Metropolis: Wednesday, July 28 2004
Baker: ‘I would have either lied or not gone to the doctor.’
D.A. Rewrites the Law

A law giving the fetus legal status is being used against — guess who — mothers.


Conservative politicians who complain about “judicial activism” on the part of judges for interpreting laws in new ways would probably hate Rebecca King. Or again, maybe not.

King is the Panhandle district attorney who’s taken that concept one step further. She’s taken a carefully crafted new law, co-sponsored by a Republican Grand Prairie legislator, and combined it with existing law in order to criminally prosecute pregnant women who take drugs — and also to threaten doctors and hospitals if they don’t report those women to law enforcement. If King’s interpretation stands, those found guilty could be sentenced to up to 20 years in prison.

The new law, sponsored by Grand Prairie State Rep. Ray Allen, is designed to protect unborn children from violent acts by recognizing a fetus as a person under specific circumstances — and exempting from prosecution the mothers of unborn children as well as doctors and healthcare workers engaged in legal medical procedures.

Nonetheless, using the new law as a wedge, King has begun prosecuting women in Amarillo’s Potter County with the second-degree felony of “delivery of a controlled substance” if they take drugs while pregnant.

Not surprisingly, King’s actions are causing a major controversy, drawing condemnation from the bill’s sponsors, the medical community, and abortion-rights supporters, who see it as a short step from King’s current actions to prosecuting women and doctors for abortion.

“All fetuses are legally individuals at all times during pregnancy,” explained King. “That is my interpretation of the new law, and delivering illegal substances to those fetuses must be prosecuted.” So sure is King of her interpretation that last September she wrote a letter to healthcare workers and hospitals in her jurisdiction noting that, “Based on these laws, it is now a legal requirement for anyone to report a pregnant woman who is using or has used illegal narcotics during her pregnancy.”

So far, she has charged two women under her interpretation of the law. The attorney for one of the women is livid that the charges were ever brought. “This is an end run around Roe v. Wade, and not a subtle one,” lawyer Tom Lesly said. “By extension, where will we go with this? How about charging obese women or women who smoke with child endangerment? Or why not just treat women as brood mares and be done with it?”

The new law is the Prenatal Protection Act (SB 319) passed in 2003, which notes that for the purposes of murder and aggravated assault, a fetus is considered “an unborn child at every stage of gestation from conception to birth.” Written by State Sen. Ken Armbrister (D-Victoria) and sponsored in the House by Allen, the law is Texas’ version of the Laci Peterson law. “We basically wanted to make it possible to charge someone with two murders if they killed a pregnant woman, or one, if a boyfriend or a drunken driver caused the death of a fetus but not the death of the mother,” said Scott Gilmore, spokesman for Allen.

Gilmore said that, while the legislators don’t approve of pregnant women using drugs, it was not their intent that the law be used to prosecute them. “We’ve made it clear to Ms. King that the intent of our legislation has nothing to do with trying to prosecute a mother. Our legislation actually says the law does not apply to the mother,” he said. King “has completely misinterpreted what the law intended.”

Of the two women charged thus far, the first, Tracy Ward, is a crack cocaine user whose baby was born with traces of cocaine in his system. Her case has not yet been heard. The second case involves Alma Baker, a 35-year old whose twins, born in October, tested positive for marijuana. Baker — whose children are currently healthy and developing ahead of the curve — admitted smoking marijuana to lessen her morning sickness and help her appetite during pregnancy. She pleaded guilty to the charge on June 12 and was sentenced to a deferred adjudication of five years probation, a fine of $1,000, compulsory parenting classes, and 250 hours of community service.

Although Lesly, Baker’s legal aid lawyer, counseled her to plead guilty to avoid the risk of a prison sentence, he believes the charge should never have been brought.

Doctors and healthcare workers are also at odds with King’s theory because it forces them to violate federal privacy laws and to act on behalf of law enforcement rather than in their patients’ interests. While it hasn’t yet occurred, King said she will prosecute healthcare workers who don’t comply with her order to alert authorities.

But medical authorities are also upset with King because they believe that pregnant women who know they might be prosecuted for drug use would be much less likely to seek the medical care they need, thereby risking more damage to the fetus.

“There is no question that every leading medical group opposes what King is doing as dangerous to fetal health,” said Lynn Paltrow, executive director of National Advocates for Pregnant Woman. “What people have found is that laws like these frighten women away from getting the care they could get if it were appropriate and available.”

Many medical groups, from the American Medical Association to groups representing pediatricians, obstetricians, nurses, and the March of Dimes, spoke out against such prosecutions during the late 1980s and early 1990s, when legislators in several states passed laws related to pregnant women and the use of crack cocaine.

That doesn’t faze the Panhandle prosecutor. “Have you ever heard the wail of a crack baby?” she asked in a recent interview. “It’s heartbreaking.”

Most medical researchers, however, suggest that there is no such thing, medically, as a “crack baby” and no justification for even using the term. In a letter sent in February to news organizations, researchers called on the news media to stop using such stigmatizing terms. “Throughout almost 20 years of research, none of us has identified a recognizable condition, syndrome, or disorder that should be termed ‘crack baby,’ ’’ they wrote. “This is in contrast to Fetal Alcohol Syndrome, which has a narrow and specific set of criteria for diagnosis.” However, King said she doesn’t anticipate prosecuting pregnant women who drink, because giving alcohol to one’s own child is not a crime.

“Let’s face it,” said Paltrow. “This interpretation of the law demonstrates absolute disregard for maternal and fetal health by frightening women away from getting the health care they need during pregnancy.”

Paltrow’s sentiments were echoed by Kae McLaughlin, executive director of the Texas Abortion and Reproductive Rights Action League (TARAL). “This law was sold as protection against assaults on pregnant women, but that’s not what it is about. It will be used to control pregnant women by giving the fetus more legal rights than the woman herself. TARAL even wrote legislation that provided enhanced penalties for assaults on pregnant women, but it was not used. What was vital to the lawmakers — with a hard push from the right-to-life anti-abortionists — was giving the fetus the legal status of an individual from the moment of gestation.”

Civil rights advocates are hoping that Ms. King’s interpretation will be overturned on appeal. They anticipate that when Tracy Ward’s case comes up she will plead guilty but reserve the right to appeal, something Alma Baker did not do. If that happens, the ACLU will handle the appeal. The prosecutions could draw national attention.

Even if King’s theory is rejected by appellate courts, it probably won’t help Alma Baker. Federal housing officials, acting under a law that ousts those convicted of drug crimes from public housing, gave her until Aug. 1 to leave her federally subsidized HUD home.

“My mother was able to buy a run-down place next to hers,” she told Fort Worth Weekly. “It has no plumbing and no gas for cooking. ... When we want a toilet or a shower, we go next door.”

Baker said she’s one of those who might not have gotten prenatal care, if she’d known that King’s interpretation of the law would make her a criminal.

“If I would have known that I’d get in trouble for telling my doctor the truth, I would have either lied or not gone to the doctor,” she said. l

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