A mother, her baby and the bottle

The case of a 35-year-old woman accused of trying to murder her foetus with drink has divided America. The key question is: who is responsible for a pregnant woman's body? David Usborne reports

As the woman finished her game of pool and wobbled across to the bar in the Westside Lounge in Racine, a bland Midwestern suburb 30 miles south-east of Milwaukee, the bartender, Dennis Peterson, viewed her with dread. It was two in the afternoon, the start of his shift. "Not on Saturday," he thought to himself. "Not with me here." What he could not have realised was that he was about to become a witness to a potential crime of the gravest kind, and one that, months later, would draw the attention of the nation.

His punter was Deborah Zimmerman, a 34-year-old waitress with a history of alcoholism who served tables at the nearby Main Street Bistro. Already bombed, she was obviously set on an all-day bender, beginning with a promisingly potent cocktail, a Blind Russian. Peterson obliged but gave her a 7-Up on the house to go with it. Standing for a moment and loosening her shirt, she confided that she was pregnant. In fact, she was almost at her nine- month term.

Before long, Ms Zimmerman was rolling drunk and someone thought to telephone her mother. Zimmerman senior duly arrived and dragged her daughter to the nearby St Luke's hospital, where she was found to have three times the legal level of alcohol in her blood. Told by the doctors in the emergency room that they were going to deliver her baby by Caesarean section, the young woman fought to stop them. In her distress, she yelled out: "If you don't keep me here, I'm just going to go home and keep drinking and drink myself to death, and I'm going to kill this thing because I don't want it anyways."

It is a pitiful, but surely not unprecedented tale of a lost and desperate soul apparently driven to self-destruction by the demons conjured by a hopeless life. An alcoholic since her teens, Ms Zimmerman was the survivor of an abusive marriage, who had been raped several times in her life, the last time when she was pregnant. Predictably, she also had a legal history: in 1983 she was jailed for killing a Milwaukee man while drunk. The Caesarean was performed and a baby delivered alive, weighing only 4lb 6oz and displaying mild symptoms of foetal alchohol syndrome. The baby also registered a blood-alchohol level of twice the legal allowable level under state law.

Thereafter, the fate of mother and child was to fall into the hands of the state, which began by taking custody of the baby - a girl named Meagan - and placing her in foster care. While the next step might have been to offer help to the mother, instead Ms Zimmerman was charged with first- degree attempted homicide and first-degree reckless conduct for endangering her foetus before delivery. If found guilty, she faced the prospect of up to 50 years in prison for her actions that afternoon and a $10,000 fine. This Tuesday, a lower court judge ruled against an attempt to have the charges thrown out. In his ruling, Judge Dennis Barry wrote: "The instrumentality ... was not the the shooting of a bullet or the plunging of a knife. Instead, it was the massive consumption of a potentially deadly quantity of alcohol."

The Zimmerman case, which will almost certainly end up being heard by the Wisconsin Supreme Court, is believed to be the first in the United States involving homicide charges against a mother for excessive drinking while carrying a baby. It has sent ripples well beyond the boundaries of Racine and Wisconsin. Two opposing camps have quickly emerged. One, which has attracted the United States' considerable anti-abortion movement, contends that women who endanger their foetus before delivery should face criminal charges. Such women, in their view, should be seen as no different from Shakespeare's Lady Macbeth who utters the chilling lines: "I have given suck, and know how tender 'tis to love the babe that milks me. I would, while it was smiling in my face, have pluck'd my nipple from his boneless gums, and dash'd the brains out."

The other camp, in which both abortion-rights advocates as well as most of the nation's medical organisations are ranged, denounces the prosecution of Ms Zimmerman, warning against a pregnancy-police mentality which could lead to pregnant mothers facing charges for any kind of conduct viewed as potentially dangerous to a foetus, such as smoking, jogging close to term or even opting to fly in aeroplanes.

Doctors are also concerned that fear of prosecution would deter pregnant women with chronic self-abuse problems from seeking medical help. Roughly 250,000 babies are born annually in the US with drug-related afflictions caused by the addictions of their mothers.

The clash between the two sides of the abortion divide exposes several extremely tough conundrums in American law. How can the Roe v Wade ruling of the Supreme Court, establishing the right of a woman to abort a foetus before it becomes viable, square with the desire of states such as Wisconsin to imprison women who opt not to have an abortion but then endanger their unborn child through other actions? How is it possible to draw the line between the rights of the mother in such cases and the rights of the unborn child? The notion that such women can be prosecuted assumes in some degree that the child inside her womb is the property less of herself than of society at large. (Any pregnant women who has had to put up with perfect strangers patting her belly in a crowded bus or on the street knows how, in some way, ownership of what lies inside is not hers alone but also of those strangers).

The Zimmerman case is the one that has been drawing the national headlines - her case has featured on Court TV and the front cover of People magazine - but scores of similar cases are being played out in as many as 30 states. South Carolina's Supreme Court this summer reinstated an eight-year prison sentence against a woman who was accused of child abuse by taking drugs during her pregnancy. She must now go to jail, even though the child is now eight years old and in perfect health. A South Dakota court meanwhile recently ruled in favour of a woman's right to seek damages against a food manufacturer, whose product, a frozen chicken dish, gave her salmonella poisoning in the early weeks of pregnancy. The woman suffered a miscarriage because of the poisoning.

Moreover, courts in seven states have delivered rulings in defence of foetuses damaged even during the pre-viable stages of pregnancy, in other words during the same time-frame in which an abortion under Roe v Wade would have been perfectly legal. Thus, last December, the West Virginia Appeals Court ruled that an 18-week-old foetus killed in a car accident could be viewed as having been a living human being, opening the way for the father, who lost mother and foetus, to seek damages.

Prosecuting Ms Zimmerman is Joan Korb, the Racine County Prosecutor. In court, she made plain her belief that Meagan was a human being with all the legal rights while inside her mother's belly on the afternoon of the drinking binge. The unborn baby was, she declared, "a tiny child, no voice to hear. Ms Zimmerman's child is dependent on the court system to right her wrongs." The defendant, she contended, "had the duty and obligation to bring into the world a healthy child".

Lynn Paltrow, a lawyer for the Center for Reproductive Law and Policy in New York, is leading the campaign to quash the prosecution and assisting Ms Zimmerman's defence. The mother, she insists, was suffering post-traumatic stress at the time of her blow-out and should not be treated as a murderer but rather as a patient. And she is fearful of the ramifications of a guilty judgement in Racine. "The significance of the Zimmerman case at this moment in history is once you allow the courts to do this, there is no aspect of pregnancy that can't be policed and subject to prosecution."

On Tuesday, Ms Zimmerman and her defenders like Ms Paltrow, suffered an important set-back. Their hopes now rest with the Wisconsin Supreme Court justices. Meagan seems to be doing better at six months. She has the physical signs of alcohol syndrome - eyes spread wide apart and a flattened facial features - but, according to her doctors, her motor skills are showing encouraging improvement. Deborah is also displaying the normal maternal affection for her, at least at weekends when she is allowed to visit the foster home. In the words of her defence lawyer, Sally Hoelzel, in court on Tuesday: "She loves her child very much and in no way intended to harm her." The prosecution contends she had a strange way of showing it.