Thursday, February 26, 2009

Criminalizing Cocaine Abuse of Fetus

The Supreme Court of the State of Kentucky is to hear Case No. 2008-SC-000095, Commonwealth of Kentucky v. Ina Cochran: Is A Pregnant Woman Criminally Responsible for Her Fetus During Pregnancy?

The organization National Advocates for Pregnant Women has been trying to get ethicists to join an amicus curiae brief in support of the defense for a case to be heard by the Supreme Court of Kentucky. Here is the legal and ethical issue as seen by that organization:

“Ms. Cochran gave birth to her daughter Cheyenne on December 29, 2005. Both she and her daughter, who was born otherwise healthy, tested positive for cocaine. Ms. Cochran was charged with endangerment of a child, and her attorney filed for a motion to dismiss, citing Commonwealth v. Welch, a case where the Supreme Court of Kentucky held that child endangerment statutes do not apply to the context of a woman's relationship to the fetus she carries. Cochran's motion to dismiss was granted, but the State appealed.

The appellate court held, that despite binding state supreme court precedent and Kentucky law that requires issues of drug use and pregnancy to be dealt with solely in the public health sphere, that in light of feticide laws and unborn victims of violence laws meant to punish a third party's acts against a pregnant woman, the state's child endangerment statute can now apply to the pregnant woman herself. Not only does that appellate court decision effectively overrule Welch, based on highly faulty reasoning, it also undermines Kentucky's Maternal Health Act of 1992, which states ‘the General Assembly finds it is necessary to treat the problem of alcohol and drug use during pregnancy solely as a public health problem by seeking expanded access to prenatal care and to alcohol and substance abuse education and treatment programs.’

The Maternal Health Act's enlightened approach, which is in line with the position statements of practically all medical and public health organizations promoting treatment over incarceration in order to improve maternal and fetal health, is under attack by the Cochran appellate decision.

Furthermore, by blurring the line between third party acts and a pregnant woman's experiences during her pregnancy, this case focuses squarely on whether the state can view a pregnant woman in relationship to the life she carries as no different from a stranger, or a batterer, a drunk driver, or a man who brutally kills a pregnant woman."

Read Dr. Maurice Bernstein's take on this here.

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