No need to apologize for disagreeing. There is plenty of room for legal argument.

I do agree with your sentiment. The behavior, regardless whether it is covered by the delivery of drugs to a child or injury to a child statute, is clearly harmful to a fetus/child, and there should be some social response to prevent the permanent damage that can stay with a child throughout his/her life.

But I am troubled by the approach that makes prosecutors social engineers, pressing for a legal reading that has not been clearly provided, simply because we have decided something should be done. In my opinion, that makes us no better than the liberal judges we criticize for legislating their social issues from the bench.

Johnny Holmes, the former DA with the handlebar mustache in Harris County, was always my model for this area. It was his opinion that it was the Legislature's job to write the laws. Prosecutors enforced them.

If you want a law that clearly give you authority to prosecute pregnant mothers, then you should file a bill that says so.

I think that under Planned Parenthood Viable Fetus/baby theory the case should turn on whether or not the fetus could have survived outside her womb given modern technology. If it could have, then she delivered cocaine to a 'person'. Only after viability does the State have the duty to protect the 'individual'. (In this case, the fetus-person, not the deadly frog.)

In my opinion no noisy disturbances should be allowed on this forum. Shannon, your vocabulary is getting beyond the ken of many. Anyone have any idea how many Scottish-Gaellic words are actually in use in the English language?

Martin, I cribbed "kerfuffle" from the Wall Street Journal Online's daily "Best of the Web" column by James Taranto. See here for more: The Link

'Kerfuffle' Watch

Our efforts to popularize the word kerfuffle continue to bear fruit. While we were away, even the liberal New Republic, in a blog by Ryan Lizza, quoted John Kerry referring to Bush supporters as "goons," then observed: "The Bush campaign is trying to make a kerfuffle over the comment to undercut Kerry's pledge to run a positive campaign."

According to WordCount.org, kerfuffle is the 67,952nd most popular word in the English language. The most popular word is the, another word this column (Best of the Web Today) helped popularize. Of is the second most popular word, and best, Web and today are Nos. 247, 10,182 and 330 respectively. Our given name, James, turns out to be the 1,000th most popular word, but Taranto is only No. 74,131, right between rfsfr and hydrocortisone. We aren't sure what rfsfr means, but RSFSR, an abbreviation for Russian Soviet Federated Socialist Republic, is 31,498th--a full 36,454 places ahead of kerfuffle, over a dozen years after the dissolution of the Soviet Union. So perhaps these rankings are a lagging indicator ...

Shannon, to put "kerfuffle" in its proper perspective, what are the two words immediately before and after it in the rankings?

Ken, as of today, the order is:

67,591 evicting
67,592 kerfuffle
67,593 snowfields

BTW, "Sparks" came in at 11,822 ... boy, a person could really waste some serious time on wordcount.org ...

Speaking of a law to do what some have suggested, it seems that Oklahoma has one:

CNN

Woman charged with murder in fetus drug death

OKLAHOMA CITY (Reuters) -- A 27-year-old Oklahoma woman has been charged with first-degree murder after doctors said the woman's illegal drug use caused her baby to be stillborn, prosecutors said Thursday.

It is the first time the state has charged a woman with first-degree murder for using illegal drugs that are suspected of killing the fetus she carried, Oklahoma County prosecutors said.

Prosecutors said they filed first-degree murder charges against Theresa Hernandez late Wednesday. Police arrested Hernandez after she gave birth to a dead boy at an Oklahoma City hospital in April.

A doctor attending the birth told police the mother and baby tested positive for methamphetamine and ruled the death a homicide.

Doctors told police the baby had enough methamphetamine in his system to kill two adults.

Oklahoma County District Attorney Wes Lane said: "We've been wanting to do this with a number of people. This has been needing to happen for a long time."

The state law under which Hernandez is charged allows for murder charges to be filed if an individual's actions bring about the death of a fetus when it is considered viable, which in the state of Oklahoma is 24 weeks into a pregnancy. Hernandez's pregnancy was in its 32nd week.

Prosecutors said a jury also has the option of considering second-degree murder charges against Hernandez. A second-degree murder conviction carries a sentence of between 10 years to life in prison. If convicted of first-degree murder, Hernandez could spend the rest of her life in prison.

Hernandez has been convicted of drug possession in the presence of a minor, according to court records. Lane said Hernandez has five other children, all in foster care.

OK, so it would be constitutional to convict her and lock her up for the rest of her life, but we can't prevent her from becoming pregnant again?

Either or both sounds good to me

LV we can't prosecute a woman for drinking because under Texas law a parent or guardian may serve alcohol to their child. The statute does not put an age limit, therefore, giving alcohol it a fetus is not against the law. The same applies to tobacco. However, I would, as apparently most of the population [according to a local poll, 97%], support a specific statute to prosecute under.

I was wondering whether anyone would notice the exception as to minors and alcohol--I find it strange that parents may do that which others may not, but no more stranger than basing viability outside the womb as a legal standard for determining who is a person and who is not.

Of course, there are those who possess religious, moral and/or spiritual beliefs that would strenously disagree and they have a valid point.

But setting aside the "wisdom of the law" or religious beliefs, and turning to pure medical issues, viability of a premature baby "outside the womb" who is otherwise in a normal state of development, depends not on neurological development, not on spiritual development, not on mental development, but currently depends on the state of development of the lungs.

An embryo is "viable outside the womb" for the first three to five and sometimes seven days before the embryo is transferred to the uterus, where hopefully the embryo becomes implanted in the surface of the human womb. Given the inevitiable future of medical science developing some means of supplying oxygen and nutrients, the womb would become completely unnecessary, and the fetus uses this supply mechanism until the fetus has fully developed his/her lungs and can breathe.

There was a time when I thought the legal standard of viability outside the womb was worth the paper it was written on.......

Rep. Ray Allen does a pretty good job of explaining his legislative intent in a recent article in the Austin Chronicle.

For what it is worth, the AG has issued an opinion indicating that the amendment to the definition of "individual" to include a fetus does not apply to laws requiring a physician to report abuse of a child. To read the opinion, go to the AG website.

The last legislature established that a fetus is in fact a legal entity. If we can prosecute for its death, even if only days old in the womb, it certainly has been recognized as a legal being.
I'm wondering, with this new legislature where say, a drunk driver kills a woman and her one month fetus, and is charged with a capital crime for the death of the fetus- can abortion laws be far behind?
It seems impossible to uphold the one without having to uphold the other, regardless of the cause of death.

Uh, how exactly do you file intox. manslaughter as a capital crime? I don't see that happening. You still need intent.

There are plenty of unintended consequences with laws like this, but let's stick to the realistic ones and not get hysterical ...

To see how this came out, go to this link.

Best quote from the opinion: "We are a judicial body obligated to enforce the law as written by the legislature. If that body cares to define "deliver" as including the transfer of drugs by a mother to her unborn child through the exchange of bodily fluids, it may do so. Yet, ours is not to write where it has not."

What other charges is your office filing for such cases? We look at POCS on the mom if there is a positive drug test in medical records and an admission.

FOR THOSE WHO HAVE NOT READ THE OPINION I SUGGEST IT. THE COURT HELD THAT 1) FOR A TRANSFER OF DRUGS TO OCCUR THE CASE LAW OF TEXAS IMPLICTLY REQUIRES THE TRANSFREE TO KNOWINGLY TAKE POSSESSION OF THE SUBSTANCE AND 2) THAT MERE PRESENCE OF DRUGS IN THE BLOOD DOES NOT ESTABLISH KNOWING POSSESSION. HERE THE "ONLY" PROOF OF THE FETUS BEING IN POSSESSION OF DRUGS WAS WHAT THE COCAINE WAS IN THE BLOOD, THEREFORE, NO KNOWING POSSESSION, HENCE, NO OFFENSE OCCURRED. THAT LEAVES SOME GLARING HOLES. FIRST, IF A DEALER DECIDES, RATHER THAT GIVE HIS BUYER A BAG OF DOPE, TO INJECT IT DIRECTLY INTO THE BUYER'S BODY, ACCORDING TO THIS OPINION NO OFFENSE HAS OCCURRED (THE BUYER NEVER TOOK POSSESSION) ALSO IF THE BUYER WERE ASLEEP OR OTHERWISE UNAWARE OF HIS ENVIRONMENT WHEN THE DEALER PUT THE DRUGS IN HIS POCKET THE DEALER COULD NOT BE CHARGED WITH DELIVERY BECAUSE THE TRANFREE DID NOT KNOWINGLY POSSESS. I DON'T THINK THAT IS OR SHOULD BE THE LAW. I HAVE NEVER TRIED A DELIVERY CASE THAT I HAD TO PROVE THE TRANSFREE'S MENS REA. AS TO THEIR SECOND HOLDING, MERE PRESENCE IN THE BLOOD DOES NOT PROVE POSSESSION. IF THAT IS CORRECT, THEN I FILING ON A MOTHER FOR POCS WHO MERELY TESTS POSITIVE ON A BLOOD TEST IS NOT GOING TO WORK. WE, OF COURSE DISAGREE WITH THOSE TWO POSITIONS. WE WILL BE FILING A MOTION FOR RE-HEARING SOMETIME NEXT WEEK.

Saw this on another blog, just fyi:

quote:

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The critical language: "Nowhere are we cited to evidence suggesting that the unborn child actually handled, touched, manipulated or otherwise exercised physical possession over the drug. Again, the substance was merely discovered in the unborn child's body." This seems unquestionably wrong to me. If A injects B with a syringe of a controlled substance (whether B requests this or not) A has "delivered" a controlled substance to B. See, e.g., Stanford v. State, 1988 WL 113997, 1988 Tex. App. LEXIS 2626 (Tex. App. -- Hou. [1st] 1988)

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The possession we seek to prosecute is the possession of the substance as it existed outside the body of the defendant. That is why we get a positive blood test AND an admission. The admission points to the time and place where the drug was possessed. The blood test corroborates the admission and serves as evidence of the corpus delicti.

I, too, am troubled by the language of courts that find it difficult to accept the presence of an illegal drug in the body as evidence of possession. Sounds like pretty good circumstantial evidence to me.