Jackson Free Press

JACKSON, Miss. (AP) — Prosecutors urged the Mississippi Supreme Court to allow them to pursue a manslaughter charge against a Lamar County woman whose child was stillborn and had taken drugs during her pregnancy.

Nina Buckhalter suffered a stillbirth and was arrested in 2010 for culpable negligent manslaughter because of alleged drug use during her pregnancy. A local judge threw out the case in 2012. Prosecutors appealed.

Assistant District Attorney Doug Miller told the justices Tuesday that state law defines an unborn child as a "human being" and lists crimes that can be committed against a fetus. He said while the law refers to acts of "another," the mother and the unborn child are separate human beings.

Circuit Judge Prentiss G. Harrell threw out the case, saying the Legislature did not intend to criminalize pregnant women whose drug use harms or injures an unborn fetus.

While critics of such prosecutions worry that women will be too scared by the prospect of prison to seek prenatal care, members of the Mississippi court questioned whether they were being asked to rule on the constitutionality of laws dealing with women and pregnancy and abortion.

No, said defense attorney Robert McDuff of Jackson. McDuff said he is asking the court to find as did Harrell — that no law exists on which to prosecute a woman for taking drugs, or drinking, or ignoring a doctor's orders and having a stillbirth.

"This is an issue of statutory interpretation and whether the law allows this type of prosecution. It does not," McDuff said.

McDuff said the court cannot ignore the physiological relationship between the mother and child in rejecting the prosecution's arguments.

Presiding Justice Jess Dickinson said the Mississippi court does have other states' cases to look at.

"Lots of courts have taken up this issue; they don't all agree ... whether the mother and the child should be considered a single person or two separate people," Dickinson said.

Lindsay LaSalle, an attorney at the Drug Policy Alliance who co-wrote a friend of the court brief on behalf of national and state medical, public health, and social work organizations, said a ruling in favor of the state will have medical and public health consequences.

"The prosecution of pregnant women who suffer from an addiction will undoubtedly deter them from seeking the vital prenatal care necessary to protect mother and fetal health. It will also discourage pregnant women from pursuing drug and alcohol treatment because, in doing so, they risk criminal prosecution and losing their child," LaSalle said.