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‘Drunk fetus’ isn’t a human, Wisconsin appeals court rul

WASHINGTON (BP)–Attempted homicide charges against an intoxicated mother who told emergency room personnel she wanted to drink her unborn baby to death were thrown out on appeal May 26 by the Wisconsin Court of Appeals.
The appellate court relied upon other court rulings that declare only a third person can be held accountable for injuries to an unborn baby who dies after birth. No such charges can be filed against the baby’s mother for doing the same thing, the court ruled.
The ruling — which split hairs between the baby born drunk and another case in which a baby was killed by a drunken driver, whom the same court said could be charged with homicide — was described as ludicrous by C. Ben Mitchell, consultant on biomedical and life issues for the Southern Baptist Ethics & Religious Liberty Commission and assistant professor of Christian ethics at Southern Baptist Theological Seminary, Louisville, Ky.
“If Wisconsin law does not regard the fetus as a human being, the law must be changed — immediately,” Mitchell said. “Only American jurisprudence could get it that wrong. Of course, a human fetus is a human being. A human fetus isn’t a dog or a cat. The fetus is a living, human baby.
“The intention to harm or kill a human fetus is intention to harm or kill a human being,” Mitchell continued. “We all know that intuitively. We don’t need the courts to tell us that that’s true. What we need is for the courts to recognize what we all already know, that all life is sacred.”
The day her baby was born in 1996, the mother, Deborah J. Zimmerman, 36, of Racine, Wis., had a blood alcohol content of .30 — three times the state’s legal limit — when her mother took her from a Wisconsin bar to a hospital. Upon arrival, Zimmerman told a nurse “if you don’t keep me here, I’m just going to go home and keep drinking and drink myself to death and I am going to kill this thing because I don’t want it anyway,” referring to the unborn child.
According to court records, Zimmerman also expressed fear about the baby’s race, an abusive relationship she was in and the pain of giving birth. After consulting with a doctor, however, she consented to a cesarean section and give birth to a baby girl named Meagan M. Zimmerman. At birth, baby Meagan was “extremely small, she had no subcutaneous fat and her physical features” clearly illustrated fetal alcohol affects, the records state.
After a few weeks, baby Meagan was gaining weight, had no significant jaundice and was able to tolerate temperatures outside of an incubator, whereupon she was discharged to a foster family, records state.
While expressing gratitude that the baby girl no longer is with the mother who didn’t want her and voiced her intention to kill her, Mitchell said the case should not end here and should be appealed to a higher court, even all the way to the U.S. Supreme Court if needed. No decision has been announced by the state to appeal the appellate court’s decision.
“This decision declares open season on the unborn,” Mitchell said. “A mother’s womb is to be a place of nurture and warmth, not a death chamber. If we allow mothers to intentionally kill their children, what moral standing do we have to tell teenagers they can’t kill their peers?
“After all, the courts have a sullied history when it comes to narrowing the definition of who is a human being,” Mitchell said. “The Nazi courts decided that Jews and the mentally retarded were not human beings. Southern Americans decided that slaves were not human beings, but chattel to be bought and sold in the marketplace. This decision repeats the sins of our forebears.”
In its ruling, the Wisconsin Court of Appeals compared baby Meagan’s ordeal to a child killed by a drunk driver in the case of State of Wisconsin v. Cornelius, a 1989 decision by the same appellate court. In that decision, the court upheld charges of homicide against the defendant for having caused the death of a baby from the injuries the baby suffered in the car crash while still in its mother’s womb.
The court argued that since the child was born alive, but died later of its injuries, it met the state’s test of being “born alive” to be considered a human being.
In both the 1989 case and its new ruling, the child was born alive within hours of the initial incident. Yet the court did not make that comparison.
If the baby’s mother, however, had been forced by another person to consume so much alcohol as to endanger the fetus — which she willingly did on her own — the court could have upheld the other person’s being charged with homicide, the ruling stated.
“Thirty-one states, by judicial decision, have adopted the ‘born alive’ rule that if an unborn child suffers a prenatal injury at the hands of a third party and is born alive, certain civil or criminal charges may be brought against the third party,” the appellate court said. However, it said, that stance by 31 other states does not apply to self-abuse by a mother which negatively impacts an unborn child, later “born alive.”
“Specifically, the State posits that holding mothers accountable for injuries they inflict on their children prenatally is the next logical step beyond the courts’ application of the ‘born alive’ rule to third parties in State v. Cornelius,” the court noted. It decided against that line of argument in its ruling against state prosecutors in the Zimmerman case.
Zimmerman, who served a two-year prison term for bail violations and is in jail pending resolution of the case, lost custody of her daughter after a four-day trial in Racine County (Wis.) Circuit Court.
The baby, Meagan, was born with symptoms of fetal alcohol syndrome. At the time of the birth, Zimmerman had a blood-alcohol level of 0.30 — triple the legal limit of intoxication.
Doctors performed an emergency caesarian section to deliver the baby, who was born with a blood-alcohol level of 0.199. The state appeals court agreed with Zimmerman’s contention that she only had harmed her body and her fetus, not another human being.
“We are persuaded that the term ‘human being’ … was not intended to refer to an unborn child and that [the woman’s] prenatal conduct does not constitute attempted first-degree intentional homicide and first-degree reckless injury,” the court ruled.

Guido is a freelance writer in the Washington, D.C., metro area.

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  • Daniel Walker Guido