Woman Is Acquitted in Test of Obligation to an Unborn Child

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Times Staff Writer

Pamela Rae Stewart, the El Cajon woman who was jailed for six days on charges that she contributed to her infant son’s death by ignoring a doctor’s orders during pregnancy, did not commit a crime, a San Diego Municipal Court judge ruled Thursday.

Capping a case that drew national attention from feminists, legal scholars and doctors, Municipal Judge E. Mac Amos Jr. ruled that the San Diego County district attorney’s office erred in using a law concerning child support to prosecute Stewart for failing to provide proper medical care for her unborn son.

“After reviewing the legislative history and intent of this statute,” Amos said as he concluded a 30-minute explanation of his ruling, “this court finds that the facts in this case do not constitute a violation of Section 270 of the California Penal Code.”


The judge did, however, say he believed the state Legislature “could, under certain narrowly defined circumstances, restrict the actions of pregnant women” in an effort to protect the health of fetuses.

Stewart, the mother of two, was absent from Thursday’s hearing and attempts to reach her for comment were unsuccessful. But her attorneys applauded the ruling and said they hoped it would discourage prosecutors across the country from attempting to punish women for their behavior during pregnancy.

“This decision is a real victory for Pamela Rae Stewart,” said Lynn M. Paltrow of the American Civil Liberties Union’s Reproductive Freedom Project. “It also removes a major threat to all the women of California and a threat to California’s future generations.”

Defense attorney Richard Boesen said he was “delighted” that Amos had “given Pamela Rae Stewart the opportunity to get her life back in order and leave behind the humiliation, the embarrassment and the degradation of having been wrongly accused of a crime.”

Deputy Dist. Atty. Robert Phillips, one of two prosecutors handling the case, said he was uncertain whether the ruling would be appealed.

“I believe the judge was in error,” Phillips said. “I think it was fair to hold Pamela Rae Stewart criminally liable under this statute. We will sit down and review the transcript to see if it’s an appealable ruling.”


Stewart, 28, was arrested in October in connection with the death of her son 10 months earlier. The boy, Thomas Travis Monson, was born with severe disabilities Nov. 23, 1985, and died Jan. 1.

Prosecutors alleged that Stewart, who had an unusual medical condition known as placenta previa, contributed to her son’s death by ignoring the advice of her doctor. The physician told his patient to refrain from using street drugs, to avoid sexual intercourse and to seek medical attention immediately if she began bleeding.

El Cajon police launched an investigation after the physician who delivered Thomas notified the county’s Child Protective Service division that he was born with traces of amphetamine in his bloodstream. Stewart was arrested and held in jail until her bail was reduced from $10,000 to $2,500.

Prosecutors sought to prove that Stewart--who insists that she followed doctor’s orders--willfully ignored medical advice knowing that such actions might be detrimental to her baby.

The district attorney’s office brought the charge under a statute historically used to punish parents for failing to pay child support. The law specifies that parents are responsible for providing such support from the moment of conception, and Deputy Dist. Atty. Harry Elias argued that Stewart’s actions constituted a violation. The misdemeanor charge was punishable by up to a year in jail and a $2,000 fine.

The defense team, meanwhile, contended that such an interpretation of the statute constituted a violation of Stewart’s rights to privacy and due process under the law. Defense attorneys warned that their client’s conviction under the failure-to-care statute would open a “Pandora’s box” that could subject pregnant women to punishment for consuming alcohol, smoking or any other behavior deemed harmful to a fetus.


Boesen, Paltrow and ACLU attorney Judith Rosen also argued that the prosecution’s interpretation of the statute, originally enacted in 1872, was contrary to the law’s legislative history. In a mammoth file submitted for consideration by Amos, the defense presented a declaration by state Sen. Barry Keene (D-Benicia)--author of a 1973 amendment to the law--that specifies its intended use as a child support statute.

In making his ruling, Judge Amos said he agreed that the Legislature never sought to have the law used as a mechanism for regulating pregnant women’s conduct. But in a statement that feminists and ACLU officials found disturbing, the judge declared that state representatives could pass a constitutionally valid law protecting the life of an unborn child.

“It would appear to this court that since (the landmark U.S. Supreme Court abortion ruling Roe vs. Wade gives) the state a compelling interest in the health of the fetus during the last trimester, the state Legislature could pass a statute protecting the life of the unborn child under narrowly defined conditions,” Amos said.

The ACLU’S Paltrow, in a press conference after the ruling, disagreed, noting that there “is no point at which the use of the criminal justice system to punish pregnant women” is appropriate.

“I would hope the Legislature ignores that suggestion from the judge and goes ahead and does things that are constitutional and legal and beneficial to women and babies, like spending more money in the state budget on providing prenatal care,” Paltrow said. “There is no statute that could be drawn narrowly enough” to withstand a constitutional test.

Because of its possible implications for women and impact on their obligations to fetuses, the Stewart case has attracted nationwide interest from legal scholars and numerous women’s and obstetricians’ groups. Nine such groups joined in the filing of a friendly brief on behalf of Stewart, urging that the charge be dismissed.


The significant issues in the case even prompted an ABC-TV Nightline segment earlier this week.

By late afternoon Thursday, Boesen said he had yet to inform Stewart and her husband, Thomas Monson, of the judge’s decision terminating the criminal proceeding.

Boesen said he was looking forward to informing them that they could “once again walk down the street and hold their head high” and “put the emotional turmoil of this case, amplified by the loss of their child,” behind them.