Murder Charge Rejected in Drug-Related Stillbirth : Court: Judge rules child-protection law does not apply to woman who went on two-day binge before delivery.

SAN FRANCISCO —  Precedent-setting charges of murder against a woman who allegedly went on a two-day drug spree just before delivering a stillborn child were ordered dismissed Friday by a judge in San Benito County.

The case had drawn widespread attention as the first attempt by California authorities to prosecute a woman for murder on grounds she had recklessly ingested illegal drugs that led to her child’s death.

Superior Court Judge R. Donald Chapman ruled that Roseann Jaurigue, 36, of Gilroy could not be prosecuted under a 1970 California law against fetal murder. He said the case must be dismissed because the statute did not clearly authorize the charges and there was no evidence the Legislature intended the law be used in such circumstances.

A prosecutor said Chapman’s ruling may be appealed.

“We still believe the law allows for this prosecution and we would like to see it go forward,” said Assistant Dist. Atty. Harold Nutt. “We think there has to be some accountability for acts that result in the death of an unborn child when the child is full-term and the acts were illegal.”

A lawyer for the American Civil Liberties Union representing Jaurigue praised the decision.

“Criminal sanctions are not the appropriate response to substance abuse during pregnancy,” said attorney Ann Brick. “This decision is in line with courts all across the country that have found such prosecutions were never contemplated by the criminal law.”

Authorities had accused Jaurigue of using cocaine and alcohol during a binge shortly before she entered a hospital to deliver a baby girl in May, 1991.

Charges of second-degree murder were filed after a coroner’s report showed that the infant died from a lack of blood and oxygen, attributed to the placenta being separated from the uterus because of cocaine toxicity. Conviction could have resulted in a sentence of from 15 years to life in prison.

Jaurigue, the mother of two other children, was initially held in lieu of $50,000 bail but was later released on her own recognizance to a community drug-counseling group.

ACLU attorneys sought dismissal of the charges, arguing that the fetal murder law was not intended for use against pregnant women but rather against third parties who attack a woman aiming to kill her unborn child. The prosecution violated the right to privacy by intruding on a woman’s freedom to make decisions about childbearing and health care, the ACLU said. The charges also denied Jaurigue the right to due process by depriving her of fair warning that her alleged actions would subject her to criminal prosecution, the lawyers said.

Local prosecutors defended the charges, saying the law was intended to protect unborn children from harm by anyone--including a drug-abusing mother. Contrary to ACLU claims, a provision in the law barring prosecutions for any act “solicited, aided, abetted, or consented to” by the mother was intended to protect legal abortions and did not prevent charges against Jaurigue, prosecutors said.

Chapman, a retired Santa Clara County jurist assigned to the case, found Friday that the wording of the fetal murder statute could be interpreted either way--but that any doubts must be resolved in favor of the defendant. There was nothing in the legislative history of the statute indicating that it was intended for use in cases like Jaurigue’s, he added.

The judge granted the ACLU’s request for an order barring the prosecution and directed that the case be returned to San Benito County Justice Court for formal dismissal on Tuesday.

Despite widespread concern over drug use by pregnant women, authorities around the nation have encountered court resistance to prosecutions of mothers who harm their children through drug use.

According to ACLU attorneys, more than 160 women have been prosecuted on a wide range of charges for drug-related injuries to children since the mid-1980s. At least 17 such prosecutions were challenged in the courts, and in every instance the charges were overturned, the ACLU said.

Earlier this month, the Supreme Court of Florida reversed the conviction of a woman accused of passing on an illegal drug to her child through the umbilical cord. The Connecticut Supreme Court ruled this week that a woman who injected cocaine in her veins before giving birth could not be prosecuted for child abuse.