Prosecutors decided not the pursue a murder or manslaughter charge against Amber Abreu, 18, of Lawrence, because it would have been too difficult to prove the case in court, a spokesman for the Essex County District Attorney said yesterday.
But Abreu will face a charge of procuring a miscarriage, which carries a sentence of up to seven years in jail.
She will face that charge in Superior Court, since an Essex County grand jury yesterday handed up an indictment against her. She will be arraigned on the new charge in the next two weeks.
Lawrence Police Chief John Romero had wanted to bring a more serious manslaughter charge against Abreu, but ultimately was powerless to decide whether it would stick in court.
"The decision on how to pursue the case is that of the DA's Office," Romero said. "The DA makes the decision."
Steve O'Connell, spokesman for the district attorney's office, said the decision was made because it would have been hard to show that the baby could have been expected to survive after being born so early.
Abreu went to Lawrence General Hospital on Jan. 6, complaining of abdominal pains. Shortly thereafter she gave birth to her daughter, who weighed just 11/4pounds. The baby, a girl named Ashney, was taken to New England Medical Center in Boston where she died four days later.
Prosecutors believe Abreu was 25 weeks pregnant.
It is alleged that Abreu took the prescription drug misoprostol, commonly used to prevent ulcers but also contained in the abortion pill RU-486.
Romero noted that Abreu could still spend time behind bars on the lesser charge of procuring a miscarriage.
"The charges are serious charges," he said.
Massachusetts General Law prohibits the use of any poison, drug, medicine or other noxious thing to be used to procure a miscarriage. The law can be used against the mother or anyone who administers, advises or prescribes her any such method to procure a miscarriage.
At the time, police said Abreu admitted to investigators she took three pills over two days.
Known by its brand name, Cytotec, misoprostol is also combined with the drug mifepristone in RU-486 and is used legally to end pregnancies until the eighth week. It is illegal in the United States to use misoprostol on its own to cause an abortion. Abortions in Massachusetts are legal until the 24th week of pregnancy.
Police said Abreu told investigators she got the pills from a friend visiting from the Dominican Republic after confiding she thought she was pregnant.
Police were made aware of the situation by a social worker at the Boston hospital, who became concerned when Abreu gave conflicting statements as to how much of the drug she ingested and because she checked herself out of the hospital.
The case will be prosecuted by Essex Assistant District Attorney Kate MacDougall. Abreu is represented by attorney Amanda Barker of the Committee for Public Counsel Services.