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Dallas�In a new twist on a law that defines a fetus as a person, an Amarillo, Texas, woman is scheduled to go to trial this week for delivering cocaine to her baby while it was still in her womb. S.B. 319, passed by the Texas Legislature in 2003, changed the definition for an individual in the state Penal Code and Civil Practice and Remedies Code to include “an unborn child at every stage of gestation from fertilization until birth.” The purpose of the change, according to an analysis by the state Senate Research Center, is to allow a person who harms or kills an unborn child to be criminally prosecuted or sued by the child’s parents. Joe Dawson, attorney for Tracy Ward, said Potter County prosecutors believe they can prosecute a woman for ingesting a controlled substance that affects her unborn child. “The Legislature did not intend for women to be prosecuted like this,” said Dawson, a partner in Storrs, Pirtle & Dawson in Amarillo. Rebecca King, district attorney for the 47th District, one of five district courts in Potter County, said the Legislature may not have intended it but that she believes the change in the definition of an individual requires such prosecutions. “I don’t think I have a right to ignore something,” King said. Potter County is prosecuting Ward under Health and Safety Code 481.122, which makes it a second-degree felony to deliver a controlled substance to a child younger than 18. The indictment that a grand jury in the 320th District Court, also in Potter County, returned against Ward last year charges the 29-year-old woman with knowingly delivering cocaine to her son, Roger, on Oct. 31, 2003. King said the baby, who now lives with relatives, tested positive for cocaine at birth. Scott Gilmore, chief of staff for state Representative Ray Allen, House sponsor of S.B. 319, said the Legislature included language in the Penal and the Civil Practice and Remedies codes that makes it inapplicable in either a criminal prosecution or a civil action to the conduct of the unborn child’s mother so that the law would not apply to a woman having an abortion. “The law does not apply to a mother’s conduct,” Gilmore said. But King said the Legislature did not include an exception for the mother’s conduct in the Health and Safety Code. “It can’t matter what somebody thought he was passing, thought he was voting on,” King said. “The clear reading of the statute is there . . . .When somebody knowingly delivers a controlled substance to a child, then that’s that.” The delivery issue University of Texas School of Law professor Robert O. Dawson, who teaches criminal law, said the new definition of an individual in the Penal Code has to apply unless there is some reason it should not apply. If it’s absurd or it doesn’t make sense to apply the definition to the Health and Safety Code provision, then it shouldn’t be applied, he said. “Under the [U.S. Constitution], a mother has a right to abort a child,” the law professor said. Robert Dawson said an abortion would be more harmful to the child than if its mother takes drugs. Prosecuting a woman for delivering a controlled substance to her unborn child is “totally inconsistent with the whole philosophy underlying abortion,” he said. Another issue, Robert Dawson said, is the meaning of “delivery” under the Health and Safety Code. “What clearly seems to be contemplated with delivery is either the sale or gift [of a controlled substance] from one person to another,” he said. “That’s not what happened here. It really is an ideological prosecution.” King said she has no agenda. “I did not jump up and click my heels and say, ‘Here we go,’ after reading the law,” she said. “It was, “Oh my God.’ “ If convicted of delivering a controlled substance to a child, Ward faces from two to 20 years in prison.

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