause at the Preliminary Hearing at 4, Wisconsin v. Zimmerman, 96-CF-525 (Wis. Cir. Ct. Sept. 3, 1996) [hereinafter Wisconsin's Brief]. "The Defendant's words and actions clearly show an intent to kill the baby, whether before or after birth, and it should be left to a jury to determine if the Defendant's conduct fits the statute[s]." Id.

50. See Wisconsin v. Zimmerman, No. 96-CF-525 (Wis. Cir. Ct. Sept. 18, 1996) (decision and order denying motion to dismiss).

51. See id. at 1.

52. See id. at 15. Judge Barry observed that "this case also demonstrates that the legislature needs to clarify to what extent a viable fetus may be protected." Id.; see also State Reports Wisconsin: Charges of Attempted Homicide of Fetus Stand, 7 Am. Pol. Network: Abortion Rep., No. 44, Sept. 19, 1996, at 2 [hereinafter Wisconsin Charges Stand].

53. See Wisconsin v. Zimmerman, No. 96-CF-525, slip op. at 7 (Wis. Cir. Ct. Sept. 18, 1996) (decision and order denying motion to dismiss).

54. Id. at 8, 17; see also Wisconsin Charges Stand, supra note 52, at 2.

55. See Doreen Iudica Vigue, Pregnant Woman Booked for Drinking: Outcry Over N.H. Charge She Endangered Fetus, Boston Globe, Aug. 15, 1996, at B1.

56. See id.

57. See id.

58. See id.

59. Id.; see also State Reports New Hampshire: Woman Charged for Endangering Her Fetus, 7 Am. Pol. Network: Abortion Rep., No. 21, Aug. 16, 1996, at 7.

60. Joe Heany, Woman's Drinking Put Fetus in Danger, Cops Charge, Boston Herald, Aug. 15, 1996, at 1.

61. See Regional Reports New Hampshire, Attorney: `Fake Charges', 19 Nat'l L.J., No. 6, Oct. 7, 1996, at A8.

62. See Telephone Interview with Richard Samperil, Attorney for Rosemarie Tourigny, Public Defender's Office of Keene, N.H. (Jan. 17, 1997).

63. See Robyn E. Blumner, Growing Fetuses, Shrinking Women, St. Petersburg Times, Sept. 15, 1996, at 4D. ("With the best of intentions but the worst of consequences for privacy rights, new laws and new applications of old laws are establishing a body of fetal rights that is separate and distinct from the mother. Some are placing the mother and her growing baby in adversarial roles.").

64. No. 24468, 1996 WL 393164, at *1 (S.C. Sup. Ct. July 15, 1996).

65. See Wisconsin's Brief, supra note 49, at 6. The Racine District Attorney's Office also attached an entire copy of the Whitner decision to its brief in opposition to Zimmerman's motion to dismiss. See id.

66. See Whitner, 1996 WL 393164, at *1.

67. See id.; see also S.C. Code Ann. § 20-7-50 (Law. Co-op. 1985).

68. S.C. Code Ann. § 20-7-50.

69. See Whitner, 1996 WL 393164, at *1.

70. See id.

71. See id. Whitner also argued that the circuit court lacked subject matter jurisdiction to accept her guilty plea. See id. Because the statute could not be enforced against prenatal children, she pled guilty to a nonexistent offense. See id. In South Carolina, a circuit court does not have subject matter jurisdiction to accept such a plea. See id. (citing Williams v. State, 410 S.E.2d 563 (S.C. 1991)). The court rejected this argument based on its later holding that the statute did apply to prenatal children. See id. at *1-2.

72. See id. at *2 (citing Hall v. Murphy, 113 S.E.2d 790 (S.C. 1960)).

73. See id. The Whitner court reaffirmed an earlier opinion that there "was no medical or other basis" for the continued legal existence of one "assumed identity" of the mother and her viable fetus. Id. (quoting Hall v. Murphy, 113 S.E.2d 790, 793 (S.C. 1960)).

74. 319 S.E.2d 703 (S.C. 1984); see also infra notes 176, 205-12 and accompanying text.

75. See Whitner, 1996 WL 393164, at *1, *4.

76. 467 N.E.2d 1324 (Mass. 1984) (holding that a viable fetus is a person under the vehicular homicide statutes); see also infra notes 175, 180-204 and accompanying text.

77. 536 N.E.2d 571 (Mass. 1989) (holding that a viable fetus is a person under the homicide statutes).

78. See Whitner, 1996 WL 393164, at *5; see also Commonwealth v. Pellegrini, No. 87970, slip op. at 1 (Mass. Super. Ct. Oct. 15, 1990). Factually, Pellegrini is very similar to Whitner. See Whitner, 1996 WL 393164, at *5. Josephine Pellegrini was charged with violating Mass. Gen. Laws. ch. 94C, § 32F(b) (1994), distribution of a controlled substance to minors, after her son was born with cocaine metabolites in his system. See Pellegrini, No. 87970, slip op. at 2 (Mass. Super. Ct. Oct. 15, 1989). While Pellegrini was decided at the pleadings stage in a successful motion to dismiss, the case has been cited frequently in recent discussions of maternal substance abuse. See, e.g., Johnson v. State, 602 So. 2d 1288, 1296 (Fla. 1992) (holding that it is against legislative history, public policy, and common sense to convict a mother of "delivery" of a controlled substance to her baby through the umbilical cord seconds after birth); see also Vigue, supra note 55, at B1.

79. See Whitner, 1996 WL 393164, at *5.

80. See id. ("The Massachusetts trial court found Lawrence and Cass `accord legal rights to the unborn only where the mother's or parents' interest in the potentiality of life, not the state's interest, are sought to be vindicated.'" (quoting Pellegrini, No. 87970, at 1, 11 (emphasis added))); see also infra notes 224-34 for further discussion of Pellegrini.

81. See Whitner, 1996 WL 393164, at *5. The court stated:

If, . . . we read Horne only as a vindication of the mother's interest in the life of her unborn child, there would be no basis for prosecuting a mother who kills her viable fetus by stabbing it, by shooting it, or by other such means, yet a third party could be prosecuted for the very same acts. We decline to read Horne in a way that insulates the mother from all culpability for harm to her viable child.Id.

82. Id. at *4.

83. See id. at *3.

84. Id.

85. Id.

86. See id. at *1, *9 (Moore, J., dissenting). Justice Moore noted:

In construing this statute to include conduct not contemplated by the legislature, the majority has rendered the statute vague and set for itself the task of determining what conduct is unlawful. Is a pregnant woman's failure to obtain prenatal care unlawful? Failure to take vitamins and eat properly? Failure to quit smoking or drinking? Although the majority dismisses this issue as not before it, the impact of today's decision is to render a pregnant woman potentially criminally liable for myriad acts which the legislature has not seen fit to criminalize. To ignore this "down the road" consequence in a case of this import is unrealistic.Id. at *9 (Moore, J., dissenting).

87. See Whitner, 1996 WL 393164, at *9 (Moore, J., dissenting). Justice Moore noted that had Whitner obtained an illegal abortion, under South Carolina law she would receive a maximum sentence of only two years. See id. (Moore, J., dissenting). Paradoxically, the child neglect statute under which Whitner was convicted required that she receive an eight year sentence for giving birth to a now healthy child. See id. at *1. Finally, Moore noted that the Whitner holding would not protect a nonviable fetus, and that Whitner could legally use drugs during this "crucial period for the fetus." Id. at *9 (Moore, J., dissenting).

88. See Wisconsin's Brief, supra note 49, at 6.

89. Id. Korb believes that the analysis used by the Whitner court is compatible with Wisconsin's case against Zimmerman. See id.

90. See id. at 4.

91. See Whitner, 1996 WL 393164, at *4. "[A] parent can be prosecuted under section 20-7-50 for an action . . . without regard to whether the action is illegal in itself." Id.

92. See id. "Obviously, the legislature did not think it `absurd' to allow prosecution of parents for such otherwise legal acts when the acts actually or potentially endanger the `life, health or comfort' of the parents' born children." Id. (refuting Whitner's argument that to apply S.C. Code Ann. § 20-7-50 (Law. Co-op. 1985) to smoking and drinking was "absurd").

93. See Wisconsin's Brief, supra note 49, at 1-3.

94. See Carey Quan Gelernter, Conference Focuses on Fetal-Alcohol Syndrome, Its Problems and Solutions, Seattle Times, Aug. 28, 1996, at D1.

95. See id.

96. See id.

97. See id.

98. See Linda N. Coakley, Fetal Alcohol Syndrome Can Be Easily Prevented, Nashville Banner, June 18, 1996, at A7.

99. See Gelernter, supra note 94, at D1. The distinctive facial anomalies caused by FAS and FAE are believed to be the result of frontal lobe damage. See Joan Whitely, Troubled Lives: People Born with Fetal Alcohol Syndrome Struggle to Fit into Society, Las Vegas Review Journal, Aug. 3, 1997, at J1. The face and frontal lobe are formed during the same period of gestation early in the pregnancy. See id. Some researchers believe it may be as early as the 19th or 20th day after conception. See id. Recent research indicates that alcohol ingestion early in the pregnancy causes a gene called MSX2 from functioning properly. See Tony Capasso, Scientists Discover How Alcohol Causes Defects in Fetuses, St. J.-Reg. (Springfield, Ill.), July 9, 1997, at 3. The gene "controls many aspects of early fetal development." Id.; see also Nat'l Inst. on Alcohol Abuse and Alcoholism, U.S. Dep't of Health and Hum. Servs., Alcohol and Birth Defects: The Fetal Alcohol Syndrome and Related Disorders 32-35 (1987) [hereinafter Alcohol and Birth Defects]. "Findings . . . point to a period corresponding embryologically to the third week of human pregnancy as a time when the embryo may be especially vulnerable to teratogenic actions of alcohol that produce major features of FAS." Id. at 33.

100. See Coakley, supra note 98, at A7.

101. See Gelernter, supra note 94, at D1. Because FAE is harder to diagnose than FAS, FAE children tend to have more problems adjusting in society, possibly because they are not eligible for assistance under state programs that do recognize FAS. See id.; see also Alcohol and Birth Defects, supra note 99, at 12.

102. See Gelernter, supra note 94, at D1.

103. See id.

104. See Coakley, supra note 98, at A7.

105. See Gelernter, supra note 94, at D1. Because many doctors fail to diagnose these conditions at birth, the irreversible problems are compounded by reversible problems that go untreated, referred to as "secondary disabilities" by the experts. Id. In a Washington University study of FAE and FAS children not diagnosed at birth, currently ranging from 3 to 51 years of age, 90% experienced mental-health problems; 60% had disrupted school experiences; 60% had trouble with the law; 30% had drug and/or alcohol problems; 50% had been confined for substance abuse treatment, criminal incarceration, or mental health issues; and 50% exhibited inappropriate sexual behaviors. See id. For those who were 21 or older, 80% could not live alone. See id. In addition, 80% had some difficulty with employment. See id.

106. See id.

107. See id.

108. See Joan Beck, The Terrible Harm Done By Some Pregnant Women, Chi. Trib., April 16, 1995, at 3.

109. See Gelernter, supra note 94, at D1.

110. See Coakley, supra note 98, at A7.

111. Kristi Messer et al., Characteristics Associated with Pregnant Women's Utilization of Substance Abuse Treatment Services, 22 Am. J. Drug & Alcohol Abuse, No. 3, Issn: 0095-2990, Aug. 1, 1996, at 403. Additionally, a recent survey by the Centers for Disease and Control Prevention showed that more women are drinking during their pregnancy now than was reported four years ago. See U.S.: Drinking Increasing Among Pregnant Women, Chi. Trib., Apr. 25, 1997, at 20.

112. See Gelernter, supra note 94, at D1; see also Today, supra note 27.

113. See Gelernter, supra note 94, at D1. "Women who tend to make one [FAS baby], tend to make more." Id. (quoting Dr. Sterling Clarren). By targeting these women, "[y]ou'll reduce the total rate by 20-25%." Id.

114. See id. Washington University has interviewed approximately 60 alcoholic mothers in an attempt to develop a successful network of clinics to prevent the syndrome. See id. As a result of these interviews:

"'[I]t's becoming clear that they [pregnant alcoholic mothers] don't see pregnancy and alcohol as a problem, but as a partial solution to their real problems: depression, manic-depression, psychosis. They have a high rate of sexual abuse themselves. . . . Just offering birth control and alcoholic treatment isn't nearly enough. They need more, like mental health and social support.'"Id. (quoting Dr. Sterling Clarren).

115. See id.

116. See id.

117. See id.

118. Id.

119. See Jane George, Bar Owner Helps Pregnant Inuit Women Stop Drinking: The Eastern Arctic's `No. 1 Nightspot' Is One of the Leaders in a Community Fight Against Alcoholism in Iqaluit, N.W.T., Vancouver Sun, July 31, 1996, at A6.

120. See id.

121. See id.

122. See id.

123. See id.

124. Id.

125. See Abcarian, supra note 1, at 5E; see also Patricia Miller, Mothers, Alcohol and the Law: Deborah Zimmerman's Unusual Prosecution Raises Some Disturbing Questions, Pittsburgh Post-Gazette, Nov. 16, 1996, at A11.

126. See Abcarian, supra note 1, at 5E; see also Miller, supra note 125, at A11.

127. See Beck, supra note 108, at 3. Studies indicate that 115,000 miscarriages occur every year as a result of cigarette smoking. See id. Additionally, at least 53,000 babies are born with low birth weights caused by their mothers' cigarette smoking. See id.

128. See id.

129. See Individual Rights: Is the Prosecution of "Fetal Endangerment" Illegitimate?, A.B.A. J., Dec. 1996, at 72. "'State intervention has been misconstrued in this case as a harbinger. The fear that women will be prosecuted for smoking, jogging or sipping wine in their ninth month ignores a major distinction between this case and others: the defendant's intent to kill her unborn child.'" Id. (quoting prosecutor Nancy Grace).

130. See Beck, supra note 108, at 3; Coakley, supra note 98, at A7; Gelernter, supra note 94, at D1.

131. Agota Peterfy, Note, Fetal Viability as a Threshold to Personhood: A Legal Analysis, 16 J. Legal Med. 607, 608 (1995).

132. See id.

133. See Glink, supra note 5, at 552; see also Murphy S. Klasing, The Death of an Unborn Child: Jurisprudential Inconsistencies in Wrongful Death, Criminal Homicide, and Abortion Cases, 22 Pepp. L. Rev. 933, 951 (1995) ("The reason many states have not expanded the majority view in the civil context of `viability' to criminal law is that `[d]iffering objectives and considerations in tort and criminal law foster the development of different principles governing the same factual situation.'" (quoting W. LaFave & A. Scott, Criminal Law § 3, at 11-13 (2d ed. 1986))).

134. See Dennison, supra note 5, at 1117; see also Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 1984); State v. Horne, 319 S.E.2d 703 (S.C. 1984).

135. See Klasing, supra note 133 passim; see also Peterfy, supra note 131, at 631 ("An overview of state laws demonstrates an inconsistent treatment of the unborn.").

136. Compare Bicka A. Barlow, Note, Severe Penalties for the Destruction of "Potential Life"--Cruel and Unusual Punishment?, 29 U.S.F. L. Rev. 463, 506-507 (1995) (arguing a viability standard be applied to homicide crimes because the standard of life beginning at conception is "unworkable"), with Klasing, supra note 133, at 977 (arguing that to resolve these jurisdictional inconsistencies, "society need[s] to accept the premise that conception marks the beginning of life").

137. 410 U.S. 113 (1973).

138. See Peterfy, supra note 131, at 631. "The pivotal role of viability was established by Roe v. Wade." Id.

139. See id. at 627; see also Klasing, supra note 133, at 940-41.

140. See Peterfy, supra note 131, at 631. "[C]ourts have accepted viability as a threshold to personhood in [the] right to refuse treatment, wrongful death, and criminal cases." Id. at 631 & nn. 319-21.

141. See Roe v. Wade, 410 U.S. 113 (1973).

142. See id. at 153-54.

143. 410 U.S. 113 (1973).

144. See id.; see also Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992); Webster v. Reproductive Health Services, 492 U.S. 490 (1989); Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986); Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).

145. See Roe, 410 U.S. at 163-64.

146. Klasing, supra note 133, at 968; see also Peterfy, supra note 131, at 615.

147. See Roe, 410 U.S. at 158.

148. 505 U.S. 833 (1992).

149. See id. at 868.

150. See id. at 872-73; see also Roe, 410 U.S. at 155.

151. Casey, 505 U.S. at 874; see also Roe, 410 U.S. at 155. The Casey standard would strike down state legislation proscribing previability abortion only if the legislation "[has the] purpose or effect [of] plac[ing] a substantial obstacle in the path of a woman seeking an abortion [of a nonviable fetus]." See Casey, 505 U.S. at 878.

152. Peterfy, supra note 131, at 614.

153. See id. at 615.

154. See Clarke Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563, 616-17 (1987) (citing Jeffrey Parness, Crimes Against the Unborn: Protecting and Respecting the Potentiality of Human Life, 22 Harv. J. on Legis. 97, 110-19 (1985)).

155. See Forsythe, supra note 154, at 616-18.

156. See id.

157. See Wisconsin Memorandum of Law, supra note 49, at 1, 3-6.

158. See Klasing, supra note 133, at 951.

159. See LaFave & Scott, supra note 38, §§ 1.3(a)-(b), 2.1(a), at 12-15, 64-65.

160. See id. § 1.3(b), at 13.

161. See id.

162. See id. § 1.3(a), at 12.

163. See id. § 2.1(f), at 72 & n.81.

164. See id. § 2.1, at 64.

165. See LaFave & Scott, supra note 38, § 2.2(d), at 77; see also Denison, supra note 5, at 1117.

166. See LaFave & Scott, supra note 38, §§ 2.1(a),(f), 2.2(a), at 64-65, 73-75.

167. See Glink, supra note 5, at 553; see also Denison, supra note 5, at 1117-18.

168. 467 N.E.2d 1324 (Mass. 1984).

169. 319 S.E.2d 703 (S.C. 1984).

170. 868 P.2d 730 (Okla. Crim. App. Ct. 1994) (holding that a viable fetus that is stillborn is a person as defined under the manslaughter statute).

171. See Barlow, supra note 136, at 473; Mary Lynn Kime, Note, Hughes v. State: The "Born Alive" Rule Dies a Timely Death, 30 Tulsa L.J. 539, 551-52 (1995); Klasing, supra note 133, at 957-59; Peterfy, supra note 131, at 627 n.262.

172. See Cass, 467 N.E.2d at 1325-30; Hughes, 868 P.2d at 732-35; Horne, 319 S.E.2d at 704-05.

173. See Cass, 467 N.E.2d at 1324; Horne, 319 S.E.2d at 703.

174. See supra note 38 and accompanying text.

175. Cass, 467 N.E.2d at 1328-30; Horne, 319 S.E.2d at 704.

176. See Klasing, supra note 133, at 957-58.

177. Forsythe, supra note 154, at 605.

178. Id. at 579.

179. Id.

180. See Cass, 467 N.E.2d at 1324-25; see also Mass. Gen. Laws ch. 90, § 24G (1996).

181. See Cass, 467 N.E.2d at 1325.

182. See id.

183. See id.

184. See id. at 1325-28.

185. Id. at 1325 (citing Mone v. Greyhound Lines, Inc., 331 N.E.2d 916 (Mass. 1975)).

186. See id. "The legislature is presumed to have had knowledge of the decisions of this court." Id. (quoting MacQuarrie v. Balch, 285 N.E.2d 103, 104 (Mass. 1972)).

187. Cass, 467 N.E.2d at 1325.

188. Id. at 1326-28.

189. See id. at 1326.

190. See id. (noting it had defined many terms in Mass. Gen. Laws ch. 90, § 24, including "reckless," "operate" and "under the influence." (citations omitted)).

191. See id. at 1327.

192. See id. at 1327-28.

193. See Cass, 467 N.E.2d at 1327.

194. Id.

195. See id.

196. See id.

197. See id.

198. See id.

199. Cass, 467 N.E.2d at 1327.

200. Id.; see also LaFave & Scott, supra note 38, § 2.2(d), at 77.

201. See Cass, 467 N.E.2d at 1327-28.

202. See id. at 1328.

203. Id. (quoting Oliver Wendell Holmes, 10 Harv. L. Rev. 457, 469 (1897)) (alteration in original).

204. See id. at 1329. In concluding, the court also advanced a policy argument: "if a person were to commit violence against a pregnant woman and destroy the fetus within her, we would not want the death of the fetus to go unpunished." Id. (citations omitted). Massachusetts later extended the Cass decision in Commonwealth v. Lawrence, 536 N.E.2d 571 (Mass. 1989) (holding that a viable fetus who died when the mother was murdered was also a homicide victim under the Massachusetts murder statute).

205. See State v. Horne, 319 S.E.2d 703, 704 (S.C. 1984).

206. See id.

207. See id.

208. See id.

209. See id.; see also S.C. Code Ann. § 16-3-10 (Law Co-op. 1985).

210. See Horne, 319 S.E.2d at 704 (citing Fowler v. Woodward, 138 S.E.2d 42 (S.C. 1964)) (emphasis added).

211. See id. The court found that "[i]t would be grossly inconsistent . . . to construe a viable fetus as a `person' for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context." Id.

212. See Horne, 319 S.E.2d at 703. Since the Horne decision, Oklahoma has also expressly rejected the born alive rule. See Hughes v. State, 868 P.2d 730, 736 (Okla. Crim. App. 1994); see also supra note 170 and accompanying text. Kansas has also rejected the rule, albeit implicitly. See State v. Burrell, 699 P.2d 499 (Kan. 1985); see also Kime, supra note 171, at 539 n.4; John T. Shannon, Note, Criminal Law--Manslaughter--A Fetus is Not a `Person' as the Term is Used in the Manslaughter Statute: Meadow v. State, 722 S.W.2d 584 (Ark. 1987), 10 U. Ark. Little Rock L.J. 403, 408 n.37 (1988).

213. See Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964) (holding that criminal law, whether enacted by the legislature or judicially created, cannot be applied retroactively); see also Commonwealth v. Cass, 467 N.E.2d 1324, 1329-30 (Mass. 1984); State v. Horne, 319 S.E.2d 703, 704 (S.C. 1984).

214. See Whitner v. State, No. 24468, 1996 WL 393164, at *1-5 (S.C. Sup. Ct. July 15, 1996).

215. See supra note 212 and accompanying text.

216. See, e.g., People v. Davis, 872 P.2d 591, 620-23 (Cal. 1994) (Mosk, J., dissenting).

217. See Whitner, 1996 WL 393164, at *5. "In so finding [that the state's criminal distribution statute does not apply to the distribution of an illegal substance to a viable fetus], the court had to distinguish Lawrence and Cass . . . ." Id.; see also supra notes 78-81 and accompanying text.

218. See Commonwealth v. Pellegrini, No. 87970, slip op. at 9 (Mass. Super. Ct. Oct. 15, 1990). The Pellegrini court returned to the more traditional view of strict construction interpretation of criminal statutes, thereby offering greater protection to the defendant. See id. The Pellegrini court also distinguished its different meaning of a "person" from its definition in Cass by holding that the injury to the viable fetus in Cass did not implicate a right to privacy. Id. at 10.

219. See supra note 78 and accompanying text.

220. See Pellegrini, No. 87970, at 4. The court believed that to hold Pellegrini criminally liable contradicted the holding of Roe v. Wade. See id.

221. See id. (citations omitted).

222. Id. at 5. Because the right to privacy encompassed by Roe and its progeny was "guaranteed by the United States Constitution and the Massachusetts Declaration of Rights," the Pellegrini court believed that "th[e] prosecution d[id] not meet the test of `strict scrutiny' which must therefore be applied." Id. The court also noted an earlier decision which held that the state had the right to apply an even stricter construction of constitutional rights to privacy than required by the United States Supreme Court. See id. at 6 (citing Moe v. Secretary of Admin. and Fin., 417 N.E.2d 387 (Mass. 1981)).

223. See id. at 7-8. The court felt that because Pellegrini's son suffered no measurable physical injuries, the state's interest in "mere speculation of harm to the fetus" was not compelling enough to justify an intrusion into Pellegrini's fundamental rights of privacy. Id. at 8. Furthermore, the means by which the state chose to effect its purpose were not narrowly drawn and thus too restrictive on the mother. See id.

224. See id. at 8. ("Even if the state interest asserted here were found to be compelling . . . this prosecution under 32F is not `narrowly tailored' as required.").

225. Id. at 8-9.

226. See Pellegrini, No. 87970, at 15. The court also specifically stated it did not want to "open the door" for other types of maternal prosecutions, such as drinking and smoking during pregnancy. Id. at 9.

227. See id. at 10.

228. See id. at 14. "'The public policy of the Commonwealth in the creation of crimes is not for this Court to determine, but for the Legislature.'" Id. (quoting Commonwealth v. Corbett, 29 N.E.2d 151, 156 (Mass. 1940)).

229. 670 So. 2d 1087 (Fla. Dist. Ct. App. 1996).

230. Id. at 1089.

231. See id.

232. See id. at 1088. The court later dismissed the charge of third degree felony murder. See id. at 1091. The predicate felony was the commission of an illegal abortion. See id. at 1090. The Ashley court supported the common law belief that a woman cannot be criminally liable in her own abortion. See id. at 1090-91. One policy behind illegal abortion statutes is that the woman terminating the pregnancy is the victim of the illegal abortion. See id.; see also Fla. Stat. Ann. §390.001(10)(a) (West 1993) (stating that "[a]ny person who willingly performs, or participates in, a termination of a pregnancy, in violation of the requirements of this section, is guilty of a felony in the third degree").

233. See Ashley, 670 So. 2d at 1092. First, the court noted that because Brittany was born alive, she was a person entitled to the rights and privileges of all persons of the state. See id. at 1092 (citing Day v. Nationwide Ins. Co., 328 So. 2d 560 (Fla. Dist. Ct. App. 1976)). The court also found that under Florida statutes, Brittany's death was not justifiable homicide, excusable homicide, murder, suicide or death by other causes. See id. Therefore, the court concluded "by process of elimination, Ashley's act of shooting her fetus can only fall into the category of manslaughter." Id.; see also Fla. Stat. Ann. §782.07 (defining manslaughter as "[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification").

234. Ashley, 670 So. 2d at 1092.

235. See id.

236. 602 So. 2d 1288 (Fla. 1992) (holding that it is against legislative history, public policy and common sense to convict a mother of "delivery" of a controlled substance to her baby through the umbilical cord seconds after birth).

237. Ashley, 670 So. 2d at 1093 n.3 (quoting Bonte v. Bonte, 616 A.2d 464, 466 (Fla. Dist. Ct. App. 1992)).

238. See id. A mother could be charged in tort for negligent acts toward her child.

239. Id.

240. See supra notes 65-93.

241. See supra notes 94-95, 110 and accompanying text.

242. See supra notes 94-95, 110 and accompanying text.

243. 543 N.W.2d 787 (S.D. 1996).

244. See id. at 789.

245. See id. at 789-92; see also S.D. Codified Laws § 21-5-1 (Michie 1987) (allowing recovery for wrongful death when the victim is an "unborn child"). "However, an action under this section involving an unborn child shall be for the exclusive benefit of the mother or lawfully married parents of the unborn child." Id. At the time of the statute's enactment, the term "unborn child" had not been defined by the legislature. See Wiersma, 543 N.W.2d at 789-90. However, the term "unborn child" was added by a 1984 amendment. Id. at 790. The Wiersma court noted that in an earlier case, the court had interpreted the pre-1984 wrongful death statute as including a viable fetus. See id. (citing In re Certification of Question of Law from U.S. Dist. Court (Farley), 387 N.W.2d 42 (S.D. 1986)). Thus, the 1984 amendment would have had no effect if the legislature intended the meaning of "unborn person" to be limited to the viable fetus. See id. The court also acknowledged the subsequent definition of "unborn child" provided by the legislature in 1995 included nonviable fetuses. See id. at 790 n.3; see also S.D. Codified Laws § 22-1-2(50A) (Michie 1988 & Supp. 1997) (defining an unborn child under South Dakota criminal statutes as "an individual organism of the species homo sapiens from fertilization until live birth").

246. See Wiersma, 543 N.W.2d at 791.

247. See id. "Clearly, a pregnant woman who chooses to terminate her pregnancy and the defendant who assaults a pregnant woman, causing the death of her fetus, are not similarly situated." Id. (quoting People v. Ford, 581 N.E.2d 1189, 1199 (Ill. 1991)).

248. Id. at 792.

249. 466 S.E.2d 522 (W. Va. 1995).

250. See id. at 523.

251. Id.

252. Id. at 522.

253. Id. at 523.

254. See id. at 525-35.

255. See Farley, 466 S.E.2d at 534. The Farley court believed that Roe v. Wade was not relevant to its decision, holding that "'[w]hile the fetus may not be a `person' for the purposes of the fourteenth amendment, it may be a person for the purposes of a state's wrongful death statute.'" Farley, 466 S.E.2d at 534-35 (quoting Sheryl A. Symonds, Wrongful Death of the Fetus: Viability is Not a Viable Distinction, 8 U. Puget Sound L. Rev. 103, 113 n.68 (1984)). "'It may be necessary to accept some inconsistency and conclude that prenatal life will be protected against intentional and negligent interference absent some compelling countervailing interest.'" Id. at 535 (quoting David Kader, The Law of Tortious Prenatal Death Since Roe v. Wade, 45 Mo. L. Rev. 639, 660 (1980)) (emphasis added).

256. See Scot Lehigh, Common Sense, or New Way to Ban Abortion?, Boston Globe, Sept. 15, 1996, at D1 (referencing both the Wiersma and Farley decisions).

257. See Farley, 466 S.E.2d at 527-29.

258. 872 P.2d 591 (Cal. 1994).

259. See id. at 593.

260. See id.

261. See id.

262. See id. Predictably, the defense experts claimed that the fetus's chances of survival outside of the womb were almost nonexistent, approximately "only 2 or 3 percent." Id. (citation omitted). The prosecution's experts rated the chances as between "7 and 47 percent." Id.

263. See id. at 594; see also Cal. Penal Code § 187(a), (b) (West 1988 & Supp. 1997) ("Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."). The statute also expressly excludes legally performed abortions. See id.

264. See Davis, 872 P.2d at 593.

265. See id.; see also Cal. Penal Code § 190.2(a) (West 1988 & Supp. 1997).

266. See Davis, 872 P.2d at 593-94.

267. See id. at 618-20 (Mosk, J., dissenting).

268. See id. at 597.

269. See id. `"The Roe decision, therefore, forbids the state's protection of the unborn's interests only when these interests conflict with the constitutional rights of the prospective parent. The Court did not rule that the unborn's interests could not be recognized in situations where there was no conflict.'" Id. (quoting Jeffrey Parness, Crimes Against the Unborn: Protecting and Respecting the Potentiality of Human Life, 22 Harv. J. on Legis. 97, 144 (1985)). The Davis court also adopted the belief that "`[t]he Roe opinion was correct in recognizing a state's legitimate interest in protecting the previable fetus. In . . . criminal law when that interest does not oppose a protected interest of the mature mother, the state should not hesitate to vindicate it.'" Id. (quoting Patricia A. King, The Judicial Status of the Fetus: A Proposal for Legal Protection of the Unborn, 77 Mich. L. Rev. 1647, 1678 (1979)) (emphasis added).

270. See id. at 598-99; see also People v. Ford, 581 N.E.2d 1189, 1198-99 (Ill. 1991); State v. Merrill, 450 N.W.2d 318, 322 (Minn. 1990).

271. Davis, 872 P.2d at 599 (quoting Sloane-Dorland Anno. Med.-Legal Dict. 281 (1987)).

272. See id.

273. See id. at 607-23 (Mosk, J., dissenting). Justice Mosk noted that Cal. Penal Code Ann. § 187(a) (West 1988) was amended by the legislature to include the term "fetus" one working day after the unpopular decision reached in Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970). See Davis, 872 P.2d at 608. In Keeler, the defendant discovered his ex-wife was approximately eight and one-half months pregnant with another man's child. See Keeler, 470 P.2d at 618-19. After threatening to "stomp" the child out of her, he proceeded to beat her severely in the abdomen, resulting in the death of the fetus. Id. at 618. The court held that the legislature did not intend for the viable fetus to be included under the homicide statute as it existed. See id. at 622. The dissent argued only that the viable fetus should be included as a person for purposes of interpreting the statute. See id. at 630-34 (Burke, C.J., diss