Nov 19, 2008 - 04:05:25 CST
National health groups and advocates are asking the North Dakota Supreme Court to dismiss the child endangerment conviction of a McLean County woman whose unborn child died following a drug overdose.Michelle Behles, 33, pleaded guilty in February to possession of a controlled substance, ingesting a controlled substance and three counts of acquiring a controlled substance by deception. She also entered a conditional guilty plea to endangerment of a child or vulnerable adult. A conditional guilty plea means Behles reserved her right to appeal a previously denied dismissal motion to the North Dakota Supreme Court.
Behles is serving a a five-year sentence on the charges.
Behles, also known as Michelle Geiser, and her appointed defense attorney, Tom Glass, have filed an appeal with the state high court to air their contention that an unborn child is not considered a "child" under the state's child endangerment law.
On Monday, numerous national and state psychiatric, addiction treatment, nurses and women's groups, organized by National Advocates for Pregnant Women, filed a "friend of the court" brief, urging the state Supreme Court to dismiss Behles' child endangerment conviction.
"This court should reverse the trial court's denial of appellant's motion to dismiss because to do otherwise would usurp the legislative function, require the court to radically rewrite and expand the state's child endangerment law, and cause considerable fear and confusion among health professionals and their pregnant patients, all of which jeopardizes the well-being of women and their children," the brief said.
The Garrison Ambulance Service was called to a Garrison home on Sept. 24, 2007, for a report of an unresponsive female. Ambulance personnel found pill bottles for hydrocodone, locet and cyclobenazeprine near Behles, who was semiconscious. Behles, who was pregnant, admitted possessing and ingesting those drugs, as well as tizanidine, without valid prescriptions.
An ultrasound performed at Medcenter One in September showed the baby Behles was carrying had no heartbeat. Documents said a doctor at Medcenter One found that Behles had toxic levels of several drugs in her system, and the baby, which was more than 29 weeks along, did not survive the overdose. Doctors believed the baby could have lived outside the womb.
Glass moved in December for the dismissal of the endangerment of a child charge, on the basis that he does not believe North Dakota law considers an unborn child a "child." McLean County State's Attorney Ladd Erickson argued a child is defined by North Dakota law as "an individual who is under 18 years of age." He wrote that unborn children are not excluded from that definition.
South Central District Judge Tom Schneider sided with the prosecution, ruling that North Dakota courts have recognized viable, unborn children to be human beings in wrongful death cases. He wrote in his order denying dismissal that it would be inconsistent for a viable fetus "subsequent to its conception but prior to its birth" to be considered a child in civil cases but not in criminal cases.
The case is scheduled to be argued before the North Dakota Supreme Court on Dec. 4.
Tiloma Jayasinghe, a New York attorney who worked on the "friend of the court" brief, said National Advocates for Pregnant Women provides legal assistance to attorneys working on cases dealing with child abuse- related charges due to pregnant women using drugs. The organization contends pregnant women should not be punished for choosing to carry a child to term despite drug addiction issues.
"Creating an incentive for women to terminate otherwise wanted, healthy pregnancies is manifestly inimical to the purposes this prosecution is intended to serve,"the brief said. "This prospect is so dreadful that groups as diverse as NARAL: Pro-Choice America and the National Right to Life Committee, which rarely agree on any issue, have united in opposition to policies that are far less punitive to drug using women than North Dakota's."
The organization provides briefs such as the one filed in the Behles case "just to educate the court" about the issues and the ramifications of such prosecutions, Jayasinghe said.
Though such cases do not come up frequently in any state, Jayasinghe said similar cases have been thrown out by appeals courts in other states, with the exception of South Carolina.
The contentions in the brief were that the case "represents an unprecedented expansion of state law," that it is difficult to determine a causal link between drug use and pregnancy loss, and that expanding child endangerment laws to apply to pregnant women "undermines both maternal and fetal health" and "fails to recognize the nature of addiction."
"The North Dakota child endangerment statute ... does not mention pregnancy, pregnant women or fetuses," the brief said. "By contrast, when the Legislature has sought to apply statutes to fetuses, it has done so explicitly."
Erickson said Tuesday he had not had a chance to read the brief in its entirety, but he said the points raised in the brief appear to be arguments better suited for testimony before the Legislature.
"The case is about interpreting statute," he said.
Taking part in the friend of the court brief were the American Academy of Addiction Psychiatry, International Center for the Advancement of Addiction Treatment, the American Medical Women's Association, National Women's Health Network, the North Dakota Women's Network and the National Association of Nurse Practioners in Women's Health.
(Reach reporter Jenny Michael at 250-8225 or jenny.michael@;bismarcktribune.com.)
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