Jackson Free Press

JACKSON, Miss. (AP) — The National Conference of State Legislatures lists Mississippi as one of 38 states with a fetal homicide law.

The laws are not identical among the states, the February report said. And, NCSL notes that the debate over such laws is contentious and enters into the arena of abortion rights.

The Mississippi Supreme Court is considering whether a woman can be tried for manslaughter if her child is stillborn and she had taken illegal drugs during pregnancy.

Nina Buckwalter had a stillbirth and was arrested in 2010 because of alleged drug use during her pregnancy, but a Lamar County judge threw out the charge. The judge found the Legislature did not intend to criminalize drug use during pregnancy that harms or injures a fetus.

The issue is as ambiguous as is Mississippi law, the justices said in the case heard in April. And more than once, justices said lawmakers ought to clarify the law.

NCSL said some states' laws generally involve the issue of a fetus killed by a violent act against a pregnant woman. Such laws focus on harm done to the woman and the subsequent loss of her pregnancy, but not on the rights of the fetus.

NCSL reports that those supporting these laws say that the life of the pregnant woman and the life of the fetus should both be explicitly protected.

Those on the other side say that laws to protect a fetus could jeopardize a woman's right to choose an abortion, NCSL said. Abortion-rights advocates say such laws grant a fetus legal status distinct from the pregnant woman, possibly creating an adversarial relationship between a woman and her fetus.

NCSL said critics are also concerned that laws could be interpreted to apply to a woman's behavior during pregnancy; such as smoking, drinking or using drugs. They prefer criminalizing an assault on a pregnant woman and recognizing her as the only victim, NCSL said.

What concerned Mississippi Supreme Court Presiding Justice Jess Dickinson during the hearing in the Buckwalter case was that state laws are inconsistent in dealing with the possible culpability of a woman in the death of the developing baby.

He said Mississippi's law banning late-term abortion specifies that a woman who gets the procedure cannot be prosecuted. But elsewhere in the state law, Dickinson says it appears a woman who caused an abortion could be guilty of a felony.

He said the issue before the court was what the woman intended to and what she could be accused of, under the law.

"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.

He said Texas, for example, ruled in a case 15 years ago that the physiological relationship between the mother and a fetus cannot be ignored.

"Different states have come to different conclusions," Dickinson said.

Buckwalter's defense attorney, Robert McDuff, said the important point is that Mississippi has no law 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.

Prosecutors argue that the fetus is human being separate from the mother and harm caused to the fetus by another, including the mother, is a criminal act.

"The failure of bills to pass the Legislature regarding the criminalization of a pregnant mother's drug use does not do away with the statutes we do have making it a crime to harm an unborn child," Lamar County Assistant District Attorney Lauren Harless said in court documents.