ACLU of Kentucky

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. A Casey Circuit Court judge later dismissed the charges, but prosecutors appealed. The state Court of Appeals ruled that the charges should be allowed under Kentucky law.

The Maternal Health Act 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.”

Justice Lisabeth Hughes Abramson, writing for the majority, wrote that it was clear that the legislature never intended women to be charged. “It is the legislature, not the judiciary, that has the power to designate what is a crime,” she wrote.

But in a dissent, 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.

– Beth Musgrave

Additional coverage can be found in the Courier-Journal .