September/October, 1999 Volume XIII Number 8

Alcohol, Abortion Law and a Sad Little Girl

A Troubling Case in Wisconsin

By Bill OíReilly

In a troubling case in Wisconsin, a woman charged with attempting to kill her child with alcohol may not only avoid having to answer for the crime but may even seek to regain custody of the little girl, who was taken away from her by the state.
Even sadder is the way the courts and lawyers involved appear to care more about such issues as abortion law and the civil rights of smokers than the welfare of a defenseless child brutalized by its mother.
In 1996, Deborah Zimmerman, pregnant and on her due date, went to a bar in Madison. There, she drank White Russians and made comments about the baby she did not want. After she was drunk, friends helped the 37-year-old woman to the hospital. When she arrived, her blood alcohol level was 0.30, three times the legal limit. Zimmerman was also agitated and told hospital workers: "I want to kill this thing because I donít want it."

First-degree intentional homicide

A few hours later, she gave birth to a baby girl whose own blood alcohol level was 0.199. Born limp and pallid, the baby was immediately taken away from Zimmerman, who was arrested and charged with attempted first-degree intentional homicide and first-degree reckless injury.
But Deborah Zimmerman never got to trial. Her pro-bono lawyers contended that her alcohol abuse during pregnancy was only directed at herself, because the fetus, even on the day of delivery, is not a human being. The state of Wisconsin countered, citing a state law forbidding anyone from harming a mother and her fetus. In his case, Zimmerman was harming herself and her fetus so she was liable for criminal charges.
At the first hearing, the state was allowed to go forward with charges against Zimmerman, who was then in jail for violating a bond agreement. Her lawyers immediately appealed to the Wisconsin Court of Appeals, which reversed the lower courtís ruling. The appeals court found that the fetus was not a human being under state Law.
"The term Ďhuman beingí was not intended to refer to an unborn child," the appeals court said.
The Supreme Court of Wisconsin then heard the case and deadlocked 3-3 on the validity of the prosecution. So, as it stands now, Zimmerman will be released from jail in September unless the state Supreme Court revises its decision, which seems unlikely.

A Ďcivil rightsí case?

Zimmermanís lawyer, Sally Hoelzel, is overjoyed by the decision. Incredibly, she sees the Zimmerman case as a civil rights test. "If Deborah was prosecuted, you could risk criminal behavior for anything from smoking during pregnancy to getting on a plane against your doctorís advice," she explained.
Of course, this rationalization does not speak to intent. According to eyewitnesses, it was clearly Zimmermanís intent to kill her baby just hours before it was to be born. And although the child suffered physical damage because of Zimmermanís behavior, it looks like the woman will not be held accountable.
I think most people would agree that this kind of behavior is barbaric. But what about the behavior of judges who feel it is within the law to destroy a fetus that is perfectly capable of living on its own? No one argues that Zimmermanís baby could have survived if it had been born premature. Yet, because of legal wording, the state of Wisconsin says Zimmerman is allowed to try to kill her fetus right up until the moment it is born.

Destroyed moments before delivery?

No clear-thinking individual can possibly believe it is OK to destroy a baby moments before it is delivered. What is going on here?
The answer to that question can be found in the pro-choice movement. Because of fears that abortion will once again become illegal in America, the pro-choice lobby has emphasized in its many legal briefs that the fetus is something less than human with no legal rights up until the moment of birth. Millions of Americans have bought into this concept, and outside of the state of South Carolina, which does legally protect the fetus, any mother can brutalize her fetus in any way up until birth and, in most situations, not be prosecuted.
But even thatís not the end of it in the Zimmerman case.
It now appears the charges against her are likely be dropped. Her lawyer says Zimmerman may try to regain custody of the little girl, now 3, who is in a foster home.
The sad thing is that she probably has a good chance of succeeding. If the wording in a custody case like this is just a trifle vague, you can bet that some judge will put word games above the safety of the little girl.
After all, we are no longer a nation that designs the rule of law to protect the most vulnerable. We are now a nation that puts right and wrong in the bottom drawer -- and callous, shallow rulings on the top shelf.

Bill OíReilly is the anchor of the Fox News Channel show The OíReilly Factor and the author of the crime novel Those Who Trespass.

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A log in our own eye
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