Should pregnant women who abuse drugs face criminal charges?

December 10, 2009 | | Comments 19

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

Filed Under: KY CourtsKY General AssemblySocial ServicesState Government

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  1. bobby says:

    okay, but what if the drugs were simply the woman’s way of performing her own abortion? In today’s economy, perhaps that person can’t afford an abortion, sot his is the alternative?

    Then, I suppose, it would be deemed ok.

    Relativism at work…

  2. jerry says:

    They should be prosecuted, being pregnant is no excuse, and if harm comes to the unborn child they should be prosecuted for that too. These “do gooders” should be prosecuted for helping endangering the child too, then just maybe they would get a life of their own and stay out of things that don`t concern them, they have enough to do at home and work to stay busy.

  3. Mike says:

    I don’t believe in abortions as a method of birth control. I don’t know how long the pregnancy can go and still have an abortion, but if they make this a law one could argue that an abortion is endangerment also. Then whatever the cutoff is for the abortion is it legal to takes drugs before the cutoff and not after the cutoff. If this becomes law then abortions should be illegal. Aborting a fetus is worse than doing drugs, although both are horrible.

  4. jim says:

    Would a mother be charged with child abuse if she knowingly malnurished a baby ?
    What is the difference ?

  5. jim says:

    Bobby, are you serious ? It appears that the logic has been fried out of your brain.

  6. heather says:

    Yes, it should be considered a form of child abuse.It is harmful and the mother is fully aware of that when she makes the decision to ingest any illegal drug.

  7. Lori says:

    So a third party can be prosecuted for killing an unborn child, but the mother cannot?? That is absurd!

  8. Vicki says:

    As a long-term advocate of substance abuse treatment services, I beleive that substance abuse addiction is an illness that must be treated or it will never “go away”. Although it would benefit both the mother and the unborn baby if substance abuse addiction was cured by pregnancy, sadly that isn’t the case. A female drug addict who becomes pregnant is then a pregnant addict and two lives are affected. Treatment offered in place of incarceration may have a desired result, but jail time alone is an ineffective intervention that will likely result in little or no long-term interruption of the addiction.

  9. Richard says:


    Vast majority of problems in schools are Fetal Alcohol Syndrom kids. These are the vast majority of special needs, vast majority of bullies, and vast majority of learning difficulties.

  10. Sarah says:

    If we start prosecuting women who are chemically dependent and use such substances during their pregnancy—we need to start prosecuting women who are eating fried foods, tuna, lunch meat, not attending parent coaching courses, speeding, or not taking prenatal vitamins during pregnancy. All of the above can be harmful to the fetus.

    We could take this to the fullest extent and prosecute anyone who speeds in their car–they are endangering the lives of others. Prison time seems appropriate.

  11. Dr Tiller says:

    Once you leave the womb, conservatives don’t care about you until you reach military age. Then you’re just what they’re looking for. Conservatives want live babies so they can raise them to be dead soldiers.

  12. "Scooter" says:

    The reason “W” didn’t send me to prison is because with a name like “Scooter” somebody would be tempted to ride me.

  13. Mysticheadlice says:

    If you are in favor of this, then get ready for a big ol’ can of worms. Women who smoke during pregnancy will have to be prosecuted. In fact, it will technically be possible to prosecute women who smoke and don’t know they are pregnant yet.

  14. Jennifer says:

    I think women who abuse drugs and alcohol during pregnancy should absolutely be prosecuted, yet they also need to be treated. Maybe in these cases, criminal charges should be the stipulation if court ordered drug treatment isn’t completed, along with a probationary period and random drug testing. Too many children are being damaged by their mothers’ drug use while they are pregnant, and something needs to be done.

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