THERE'S NO DOUBT THAT 30-YEAR-OLD THERESA Hernandez has had her troubles. An intermittent user of methamphetamines, she had her 32-week pregnancy end in April 2004 with the birth of a stillborn boy.
But "troubles" doesn't begin to describe what came next: Doctors told police her stillborn baby had tested positive for meth, and that September Hernandez was charged with first- and second-degree murder, both based on child abuse. It was the first time in Oklahoma history that a woman had ever been prosecuted for murder after suffering a stillbirth--despite the absence of evidence tying meth use to prematurity or stillbirth.
The situation got even worse. Hernandez's public defender recommended that she accept a 25-year plea bargain--despite the fact that Oklahoma has no laws under which she might have been convicted of murder. Hernandez refused, and spent three years in jail awaiting a resolution to her case. This September Hernandez accepted a plea of second-degree murder; her sentencing, which the judge has said will be for no more than 15 years, is scheduled for Dec. 21. Advocates are agitating for leniency.
In the words of Lynn Paltrow, a women's rights advocate involved in the case, Hernandez was "an innocent woman pleading guilty to a nonexistent crime." Innocent, you wonder? Guilty, clearly, of taking illegal drugs. And of killing her child? Though long-term, government-funded studies of meth have not yet been completed, there is to date no research associating meth use with stillbirth. Indeed, long-term studies of those infamous crack babies has found that their in utero drug exposure led to some behavioral problems, but not to the grotesque abnormalities predicted in the 1980s. And of killing her child in the first degree? In this century we also know enough about addiction to understand that addiction comes bundled with a host of other problems that require treatment, not arrest.
Still, despite these advances in understanding, Hernandez's case is not unique. According to a survey that will be released in 2008 by Paltrow's organization, the National Advocates for Pregnant Women, over the last 30 years hundreds of pregnant women have been arrested for abuse, neglect, or murder of their fetuses. In South Carolina, scores of pregnant women caught abusing substances have been prosecuted for child abuse and neglect, and the first woman convicted of murdering her unborn by virtue of her drug use, Regina McKnight, is serving a 12-year sentence for suffering a premature stillbirth, despite evidence that the baby died from other causes. …