Posted on: Monday, October 27, 2003

EDITORIAL
Meth mom prosecution raises questions

As Hawai'i's war on ice demands solutions, City Prosecutor Peter Carlisle is vigorously pursuing a manslaughter conviction against Tayshea Aiwohi, a 31-year-old Kane'ohe woman whose newborn son died in 2001 from alleged crystal meth poisoning.

Aiwohi is accused of using ice in the final days of her pregnancy. Her trial is expected to begin in December, and she faces a maximum prison sentence of 20 years.

Carlisle says it doesn't matter whether she passed the drugs on to her son before or after the birth. The point is, a live baby, not a fetus, died because of the mother's reckless drug use.

And that's hard to argue with. Of course we don't want pregnant women endangering the health of their offspring, in or ex utero. We want to do all we can to protect fetuses and babies from drug exposure.

But if you follow Carlisle's reasoning to its logical conclusion, what's to stop the criminal prosecution of pregnant women who drink alcohol, smoke cigarettes, take risky prescription medication or ride horses and off-road vehicles?

Carlisle is even considering prosecuting mothers whose babies don't die, but are damaged by drugs or fetal alcohol syndrome.

It sounds like a great disincentive for drug and alcohol use, but the danger is that criminalizing behavior during pregnancy is more likely to deter addicted mothers from seeking pre-natal care.

Infant mortality rates suggest such disincentives have made little difference in South Carolina, which treats drug addiction during pregnancy as child neglect and imprisons the mother.

The U.S. Supreme Court upheld that law earlier this month when it refused to hear an appeal from a South Carolina woman who was convicted of homicide by child abuse for killing her fetus by smoking crack cocaine.

This does not bode well for the future of legal abortion in America because once you define a fetus as a human being separate from the mother, abortion arguably becomes an act of killing.

Carlisle isn't concerned at this point with fetuses. But once the child is born, he says, the law is clear.

That may be true, but his campaign nonetheless raises difficult legal, ethical and moral questions about a woman's rights during pregnancy where the boundaries are anything but clear.