This Is Murder?

There's no doubt that 30-year-old Theresa Hernandez has had her troubles. An intermittent user of methamphetamines, she had her 32-week pregnancy end in April 2004 with the birth of a stillborn boy.

But "troubles" doesn't begin to describe what came next: Doctors told police her stillborn baby had tested positive for meth, and that September Hernandez was charged with first- and second-degree murder, both based on child abuse. It was the first time in Oklahoma history that a woman had ever been prosecuted for murder after suffering a stillbirth -- despite the absence of evidence tying meth use to prematurity or stillbirth.

The situation got even worse. Hernandez's public defender recommended that she accept a 25-year plea bargain -- despite the fact that Oklahoma has no laws under which she might have been convicted of murder. Hernandez refused, and spent three years in jail awaiting a resolution to her case. This September Hernandez accepted a plea of second-degree murder; her sentencing, which the judge has said will be for no more than 15 years, is scheduled for Dec. 21. Advocates are agitating for leniency.

In the words of Lynn Paltrow, a women's rights advocate involved in the case, Hernandez was "an innocent woman pleading guilty to a nonexistent crime." Innocent, you wonder? Guilty, clearly, of taking illegal drugs. And of killing her child? Though long-term, government-funded studies of meth have not yet been completed, there is to date no research associating meth use with stillbirth. Indeed, long-term studies of those infamous crack babies has found that their in utero drug exposure led to some behavioral problems, but not to the grotesque abnormalities predicted in the 1980s. And of killing her child in the first degree? In this century we also know enough about addiction to understand that addiction comes bundled with a host of other problems that require treatment, not arrest.

Still, despite these advances in understanding, Hernandez's case is not unique. According to a survey that will be released in 2008 by Paltrow's organization, the National Advocates for Pregnant Women, over the last 30 years hundreds of pregnant women have been arrested for abuse, neglect, or murder of their fetuses. In South Carolina, scores of pregnant women caught abusing substances have been prosecuted for child abuse and neglect, and the first woman convicted of murdering her unborn by virtue of her drug use, Regina McKnight, is serving a 12-year sentence for suffering a premature stillbirth, despite evidence that the baby died from other causes. This October another South Carolina woman, Lorraine Patrick, was charged with homicide after she went into labor at 23 weeks and gave birth to a girl who died four days later; she and the baby tested positive for cocaine.

These prosecutions are clearly the offspring of the crack-babies craze of the 1980s, paired, equally clearly, with the application of fetal-rights laws around the country. If a fetus is considered a "child in utero" (language from the 2004 Unborn Victims of Violence Act) and an independent victim of murder, how much imagination would it take for an aggressive district attorney to suggest that a pregnant woman using drugs is assaulting, or killing, her own child? No legislature has enacted laws to this effect. (South Carolina's orgy of prosecutions is the result of judicial decisions.) And more than 20 appellate courts have struck these arrests down. And yet they continue, and women serve time for nonexistent crimes.

Of course, humane people agree as to our obligation to protect the unborn. But these arrests don't do that: Researchers have documented that taking a punitive approach to drug use among pregnant women, rather than inspiring them to get clean, actually scares them away from prenatal treatment.

And what of the mother? Do the responsibilities she has in carrying a child absolve us of the responsibility to grant her certain protections and rights? Like the right to be jailed only for an actual crime or the right to be convicted on actual evidence? And what about the expectation, though not a right, of social supports, for poverty or drug addiction? These supports are part of our social compact, and we owe them equally, or doubly, to pregnant women. The guilty pleas most of the arrested women have entered in these cases create no legal precedent, but, says Paltrow, the more general precedent that's being set is "that a fetus is a person to be provided with a perfect environment by the pregnant woman -- even though [the pregnant woman] is not entitled to one."

It is possible to help both mother and fetus. But not if a troubled woman is considered a demon, or a walking womb.