Birthrights

August 06, 2006

The Maryland Court of Appeals got it exactly right last week when it unanimously reversed the conviction of two Talbot County women who were found guilty of reckless endangerment because their babies tested positive for cocaine at birth. As the opinion written by Judge Alan M. Wilner explained, such an interpretation of the reckless endangerment statute could have led to similar convictions for pregnant women who don't eat right, who know their DNA carries a risk of genetic disorder, who drink too much or fall off a horse or fail to use a seatbelt.

This is not to suggest that people like Kelly Lynn Cruz, 30, the most recent defendant in the Eastern Shore prosecutions, shouldn't be held responsible for her behavior. Last year, she checked into an Easton hospital and delivered a premature boy with cocaine in his system. That event deserved investigation and possible civil action by authorities. But charging her with what amounts to endangering a fetus is both bad law and bad policy.

As the court noted, the General Assembly has never passed a statute to make a pregnant woman's ingestion of drugs a crime against her future child. That's because it's not a particularly effective way to deter such behavior - at least that has been the experience in other states. Drug addiction is simply not so easily controlled, and the threat of prosecution is just as - if not more - likely to lead to abortions or cause women to avoid prenatal care for fear of detection.

Talbot County State's Attorney Scott G. Patterson likely thought he was acting in the children's best interests when he chose to prosecute Ms. Cruz and Regina Kilmon, who was similarly imprisoned for giving birth to a boy with cocaine in his bloodstream in 2004. It's just the wrong approach.

If Talbot County officials want to see fewer newborns testing positive for drugs, they ought to invest more money in drug treatment programs to assist pregnant women, and aggressively seek alternate custody arrangements for at-risk children. These are proven strategies that can address not only the Cruz and Kilmon cases but help many other children, now and in the future.

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