ACLU of Kentucky

Cochran v. Commonwealth

Kentucky Supreme Court

amicus.cochran.final 

            In this criminal matter, the Commonwealth seeks to pursue criminal charges against a pregnant woman for creating a risk of injury to her fetus by ingesting illicit drugs.  In cooperation with the national ACLU’s Reproductive Freedom Project, we submitted an Amicus brief to the Kentucky Supreme Court outlining the constitutional limitations on criminal prosecutions against pregnant women.  Specifically, we argued that: 1) the Kentucky legislature never intended for Kentucky’s criminal laws to apply to the conduct of pregnant women (in relation to their unborn fetuses) and that recent court decisions that allow criminal prosecutions of 3rd parties for inflicting injuries upon pregnant women (that result in harm to their unborn viable fetuses) do not contradict this intent; 2) criminal prosecution of a pregnant woman in relation to her fetus unconstitutionally violates her right to privacy; and 3) application of Kentucky’s criminal statutes in this manner is unconstitutionally vague becauseit fails to provide pregnant women with fair notice of what conduct might subject them to criminal prosecution, and because it grants virtually unfettered discretion to law enforcement to arbitrarily apply the law.

            The ACLU successfully argued these points to the Kentucky Supreme Court in an Amicus brief in 1993 and again to the Kentucky Court of Appeals in 2003.  A more recent Kentucky Supreme Court decision has raised some question, however, about the proper application of Kentucky’s criminal laws to pregnant women and we seek to prevent the reversal of those prior favorable precedents. The parties conducted oral argument before the Court in Dec., 2009, and we expect a ruling later this year.

St. Luke / St. Elizabeth hospital merger

Administrative Complaint- Ky. Cabinet for Health and Family Services

            The ACLU of Ky.’s Reproductive Freedom Project Director, Derek Selznick, identified a reduction in reproductive health services in Northern Kentucky caused by the merger of two area hospitals - St. Luke’s and St. Elizabeth’s. St. Luke’s traditionally provided the area’s reproductive health services, but its merger with St. Elizabeth’s - a hospital owned and operated under the auspices of the Catholic Church - resulted in the termination of those services due to its obligation to follow Catholic Ethical Directives prohibiting the delivery of such services. 

            In cooperation with the national ACLU’s Reproductive Freedom Project and other coalition partners, the ACLU of Ky.’s RFP initiated an investigation into the merger and opened a dialogue with the Cabinet for Health and Family Services (the govt. agency tasked with overseeing/approving the merger).  This inquiry revealed that in seeking state approval for the merger, St. Luke’s articulated a plan for creating an Ambulatory Surgical Center (ASC) to continue providing reproductive health services in Northern Kentucky. Once the state approved the merger, however, no significant steps were taken to develop the ASC.

            On Sept. 10, the ACLU of Kentucky and the national ACLU’s Reproductive Freedom Project filed an administrative complaint with the Cabinet challenging St.Luke’s failure to develop the ASC. In the complaint, we sought a hearing on the impact of the loss of services to Northern Kentuckians and a ruling that the unilateral termination of those services (without creating the ASC to continue them) violated Kentucky law.  The Cabinet denied our request and granted the hospital additional time in which to implement the ASC.  We continue to monitor the situation.