Hawai'i Supreme Court justices raised concerns yesterday that might lead to a reversal of the historic manslaughter conviction of a woman whose newborn infant died because she smoked crystal methamphetamine during her pregnancy.

Associate justices Simeon Acoba and Steven Levinson questioned whether the state's manslaughter law prohibiting the killing of "another person" applies to Tayshea Aiwohi. Under state law, a fetus is not a "person."

If the prosecution prevails, it will be the first time in the country a court has upheld a homicide conviction based on a pregnant woman's conduct that leads to the death of the child, the lawyers in the case said.

The hearing before the five high court justices drew a packed gallery.

Levinson wondered whether upholding the manslaughter conviction might lead to the prosecution of a pregnant woman who is alcoholic or who smokes three packs of cigarettes a day.

City Deputy Prosecutor Glenn Kim agreed they might be subject to prosecution, but said it would require a case-by-case review and a determination by the prosecutor's office on whether to proceed.

The high court adjourned without saying when it will render a decision, although the justices issued rulings within two months of oral arguments held in two other cases this year.

Kim would not predict how the court will rule, but Aiwohi's lawyer, Todd Eddins, said he was "quite comfortable" with the way the hearing went.

"We're optimistic they'll rule in our favor," Eddins said.

Because of its potential impact, Aiwohi's case has drawn the attention of a nationwide coalition of public health advocates and drug treatment professionals who submitted a friend-of-the-court brief arguing that the prosecution will deter pregnant women from seeking adequate prenatal medical care.

Aiwohi, 32, was convicted of manslaughter in the death of her 2-day-old son, Treyson, in July 2001. She pleaded no contest on condition that she could appeal Circuit Judge Michael Town's refusal to dismiss the charge.

Aiwohi, who has five other children ages 3 to 16, did not challenge the prosecution's case that her baby died from the ice she smoked during the final days of her pregnancy and the day she gave birth. Town sentenced her in August 2004 to 10 years' probation.

Kim told the justices Treyson's life expectancy of 70 to 80 years was taken away by the actions of his mother.

"It would have been a dereliction of our duty for the prosecution not to charge" in the case, he said.

Kim argued the manslaughter law applies because Treyson had been born and was a "person" when he died.

Acoba and Levinson questioned the application.

"The premise of holding someone liable for manslaughter after the baby is born is premised on the act of causing injury to the fetus, and a person is not a fetus under the definition of our penal code," Acoba told Kim.

Levinson pressed Kim on whether the prosecution's position is that a pregnant woman could be prosecuted for any "harmful act or omission" while pregnant.

Kim said he would need more information about the hypothetical case of prosecuting a three-pack-a-day smoker, such as how aware the mother would be of the harmful effects of smoking on the fetus.

"How about an alcoholic mother?" Levinson asked.

"Of course, we would have concerns about it," Kim said. "And as a matter of law, we are saying if the particular case presented itself, we would charge it."

Kim said if manslaughter law does not apply it could lead to "unjust and absurd results," suggesting that a woman whose conduct leads to the death of her child would be immune from homicide prosecution.

Eddins said the "absurd" results would be if Aiwohi's prosecution is upheld. He said a woman could engage in risky and reckless behavior, but not be prosecuted if the pregnancy ended in stillbirth, while a woman who acts less recklessly could be prosecuted if she gives birth.

He said the prosecution's position is "trust us," but said the problem is that the discretion would be left to the "personal predilections" of the prosecutor making the decision.

Associate Justice Paula Naka-yama also wondered whether the issue is one for lawmakers.

"Would you think if our Legislature intended to criminalize acts toward a fetus it would have done so by criminalizing the act, not against the person, but prenatally against the fetus?" she asked Kim. But Kim said the manslaughter law is clear and applies to Aiwohi's case.

Aiwohi, who attends the University of Phoenix, said she hopes to set up a clean and sober house that would help addicts recover. She works for bounty hunter Duane "Dog" Chapman. Chapman and his wife were in the gallery supporting Aiwohi yesterday.

Aiwohi would not discuss her thoughts about her use of drugs until the case is over, but said she thinks of Treyson each day.

She said the case is important to her because she wants to help other women "so they don't have to go through what I had to go through."

"I just share my experience," she said. "I tell them exactly what happened to me, and they do not have to drink or use drugs and there are resources available to them if they want help."

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.