Pubdate: Wed, 06 Sep 2006
Source: Salon (US Web)
Copyright: 2006 Salon
Contact: http://www.salon.com/about/letters/index.html
Website: http://www.salon.com/
Details: http://www.mapinc.org/media/381
Author: Lynn Harris
Cited: National Advocates for Pregnant Women 
http://advocatesforpregnantwomen.org
Referenced: the Washington Post article 
http://www.mapinc.org/drugnews/v06.n1017.a04.html
Bookmark: http://www.mapinc.org/topics/pregnant
Bookmark: http://www.mapinc.org/find?247 (Crime Policy - United States)

DRUGS WHILE PREGNANT: DANGEROUS VS. "ENDANGERMENT"?

A Maryland Court Rules That Addicted Moms-To-Be Would Be Best Served 
by Treatment, Not Imprisonment

Let's say you're pregnant. Driving without a seatbelt, playing ice 
hockey, subsisting on Cheetos: They may not be recommended by What to 
Expect When You're Expecting, but do they constitute illegal reckless 
"child endangerment" -- punishable by imprisonment? In a decision 
hailed by National Advocates for Pregnant Women, Maryland's highest 
court has, in effect, said no.

"Imprisonment is not only the most costly thing the state could do," 
Lynn Paltrow of NAPW told the Washington Post. "It's the most 
family-destructive thing the state could do."

The cases that led to this decision were those of two women convicted 
of reckless endangerment -- and sentenced to several years in prison 
- -- for apparent cocaine use during pregnancy. Three other women in 
the same jurisdiction, Maryland's Talbot County, had faced such 
charges -- putting the county out of step, actually, with some of its 
neighbors and a handful of other rulings. But according to the Post, 
"Some experts say they believe there have been more such cases in 
recent years, driven perhaps by the increase in methamphetamine use 
in some parts of the country and by recent laws that allow 
prosecutors to treat some crimes against pregnant women as cases with 
two victims."

Keep in mind, though, that an endangerment charge could also, in 
theory, be brought in situations less immediately appealing to those 
who support narrow definitions of the rights of the "unborn." 
Including, as the Maryland Court of Appeals noted in its decision, 
"becoming (or remaining) pregnant with knowledge that the child 
likely will have a genetic disorder that may cause serious disability 
or death."

That was the crux of the court's ruling: The "endangerment" statute, 
if deemed applicable here, would open up a way-too-slippery slope for 
prosecutions. "If the [reckless endangerment] statute is read to 
apply to the effect of a pregnant woman's conduct on the child she is 
carrying, it could well be construed to include not just the 
ingestion of unlawful substances but a whole host of intentional and 
conceivably reckless activity that could not possibly have been 
within the contemplation of the Legislature -- everything from ... 
the continued use of legal drugs ... to not maintaining a proper and 
sufficient diet, to failing to wear a seat belt while driving ... to 
exercising too much or too little, indeed to engaging in virtually 
any injury-prone activity that, should an injury occur, might 
reasonably be expected to endanger the life or safety of the child." 
The court also noted that "allowing such prosecutions could open the 
door to so many potentially dangerous behaviors that 'criminal 
liability would depend almost entirely on how aggressive, inventive, 
and persuasive any particular prosecutor might be.'"

It should go without saying that what the court is not saying is: 
"Ladies, you're off the hook. Here's a crack pipe for your troubles." 
Rather, it appears to be taking seriously the "array of public 
health, drug treatment and medical organizations [who] filed briefs 
supporting the women, arguing that such prosecutions are more likely 
to harm than to help mothers and babies." It has also been noted that 
they could scare drug-using women away from seeking proper prenatal 
care and treatment in the first place.

In fact, the county's state attorney, Scott Patterson, issued a 
statement saying his office "fully accepts [the] decision as a 
definitive statement of the law of Maryland" and will continue to 
work with public health and social services employees "toward the 
common goal of assisting women in their fight to defeat drug 
addiction and in their efforts to deliver children who will be born 
without illicit drugs in their systems."
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MAP posted-by: Richard Lake