Court: Cocaine use isn't child abuse

The Albuquerque Tribune

Santa Fe (AP) - New Mexico cannot prosecute a mother for child abuse because she used cocaine during her pregnancy, the state Court of Appeals has ruled.

The court said the Legislature did not intend for a viable fetus to be considered a human being in the context of the child abuse statute.

"This court may not expand the meaning of `human being' to include an unborn viable fetus because the power to define crimes and to establish criminal penalties is exclusively a legislative function," the court said.

The ruling was issued Monday in a case from Lea County in which a woman, whose newborn daughter had high levels of cocaine, was convicted in state district court of felony child abuse.

The woman told both Health Department staff and Hobbs police officers that she had used crack cocaine and alcohol prior to the birth, according to the court opinion.

The Court of Appeals had held in a 1982 case that a viable fetus is not a human being in the context of the vehicular homicide statute.

And the court said that since then, the Legislature has enacted other provisions of the law that distinguish viable fetuses from human beings - for example, a 1985 provision that makes it a third-degree felony for a drunken driver to injure a pregnant woman causing miscarriage or stillbirth.

When the Legislature intends to include fetuses within the protection of a criminal statute, "it does so specifically," said the ruling by the three-judge panel.

Assistant Attorney General Arthur Pepin said he had argued that the baby was a human being once she was born, "and the abuse was the continuing act of essentially having poisoned the child by introducing crack cocaine into its bloodstream."

He said he would ask the state Supreme Court to review Monday's ruling.