Bismarck Tribune - Bismarck News - Justices tackle child definition

Justices tackle child definition

Dec 05, 2008 - 04:05:31 CST

By JENNY MICHAEL
Bismarck Tribune

The justices of the North Dakota Supreme Court must determine whether a fetus should be considered a child under the state's endangerment of a child law, and a lawyer for an advocacy group says the court's decision will set a precedent for the state in such cases.

The case before the state high court concerns whether a woman can be convicted of endangerment of a child for taking drugs while pregnant.

Michelle Behles of Garrison has admitted taking a number or prescription drugs on Sept. 24, 2007, without having valid prescriptions for the drugs. Documents said a doctor at Medcenter One found that Behles, also known as Michelle Geiser, had toxic levels of several drugs in her system. The baby with whom she was pregnant did not have a heartbeat. Doctors believed the baby, which was more than 29 weeks along, could have lived outside the womb.

Behles was charged with endangerment of a child as well as numerous drug charges. Her appointed defense attorney, Tom Glass, moved in December 2007 for dismissal of the charge of endangerment of a child, saying an unborn child is not considered a "child" in criminal law in North Dakota. South Central District Judge Tom Schneider denied the motion.

Behles entered a conditional guilty plea to the charge in February, reserving her right to appeal the issue to the Supreme Court.

Glass argued on Thursday to the Supreme Court that unborn children are not mentioned in the endangerment of a child statute or the legislative history of the statute. McLean County State's Attorney Ladd Erickson countered that a viable unborn child has been considered a child in civil lawsuits.

Tiloma Jayasinghe, a New York attorney for National Advocates for Pregnant Women, attended the hearing and said afterward that the decision reached by the justices will set a precedent in the state on the issue of women being prosecuted for drug or alcohol use during pregnancy. National Advocates for Pregnant Women organized numerous national and state psychiatric, addiction treatment, nurses and women's groups to submit a "friend of the court" brief in the Behles case, urging the state Supreme Court to dismiss the child endangerment conviction.

Several definitions for a child from state law were tossed about during the hearing Thursday morning, as well as speculation as to how and where the Legislature meant for those definitions to be used. The justices pointed out inconsistencies with the positions of both sides.

Justice Daniel Crothers said the definition of a child in the endangerment of a child statute does not exclude unborn children. Justice Carol Kapsner expressed concern with a different part of the North Dakota Century Code, which says an unborn child, "conceived but not yet born," is considered a person.

Glass argued that the definition of child in the statute is ambiguous to unborn children and that legislators did not mention unborn children when crafting the law. Broadening the law to include unborn children may have unintended consequences of requiring authorities to investigate the circumstances of all miscarriages and stillbirths, and could be extended to other laws.

"If a pregnant lady has a glass of wine, is that delivery of alcohol to a minor?" he asked.

Chief Justice Gerald VandeWalle pointed out to Erickson that it may be inconsistent to consider an unborn child a "child" in civil matters but not criminal matters, but it also would be inconsistent for drug use during pregnancy to be illegal while abortion is legal.

"Mr. Chief Justice, I agree," Erickson said, admitting that there are "logical inconsistencies in either side of the argument."

VandeWalle and Justice Dale Sandstrom asked why Erickson had not charged Behles with some form of homicide. Erickson said a pregnant woman cannot be charged for the death of her unborn child under state law.

Justice Mary Maring said the endangerment of a child law was crafted for the purpose of protecting children from harmful exposure to drugs and methamphetamine laboratories. She said pregnant women who are abusing drugs may decide to get an abortion rather than face prosecution for the effects of drug use on a fetus.

"How are you protecting children by using that statute?" she asked.

Erickson said Behles still would have been prosecuted for ingestion of a controlled substance regardless of whether she was pregnant.

"Pregnant women do not get exemption from other drug laws," he said.

Crothers also brought up arguments from the "friend of the court" brief, including that courts in most other states have dismissed such child abuse-related charges against pregnant women. He said the court has to consider what other courts around the country have decided in such cases.

Jayasinghe said after the hearing that it was hard to read the justices' opinions on the case.

"They grilled both of them," she said.

Jayasinghe said Maring's question about women choosing abortion over being prosecuted for using drugs while pregnant is a topic which groups on both sides of abortion issues agree, as well as medical groups. She said no one has opposed her organization's position that women with drug problems should be able carry a child to term and receive treatment without risking being prosecuted.

The Supreme Court will take the case under advisement and issue an opinion at a later date. Because Schneider sentenced Behles to concurrent five-year sentences on the endangerment of a child charge and various drug charges, Behles would not be released from prison even if the justices determine the endangerment of a child charge should be dismissed.

(Reach reporter Jenny Michael at 250-8225 or jenny.michael@bismarcktribune.com.)

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Comments

Mike R wrote on Dec 12, 2008 2:09 PM:

" My opinion: The world we live in is a world full of laws. Every law on the books forces a moral code upon us. You make it sound like an anti-abortion law would be the first law to do such a thing. It wouldn't. "

pick a problem wrote on Dec 12, 2008 9:46 AM:

" It seems to me that sometimes we make laws that only lead to the need for more laws to clear up the mess that the 1st law made. I am on the fence on this one because it is like Mike R. said...we want to have things both ways. How can we call this murder if it would have been legal in a clinic to kill this baby? Do you think the baby noticed any pain with this...probably a greater chance of having pain during an abortion procedure than to be overdosed? This is a terrible thing that she did though, we can't say it was ok to be taking drugs during pregnancy. And what if the baby would have lived....and she would have given it up for adoption? Who wants a drug addicted baby? It doesn't seem that people are flocking to pick these babies up at the hospital and take them home and love them. I must say I am impressed that "my opinion" says they have adopted 2 children that are older and their family is willing to face the challenges that come with those children. I guess I must respect "my opinion." I guess more of us should be willing to put our money where our mouth is when it comes to this issue. Thank you "my opinion" for doing what you do. "

Rebecca wrote on Dec 12, 2008 9:32 AM:

" To My Opinion: As far as rape, incest, and life of the mother: those cases only account for about 3% of the approx. 3500 that occur daily. And most pro-life advocates make exceptions for those instances because of the small number.

If you are talking about Tay Sachs, those babies usually aren't diagnosed until they are born. At which point one would ask, is it ok to kill your child at 6 months because you noticed that they started going backwards in their physical development and they were diagnosed with this disease? And, once again, only 16 cases a year in the U.S.- hardly a drop in the bucket. Rare genetic disorders and small percentages are no reason to legalize on demand abortion no questions asked, no restrictions. "

Rebecca wrote on Dec 12, 2008 9:23 AM:

" To My Opinion: No the law doesn't say it, but science does. Just like the law said that even though slaves were people, they were property with no rights. Or like the law said that it was ok to shoot indians and take their land. Or like the law says that it is ok to kill people if they have committed a crime.
What a sad world we live in where as long as something is legal, it must not be wrong.
A fetus is: a)human-look at its DNA, b) living-it is growing, developing, and creating new cells. Therefore, abortion is the ending of a human life.
Logic and science, not law, tells us what is right and what is wrong. Unless you beleive that taking a human life can be justified, in which case I guess I can't argue with you. "

My Opinion wrote on Dec 12, 2008 9:20 AM:

" To Mike R: I suggest you re-read your comment from Dec 11 @ 4:25 pm. You clearly state "When the choice equates to murder, I don't think anyone has the "right" to make that call. " From your post, it would appear that abortion on any terms for any reason should be considered murder.

And, yes, I have my beliefs and you have yours. At least my beliefs as far as pro-choice gives a person the ability to make a moral choice. Yours forces all people to submit to your own personal moral code. "

Mike R wrote on Dec 11, 2008 8:22 PM:

" My opinion: Show me where I have advocated that there could not be any exceptions what-so-ever to an anti-abortion law. That is nothing more than scare and sympathy tactics and we both know it.

You do make one VERY valid point though. Just because you believe something does not make it true. Just because you believe abortion is a legitimate "right" of the mother does not make it true. Sure it is legal under current law, but does that make it right? You have to remember that slavery was perfectly legal at one time in this country. Just because it was legal, did that make it right? Just because abortion is not considered murder under "current" law does not mean that it is any different. No matter how much you believe it, that does not make it true. "

My Opinion wrote on Dec 11, 2008 5:36 PM:

" To Mike R: The law says that abortion is not murder. Simply because a person believes something does not necessarily make it true.

Moving on: What about the fetuses that would be born with Tay Sachs disease? Or those with no brain? Those that arise from rape and other forms of abuse. Those that would kill the mother?

I've posted many times on the Pro-choice versus No-Choice. I am very pro-choice. I am not pro-abortion. I simply believe that it is not my place to put my personal feelings or beliefs on another human being.

That being said, I have also posted many times, that there are thousands upon thousands of children in this county alone awaiting adoption. I am speaking of those children above the age of 3. These children have many many many issues that are very hard to deal with. I say, until every single older child that is available for adoption is adopted in this country, no one has the right to say to anyone - you can't have an abortion. It is thoroughly disheartening that people cry to see unwanted babies born and then drop them like hotcakes once they are born. Step up to the plate and adopt some of these children. I have adopted 2 older (10.5 and 14 years old). That's a huge challenge.

Once these unwanted unadoptable children are adopted, I will listen to the voice that says "no abortion". Until these children are all in safe and secure families and adopted, I stand by the pro-choice. At least as things stand now, each person makes their own choice, lives with the consequences of that choice, and will go to the maker (or lack of a maker) of their beliefs after death to justify (or not justify) the choice made. "

Mike R wrote on Dec 11, 2008 4:25 PM:

" mamamia: I also believe in the right to choose, but I happen to think that the unborn baby should have a right to have thier say as well. Since that is not possible, I would favor a law which assumes that the baby would want to be born. I applaud your efforts in the work that you did, but I do not see the issue as a woman's right to choose. When the choice equates to murder, I don't think anyone has the "right" to make that call. The woman had a "right" to use birth control (as well as the man - I am not saying that this is a one way street so everyone relax). Once the life is created, then that life also has "rights". Just my 2 cents. "

Rebecca wrote on Dec 11, 2008 1:51 PM:

" To MamaMia: I commend you for your work. I find it unfortunate that there aren't enough people out there to help with causes like the one you worked for; but I don't believe that abortion is the answer. I can respect, however, that you worked for pregnant women, and for that I say "Thank you!"

To Deb: You know that I know that. :-) The precedence of Roe V Wade did make abortion legal however and there is also years of tradition that dictate privacy between a doctor and patients. It wouldn't take anything to have that re-instated most everyone agrees that doctor/patient confidentiality exists.
That being said, the Freedom of Choice Act which is trying to "codify" Roe v Wade would go so far as to say that a woman doesn't even have to give her doctor information about her health, like age or medical history, and that even midwives (not trained surgeons) could legally perform abortions. I know I got a little bit off topic, but I just thought of it when you brought up privacy. Because the right to health of a patient is more important than their right to privacy, which is already basically ensured. "

MamaMia wrote on Dec 11, 2008 9:00 AM:

" Rebecca: It is your opinion that Roe v Wade should be overturned, but it certainly is not mine. I am in favor of a woman's right to choose, but I don't favor abortion. For many years I volunteered for an organization called Birthright. We helped women get free pregnancy tests, free pre-natal care,offered to go with them to tell their parents if that was a stumbling block for them, offered them counseling, baby clothes, diapers, furniture, even places to live. We had a 24 hour hotline that women with problem pregnancies could call for help. All this was done to show them that abortion is not the only alternative. But, alas, we had to disband after nearly 20 years because we couldn't get enough volunteers to
make it viable. j So, again I state, I am in favor of a woman's right to choose, but I am not in favor of abortion. "

Deb wrote on Dec 11, 2008 7:37 AM:

" Rebecca: Roe v Wade is a privacy ruling. If it is over turned, the ramifications go much farther than your right to have an abortion should you choose to do so. It opens the doors for people to challenge any procedure that you choose to have.

Privacy between a doctor and a patient for the purpose of choosing and undergoing medical procedures should remain a right given to all American citizens. "

Rebecca wrote on Dec 10, 2008 6:17 PM:

" To teegee: Actually, it is more dangerous to drink early on in pregnancy because the baby is more susceptible at that time than later in the pregnancy. It just looks worse to do it later because people can see that you are pregnant.

To MamaMia: Roe v Wade should be overturned. No one thinks abortion is a good thing, yet we seem to think that legalizing it will somehow make it better. What? Address the actual issues that cause abortion? No, we would rather just pretend they don't exist and sweep the women and their problems under the rug. If we can't see the consequences of our society's ills, then they don't exist right?
Here is my opinion; give a woman a trusted counselor who can help her through her problems instead of one who will prescribe her a pill or give her a surgery and shoo her out the door to deal with it herself. "

Mike R wrote on Dec 10, 2008 3:40 PM:

" me: So what does that have to do with her guilt or innocence on this charge? Are you saying "guilty of one crime, she must be guilty of this one as well"? I thought all crimes were to be tried on thier own merit independant of what-ever you may have done in the past. Silly me. "

me wrote on Dec 10, 2008 8:01 AM:

" if you do a google search on Michelle the story report was printed in the Tribune. This is what happened, she had taken hydocodene, locet and cyclobenzazprine... The ambulance went to her house Sept. 24 because she was unresponsive. She also was in posession of tizanidine. I do have to mention she was also incarcerated for Methanphetamines for a few years and was released a little less than a year before this incident. "

Mike R wrote on Dec 8, 2008 11:08 AM:

" Kimberly M: The reason that law has not been passed is simple. It would be a death sentence to any legislator who votes for it. Women's groups would have every legislators head on a platter in no time over that. Like I said before, the law as it stands right now, makes it so that the women's groups can have it both ways at the same time - on a case by case basis, however it fits their personal agenda at the time. A solid, set law would eliminate that. They won't have any part of that. "

Kimberly M wrote on Dec 8, 2008 9:18 AM:

" Medically, a fetus is considered viable at 24 weeks. Why isn't anyone bringing this fact up? It seems simple to me, the line should be drawn there. Not? SOMEBODY needs to create a statute that says this, instead of being so afraid of the issue as a whole. The courts shouldn't be expected to make laws by precedence all the time. "

Mike R wrote on Dec 8, 2008 6:36 AM:

" Razors edge and Muffin: Both of you seem to have a good handle on the issue and why it needs to be addressed. It is a paradox right now. It is the woman's groups trying to have it both ways at the same time. It is a good thing that now the court will take a good long look and make a determination once and for all - Is the fetus a child or not? But then comes the process of applying that decision equally for both sides. No matter how the decision goes, you are going to see women's groups in a rage over it. They seem to like having it both ways at the same time. Sorry gals - just calling it as I see it. "

greenglass4 wrote on Dec 7, 2008 2:40 PM:

" What about the childs rights ? What about the fathers rights ? What about parents rights ? Why should we pay tax dollars for these mothers to abuse their unborn children ? FETAL ALCOHOL SYNDROME on the reservations cost millions for years, child nrver recovers. Who are the supporters ? Rape and Abuse Centers, Women Centers in ND, Abortion Center in Fargo ? Let these women serve out the 5 years in prison. Child abuse gets you 5 years in Fed Prison. What is more harmful ? greenglass4 "

MamaMia wrote on Dec 5, 2008 6:19 PM:

" This whole thing is just a whacked out attempt to make a stab at Roe v Wade. The justices better do the right thing or law enforcement will have to start investigating every miscarriage that comes down the pike. "

A Mother wrote on Dec 5, 2008 4:06 PM:

" Interesting: OK, the only way I personally would take anything to endanger the life of my child would be if I was not consious and couldn't make a different descision and they HAD to give it to me to save my life and/or they for some reason did not know I was prego and did not choose something safe(r) for the baby (that would be a lawsuit in my mind if they knew and gave me something that killed my unborn baby when there was something better). Afterall, if they are not saving my life, they for sure wouldn't be saving my baby's life. BUT! I also would fully expect my doctor to not prescribe me anything that could cause harm in any other situation. I personally would question why my doctor seems to think that I have to have that particular sedative over another. I don't know, maybe I am out of the ordinary. I had a completely natural birth by choice, not because it was too late to take anything. I had all of my wisdom teeth pulled while nursing and my hydrododone prescription is still sealed in the bottle. I took Motrin for the pain because my doctor told me that was safer. I QUESTION EVERYTHING WHEN IT COMES TO MY CHILD'S HEALTH! That is part of parenting. "

Interesting wrote on Dec 5, 2008 3:42 PM:

" To A Mother: And, if there is a drug that is prescribed to you and you take it and it harms your child - such as thalidamide, then what would you do? Just because you take a prescribed medication does not mean it is safe for the fetus. "

r2d2 wrote on Dec 5, 2008 2:03 PM:

" Those of you concerned that this case could result in drinking wine, beer, or other substances somehow creating legal problems for a women who is with child need to read the statute. It only pertains to the use of illegal controlled substances, and not any type of drugs prescipted by a doctor nor any use of alcohol....... "

A Mother wrote on Dec 5, 2008 12:44 PM:

" Ok, I have to say something to Interesting. For Pete's sake! I NEVER took anything that I didn't ask my doctor about first when I was pregnant! There are a LOT of OTC meds that you are not supposed to take while pregnant, even things like certain cold medicines. If a woman gets pregnant it is her responsibility to make sure that the finished product comes out healthy, not dead. So darn right, if I took anything that caused harm to my kid, I would expect to be punished for it. This particular ruling does not have to extend to all cases that you mentioned. It does need to extend to cases where a child could have survived outside the womb but the mother (or even someone else for that matter) killed it anyways. We could go to many extremes. Maybe we should make it ok for a driunk driver to kill someone. Why not? Just because they killed someone who might have lived had they not ingested alcohol and drove doesn't make it any different. Afterall, who is to say that the victim wouldn't have died of natural causes anyways (much like not being able to prove that the baby would not have survived)? There is intent and people need to take responsibility instead of trying to find some loophole to get out of it. Sick. Just sick. "

middle of the road wrote on Dec 5, 2008 11:21 AM:

" The choices we make. Is it the Court's place to monitor them? This mother will have to live with herself the rest of her days for the choices she made. "

Muffin wrote on Dec 5, 2008 11:18 AM:

" The question here is what is legal, not what people may consider moral. For right or wrong, this woman could have legally had the child aborted without any legal consequence. As the law stands, having an abortion is not child endangerment. ThIs conviction will be overturned. "

curious wrote on Dec 5, 2008 11:09 AM:

" Just curious....what about the unborn baby's father?? Would he also have rights or the possiblity of a wrongful death suit? "

Interesting wrote on Dec 5, 2008 10:57 AM:

" To Julia: After rereading the article did not state "her doctors", it stated "a doctor" and "doctors". It also did not state that the baby would have lived, it stated "Doctors believed the baby,..COULD have lived outside the womb.

To Manadanite: Continuing along in the article, one of the attorneys brought up just the issue I questioned. If the decision is that a fetus is considered a person, then ANY woman ingesting Anything during her Pregnancy could be considered to be endangering the fetus. This could include not only the previous mentioned Alcohol, but also any and all over-the-counter medications as well as prescription medications - lifesaving or not. It could include blood-transfusions (people still get ill from diseases in donated blood), blood thinners, blood-pressure medicine, anti-depressants, quit-smoking aids, birth control (some birthcontrol prevents a fertilized egg from attaching to the uterus) etc. etc. etc.

If the Justices decide a fetus is a person, all women are in danger of being investigated and prosecuted for certain types of birth control as well as once pregnant any and all substances they injest, wear as a patch, rub on their skin, put on their hair, etc.

In addition, any medical procedure performed on a woman who is pregnant could be considered murder or assault under these terms if it could have possibly resulted in the death of the fetus or harm to the Fetus - including amniocentisus (sp?) (which does, at times, kill the fetus), x-rays, drugs to stop contractions, drugs to bring on contractions, anesthesia of any form, pain medication for child birth, and any other medication prescribed. So, this could extend to physicians who prescribe or treat, there is a miscarraige or still birth, and it is determined that the treatment may have caused the fetus to die or miscarry.

This is far more reaching than a woman taking illegal drugs and is also pregnant. This would extend to every pregnant woman and every person who is involved with that woman. "

Razors Edge wrote on Dec 5, 2008 10:51 AM:

" I'm glad they are finally going to decide the law on this. It has been a paradox for quite a while. This will have more implications than Roe v. Wade ever did. Take your time justices. "

julia wrote on Dec 5, 2008 10:25 AM:

" This woman was warned by her physician that taking drugs during her pregnancy could result in the death of her child. She continued to do so even though she knew the consequences. Her doctors told the court that the child could have lived outside the mother so the child was viable. She chose to do what she chose to do anyway. People are not going to prosecute a mother if she is in an accident and the child dies becasue of drugs given to save her. She would be in a controlled situation. Ihave seen too many drug affected babies not to stand and say-what you did was wrong and so were your choices. Take the consequences. "

Mandanite wrote on Dec 5, 2008 9:50 AM:

" To Interesting: There is a difference between drugs being given to a woman who was in a car accident and a mother who is diabetic and one who puts illegal substances into their body knowingly and willingly and kills their child. The insulin the diabetic mother puts into her body will not harm the baby. In fact, it helps by maintaining the mother's blood sugars, which in turn will help the baby. "

dmp wrote on Dec 5, 2008 9:16 AM:

" What about a baby born with fetal alcohol syndrome? Alcohol is considered legal but a drug. When the baby is born this way it should be considered putting that baby at harm also. "

Interesting wrote on Dec 5, 2008 9:03 AM:

" I wonder what would happen to a woman, who was pregnant, was in an accident that was not her fault, was injured, unconscious, taken to the hospital, had medications given to her. Will she be prosecuted for delivery drugs to the fetus? Or a woman, diabetic, who has to take insulin, gets pregnant, takes her insulin - then she is delivering drugs to the fetus. This would basically mean that any woman who takes any type of medication for any reason any where would be put in jail for delivery drugs to the fetus. "

very angry wrote on Dec 5, 2008 8:32 AM:

" an unborn child is consider to be a person the moment the heart starts to beep so i think the person should get charge for child endangerment no matter what she knew she was pregnant and she knew she have gone and got help from her doctors or friends and family so she wouldnt have harm the child i believe the chages should stay on her she is gonna have to live the rest of her life knowing she killed her unborn child. "

teegee wrote on Dec 5, 2008 7:07 AM:

" This could get ugly real fast, but to me if a baby would be able to live outside of its mother's womb, then I would say this could be considered child endangerment, BUT only if the mother willingly took a substance she knew could harm her baby and did it anyway. Until then though, I just don't know how I feel about it. I never would condone a mother's use of drugs/alcohol while pregnant, but a small glass of wine once or twice during early pregnancy, to me that's just not that bad I guess. I had a glass of wine or 2 in both of my pregnancies to celebrate Christmas. Where do you draw the line? Are they going to run pregnancy tests on every female who is arrested for DUI or similar crimes? If a woman has a stillborn baby are police going to show up and interrogate her on what she did during pregnancy that could have caused this. This sounds scary to me. "

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