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.)