Florida high court upholds woman's right over fetus Six months' pregnant, woman shot herself in the abdomen

WASHINGTON -- In a closely watched case, the Florida Supreme Court ruled yesterday that a pregnant woman may not be prosecuted for taking any action to harm or kill the fetus she is carrying.

The decision threw out criminal charges against Kawana M. Ashley, a St. Petersburg woman who shot herself in the abdomen with a pistol when she was six months' pregnant because she did not want to have another child and could not afford an abortion.


The shot wounded the fetus, who was delivered by Caesarean section and died 15 days later, too undeveloped to survive.

Ashley was charged with murder and manslaughter -- one in a growing number of cases brought by prosecutors who are using existing criminal laws on murder, manslaughter and child abuse to try to establish new legal protection for fetuses. Often, the cases involve women who used alcohol or drugs during pregnancy.


Those cases have stirred a new level of debate that could potentially affect the future of abortion rights. On one side are advocates who promote expanded rights for fetuses as independent beings.

On the other side are women's rights lawyers who seek to protect the right of women to manage their pregnancy without state interference.

The Florida Supreme Court's decision did not deal with either argument directly. Instead, it relied solely on Florida law, which has long made clear that pregnant women are immune to criminal prosecution for any harm done to their fetuses. That has never been changed by the state Legislature, the court said.

"This court cannot abrogate willy-nilly a centuries-old principle of the common law and install in its place a contrary rule bristling with red flags," the state court said. Under the common law, the court added, "the woman was viewed as the victim of the crime" against her fetus.

"The criminal laws were intended to protect, not punish her."

The same court had ruled five years ago that a pregnant woman cannot be prosecuted for using cocaine that was transferred through her body to the fetus.

One of Ashley's lawyers, Priscilla J. Smith, said the ruling meant that "prosecutors in Florida can't police everything a woman does during pregnancy" and "can't do an end-run around the legislature to create new criminal law" for use against pregnant women.

Clarke Forsythe, president of Americans United for Life, an anti-abortion group, said the Florida ruling "was a good decision because it relied on the common law and did not try to create some kind of new constitutional right" for pregnant women in dealing with their fetuses.


He said criminal prosecution "is probably not the best policy" for dealing with women who harm their fetuses. A better approach, Forsythe said, would be to confine such women during pregnancy.

So far, only South Carolina's Supreme Court has ruled that women may be prosecuted for child abuse and for using drugs during pregnancy that hurt their fetuses. That ruling, in July 1996, declared that a fetus is a child under the state's child abuse laws.

On Monday, the South Carolina court reaffirmed its decision, rejecting a new claim by Cornelia Whitner of Greenville, S.C., that her conviction for using cocaine during pregnancy violated her constitutional right of privacy.

Pub Date: 10/31/97