FRANKFORT — Mothers of drug- and alcohol-addicted newborns could face criminal prosecution under a controversial measure proposed last week by an Eastern Kentucky lawmaker.
Rep. Richard Henderson, D-Jeffersonville, prefiled the bill at the urging of several prosecutors in his district who are frustrated with the growing number of women who give birth to babies with alcohol or drugs in their systems.
"There should be some kind of deterrent," Henderson said. "A child being born with a debilitating injury — that's not fair to anyone, least of all the child."
Under the proposal, a woman could be charged with substance endangerment of a child — a felony — if the child is born with alcohol or an unprescribed controlled substance in his system. The mother also could be charged if the child has a health problem caused by the mother's ingestion of drugs or alcohol.
The proposal probably will have an uphill battle in the state legislature, one key lawmaker said.
"As far as I am concerned, this is just another attack on women," said Rep. Tom Burch, D-Louisville and chairman of the House Health and Welfare Committee.
Nearly every major medical group, including the American Medical Association and the March of Dimes, opposes penalizing pregnant addicts through the criminal justice system.
The threat of incarceration could lead mothers to avoid prenatal care and hospitalized births or push them toward abortion, said Dr. Sharon Barron, an associate professor at the University of Kentucky who does research on the effects of a woman's drug and alcohol use during pregnancy.
"We know the number one risk factor (for babies) is lack of prenatal care," Barron said. "This legislation will not help babies."
The Kentucky Supreme Court recently heard arguments in a Casey County case in which a woman was charged with wanton endangerment after taking cocaine during her pregnancy.
Attorneys for the mother, Ina Cochran, argued in court Dec. 10 that Kentucky statutes do not allow a woman to be charged with endangerment for ingesting drugs during her pregnancy. The state legislature, they argued, has specifically exempted pregnant women from punishment.
The Supreme Court is considering that case. It is not clear when it will rule.
Meanwhile, Wolfe County Attorney Steve Johnson said he approached Henderson about the issue after hearing from law enforcement officers and social workers who are frustrated that more can't be done to stop women who take drugs during pregnancy.
The proposed legislation would give law enforcement a tool it doesn't have now, said Johnson, who doesn't think current endangerment laws apply to mothers of drug-addicted babies.
"We have children who spend weeks in ICU units because they are trying to be weaned off drugs," he said.
Henderson and Johnson dismiss the argument that addicted women would avoid prenatal care if the proposal is approved. They say addicted women probably are not getting prenatal care now.
Johnson also noted that women charged with endangerment could be referred to the state's drug court system, which favors treatment over incarceration.
Burch said the legislature has resisted previous attempts to penalize pregnant women who ingested drugs or other harmful substances during their pregnancies.
The real problem, he said, is a lack of treatment options for pregnant women with addictions.
"There are so few places that will take pregnant women," Burch said. "If they do, there is a backlog. I think this is something that needs to be studied more and to be dealt with in a different manner — through treatment."