Prosecuting Pregnant Women: Should Washington Take the Next Step?

• Publication year: 1997
• Citation: Vol. 21 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 1SUMMER 1997

Prosecuting Pregnant Women: Should Washington Take the Next Step?

Amanda E. Vedrich(fn*)

I. Introduction

On March 16, 1996, in Racine, Wisconsin, Meagan Zimmerman was born with nearly a .20 blood alcohol level.(fn1) Her mother, Deborah Zimmerman, arrived at the hospital drunk and screaming: "If you don't keep me here, I'm just going to go home and keep drinking and drink myself to death and I'm going to kill this thing because I don't want it anyways."(fn2) She was eight and one-half months pregnant. A few hours later she gave birth to Meagan by Cesarean section. Meagan now suffers from symptoms of fetal alcohol syndrome.(fn3)

On June 10, 1996, Deborah Zimmerman was charged with attempted first degree intentional homicide for her actions prior to Meagan's birth,(fn4) the first known prosecution for such actions in the United States.(fn5) Meagan now lives in a foster home, while her mother fights both to defeat the charges brought against her and to gain custody of the child she tried to kill.(fn6)

This case brings to the forefront the issue of punishing pregnant women for intentional harm inflicted upon their fetuses. The issue raises many important policy and legal concerns, including: constitutional rights, the duty of the state to both the mother and the unborn child, the effectiveness of punishment as a deterrent, the effectiveness of other measures as deterrents, and, most important, the legal authority to punish women through criminal charges.

Wisconsin authorities believe that they can charge pregnant women for harm intentionally inflicted upon unborn fetuses within the confines of the United States Constitution, the Wisconsin Constitution, and applicable statutes and case law.(fn7) The prosecution argues that Wisconsin cases support this position because the definition of a homicide includes the death of a fetus from injuries inflicted upon the pregnant mother.(fn8) Therefore, the prosecution argues, it is a natural extension to allow the prosecution of a pregnant woman for harm she intentionally inflicted upon her fetus.(fn9)

In contrast, current Washington law probably would not allow such a prosecution.(fn10) However, numerous policy reasons support recognition of such charges in Washington. These reasons include Washington's acknowledgment of an affirmative duty toward a viable fetus, the need to deter mothers from harming unborn children carried to term, and the necessity to hold a mother accountable should she intentionally harm her unborn child.(fn11) Therefore, Washington should change its criminal laws to permit prosecution of a Zimmerman case.

The first section of this Comment will analyze the case against Deborah Zimmerman and the court's reasons for refusing to dismiss the charges against her. The second section will examine current Washington law and why similar charges could not be brought in this state. The third section will look at the policy rationales for changing Washington law to allow charges to be filed against women for attempting to intentionally endanger the life of a viable fetus. This Comment argues that Washington law should be so amended in order to achieve these policy goals.

II. STATE OF WISCONSIN V. DEBORAH J. ZIMMERMAN

A. The Criminal Charges

On June 10, 1996, Deborah Zimmerman became the first woman in the United States charged with attempted first degree intentional homicide for harm inflicted upon her unborn child.(fn12) The complaint states that the defendant did "unlawfully, intentionally, and feloniously, attempt to cause the death of another human being with intent to kill that person . . . ."(fn13)

Following a July 3, 1996 preliminary hearing, the criminal complaint was supplemented by a memorandum of law that emphasized that the case did not implicate abortion rights because Meagan was considered a "person" protected by the United States Constitution because she was born alive.(fn14) However, the State conceded that "had M.M.Z. been stillborn due to the alcohol intoxication, an argument may have been made that the defendant successfully aborted a viable fetus and could not be prosecuted . . . ."(fn15)

The prosecution additionally argued "[t]he law in Wisconsin . . . is well established that the death of an infant from fetal injuries constitutes homicide."(fn16) It cited State v. Cornelius, a 1989 Wisconsin case which applied the "born alive" rule to determine when an alleged victim becomes a separate being for the purpose of a homicide prosecution.(fn17) Under the born alive rule, a fetus becomes a separate being for purposes of homicide the instant it is born alive.(fn18) In Cornelius, the infant died two days after birth from injuries suffered in utero when the car driven by his intoxicated father left the road and struck a telephone pole, severely injuring both the driver and the child's mother.(fn19) The court held that the father could be prosecuted for the death of his infant.(fn20)

In Deborah Zimmerman's case, the State also emphasized the logical absurdity that would occur if Zimmerman could not be prosecuted for attempting to drink her fetus to death when a third party who provided a pregnant woman with alcohol could be charged with feticide if the child were born alive, but died later as a result of alcohol toxicity.(fn21) This hypothetical argument emphasized the irony in statutes that allow only for prosecution of third parties who intentionally cause harm to a fetus and not a mother who does the same thing.

The prosecution further argued that Zimmerman's words and actions showed an intent to kill the baby and that "it should be left to a jury to determine if the defendant's conduct fits the statute."(fn22) The prosecution asserted that Zimmerman did not have an unlimited right to do what she pleased to her viable fetus.(fn23) Under Roe v. Wade, once a fetus is viable, the state's interest in the potentiality of human life is compelling and the state may regulate or prohibit abortions, so long as the health of the woman is not in jeopardy.(fn24) Therefore, because Deborah Zimmerman's child was viable, the State had a right to regulate the mother's behavior by prosecuting her for harmful acts done to her child.

The State's policy arguments demonstrated that the charges were not based on Zimmerman's reproductive rights, but on the "child's quality of life, her health and well-being, and the State's interests in assuring the right of every child to be free of life-threatening injuries, toxins and conduct once the child is viable."(fn25) The State concluded that the law must evolve with science and technology by being fluid enough to address advances in medicine and technology:(fn26) "In an era where thousands of women give birth to cocaine and alcohol addicted babies, accountability must attach to those reprehensible acts of the mother or all of society, as well as the child, shall suffer the permanent irreparable harm done."(fn27)

On August 13, 1996, the defense moved to dismiss the criminal complaint.(fn28) The defense put forth three major arguments to support dismissal of the charge of attempted first degree intentional homicide.(fn29)

First, the defense argued that the State charged Zimmerman with a noncrime because a woman who kills her unborn child commits no crime.(fn30) Because the defendant could not have been charged with a crime if she had succeeded in killing the fetus before it was born, the charges must be dismissed.(fn31) The defense argued a point already conceded by the State, that had the child been stillborn, Zimmerman could argue that she successfully aborted a viable fetus, thereby placing her under the protection of Wisconsin abortion laws.(fn32)

Second, the defense argued that the victim of this alleged offense was not a human being at the time it occurred.(fn33) The literal definition of human being includes only currently living people, not viable fetuses.(fn34) Therefore, the State should be unable to prosecute a pregnant woman for the death of her viable fetus.(fn35)

Finally, the defense claimed insufficient evidence existed to sustain a finding of probable cause on all elements of the crime.(fn36) The defense argued that the State had not put forth sufficient evidence to prove its prima facie case.(fn37)

The defense, like the prosecution, offered a review of current Wisconsin case law.(fn38) The defense first attempted to distinguish State v. Cornelius, which the prosecution offered as support.(fn39) The defense emphasized that Cornelius did not address the fetus' rights as opposed to those of the mother.(fn40) It further argued that Cornelius was inapplicable because the Zimmerman case juxtaposed the rights of the mother against the rights of the fetus, an important issue that Cornelius did not address.(fn41) The defense also distinguished Cornelius by pointing out that the time frame is different for homicide versus attempted homicide because a homicide cannot be completed until someone dies.(fn42) In Cornelius, the child died after it was born alive, thus making the homicide statute applicable.(fn43) However, in Zimmerman's case, the alleged act of attempted homicide was completed at a time when the fetus arguably was not a human being, thus making the attempted homicide statute inapplicable.(fn44)

The defense additionally cited State v. Black and State...