MOTHER CHARGED WITH FELONY IN FETAL ALCOHOL SYNDROME CASE.

Byline: Don Terry The New York Times

On a cold night last March, Deborah J. Zimmerman, drunk and nearly nine months pregnant, was wheeled into a local hospital for an emergency Caesarean section.

As the obstetrics staff pleaded with her to allow attachment of a fetal monitor, Zimmerman at first refused. Insisting that she did not want to give birth, she told a surgical aide, ``I'm just going to go home and keep drinking and drink myself to death, and I'm going to kill this thing because I don't want it anyway.''

Later that night, she gave birth to a girl whose blood alcohol level was 0.199 percent - nearly twice the 0.10 threshold for a legal finding of intoxication in Wisconsin and more than twice the 0.08 percent that is unlawful in California drivers. Zimmerman herself, who had been downing white Russians in a bar just before she arrived at the hospital, had a blood alcohol level higher than 0.30 percent. The baby was sluggish and smaller than normal, and her forehead was flatter than it should have been, all signs of fetal alcohol syndrome.

Now Zimmerman, a 35-year-old waitress, has been charged with a felony crime, attempted murder, in a case that is stirring passions far beyond Racine, a working-class city of 85,000 people on the shores of Lake Michigan.

``As far as we can tell, this is the first time where a fetus has not died that a prosecutor is using a murder statute,'' said Priscilla J. Smith, a lawyer with the Center for Reproductive Law and Policy, in New York. ``That makes it unique. But this prosecution is only a culmination of the various attempts across the country to punish pregnant women for the disease of drug abuse or alcohol abuse.''

Since the late 1980s, Smith said, at least 200 women in more than 30 states have been prosecuted for behavior while pregnant that posed danger to their fetuses. The vast majority of the cases have involved use of illegal drugs, and the women have usually been charged with child abuse or the delivery of a controlled substance to a minor.

Most of those cases have eventually been dismissed, although in July the South Carolina Supreme Court ruled that a woman who had taken drugs while pregnant could be prosecuted for child abuse, a decision that Smith believes to be the first in which a state appeals court has upheld a verdict of guilty in such a case.

Now prosecutors here say they hope to use Wisconsin vs. Zimmerman to help persuade legislators to carve out new laws that would specifically prohibit pregnant women from hazardous behavior, like drinking or smoking, that would remain entirely legal for other adults.

``You look for cases that will help make good law,'' said Joan M. Korb, the Racine County assistant district attorney in charge of the case. ``Hopefully we'll start holding women accountable for the harm they do their unborn children.''

Alcohol abuse during pregnancy is one of the leading and costliest causes of neonatal problems in the United States, said Linda P. Kaplan, executive director of the National Association of Alcoholism and Drug Abuse Counselors, who notes that the effects of fetal alcohol syndrome can haunt a baby from the cradle to the grave.

But women like Zimmerman need treatment, not prosecution, Kaplan said. While the intent of charging them may be to compel pregnant women to take care of themselves and their fetuses, she said, she is ``concerned that more and more women will run away and hide and not seek treatment if these prosecutions continue.''

That is a chance that prosecutors here are willing to take. ``You see situations where children are damaged for life but you can't do anything about it,'' Korb said. ``These are often the same kids who end up in the judicial system as criminal defendants. The only one off the hook is the mother.''