The issue of whether a woman can be prosecuted for the death of her child as a result of smoking crystal methamphetamine while pregnant will be heard by the Hawai'i Supreme Court this morning.

It is the first case of its kind in Hawai'i and one that has drawn the attention of drug treatment advocates around the country. This morning, the five justices will hear arguments on whether to uphold the manslaughter conviction of Tayshea Aiwohi, whose 2-day-old son died from her use of ice during the final days of the pregnancy.

To the defense, the prosecution is a "radical" departure from American jurisprudence that refrains from holding pregnant women criminally accountable for their conduct that results in death or injury to their newborn children.

"It would make every waking moment of an expectant mother to be subject to criminal prosecution," Aiwohi's lawyer Todd Eddins said.

But to the prosecution, the case is simply one that applies the state's manslaughter law to Aiwohi's conduct that led to the death of her son. "We have a specific mother who binged on ice and caused a specific baby's death," city Deputy Prosecutor Glenn Kim said. "The baby would not have died if it hadn't been for the meth poisoning."

Aiwohi is expected to attend the hearing, Eddins said. She attends the University of Phoenix, is trying to set up a clean and sober house for addicts, and does office work for bounty hunter Duane "Dog" Chapman.

"She's attuned to the significance of the case," Eddins said.

Both sides will have at least a half-hour to argue before the high court, as it traditionally does, takes a recess without indicating when it will decide. But in view on the high-court rulings within two months of the hearings in two other cases this year, the decision could be issued before the end of the year.

Aiwohi became the first woman to be prosecuted with injuring or killing her newborn child based on her conduct while pregnant when she was indicted by the O'ahu grand jury on the manslaughter charge. According to the grand jury transcript, she had smoked ice three days before the birth of her son Treyson and on the day of the birth in July 2001.

In 2004, she was found guilty after she pleaded no contest and decided to not contest the charge, but only on condition that she could appeal Circuit Judge Michael Town's refusal to dismiss the case. Town later placed Aiwohi on 10 years' probation.

Town's refusal to dismiss the case is at the heart of today's hearing.

One of the key issues as outlined in court papers will be the high court's view of the man-slaughter law that covers the reckless killing of "another person."

Eddins contended that state lawmakers in passing the law never intended it to cover the conduct of a mother directed against her unborn child or fetus, which is not a "person," a "human being who had been born and is alive."

But Kim argues Treyson had been born and falls under the definition of person when he died. The mother's voluntary conduct of smoking ice caused the death, he said.

If the pregnancy ended in stillbirth, there would not have been a prosecution, Kim said.

David Goldberg, a New York lawyer, filed a friend-of-the-court brief in behalf of a coalition of drug treatment professionals and public health advocates opposed to the prosecution on public policy and other grounds. The coalition includes the American College of Obstetricians and Gynecologists, American Psychiatric Association, American Society of Addiction Medicine and the National Advocates for Pregnant Women.

"Were the court to sustain the decision below, it would set a precedent that would seriously hamper the very measures — drug treatment and prenatal care — that promote healthy pregnancies and birth outcomes," Goldberg said in his brief.

"Fear of prosecution operates as a barrier to pursuing drug treatment, prenatal care and labor and delivery care," he said.

Kim, however, said he doesn't think a decision upholding the Aiwohi conviction will lead to a flood of prosecutions against women harming their newborn because of their conduct while pregnant. Even though Hawai'i has faced drug problems for years, he said he's not aware of any other case here involving the prosecution over the conduct of a pregnant woman that results in injury or death to the child.

Kim said his office is simply fulfilling its responsibility of bringing the appropriate criminal charge when it believes a person has violated the law.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.