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Woman cleared in attempt to kill fetus

The Florida Supreme Court ruled Thursday that a St. Petersburg woman cannot be prosecuted for shooting herself in the womb in an attempt to end her pregnancy.

The case against Kawana Ashley, who was charged with manslaughter and murder in 1994, had attracted the interest of leaders in both the nation's abortion rights and anti-abortion movements. Each side was anxiously waiting to see if the court would hold a woman accountable for the viability of her fetus or would place restrictions on a woman's right to privacy.

In the end, the court said it would not "pit woman against fetus."

"As we have said time and again, the making of social policy is a matter within the purview of the Legislature _ not this court," the ruling said.

The ruling did not address the larger issues and instead said simply that no state law currently exists to criminalize what a woman does to her fetus. The court turned to a common-law doctrine that gives women immunity for any behavior that could affect the health of the fetus inside them.

The 2nd District Court of Appeal ruled in March 1996 that Ashley could be prosecuted for manslaughter because her actions led to the premature delivery of her child and, ultimately, the baby girl's death from organ failure.

The Supreme Court's decision Thursday will effectively end the state's case against Ashley. Pinellas prosecutors are not planning to petition for a rehearing after the unanimous decision.

"What the court has done is recognize that the relationship between a woman and her fetus is different than anyone else _ it is part of her body," said Priscilla Smith, an attorney at the Center for Reproductive Law and Policy, which helped defend Ashley.

"If the prosecution had been allowed to go forward, it would have been devastating because it would have meant that pregnant women could have been prosecuted for anything they did during their pregnancy. The fact the court has said no assures constitutional protections for women."

Ashley was an unemployed student who already had one child when she became pregnant again at the age of 19. She lacked the money to pay for an abortion, and Medicaid would not cover the cost of the procedure.

By the time Ashley had saved enough money for the abortion, her pregnancy had progressed to the third trimester. In March 1994, she put a pillow over her abdomen and shot herself with a .22-caliber pistol. The bullet struck the fetus on the wrist, and the fetus was delivered by Caesarean section. The girl, named Brittany, died 15 days later of organ failure related to her premature birth.

Ashley first told police she had been hit in a drive-by shooting. Then she said she had shot herself to hurt the baby. Then she said she had intended to hurt no one but herself. Pinellas prosecutors eventually charged her with manslaughter and third-degree murder.

As the case began attracting national attention, a circuit judge dismissed the murder charge but upheld the manslaughter charge. The 2nd District Court of Appeal issued a similar ruling, and the case was sent to the Florida Supreme Court.

The state's high court said third parties _ such as a man who kicks a pregnant woman in the abdomen and causes the fetus to die _ can be held criminally liable for their actions. But the court said the pregnant woman cannot be, pointing out in its ruling that Florida legislators have not passed any laws revoking the immunity given pregnant women by common law.

"Our review of the present record reveals no novel legislative intent to trump the common law and pit woman against fetus in criminal court," the court wrote, questioning the prosecution's assertions during the case. "The concept of a self-induced abortion via .22-caliber bullet is dubious in itself and highly questionable as a procedure intended to be regulated."

Matt Ozolnieks, vice president and legislative director of Florida Right to Life, said the opinion was full of legal doublespeak.

"Here you have a woman who willfully killed her child, and she's being let off because the law doesn't expressly prohibit her actions," he said.

By throwing out the charges, he said, the court has passed on a chance to force Ashley into counseling, which she desperately needs if she would shoot herself in the abdomen. He said the abortion clinic that turned Ashley away should have offered her guidance on her alternatives to ending the pregnancy.

"She was in a desperate position. Her only option here was to kill the baby. It's a pathetic situation for any woman to be in," Ozolnieks said.

Pinellas prosecutors have no plans to appeal the case further. Thursday's court decision follows a long list of cases in which judges in Florida and elsewhere have declined to hold women liable for their conduct during pregnancy _ including a 1992 Florida case in which the Florida Supreme Court ruled that a pregnant woman cannot be held criminally liable for passing cocaine to a fetus.

"In that sense, this is another important decision that stands for the proposition that you can't have the government going around and monitoring women and monitoring the health of the fetus," said Louise Melling, a lawyer with the American Civil Liberties Union and its Reproductive Freedom Project, which filed briefs with the Florida Supreme Court on Ashley's behalf.

Ashley, who is now 23, could not be reached for comment Thursday. But her local lawyer, assistant public defender Bruce Johnson, said she was relieved to learn the court's ruling.

"I think she realized it had greater significance," he said, "but I'm not sure she fully understood the potential impact it would've had across the nation, with all the issues being raised in conjunction with this."

The case has been a substantial burden on Ashley, said her grandmother, Rosa Ashley.

"Picture yourself with something hanging over you. It's a burden lifted," Rosa Ashley said. "All I can say is, thank the Lord. Prayer can change things."

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