By Jack Elliott Jr./The Associated Press
JACKSON — A dozen public health organizations and human rights advocates are supporting a Mississippi woman’s fight to avoid prosecution for the stillborn death of her child.
Nina Buckwalter suffered a stillbirth and was arrested in October 2010 because of alleged drug use during her pregnancy, but a Lamar County judge threw out the charge. Circuit Judge Prentiss Harrell ruled the Mississippi Legislature did not intend to criminalize pregnant women whose drug use harms or injures an unborn fetus.
Prosecutors want the Mississippi Supreme Court to reinstate a charge of culpable manslaughter negligence and order Buckhalter to stand trial. The court will hear oral arguments Tuesday.
At least four such cases involving stillborn deaths have been filed against women in Mississippi since 2006. Two cases, including Buckhalter’s, are still pending.
Robert McDuff, a Jackson attorney, represents Buckhalter and Rennie Gibbs of Lowndes County.
Gibbs’ child was stillborn in 2006 after prosecutors said she took cocaine. Gibbs was charged with depraved-heart murder, a legal term for an action that demonstrates a “callous disregard for human life” that results in death.
Gibbs became pregnant at 15 and the stillborn death occurred when was 16, according to court records.
McDuff said prosecutions in stillborn deaths don’t happen very often because “it is such an extreme charge to bring against a woman who suffered an unintentional stillborn death.”
“If you try someone for manslaughter or murder in this situation you could do the same thing if they smoke or drink during pregnancy or are overweight or fail to follow doctors’ orders. This opens an awful can of worms if these kind of homicide prosecutions are allowed to go forward,” McDuff said.
McDuff said whatever the court decides will have an effect on Gibbs’ case, which also has not gone to trial.
In arguments filed with the Supreme Court, Assistant District Attorney Lauren Harless said state law defines unborn children as “human beings” for the charge of culpable negligence manslaughter.
“The failure of bills to pass the Legislature regarding the criminalization of a pregnant mother’s drug use does not do away with the statutes we do have making it a crime to harm an unborn child.
“By ingesting illegal drugs while pregnant … Nina Buckhalter did act with such gross negligence as is required to prove culpable negligence,” Harless said.
Organizations from the Southern Policy Law Center to the American Medical Association to the National Association of Social Workers have filed briefs in support of Buckhalter.
Jody E. Owens II, a Jackson attorney representing about a dozen of those groups, argued in legal briefs that if the Mississippi Supreme Court allows Buckhalter to go to trial then “any pregnant Mississippian who confides in her health care provider that she has used drugs risks being charged with manslaughter if she suffers a stillbirth.”
“Even for those women who are not deterred from seeking care, fear of prosecution is likely to discourage them from being truthful about drug use, corroding the formation of trust that is fundamental to any provider-patient relationship,” she wrote.