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Incarcerating Pregnant Women Who Are Struggling With Addiction Makes for Bad Law and Even Worse Public Policy

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By Alexa Kolbi-Molinas, ACLU Reproductive Freedom Project

For Ina Cochran, it all began more than four years ago, when she gave birth to a baby girl at Kentucky's Ephraim McDowell Regional Medical Center. The next day, the hospital tested Ms. Cochran and her baby for illicit drugs. As a result of these tests, Kentucky charged Ms. Cochran with felony child abuse. Essentially, the state decided Ms. Cochran was a criminal because she became and decided to remain pregnant despite struggling with a substance abuse problem.

Four years later, Ms. Cochran is still waiting for the Kentucky courts to decide, once and for all, whether the state wrongfully charged her as a matter of law. As a public health matter, the record is clear: turning pregnant women who suffer from drug addiction into criminals isn't good for women or babies. The Kentucky Supreme Court heard oral argument in the case, Cochran v. Commonwealth, in December; we expect a decision in the coming months. Let's hope the court does the right thing not only for Ms. Cochran and her daughter, but for women throughout the state.

Ms. Cochran never should have been charged in the first place. In 1993, in a similar case, Commonwealth v. Welch (the ACLU represented Ms. Welch in that case), the Kentucky Supreme Court ruled that Kentucky's criminal laws could not be used to punish women who become and choose to remain pregnant despite a substance abuse problem.

Welch is still good law, and as we argue in our friend-of-the-court brief filed last year in support of Ms. Cochran, not only does Welch still hold, but, more fundamentally, using criminal laws to punish pregnant women who are struggling with addiction makes for bad law and even worse public policy.

If a pregnant woman can be charged with a crime for potentially harming her fetus, then literally everything she does or does not do--including choosing to continue her pregnancy to term despite an underlying health condition--could land her in jail. What if a pregnant woman has a glass of wine with dinner now and then, or lives with a smoker; what if she drives over the speed limit, fails to get regular pre-natal care, or works in a coal mine, as many women in Kentucky do? Allowing the government to exercise such unlimited control over women's bodies, and every aspect of their lives, would essentially reduce pregnant women to second-class citizens, denying them the basic constitutional rights enjoyed by the rest of us.

Moreover, from a public health perspective, these prosecutions are simply counterproductive. Fifty-nine organizations and experts, including the American College of Obstetricians and Gynecologists and the Kentucky Psychiatric Medical Association, joined friend-of-the-court briefs in this case, explaining that punitive approaches to improving fetal health just don't work. Seems obvious, right? By forcing doctors to turn in their own patients, these prosecutions only drive women away from the health care and treatment they need.

Unfortunately, Ms. Cochran's story is not an unusual one. The ACLU has been involved in similar cases across the country for decades. Indeed, for the past three years the ACLU has been following a growing problem in Alabama where more than 20 women have been charged for continuing their pregnancies despite a substance abuse problem. Fortunately, however, most state supreme courts that have looked into this issue have held that no legislature ever wrote the criminal laws with the intention to reach the relationship between a pregnant woman and her fetus, and that if they did it would in all likelihood be unconstitutional.

If, as a society, we are truly interested in supporting healthy moms and babies, we would not be undermining basic constitutional principles in order to throw the pregnant women and mothers who need health care the most into jail. Our efforts should be focused on ensuring that pregnant women with underlying health conditions can get the care they need. Hopefully, the Kentucky Supreme Court - as well as prosecutors across the country - will finally agree.

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