FRANKFORT — Women cannot 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.
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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 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's attorney for Franklin County, has two cases pending against women who ingested alcohol or drugs during their pregnancies. Cleveland said Thursday that he had not seen the court's opinion but would follow it and probably 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 during 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 probably will file the proposal again.
"The bill will resurface in some form," he said. "I am a firm believer that we need to get treatment for these women ... 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."