Ruling stirs debate but won't change laws on unborn

YESTERDAY'S Hawaii Supreme Court decision to overturn a former ice addict's manslaughter conviction in the death of her 2-day-old baby had plenty of supporters and detractors.

But both sides appeared to agree that the state court's decision is unlikely to bring changes regarding the unborn.

The Supreme Court ruled that Tayshea Aiwohi's son was an unborn fetus at the time she abused crystal methamphetamine, and therefore not a person, so her actions did not constitute manslaughter.

State Sen. Sam Slom (R-Diamond Head, Hawaii Kai) said both the House and State judiciary chairpersons have said they would not support legislation to protect the unborn, so any bill would not get very far. But Slom said he still will look at victims' rights and whether there can be limited legislation to protect the unborn.

"If something happens to any fetus under any circumstance, by today's ruling there could be no prosecution in any circumstance," he said.

Slom said an attack on the fetus is punishable in other jurisdictions. "The way I read the Supreme Court decision is there would be no possibility of prosecution" in Hawaii, he said.

But Sen. Bob Hogue (R-Kailua) had a different view on the outcome of the case. He said it showed how devastating the "ice" problem is in Hawaii.

"We have to find a balance between treatment and tougher laws or incarceration," said Hogue, who expected the ruling to lead to a debate about abortion. But he hopes the community will remain focused on solving the ice problem.

Rep. Sylvia Luke, House Judiciary Chairwoman, agreed with the ruling.

"At least from the Judiciary Committee's standpoint, we don't have any interest in changing the current law to allow for such prosecution. I think that runs into a very dangerous ground because it can be expanded to not just drugs, but the state infringing on the woman's life when the woman is pregnant," Luke said.

"Are we now going to say that pregnant woman can't smoke or (dictate) how much calcium a person would take?" she asked.

But John Long, executive director of the Hawaii Right to Life, said a recent California murder case gave weight to a fetus being a person.

"If that had been a boyfriend or a husband pressuring her to take crack or alcohol ... that would damage the unborn child, the ruling would have been entirely different," he said. "I think that's where we got to come to grips with some sort of an equitable standard that is right for all."

Pamela Lichty, president of the Drug Policy Forum of Hawaii, was pleased with the decision.

She said it was important to treat women with substance abuse problems "as you would treat another medical problem and try to determine what is best for the woman and what is best for the fetus."

She noted that if women were prosecuted for their conduct during pregnancy, they would not seek prenatal care.

"Even women who use drugs during pregnancy benefit greatly by prenatal care," she said. "The prenatal care can balance out the health of the fetus."