Drugs while pregnant: Dangerous vs. "endangerment"?

A Maryland court rules that addicted moms-to-be would be best served by treatment, not imprisonment.

Published September 6, 2006 3:32PM (EDT)

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."

By Lynn Harris

Award-winning journalist Lynn Harris is author of the comic novel "Death by Chick Lit" and co-creator of BreakupGirl.net. She also writes for the New York Times, Glamour, and many others.

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