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Tayshea Aiwohi (courtesy: Honolulu Star-Bulletin)

The Supreme Court of Hawaii has ruled that unborn children are not “human beings,” and therefore women cannot be prosecuted for causing the death of babies by harmful behavior during their pregancies.

The unanimous decision overturns the manslaughter conviction of 32-year-old Tayshea Aiwohi, who was found guilty in connection with the death of her newborn son by smoking crystal methamphetamine shortly before his birth.

“I’m extremely happy and grateful,” said Aiwohi. “I believe [the case] changed me into a better person and I just hope to share that with others.”

“My son can finally lay to rest,” her husband, Kimo Aiwohi, told reporters. “And I’m very happy for my wife.”

Tayshea gave birth to her son, Treyson, July 15, 2001, but the boy perished within two days with high levels of methamphetamine and amphetamine in his system, according to the local coroner.

The woman allegedly admitted to using the drugs for three days before the birth and took a “hit” on the morning her son was delivered.

In their ruling, the justices cited statutes noting a crime needed to be committed against “a human being.” They declared since Treyson was not a “person” when Tayshea was smoking the drugs, she could not be prosecuted for harming the infant in her womb.

“The proscribed conduct must have been committed at a time when Treyson ‘qualified’ as a ‘person,’ defined by the Hawaii Penal Code as ‘a human being who has been born and is alive,’” they wrote.

“It is so insane,” Nancy Heisser of Grants Pass, Ore., told WorldNetDaily. “A little baby died, and the mother walks away scot-free. This is a travesty against this little one.”

Beyond this specific case, some are worried about the decision’s impact in the future.

“If something happens to any fetus under any circumstance, by [this] ruling, there could be no prosecution in any circumstance,” Republican State Sen. Sam Slom told the Honolulu Star-Bulletin.


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Rep. Sylvia Luke, D-Honolulu

But House Judiciary Chairwoman Sylvia Luke, a Democrat, agrees with the decision.

“At least from the Judiciary Committee’s standpoint, we don’t have any interest in changing the current law to allow for such prosecution. I think that runs into a very dangerous ground because it can be expanded to not just drugs, but the state infringing on the woman’s life when the woman is pregnant,” Luke told the paper. “Are we now going to say that pregnant woman can’t smoke or [dictate] how much calcium a person would take?”

Interestingly, while pregnant mothers are shielded from prosecution for their own detrimental behavior, others are not.

Under the new, federal Unborn Victims of Violence Act, people other than the mother who cause the death of an unborn child can face prosecution for the baby’s demise.


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Laci Peterson

Also known as “Laci and Conner’s Law,” the measure was enacted in the wake of the murder of Laci Peterson of Modesto, Calif., and her unborn son. Laci’s husband, Scott Peterson, was convicted of murder and is currently on death row.

In June, Gerardo Flores of Texas was convicted of capital murder and sentenced to life in prison after kicking his pregnant girlfriend repeatedly in the stomach to cause her to lose the couple’s twins. The girlfriend, Erica Basoria, did not want the babies to be born and allowed Flores to kick her, but she was not charged with any wrongdoing by the state of Texas.

Such a scenario worries John Long, executive director of the Hawaii Right to Life.

“If that had been a boyfriend or a husband pressuring [Tayshea] to take crack or alcohol … that would damage the unborn child, the ruling would have been entirely different,” he told the Star-Bulletin. “I think that’s where we got to come to grips with some sort of an equitable standard that is right for all.”

According to the Honolulu Advertiser, “no appeals court in the country has upheld a prosecution for the death of a baby based on the mother’s conduct while pregnant.”


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