Arrests Continue, But So Do The Challenges

This week, NAPW's commentary, coauthored by NAPW summer law intern Julie Ehrlich, Jailing Pregnant Women Raises Health Risks, is featured in Women's E-news. In recent months, pregnant women have been arrested and jailed in South Carolina, New Mexico, Arizona, Alabama, Colorado, Georgia, Missouri, North Dakota and New Hampshire, among other states, based on the claim that pregnant women can be considered child abusers even before they have given birth. This commentary challenges one of the main justifications for such arrests -- the claim that imprisoning pregnant women and new mothers will somehow promote public health. The commentary describes the unhealthy and dangerous prison conditions that all too many pregnant women face in this country.

One response to the commentary was from a lawyer in New Mexico. This lawyer had not heard of the arrests and was doubtful that such cases in fact exist. Unfortunately, they do. The good news though is that when these arrests are vigorously challenged winning is possible!

I am proud to report three recent victories in cases around the country.

Several years ago in Texas, lawmakers redefined the term "individual" to mean “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.” In Texas, lawmakers redefined the term individual to mean “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.” As a result of this law, two pregnant women with drug problems were convicted as drug dealers to the unborn. Both lived more than 100 miles from any treatment program designed to meet the needs of pregnant and parenting women. NAPW worked extensively with lead counsel Larry Cunningham and local and national organizations to challenge these counterproductive and unauthorized prosecutions. NAPW filed a friend of the court brief on behalf of more than 20 leading state and national public health, child welfare, and drug treatment organizations and experts. Earlier this year, the Seventh Court of Appeals of Texas unanimously reversed the convictions. The state however applied for discretionary review (a kind of appeal.)

Yesterday, the Texas Court of Criminal Appeals -- one of the harshest, anti-defendant forums in the country -- DENIED the State's Petition for Discretionary Review without opinion. According to Mr. Cunningham, barring an unforeseen motion for rehearing, the victory is now final and secure!

We are also happy to report recent victories in state courts in Missouri and Georgia. In Georgia, the state court in State v. Craig vacated a guilty plea of a woman who was charged with the misdemeanor of contributing to the delinquency of a minor. Ms. Craig gave birth to a healthy boy who allegedly tested positive for marijuana. Ms. Craig originally accepted a plea agreement where she pled guilty and received a 12-month sentence. With assistance from NAPW staff attorney Tiloma Jayasinghe, however, the Public Defender later filed a motion to set aside the sentence based on the fact that Georgia's child abuse statutes clearly do not apply to women in the context of their pregnancies and that a fetus is not contemplated in the definition of “child” used in those statutes. Fortunately, the court accepted the motion, vacated the plea and recognized that child abuse statutes should not be used as a tool for policing pregnancy.

In Missouri, the state court in State v. Wade ruled against the prosecution of another woman, Janet Wade, who was charged with the felony of endangering the welfare of a child in the first degree. Ms. Wade gave birth to a healthy boy who allegedly tested positive for methamphetamines and marijuana. The public defender in that case filed a motion to suppress evidence and to dismiss the charges. With the Drug Policy Alliance, NAPW filed an amicus curiae (friend of the court) brief on behalf of the Doctors of the World-USA, National Council on Alcoholism and Drug Dependence, the International Center for Advancement of Addiction Treatment and NAPW. This brief highlighted the unwarranted departure from scientific understanding, established medical practice, and Missouri state law presented by the charges against Ms. Wade.

The state court dropped the charges against Ms. Wade, ruling that Missouri child abuse statutes do not contemplate application to a woman's pregnancy and to her future child.

Congratulations to Larry Cunningham and to Georgia Public Defender Jennifer Brock and Missouri Public Defender Jeff Rubin for their zealous representation of their clients!