Jailing women who used drugs while pregnant sparks debate

August 18, 2005|By Andrew A. Green | Andrew A. Green,SUN STAFF

When Kelly Lynn Cruz gave birth in January, doctors found cocaine in her system and in the blood of her baby boy. Seven months later she is in prison, serving 2 1/2 years for reckless endangerment of her child because of the drugs she took before he was born.

Social workers routinely get involved when babies are born with drugs in their systems, but Cruz had her baby in Talbot County. Legal observers say that appears to be the only place in Maryland - and one of just a few nationwide - where police and prosecutors send the mothers to prison.

The American Civil Liberties Union, which represented Cruz in circuit court, is appealing her conviction to Maryland's highest court in a case that touches on the debates over abortion, drug policy and privacy.

Officials in the Eastern Shore county say they are just prosecuting crimes as they learn of them. They shy away from claims about any impact the half-dozen prosecutions in similar circumstances over the past six years might have had on drug use or child welfare in the county.

"We didn't have an agenda, and I don't think Social Services did either," said Ellen Grunden, the deputy state's attorney who prosecuted Cruz. "We work together to prosecute crime that involves the welfare of children in Talbot County."

But Cruz's lawyers argue that prosecutors are inventing a crime that legislators never intended - and in doing so, have taken an approach that has been found unconstitutional in dozens of states and deemed ill-advised by scores of medical, drug treatment and child welfare organizations.

"Nobody thinks it's a great idea to take cocaine while pregnant," said ACLU attorney David Rocah. "But the unanimous view of medical and public health professionals and drug treatment professionals is that if you want to stop people from doing that, the way to do that is to provide them with meaningful access to drug treatment and not criminally prosecute them."

Similar attempts to criminalize drug use by pregnant women became common in the United States during the crack scare of the late 1980s and early 1990s. But in dozens of cases, courts struck down criminal convictions as unconstitutional or beyond lawmakers' intent.

An exception is South Carolina, where about 70 women have been prosecuted for using drugs during pregnancy, according to a spokesman for the attorney general there. In 2001, the U.S. Supreme Court limited South Carolina's ability to mount such prosecutions by deeming drug tests administered without the mother's consent inadmissible in court.

One of the ACLU's main arguments against Cruz's conviction is that Maryland law defines reckless endangerment as conduct by one person that causes substantial risk of harm to another person, but that the term "person" does not legally include a fetus. In 1990, Maryland legislators rejected a bill that would have made prenatal drug use by women a felony.

Other state's attorneys' offices in Maryland said they were not aware of any attempts to prosecute mothers on similar charges elsewhere in the state. Kevin Enright, a spokesman for Attorney General J. Joseph Curran Jr., said the office could not take a position on the legal question because it would likely be involved in the appeal.

Grunden insists that the approach prosecutors have taken in Talbot County avoids the legal questions Cruz's lawyers raised because they bring charges only after a baby has been born and tested positive for drugs, not for any alleged harm during the pregnancy.

Lynn M. Paltrow, executive director of National Advocates for Pregnant Women, said she has seen a resurgence of attempts to prosecute such cases in the past few years, in part as an outgrowth of abortion foes' successes in carving out fetal rights.

"These cases are great examples of how the war on abortion winds up hurting pregnant women who oppose abortion and have no intention of ending their pregnancies and no intention of harming their fetuses," Paltrow said.

Cruz's lawyers have argued that her case, if not overturned, could lead to jailing women who smoke, drink alcohol or coffee, or disregard doctors' orders for bed rest.

In the early 1990s, organizations including the American Medical Association, the March of Dimes, the American Academy of Pediatrics and the American Society of Addiction Medicine took stances against prosecuting drug-using mothers on the grounds that criminalizing their conduct would make them reluctant to get health care for themselves and their babies.

"Historically, it's been very difficult to get women to come in to treatment because they've always been afraid of what would happen to their children," said Michael Gimbel, director of substance abuse education at Shepard Pratt Health System. "To now prosecute them obviously is going to send a message to a lot of women out there not to seek treatment."

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