FRANKFORT — Before he came to the state Supreme Court on Thursday, Assistant Attorney General James Shackelford received a phone call from a grandmother of a child whose mother had abused drugs during her pregnancy.
The child now has severe mental and physical disabilities, Shackelford said. The grandmother wondered why the mother had not been charged with a crime after the child was born.
Shackelford argued Thursday that mothers who ingest harmful substances while pregnant should be charged with wanton endangerment after the child is born.
But lawyers for Ina Cochran, a woman who was charged in December 2005 with one count of wanton endangerment after her daughter tested positive for cocaine, argued that Kentucky’s current statutes do not allow pregnant woman to be prosecuted for wanton endangerment. Moreover, the Kentucky General Assembly has made it clear that addicted mothers should be treated, not prosecuted, they said.
The case has garnered national attention from women’s rights groups and national medical associations who say criminalizing drug abuse of a pregnant mother will only result in damage to the child. Women who believe that they may be prosecuted for drug addiction will not seek prenatal care, may abort their child for fear of being prosecuted or will not deliver their child in a hospital, they argue.
“We believe that addiction is a health issue not a criminal justice issue,” said Mike Barry, the CEO of People Advocating Recovery, a statewide recovery group that has opposed the prosecution of addicted pregnant women.
But many cops, prosecutors and sometimes even family members argue that more should be done to deter pregnant woman from causing lasting and sometimes debilitating damage to their children.
It’s difficult to say how many women abuse drugs and alcohol during their pregnancies in Kentucky. The Cabinet for Health and Family Services, which oversees child protection in Kentucky, does not keep those statistics. And it’s difficult to say how many women have been prosecuted.
But there is some indication that babies born addicted to drugs is a mounting problem. When the cabinet asked social workers what types of training they needed, social workers overwhelmingly said they wanted to know more about babies born with drugs in their systems, said Debbie Acker, a nurse who has provided that training for the past six months.
“The problem is huge and it’s growing every day,” said Jim Grace, assistant director of Protection and Permanency, which oversees child protection. “But it’s not just in Kentucky. I think Kentucky is no different than any other state.”
After Cochran was charged, a Casey County Circuit Court judge dismissed the wanton endangerment charges. A three-judge panel of the state Court of Appeals disagreed, despite a 1993 state Supreme Court case that said a woman should not be charged if she ingests drugs while she is pregnant.
Since Cochran has been charged and the Court of Appeals released its decision, two other women in Franklin County have been charged with endangerment for taking drugs while pregnant.
In a more than hour-long argument before the Supreme Court, Jamesa Drake, an attorney for Cochran, argued that the General Assembly made it clear in 2004 that woman should not be prosecuted for harming their unborn child. That year, lawmakers passed the fetal homicide statute, which allowed prosecution of a third party for killing an unborn child.
In the bill, lawmakers said a pregnant woman could not be charged with harming her unborn child.
Moreover, the General Assembly has appropriated money for various programs aimed at educating and reducing the number of women who take harmful substances during pregnancy, Drake said.
The justices peppered Drake and Shackelford with questions about the wanton endangerment statute, the intent of the legislature and even the impact of Roe vs. Wade, the landmark U.S. Supreme Court decision legalizing abortion, on the case.
Shackelford said those opposed to the prosecution of pregnant women often say that it would actually hurt the child, but can provide no evidence to back up their claims.
“It’s not very clear that the harms that (Drake) envisions are in fact going to happen,” Shackelford said.
It is not clear when the state Supreme Court will rule on the case.
— Beth Musgrave