Illicit drug use while pregnant does not constitute child abuse under New Mexico state law, the state's Court of Appeals ruled Monday in New Mexico v. Martinez. In so doing, it threw out the conviction of a Lea County woman who was convicted of child abuse after her daughter was born with high levels of cocaine in her blood. The woman admitted smoking crack and drinking alcohol late in her pregnancy.
The state legislature did not intend for a fetus to be considered a human being in the context of the child abuse law, the court held. "This court may not expand the meaning of 'human being' to include an unborn viable fetus because the power to define crimes and to establish criminal penalties is exclusively a legislative function," said the opinion signed by Appeals Court Judge Ira Robinson.
The ruling follows the precedent of a 1982 case where the court held that a fetus is not a human being in the context of the state's vehicular homicide statute. The court noted that the legislature has enacted laws that specifically include fetuses under a criminal statute, but that it had failed to do so in this instance.
Assistant Attorney General Arthur Pepin told the Associated Press he would appeal the ruling to the state Supreme Court. He argued unsuccessfully that the child abuse occurred once the baby was born "and the abuse was the continuing act of essentially having poisoned the child by introducing crack cocaine into its bloodstream."
But the court didn't buy it.