Abortion most desperate

A year ago a pregnant woman turned a gun on her bulging abdomen. Now America is trying to decide how to punish her. Liz Hunt reports

When she was six months pregnant, Kawana Michele Ashley took a gun and shot herself in the stomach because she could not afford an abortion. But the bullet missed the baby's vital organs and instead shattered its tiny wrist.

Kawana Ashley, then 19, was rushed to the Bayfront Medical Center in St Petersburg, Florida, where doctors carried out an emergency Caesarean delivery. The baby was born alive and named Brittany Ashley. She died from kidney and lung failure 13 days later on 11 April 1994. Her mother was charged with third-degree murder and manslaughter and arrested.

The complex case of Kawana Ashley and her daughter Brittany is taxing the best legal brains in America and the consciences of millions. More than any other case in US legal history it begs an answer to the question "when does life begin legally?".

Although the baby survived for nearly two weeks, she was not a viable foetus under Florida's tightly worded abortion law. Could a murder/ manslaughter charge be made to stick? The state believed it could: that because Brittany Ashley was born alive she legally became a human being and therefore a murder victim.

Civil rights organisations have also leapt on the Kawana Ashley bandwagon. Initially the rallying cry centred on the government's failure to provide publicly funded abortions. Desperate women who could not pay for a termination were being forced into attempting their own illegal abortions, they said. They pointed to the human suffering that resulted, and warned that there would be more women like Ms Ashley if the "pro-family, moral majority, anti-abortion Republican right" increased their stranglehold on the public purse strings.

Lately the libertarians have moved position and the issue has become a question of privacy and civil rights. Charlene Carres, a Civil Liberties Union lobbyist, says: "What a person does to her own body in these circumstances is probably a protected privacy right - as unpleasant as that sounds."

More predictably, Ms Ashley's case has intensified the bitter divide between the anti-abortion lobby and the pro-choicers, at a time when the latter are still reeling from the murder of abortion clinic employees by extremists. Preliminary hearings have degenerated into slanging matches on the court steps between two groups vying for media attention.

For the Center for Reproductive Law and Policy in New York, however, which is representing Ms Ashley, the case revolves around an abuse of the laws on homicide and abortion. And, they say, there is a more profound issue at stake: the rights of a pregnant woman versus the rights of her unborn child.

"The state is trying to use homicide statutes to punish criminal abortion. If this was a criminal abortion then she should be punished under the criminal abortion statutes, which in Florida find the woman not liable," says Priscilla Smith, a fellowship attorney at the centre and co-counsel for Ms Ashley.

It is a "highly unusual" case, Ms Smith adds. In the only similar cases on record, three mothers have been charged for harming their babies by taking drugs while pregnant. These have not resulted in a successful prosecution to date.

While the moral and legal wrangling goes on, Kawana Ashley is trying to get on with her life. She did have a job as a cashier but was laid off as a result of the publicity. She is now attending junior college in Florida. Her own statements to police and lawyers have done little to clarify her motivation in the shooting. She has told them variously that she wanted to hurt her baby, that she didn't want to harm it, and subsequently that she was trying to commit suicide.

Brittany was Ms Ashley's second child. She also had a three-year-old son and they lived with her grandmother, Rosa Ashley, in St Petersburg. Rosa had care and custody of the little boy because, as she told police, Kawana was not willing to look after him - although her relationship with her son was a good one. Rosa Ashley had told her, however, that she would not look after any more of her children.

When Ms Ashley became pregnant for the second time in the autumn of 1993, she told no one in her immediate family. A friend has told local news- papers that she had gone to an abortion clinic but was unable to pay the $1,350 (£850) fee demanded for the operation.

She was between 25 and 26 weeks pregnant when, according to court documents, police were called to a shooting at a house on 10th Avenue South at 10.40am on 27 March 1994.

Detective Terry Babb of the St Petersburg Police Department was told by officers first on the scene that Ms Ashley said she was the victim of a drive-by shooting. But further inquiry elicited that no one else had heard the shots, and the detective learnt that Kawana Ashley had taken a pillow, held it against her abdomen, and fired a .22 calibre pistol into it.

She is alleged to have told a police sergeant that "she had shot herself in order to hurt the baby". She also told him where the weapon could be found. But next day, when questioned further, she is alleged to have told Detective Babb: "I did not try to kill my baby. I want the baby. That's all I want to say."

Evidence from Sharrona Faye Wright, a family friend, further clouded the case. Ms Wright told police that Ms Ashley had "indicated" that she might shoot herself in the stomach but that she had believed the teenager was being "flippant". She had also told Ms Wright that the gun had gone off accidentally.

Dr Robert Davis, an assistant medical examiner for Pinellas County who conducted the autopsy on Brittany, was in no doubt about the result of the shooting. The death was a homicide, he told the Police Department. The baby "died as a result of complications of prematurity, following premature labour that was traumatically induced." The charges against Ms Ashley were filed shortly after.

In January this year the controversy took a new turn when, after months of deliberation, Judge Brandt Downey of the Pinellas-Pasco circuit ruled that Ms Ashley's crude attempt at abortion was not murder. Doug Ellis, assistant state attorney, had argued that she could be charged with third- degree murder because she was engaged in a criminal act - an illegal abortion - that resulted in the death of a child. If Ms Ashley had managed to kill her baby in the womb, Mr Ellis said, then she could have been charged with an illegal abortion but not murder.

Judge Downey disagreed - in part. He threw out the third-degree murder charge but he let the charge of manslaughter stand. "A jury could potentially convict Miss Ashley of manslaughter," he said. In his ruling the judge suggested that Kawana Ashley could also be charged with illegally aborting a late-term pregnancy, although this charge has not been brought against her.

Judge Downey said the question of what Ms Ashley is charged with depends on what she intended when she picked up the gun. Did she intend to hurt her baby? In other cases where mothers have taken drugs while pregnant and have been charged with harming their babies as a result "there was no intent to hurt the child", he said. "But there sure as hell is here."

Priscilla Smith, arguing for the defence, said that laws on homicide do not cover abortion, and should not be made to do so by the court.

The judge appeared to take a middle line somewhere between the two arguments. He said that a third-degree murder charge would be justified only if the killing was unintentional. But if Kawana Ashley shot herself to abort her foetus, then the killing was clearly intentional. To prove a man-slaughter charge, however, the state need not show her intent. They need only show that Ms Ashley's actions demonstrated a reckless disregard for human life.

In May, three judges in Florida's Appellant Court will hear appeals against Judge Downey's ruling. The prosecution want to reinstate the third-degree murder charge; the defence are appealing for a dismissal of the manslaughter charge which the Center for Reproductive Law and Policy sees as a fundamental assault on the rights of Kawana Ashley, according to Ms Smith.

"If a [pregnant] woman is found guilty of manslaughter [of her foetus] because of culpable negligence, then it will open a whole new can of worms.

"A pregnant woman who has an accident while driving could be liable; a pregnant woman who crosses the road and is knocked over could be accused ... It is putting the woman and the foetus in conflict, making enemies of them. It is putting the rights of the foetus ahead of the rights of the woman."