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Court says pregnant women can’t be charged for taking drugs

June 17, 2010 | | Comments Comments

By Beth Musgrave – bmusgrave@herald-leader.com

FRANKFORT — Women can not be criminally charged for abusing alcohol or drugs during pregnancy, the Kentucky Supreme Court ruled Thursday in a case that has generated national attention.

In a 5-2 decision, the court ruled that the state’s Maternal Health Act of 1992 expressly precludes women from being charged with crimes if they ingest drugs or alcohol during pregnancy.

At issue is whether police and prosecutors were correct in charging Ina Cochran with first-degree wanton endangerment after she gave birth to a child who tested positive for cocaine in 2005.

Cochran’s lawyer moved to have the charges dismissed and a Casey Circuit Court judge agreed. Prosecutors appealed to the state Court of Appeals, which ruled that the charges should be allowed under Kentucky law.

Lawyers for Cochran had argued that the General Assembly also made it clear in 2004 that women should not be prosecuted for harming their unborn children.

That year, lawmakers passed a 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.

The court, in its opinion, wrote that it was clear that the legislature never intended pregnant women to be charged. “It is the legislature, not the judiciary, that has the power to designate what is a crime,” the opinion said.

The Maternal Health Act of 1992 states that “punitive actions taken against pregnant alcohol or substance abusers would create additional problems, including discouraging these individuals from seeking the essential prenatal care.”

But in a dissenting opinion, Justice Daniel Venters said the General Assembly never intended to create a blanket immunity for pregnant women. Venters also noted that Cochran was not charged while she was pregnant.

“Because the indictment came after her baby was born, it in no way discouraged her from seeking prenatal care and it in no way deterred her from treatment she might need to deliver a healthy baby,” Venters said.

Chief Justice John D. Minton was the other dissenting justice.

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 damage the child.

Women who think they might be prosecuted for drug addiction will not seek prenatal care, might abort their children for fear of being prosecuted or will not deliver their children in a hospital, they argue.

But many police officers, prosecutors and even family members of addicted mothers have argued that more should be done to deter pregnant women from causing lasting and sometimes debilitating damage to their children.

Larry Cleveland, the Commonwealth Attorney for Franklin County, has two cases pending against women who ingested alcohol or drugs during their pregnancy. Cleveland said Thursday that he had not seen the court’s opinion but would follow the court’s opinion and likely drop those charges.

“We will follow the decision,” Cleveland said. “Even if it means that the state will have to pay for care for these children for the rest of their lives.”

Rep. Richard Henderson, D-Jeffersonville, filed a bill in this year’s legislative session that would have allowed women to be charged with substance endangerment of a child — a felony — if the child is born with alcohol or unprescribed controlled substances in his or her system.

Henderson’s bill was given a hearing after he amended the measure to change the charge to a misdemeanor but the proposal was never called for a vote.

Henderson said he will likely file the proposal again next year.

“The bill will resurface in some form,” Henderson said. “I am a firm believer that we need to get treatment for these woman … but there is a place for the criminal justice system.

“This is not Roe vs. Wade. This is about protecting lives that are already beyond those choices,” Henderson said. “My intent is not to penalize the woman but to protect the child.”

Filed Under: KY CourtsKY General AssemblyState Government

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Comments

  1. Ami says:

    This is silly, either way, the woman will abuse drugs or alcohol which will lead to unhealthy baby regardless of whether or not she seeks prenatal care. It should be illegal and a woman with a current history of such illegal abuse should be put in an institution during her pregnancy or abort a baby that will obviously not have a happy healthy life. Personally, I think offering to fix people like this for free if they are willing should be what welfare money is spent on rather than the special needs care of these poor infants.

  2. Ed Tedder says:

    This ruling is so backward and ignorant it is hard to swallow that it is the truth. Not only are those taking drugs putting their own life at risk, they are putting the child(ren) that they are carrying in pregnancy at risk. Does this mean a pregnant women cannot receive a DUI for driving under the influence of alcohol or other drugs? Or any other offense for that matter?

  3. Charlotte says:

    This is bull. When will people have responsiblity in this country? Anyone can get pregnant. Being a mother is being responsible.
    Taking drugs and drinking is not responsible. God knows if that same mother wounded a dog she would go to jail. But not the same if she wounds a baby. I will never vote for Abramson again. She is a joke.

  4. Gonzo55 says:

    A few years ago I would have been Horrified by this ruling, but in the age of Obama, what can we expect? Yes, Negligent mothers need love, understanding, and wealth spreading, not jail time and forced sterilization. Just another example of our freedom being eroded.

  5. Sally says:

    I am very heart sick at this ruling, only the mother is looked at. What about this children who are borned drug addicted and suffers for the rest of their lives because people dont’ wish to protect them. Money is more important to our authorities than the lives of these innocent babies. But the authorities forget, who will bare the burden of health and special needs care for these innocent babies. They talk about abortion, no prenatal care, many of these drug addicted babies never get the proper care. The mothers lie about the care they are receiving in order to protect themselves from the medical professionals from finding out their secret addictions. The birth of the babies and the rest of their lives are destroyed. With many health problems these infants suffer could make their lives short. So if we are protecting the women that think so little of their precious baby where does it leave us about protecting the voiceless babies left to pick up the pieces of their lives or the family dealing with the death of the child? Does anyone even think about the ramifications of such a decision?

  6. Bluekitty says:

    Kentuckians are free to be backwards, ignorant, cling to xxx, and live on entitlements.

  7. gonzo55 says:

    Not all of us can afford to go to your fancy universities and academies, and those of us who can’t believe in good Christian values, though I’m sure your book learning is a good substitute, but for us, it’s about the sacredicity of life. I’m sorry if your fellow citizens seem “ignorant” or “backwards”, but that’s how the Bible tells us to Live. And we think Life is sacred, Mothers should not be allowed to use drugs EVER, especially when pregnent.

  8. red says:

    i think everyone agrees that taking drugs while pregnant is a bad idea, for both mother and baby. heck, taking drugs period is a bad idea. but when someone seeks help for an addiction, we don’t arrest them, we help them….unless they’re pregnant? addiction is called that because a person loses the control to just stop, and no addiction is cured without some kind of support. addicted women who are pregnant will never seek out that support if we prosecute them.
    and btw, where do we draw the line on drug use? nicotine, caffeine and alcohol are all drugs with negative effects, and all are legal. are we going to throw a pregnant woman in jail if she has a latte one day? and furthermore, plenty of women don’t know they’re pregnant until well into the pregnancy….how should we punish them?
    i also find it ironic that those decrying the loss of freedom also support forced sterilization and institutions.

  9. Elayne says:

    The Supreme Court has obviously never seen the affects of substance abuse in children. It is endangerment plain and simple. I suggest the Court officials spend some time with children that were born with FAS or durg addiction and see first hand the damage caused by the ‘mothers’ drug/alcohol use before they say this is not criminal.

  10. Sick of Stupid People says:

    This has nothing to do with Obama. This has to do with the men and woman ignorant people (like you) elect into office.

  11. Buck Feshear says:

    if it’s not a criminal offense to kill your baby, why should it be a criminal offense to cause it to ingest drugs or alcohol through the mother’s bloodstream? It would be interesting to see where the pro-abortion crowd lines up on this issue.

  12. Mike Murphy says:

    It shows the hypocrisy of the law and the inroads feminism has made on the cojones of male legislators.

    If any adult addicted a child to a controlled substance they would be charged and jailed and the wrath of public opinion would descend upon them.

    Pregnant women, in this case, who have no common sense, deliberately harm their child through self aware activities and we say don’t prosecute her, the child is just collateral damage. In other words mom to be is but a child and may not seek help if the threat of jail is in play. How utterly simplistic and dangerous is such an attitude.

    Single moms are the largest predators of children born in the USA through murder and abuse. The state is condoning these unborn children to future threats. If she doesn’t give a crap before the child is born she sure isn’t going to improve after.

  13. Jane says:

    This is an article about pregnant women abusing alcohol and drugs. What does Obama have to do with this?? This has been going on way before he was ever elected into office. Gosh!

  14. Lisa says:

    If a pregnant women is abusing drugs, in my opinion she has a severe chemical dependency to a substance. If her dependency has lead her to a mental and physical state in which she can’t stop her abuse to a substance while carrying a child in her body, then chances are she will also NOT seek professional help. Most likely the women who is abusing drugs to this extent has reached her “bottom” and then some. I believe that women who have reached this level of chemical dependency(abusing while pregnant) should indeed be prosecuted. However, they should be sentenced to a long term treatment facility with other women who have been where she has been. A treatment facility that deals and specializes in treatment for women who have abused while pregnant. They should not be prosecuted and sent to jail or prison with murders and hard core criminals, but indeed sentenced to hard time getting treatment for herself and her child. If she does not follow the sentencing of treatment, then she should be sent to jail.
    It is not ok on any level to abuse any substance while pregnant. Studies are proving more and more that a fetus will be affected even into adult hood because a mother abused drugs during pregnancy. If a women drank coffee or smoked cigarettes heavily while pregnant, then they do should be sent into a treatment facility as well, perhaps for not as long etc, yet definitely should be sent for treatment too.
    the vicious cycle of abuse to ourselves keeps spinning around and around. in the 70″s my mom wasn’t prosecuted nor any of her friends for the amount of Martini’s they drank or butts they smoke while they were pregnant because they didn’t know the harmful affects the way we do today….yet it has affected a huge amount of adults my age who suffer with chemical dependencies.
    bottem line for me is…if a women is making a choice to use while pregnant, she forfeits her right to decide anything else for herself or her child until she gets treatment. if that means binging her before a court of law to get the treatment…so be it.

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  17. yeah its really nice that all the pregnant women avoid using drugs…but i say that women should never use drugs because a healthy mother gives a healthy baby.Keep this in mind.

  18. its great…
    women must avoid drugs for the next coming angel..