Angered by a lack of legal protection for the unborn, a state Senate Republican will propose new criminal penalties against people whose actions lead to the death of unborn children.

The Hawai'i Supreme Court last month reversed a manslaughter conviction against a Kane'ohe woman for causing the death of her newborn baby by smoking crystal methamphetamine, or ice, while she was pregnant. The court ruled the fetus was not a person covered under state law when the woman, Tayshea Aiwohi, used the drug.

The ruling also likely means people who harm or kill unborn children in assaults on pregnant women would not be prosecuted for that part of their crimes. Legal observers were watching the case of a Big Island woman, Sarah Fay, who allegedly was beaten by her former boyfriend and then kept alive by a respirator until doctors were able to deliver her baby on Monday.

Although Fay's baby survived, state Sen. Sam Slom, R-8th (Kahala, Hawai'i Kai), said her example, and the death of Aiwohi's baby, showed the need for tougher laws. Similar bills have failed in the past, but Slom said he believes the recent cases may lead majority Democrats to support new protections if there is public pressure.

"You're giving people a free ride," Slom said. "What does it mean when you send a signal that it's open field day on any woman that's pregnant? That there is nothing that could be done to any third-party person under any circumstances?"

Constitutional law experts and people who work with victims of domestic violence said such laws are complicated, since they involve questions about the beginning of life, and, inevitably, abortion. Granting legal protection to an unborn child may make it more difficult to legally defend abortion.

"We have concerns about any legislation that would separate the life of the unborn child from the life of the mother, because of our concerns about a woman's right to choose," said Carol Lee, the executive director of the Hawai'i State Coalition Against Domestic Violence.

Slom said he understood the court's reversal of Aiwohi's conviction, since no state law covers her conduct and only one other state, South Carolina, has upheld a similar conviction. But he said the court overstepped by declaring the fetus was not a person and by suggesting others would not be prosecuted for killing unborn children.

Next session, Slom will propose new criminal penalties against women who kill unborn children defined as being viable, meaning they could survive outside the womb either naturally or through artificial life support. A second bill would impose new penalties against others who kill or harm unborn children from conception until birth. The bill would, for example, mean that someone who assaulted a woman could be charged with killing her unborn child even if it was not apparent she was pregnant.

State Senate Majority Leader Colleen Hanabusa, D-21st (Nanakuli, Makaha), chairwoman of the Senate Judiciary and Hawaiian Affairs Committee, said she doubts lawmakers will punish pregnant women who harm their unborn children. State Rep. Sylvia Luke, D-26th (Punchbowl, Pacific Heights, Nu'uanu Valley), chairwoman of the House Judiciary Committee, has already said she would not support such a bill.

But Hanabusa said she would consider a law aimed at people who kill or harm unborn children during assaults on pregnant women, which exist in several other states. Hanabusa said the Supreme Court appeared to be inviting the Legislature to take action by noting in the Aiwohi ruling that others would not likely be prosecuted for killing unborn children.

"I'm willing to take a look at it," Hanabusa said.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.