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Kentucky: Do the Right Thing (Again)

Alexa Kolbi-Molinas,
Deputy Director, ACLU Reproductive Freedom Project
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December 9, 2009

Tomorrow morning, the Kentucky Supreme Court will hear oral argument in the case of Cochran v. Commonwealth, a case that could have enormous consequences for healthy moms and babies in that state.

Ms. Cochran’s road to Kentucky’s Supreme Court has been a long one. Almost four years ago, Ms. Cochran gave birth to a baby girl. Her daughter allegedly tested positive for cocaine, and for that alone, Ms. Cochran was charged with felony child abuse. However, before her case could go to trial, the court dismissed the prosecution. The court was right: Ms. Cochran never should have been charged. In 1993, in 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.

You might think that the court’s dismissal of her case would have been the end of Ms. Cochran’s ordeal; unfortunately it was not. The state appealed, arguing that in later cases the Kentucky Supreme Court had actually reversed itself, even though it could point to no explicit language where the court had done so. Surprisingly, the appeals court agreed (though not one of the three judges on that court agreed for the same reason). With the law now totally in flux, the state Supreme Court accepted the case to settle the issue — again — of whether becoming and remaining pregnant is ever a crime in the state of Kentucky.

The ACLU filed a friend-of-the-court brief in support of Ms. Cochran, not only because we believe Welch is still good law, but, more fundamentally, because 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. If the state of Kentucky was truly interested in supporting healthy moms and babies, these groups point out, it would not be violating its own laws to throw the pregnant women who need health care the most in jail.

We are hopeful that the Kentucky Supreme Court will agree and uphold nearly two decades of sound law and policy in the state of Kentucky. Indeed, the court’s decision will have ramifications beyond Ms. Cochran’s case. At least two other women have been charged with similar “crimes” since Ms. Cochran’s arrest. Our efforts should be focused on ensuring that pregnant women with underlying health conditions can get the care they need. Hopefully, this case will set us squarely on that path.

Watching the arguments live tomorrow at 10 am EST:

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