Tayshea Aiwohi Case: Public Health Amicus Brief

July 05, 2005


Prosecuting Pregnant Women Who Experience Drug Dependencies Will Undermine Health of Children and Women.

Over 60 Leading Medical, Public Health, Child Welfare and Drug Treatment Organizations and Experts Ask Hawai`i Supreme Court to Overturn Conviction of Tayshea Aiwohi

American College of Obstetrics and Gynecology, American Psychiatric Association, American Society of Addiction Medicine; National Association of Alcoholism and Drug Abuse Counselors, Inc; National Council on Alcoholism and Drug Dependence National Association of Social Workers; National Asian Pacific Women¹s Health Forum; The Hygeia Foundation, Inc; Hawai`i Substance Abuse Free Environment Council

Hawai`i - More than sixty leading state and national public health, child welfare, and drug treatment organizations and experts (full list below) today asked the Supreme Court of Hawai`i to overturn the conviction of Tayshea Aiwohi, the first woman in Hawai`i to be charged and convicted of manslaughter based on the theory that pregnant women can be held criminally liable for the outcomes of their pregnancies. Amici (friends of the court) argue that this conviction is not authorized by Hawai`i law and violates well-established consensus in the medical community that such a prosecution is irrational, ineffective, and counterproductive to maternal, fetal and newborn health.

"Punishing women for failing to have healthy pregnancy outcomes undermines health care for both pregnant women and their future children by frightening women away from that health care," said Amicus Leslie Hartley Gise, MD, Clinical Professor of Psychiatry, John A Burns School of Medicine, University of Hawai`i.

She added that "Suggesting that a pregnant woman who is struggling with a drug dependency problem is no different from a man who attacks her, reflects a terrible disregard for pregnant women and a profound misunderstanding of the nature of drug dependency."

On October 9, 2003, Tayshea Aiwohi, a thirty-one- year old Native Hawaiian, was indicted for the offense of manslaughter on the theory that her ingestion of methamphetamine during pregnancy contributed to the death of her 2-day-old son, Treyson. (Treyson, who was born approximately four weeks premature, died at home, hours after being released from the hospital)

Ms. Aiwohi sought to have the case dismissed arguing that the state¹s criminal laws were not intended to be used as a mechanism to police pregnancy. On June 3, 2004, Hawai`i Circuit Judge Michael Town ruled that Hawai`i state law does not give a woman "immunity" for "allegedly harming her fetus if it is later born and dies." Judge Town determined that pregnant women in relationship to their own bodies could be treated as the same as third parties ­ who attack pregnant women. Rather than face a trial, Ms. Aiwohi accepted a conditional plea bargain in which she plead no contest to manslaughter but preserved the right to appeal the trial court¹s order. On September 22, 2004, Ms. Aiwohi¹s legal counsel Todd Eddins of Honolulu, Hawai`i, filed a notice of appeal and on March 15, 2005 he filed the opening brief in the Hawai`i Supreme Court.

Today, drug treatment professionals; physicians and nurses who care for pregnant women and their children; medical researchers who study the effects of drug use during pregnancy; and professionals who counsel women and families who have experienced the tragedy of perinatal loss filed an amicus (friend of the court) brief explaining why the decision as a matter of law, logic, and public health must be overturned.

David T. Goldberg, as counsel for National Advocates for Pregnant Women is representing these organizations and individuals in support of Ms. Aiwohi. They explain that the problems posed by drug use during pregnancy are serious public health issues but condemn the arrest and prosecution of pregnant women because drug dependency is a disease not a crime; because such prosecutions are likely to deter pregnant women from seeking prenatal care and treatment for drug and alcohol addiction that is beneficial to them and their children; and because such punitive approaches have no proven benefits for the health of children.

While Amici do not suggest that using methamphetamine during pregnancy is in any way benign, they nevertheless challenge the assumption that "illegal" drugs, such as methamphetamine, pose uniquely high risks of fetal or infant harm. Amici note that the adverse effects of in utero exposure to methamphetamine are less well-established ­ and likely no more grave ­ than those of any number of "legal" substances including tobacco and alcohol, whose pregnancy risks have been widely known and extensively documented for many years.

"Instead of prosecuting pregnant women with drug problems, we should be working together to increase access to family drug treatment programs and respectful, confidential health care services that will in fact improve the health of mothers and babies," said Katherine Irwin, PhD, Assistant Professor, Department of Sociology, University of Hawai`i, Manoa

Oral argument in the case is scheduled before the Hawai`i Supreme Court on October 19, 2005.


American Academy of Addiction Psychiatry
American Association for the Treatment of Opioid Dependence
American College of Obstetricians and Gynecologists
American Psychiatric Association
American Society of Addiction Medicine
Association for Medical Education and Research in Substance Abuse
Association of Women Psychiatrists
Center for Gender and Justice
Citizens for Midwifery
Doctors of the World-USA
Drug Policy Alliance
Drug Policy Forum of Hawaii
Finding Common Ground
Global Lawyer and Physicians
Harm Reduction Coalition
Hawaii Substance Abuse Free Environment Council
The Hygeia Foundation, Inc.
National Advocates for Pregnant Women
National Asian Pacific Women¹s Health Forum
The National Association for Alcohol and Drug Abuse Counselors (NAADAC)
The National Council on Alcoholism and Drug Dependence
The National Association of Nurse Practitioners in Women¹s Health
National Association of Social Workers
National Association of Social Workers ­ Hawaii Chapter
National Latina Health Organization
National Latina Institute for Reproductive Health
National Perinatal Association
Our Bodies Ourselves


Elizabeth M. Armstrong, PhD, MPA, Assistant Professor of Sociology and Public Affairs
Adrienne Asch, Henry R. Luce Professor in Biology, Ethics and the Politics of
Human Reproduction, Wellesley College
Marylou Behnke, MD, Professor of Pediatrics at the University of Florida
Michael Berman, MD, Clinical Professor of Obstetrics, Gynecology and Reproductive Sciences, Yale University School of Medicine
Mona Bomgaars, MD, Hawaii Academy of Family Physicians
Nancy D. Campbell, Assistant Professor, Renssclaer Polytechnic Institute
Wendy Chavkin, MD, MPH, Heilbrunn Department of Population and Family Health, Mailman School of Public Heath, Columbia University
Maureen Corry, Executive Director, Maternity Center Association
Stephanie S. Covington, Co-director, Center for Gender and Justice
Nancy Day, PhD, Professor of Psychiatry and Epidemiology, Western Psychiatric Institute and Clinic, University of Pittsburgh Medical Center
Virginia Delaney-Black, MD, MPH, Wayne State University
Ernest Drucker, PhD, Montefiore Medical Center/ Albert Einstein College of Medicine
Fonda Davis Eyler, PhD, Professor in the Department of Pediatrics of the University of Florida College of Medicine in Gainesville, Florida
Bruce B. Ettinger, MD, MPH Academy on Violence and Abuse
Jennifer B. Frank, MD, University of Hawai¹i at Manoa
Leslie Heartly Gise, MD, Clinical Professor of Psychiatry, John A Burns School of Medicine, University of Hawaii
Leonard Glantz, PhD, Boston University School of Health
Maichael A. Grodin, M.D. Professor of Health Law, Bioethics, and Human Rights
Boston University School of Public Health, Professor of Socio-Medical Sciences, Community Medicine, and Psychiatry, Boston University School of Medicine
Martin Guggenheim, Professor at NYU Law School
Katherine Irwin, PhD, Assistant Professor, Department of Sociology, University of Hawaii, Manoa
Stephen R. Kandall, M.D., Professor of Pediatrics
David C. Lewis, MD, Professor of Community Health and Medicine, Brown University
Ruth Macklin, MD, Albert Einstein College of Medicine
Wendy K. Mariner, JD, LLM, MPH, Professor of Health Law, School of Public Health, Professor of Law, School of Law, Professor of Socio-Medical Sciences, School of Medicine, Boston University.
Luz Alvarez Martinez, National Latina Health Organization
Diana Romero, Project Director of Finding Common Ground
Ruth Rose-Jacobs, PhD, Assistant Professor of Pediatrics, Boston University, School of Medicine
F. David Schneider, MD, MSPH
Carol Sakala, PhD, MSPH
Deborah Spitz MD, American Psychiatric Association
Andrea Stolar, MD, Case School of Medicine
Keerthy Sunder, MD, University of Pittsburgh Medical Center
Linda L.M. Worley, MD, University of Arkansas for Medical Sciences
Susan Wysocki, President and CEO, National Association of Nurse Practitioners in Women¹s Health

Contact: Kerry Townsend Jacob, (917) 806-2550
National Advocates for Pregnant Women