Kentucky Rules Against “Pregnancy Prosecutions”


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On Friday, the state supreme court of Kentucky ruled in favor of Ida Cochrane, a pregnant woman prosecuted for “wanton endangerment”, a child abuse charge, when she and her newborn both tested positive for cocaine in 2005. The court ruled that Cochrane could not be prosecuted based on current state legislation, and an earlier trial court ruling, both of which prevent pregnant women struggling with substance abuse from being prosecuted for child abuse.

According to the ACLU attorney who filed an amicus brief in the case in support of Cochrane, in 1993 a law in Kentucky was passed which explicity states that you cannot use laws to “punish women struggling with substance abuse,” but prosecutors “wouldn’t be dissuaded” and brought a case against Cochrane anyway.

The ACLU became involved in the case for a variety of reasons. Not only was Ida Cochrane wrongfully prosecuted, but this is part of a larger problem, seen in recent decades in states around the country; criminally addressing substance abuse in pregnant women rather than providing care and services. Overwhelmingly, the evidence supports the best way to address addiction during pregnancy – for both mother and baby -  is through improved access to care and treatment and not through imprisonment and prosecution. As Alexis Kolbi-Molinas, attorney with the ACLU Reproductive Freedom Project, says, “Virtually every medical group in the country opposes these prosecutions and say they are bad for mothers and babies…”

As the National Advocates for Pregnant Women (NAPW) notes,

The good news is that a surprisingly broad group of organizations oppose such arrests and prosecutions. Among these are the March of Dimes and the American Medical Association. They recognize that threatening women with arrest and frightening them away from treatment is bad for women and bad for babies. They understand that many of the women who come to police attention started to use drugs long before they became pregnant as a way of numbing the pain of violence and other trauma.

Because prosecutions don’t actually protect children, and because the only way a woman who has a drug problem can be sure to avoid arrest is to have an abortion, no state legislature in the country has actually passed a law making it a crime for a woman with a drug problem to continue her pregnancy to term.

It’s an issue that’s been addressed by state legislatures and courts in many states – including New Jersey, Illinois, Wisconsin, New Mexico, Florida and South Carolina. And in all of them legislatures have confirmed that criminal laws are not intended to be used in the relationship between a pregnant woman and her fetus. South Carolina is an example, however, of what happens when lawmakers believe they can use criminal prosecution to address health issues. Kolbi-Molinas calls the effect of South Carolina’s court rulings “devastating” as she relates the story from earlier this year of a pregnant woman struggling with mental illness. The woman tried to kill herself and ended up terminating her pregnancy. She was charged with manslaughter but rather than face jail time, she’s pleading guilty to the “crime.” It’s a case with terrifying consequences for pregnant women around the country.

This interview with Kolbi-Molinas provides excellent insight into why the issue of “pregnancy prosecutions” has a much broader effect, nationally. She notes that laws that seek to criminalize pregnant women’s addiction turn pregnant women into “public property” by restricting women’s lives and ability to function in society. She recalls laws from an earlier time, at the turn of the nineteenth century – a time when state laws reduced pregnant women to “second class citizens” by legislating that pregnant women could be kept off of juries, out of universities, or that women could only work a certain number of hours each day.

Constitutionally, notes Kolbi-Molinas, prosecuting pregnant women for substance abuse does not hold up. It denies women due process and opens the door for pregnant women to be prosecuted for anything that effects the health of their fetus. The advice pregnant women receive in this country about what can – and cannot – effect the health of their fetus changes dramatically. From moderate caffeine to absolutely no caffeine (it may cause a miscarriage!); from one glass of wine a day to no alcohol; exercising regularly to none at all. And, says Kolbi-Molinas, what about pregnant women who live in rural areas with limited access to prenatal care? Would we prosecute them for not seeing a health care provider? What if one of these things caused a miscarriage? Would we want her to be criminally charged? Says NAPW of cases like Cochrane’s and others:

“Liked or disliked, misunderstood or understood, their cases have huge legal implications for all pregnant women–potentially setting a devastating precedent that could establish special, separate legal rights for the fetus and the basis for punishing all pregnant women, including those who suffer miscarriages.”

Kolbi-Molinas pre-emptively dispels the notion that taking drugs during pregnancy is a different issue than too much exercising or improper prenatal care and should be addressed criminally instead of through public health channels:

“A lot of poeple hear these cases and say – well, drinkng wine and smoking and exercising are not illegal but taking drugs is. Why can’t we make a distinction there? This argument misses the point. We aren’t saying pregnant women are exempt from the same drug laws as everyone else – if she is found to be dealing or with illegal drug paraphernalia, she can be charged just the same as anyone else.” But, says Kolbi-Molinas, use alone [of drugs] is not a crime. Otherwise every overdose, or every visit to the emergency room would result in that person being thrown in jail. It’s the idea of making it a separate crime of being pregnant while using drugs which makes it unconstitutional, she says. 

Ultimately, the Kentucky Supreme Court’s opinion on Ida Cochrane’s case was clear. Prosecuting pregnant women for acts that may threaten the health of the fetus is a “slippery slope…whereby the law could be construed as covering the full-range of pregnant woman’s behavior – a plainly unconstitutional result that would, among other things, render the statutes void for vagueness.” Pregnant women who suffer alcohol addiction or substance abuse should be afforded access to care and services through public health channels. It’s the best way to balance the rights of the fetus with the rights of the pregnant woman. Criminally prosecuting pregnant women, however, is more than a slippery slope – it’s a dead-end.

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