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Thursday, December 10, 2009
Courts - "Kentucky Court will reconsider fetuses, drug use: Some maintain that it's a form of child abuse"
From a lengthy story dated Dec. 9th, by Andrew Wolfson in the Louisville Courier Journal:
When Ina Cochran and her newborn daughter both tested positive for cocaine after the child's birth Dec. 29, 2005, Cochran was charged with a crime — wantonly engaging in conduct that created a risk of death or serious physical injury to another person.The prosecution alleged Cochran had ingested the drug a few days before the birth — knowing it might endanger her unborn child.
The charge was dismissed by a Casey Circuit Court judge who cited a 1993 decision in which the Kentucky Supreme Court expressly said that pregnant mothers can't be prosecuted for abusing children in utero because an unborn child is not a “person” under the state penal code.
But the Court of Appeals reinstated Cochran's indictment, and Thursday, the state Supreme Court will reconsider the issue against the backdrop of a new legal landscape in which both the court and the General Assembly in recent years have made fetal homicide a crime.
Although her daughter survived, the Kentucky attorney general's office contends “it would be absurd to recognize the viable fetus as a person for purpose of homicide laws but not for the purposes of statutes proscribing child abuse.”
Cochran's supporters disagree, noting that even as the legislature made it a crime for a third party to kill a fetus, it exempted from prosecution any acts of the pregnant woman, in part to prevent the prosecution of women who obtain legal abortions.
“It betrays logic to suggest, as the commonwealth does, that the legislature intended to punish a woman for endangering her unborn child but not for actually killing it,” Cochran's lawyers, assistant public advocates Jamesa Drake and Kathleen Schmidt, say in a brief.
They and other advocates for Cochran, including medical organizations and women's groups that have filed friend-of-the-court briefs, say that prosecuting drug-abusing pregnant women will endanger both the mothers and their babies by discouraging such women from seeking prenatal care and giving birth in hospitals.
They also note that the Kentucky legislature specifically said in its 1992 Maternal Health Act that alcohol and drug use during pregnancy should be treated “solely as a public health problem” rather than through “punitive actions,” and it barred using the results of prenatal screening as evidence in criminal prosecutions. * * *
The state Supreme Court seemed to permanently foreclose such prosecutions in 1993, when it voted 5-2 to throw out the child-abuse conviction of Connie Welch O'Neal, a former drug addict who was found to have used Percodan, a narcotic painkiller, during her eighth month of pregnancy. She was charged after she gave birth to a son who had temporary withdrawal symptoms.
Besides finding that O'Neal's unborn son wasn't a “person” for purposes of criminal prosecutions, Justice Charles Leibson, writing for the court, said that if it upheld her conviction, pregnant women could be prosecuted for smoking cigarettes, drinking too much alcohol, exceeding the speed limit or even for downhill skiing, because all of those activities create a serious risk of injury to the fetus.
Shackelford argues that the Supreme Court in Cochran's case need not concern itself with lawful conduct of women that might endanger their fetuses.
He also said the court in effect abandoned the O'Neal decision in 2004, when it held that a person could be prosecuted for killing a fetus. The ruling came in the case of a defendant who pleaded guilty to two counts of manslaughter after a crash in Pikeville that killed a pregnant woman and her fetus.
Posted by Marcia Oddi on December 10, 2009 02:34 PM
Posted to Courts in general