NASHUA, N.H. (AP) – The upcoming trial of a Nashua woman on charges she endangered her unborn baby by using cocaine while pregnant may be the first in the state -but it’s revived an old debate about whether a fetus counts as a person under state law.

Griseliz Fernandez’s baby daughter was born 17 months ago with traces of cocaine in her blood, prosecutors charge. State social workers took the baby and Fernandez was charged with reckless conduct and endangering the welfare of a child.

“We believe that this will be the first case in New Hampshire,” said the prosecutor, Assistant Hillsborough County Attorney Suellen Seabury. “This will be a black-letter, lawmaking case, and it will be significant either way it goes, whether a judge upholds this and finds her criminally liable … or dismisses it outright.”

Fernandez is scheduled to stand trial Oct. 13, but her lawyer is trying to get the charges thrown out. James Dennehy argues child abuse laws pertain to children, not fetuses.

Seabury argues Fernandez’s attitude toward her drug use and pregnancy left prosecutors no choice. Fernandez acknowledged using cocaine occasionally throughout her pregnancy, including “within several hours before the baby was born,” despite being concerned about the drugs effect on her child, Seabury said.

The little girl hasn’t shown symptoms of any lasting damage, but at 17 months, it’s too soon to tell for sure, Seabury said.

A doctor is expected to testify about the potential effects of exposure to cocaine in the womb, which can include brain damage, she said.

Fernandez spent part of her pregnancy in jail, having violated probation by failing to comply with drug treatment following an earlier cocaine conviction, Seabury said.

“I remember standing up there and saying to the judge, I don’t get any great thrills in sending a pregnant woman to jail, but at that point, we really had no other option,” Seabury said.

She said it was a relief to know Fernandez was in jail. “At least behind bars, the baby had a chance,” she said.

In arguing to throw out the charges, Dennehy says the laws refer to harm or the potential for harm against a person, not an unborn child.

“If the Legislature intended for the statute to cover fetus, it would have included the term in the statute,” he wrote in his motion to dismiss the charges.

Dennehy notes the Legislature considered a bill in 2005 to make it a crime to harm a fetus, but it did not pass. Further, he notes, the bill specifically exempted pregnant women from being charged with harming their own unborn child.

Seabury concedes the state’s criminal laws haven’t been applied in this way before, but argues there are numerous court rulings supporting the idea that a fetus can be considered a person under the law, at least during the later stages of a pregnancy.

In addition to “Roe v. Wade,” Seabury cited a 1957 New Hampshire Supreme Court ruling in the case of Poliquin v. MacDonald in which the court ruled a fetus should be considered a person once it reaches “pre-natal maturity where it is capable of independent life apart from its mother.”

Aside from arguing the law simply does not apply, Dennehy maintains prosecuting pregnant women for drug use threatens their privacy and might encourage women to avoid prenatal care, or even to seek abortions.

And, he wrote, if Fernandez can be prosecuted for using cocaine during pregnancy, the state could also charge women for drinking, smoking, failing to use a seat belt or other such risky behavior.

Nonsense, Seabury said.

“Smoking or drinking are lawful activities,” she said. “There’s nothing statutory that precludes an adult from engaging in those activities. The difference here is that we are talking about narcotics.”

Information from: The Telegraph,

AP-ES-07-31-06 0828EDT

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