Case Against Mother Spurs Debate on Fetal Murder : Law: Authorities are divided on whether statute applies to drug-using woman whose child was stillborn.

By PHILIP HAGER

June 17, 1992 12 AM PT

TIMES LEGAL AFFAIRS WRITER

HOLLISTER, Calif. — On the day she was to enter a hospital to deliver her third child, Roseann Jaurigue was elsewhere partying on cocaine and alcohol, according to police. Two days later, when she made it to the hospital, her daughter was stillborn.

Ordinarily, the story might have ended with the tragic May, 1991, death of the child and the mother’s anguish. But, in the first case of its kind in California, authorities have charged Jaurigue with second-degree murder, contending the baby died from the drugs the 36-year-old woman recklessly ingested before she was to give birth.

The prosecution has spawned a sharp legal dispute that is likely to result in a landmark court ruling. Underlying the case is a deep philosophical disagreement over how best to combat the far-reaching problem of drug abuse by pregnant women.

Local authorities in this area east of Monterey Bay contend that a 1970 state law against fetal murder can be applied against parents, just like anyone else who harms an unborn child, and that drug users should be held legally accountable for their actions.

“An unborn child has the right to protection from murder,” said San Benito County Assistant Dist. Atty. Harold Nutt. “That policy was set by the Legislature and we are carrying out that policy.”

Lawyers for Jaurigue, trying to get the case thrown out of court, argue that the law was never intended to allow murder charges against pregnant women. They say prosecution will not deter drug use, but instead will drive wary mothers away from the obstetric treatment they need.

“This will coerce a woman into an abortion she otherwise would not want or discourage her from seeking prenatal care,” said Ann Brick of the American Civil Liberties Union of Northern California. “It’s basically counterproductive.”

The case has emerged at a time of widespread concern over the effects on children of prenatal drug and alcohol use and amid new efforts to expand treatment programs.

Dr. Andy Mecca, director of the state Department of Alcohol and Drug Programs, estimates that 80,000 babies are born annually in California who were exposed prenatally to drugs or alcohol. The number of drug-related injuries or deaths is not known, but officials are expecting valuable data on the problem when a $1.4-million statewide survey is completed next year.

Without commenting on the merits of the Jaurigue murder prosecution, Mecca says that nationwide experience points to treatment as more effective and less costly than criminal punishment in curbing drug abuse by pregnant women.

“Incarcerating these women has not proved to be productive,” he said. “They go to jail, get out and return to addiction. It just becomes a revolving door.”

Jaurigue was charged after a coroner’s report showed that her baby died of a lack of blood and oxygen--the result of the placenta being separated from the uterus because of cocaine toxicity. Hollister police said the woman admitted using drugs and alcohol and had “partied” for two days instead of going to the hospital.

Prosecutors have charged Jaurigue with second-degree murder, which calls for a sentence of 15 years to life in prison. Although she did not intend to kill her baby, she can be charged with the crime because she used drugs in knowing disregard of the dangers they presented to the child, prosecutors say.

The case marks the first time that a 1970 amendment to the penal code, adding the killing of a fetus to the legal definition of murder, has been used against a woman for an act during pregnancy. (The provision bars such a prosecution for obtaining an abortion).

The amendment was passed in the furor that erupted after the state Supreme Court ruled--in barring the murder prosecution of a man who brutally attacked his estranged wife in order to kill their unborn child--that a fetus was not a “human being.”

After her arrest, Jaurigue was held in lieu of $50,000 bail, then released on her own recognizance. She is under the supervision of drug counselors at Victory Outreach, a nondenominational religious group in nearby Gilroy.

Meanwhile, ACLU lawyers are attempting to win dismissal of the charge against Jaurigue, saying the prosecution is not authorized under the fetal murder law and violates the constitutional rights of privacy and due process of law.

A Justice Court judge in Hollister last month refused to throw out the case and Jaurigue’s lawyers are preparing an appeal. They say they will take the case to the U. S. Supreme Court if necessary.

The test of the fetal murder statute comes as other attempts to prosecute prenatal drug abuse are meeting with little success across the nation. ACLU attorneys say that while dozens of prosecutions have been initiated, only one in Florida that was challenged has been upheld by an appellate court.

Most court decisions in these cases have held that the laws invoked to prosecute the women--including charges of child endangerment, supplying drugs to children and assault with a deadly weapon--were not intended for use in cases of harm to a fetus.

In California, a state Court of Appeal held in 1977 that the felony child abuse law could not be used to prosecute a drug-addicted mother for prenatal harm to the fetus. A decade later, a Municipal Court judge refused to allow misdemeanor charges against a San Diego woman who refused to stop using drugs during pregnancy and whose child was born brain-damaged and later died.

Authorities here acknowledge that prosecuting a woman for the unintentional death or injury of her child presents complex policy questions and that relatively few such cases have been brought.

A murder case in such circumstances presents special problems because of the difficulty of acquiring sufficient proof that a miscarriage or stillbirth was directly attributable to drug abuse, they say. “But in this case,” said prosecutor Nutt, “we have the evidence.”

In her defense, Jaurigue’s lawyers point to a provision in the fetal murder law saying the statute does not apply to any act “solicited, aided, abetted, or consented to” by the mother. That provision forecloses a murder prosecution against the mother based on her drug use, they say.

Brick, the ACLU lawyer, argues further that murder prosecutions not only would fail to deter drug use by pregnant women, but also would create a precedent that theoretically could allow prosecution for a wide range of harmful prenatal conduct from smoking to failing to follow doctor’s orders.

“Under the prosecution’s theory, there is nowhere to draw the line,” she said. “It could have a potential impact on any woman who becomes pregnant. There would be no safe harbor.”

San Benito County Dist. Atty. Harry Damkar replied in court papers that fears about adverse effects of the prosecution rest on unfounded speculation. Women would not be prosecuted unless, like Jaurigue, they knowingly disregard danger to a viable fetus by indulging in an act like drug use, he said.

Contrary to ACLU contentions, Damkar said, the fetal murder law exempts only abortion and can be invoked in the drug-related death of an unborn child. A court, in deciding whether a murder prosecution can go forward, should not succumb to appeals for sympathy for the mother, he said.

Local authorities also refuse to accept the argument that the prosecution would fail as an effective deterrent. In any event, they say, the issue goes beyond deterrence.

“A lot of this goes to accountability, whether there is a deterrent or not,” said Deputy Police Chief Joe Daughenbaugh. “We’re all to be held accountable for our conduct. Even if one is addicted to drugs, that’s not a valid excuse.”

Meanwhile, Jaurigue continues to receive drug counseling in Gilroy while her two daughters, ages 16 and 10, remain in the care of relatives.

Family members say they support her defense. “(Roseann) is doing real good at Victory Outreach,” her mother, Elsie Jaurigue, said last week. “All I know is that I wish my daughter will come back to us.”

Roseann Jaurigue’s 16-year-old daughter, in a letter last February to the judge in the case, wrote: “I would like my mom home cause I can’t live without her. We just got our lives back together and we were doing good. . . . My mom has done no drugs since the baby. . . . Judge, listen to me cause I don’t want to lose her.”

The accused woman herself, in a letter to the court supporting her request for release to the counseling center, said she never before had been in serious trouble with the law.

“This is not a letter to justify what has happened,” she wrote. “This is a letter to ask for a plea. I have two daughters now that need me more than anything. . . . I am not a threat to society.”