Prenatal prosecution

August 03, 2005

EARLIER THIS YEAR, a 30-year-old woman in her 29th week of pregnancy checked into the Memorial Hospital at Easton. Within hours, Kelly Lynn Cruz had given birth to a boy. Not long after that, she was charged by police with several crimes: reckless endangerment of her child, child abuse and contributing to a child's delinquency. The evidence? The baby had tested positive for cocaine. So had she. Ms. Cruz is scheduled to be tried this month for what amounts to recklessly endangering the fetus inside her body.

The Talbot County state's attorney, Scott G. Patterson, is a respected veteran prosecutor on the Eastern Shore, but his decision to prosecute Ms. Cruz based solely on the results of blood tests is a bad one. Lawyers for the American Civil Liberties Union have filed objections to the strategy and raised legitimate questions about its legality. Ms. Cruz never consented to the hospital's drug test, and Maryland law doesn't generally treat a fetus as a person.

But the more critical question is: What good can come of pursuing a criminal case against a woman who tests positive for drug use immediately after she delivers her baby? Mr. Patterson may believe it sends a warning to other drug abusers: If you become pregnant, don't continue taking drugs or you'll face prosecution. But pregnant drug abusers may hear quite a different message: Don't seek medical help for your problem or you'll risk going to jail.

Taking cocaine during pregnancy is a bad idea. But so is drinking alcohol, smoking tobacco and abusing prescription drugs. And what about excessive dieting or gaining too much weight or drinking too much coffee? All could lead to fetal problems, some worse than cocaine abuse. But none of these actions ought to be prosecuted. The way to address them is to educate the public and offer appropriate counseling. The prisons aren't large enough to hold all the pregnant women who have ever failed to follow doctor's orders. It's obviously counterproductive to discourage pregnant drug abusers from seeking help. Sometimes, the more compassionate strategy is the more effective one, too.

Is Ms. Cruz fit to be a mother? We don't know. Taking cocaine while pregnant is certainly a strike against her. But whether she should have custody of her child is a civil matter that child welfare authorities ought to explore, not a state's attorney. That she may have taken drugs hours before delivery doesn't mean she meant to harm her fetus. Her lawyers claim her baby's premature delivery was caused by placenta previa, not by cocaine abuse.

Mr. Patterson's heart may be in the right place, but his actions may do harm to the very people he means to protect - all the future sons and daughters of women like Ms. Cruz. That cause is clearly hurt if pregnant addicts are scared away from seeking help for their condition.

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