17 Jun SHOULD A PREGNANT WOMAN BE PUNISHED FOR EXPOSING HER FETUS TO RISK?
PLEASE SEE ATTACHED PLAGARISM FREE A+ TUTORS read Issue 9 from Unit 3 in the Kaebnick textbook, “Should a Pregnant Woman Be Punished for Exposing Her Fetus to Risk?” Assume that you are a healthcare administrator, and you find yourself dealing with this exact issue regarding a patient giving birth in your facility. Prepare a 500-WORD PAPER(2 PAGES), double-spaced and in APA style or another approved DeVry-Keller format or style, that presents the most important legal and ethical issues relevant to this topic from both perspectives. And then state your position on this issue and describe how you will handle it in your hospital. It is important to present this information in an objective and factual manner. You may use research other than the Kaebnick text to support your analysis and summary paper.
ISSUE 9: Should a Pregnant Woman Be Punished for Exposing Her Fetus to Risk?
• YES: Liles Burke, from Hope Elisabeth Ankrom v. State of Alabama (May 26, 2011)
• NO: Lynn M. Paltrow, from “Punishment and Prejudice: Judging Drug-Using Pregnant Women,” in Julia A. Hanigsberg and Sara Ruddick, eds., Mother Troubles: Rethinking Contemporary Maternal Dilemmas (Beacon Press, 1999)
ISSUE SUMMARY
• YES: Liles Burke sets out the majority opinion of the Alabama Court of Criminal Appeals in a case involving a pregnant woman who was found to have used cocaine while pregnant. Burke argues that Alabama law that forbids adults from exposing children to controlled substances applies in cases involving pregnant women and their fetuses.
• NO: Attorney Lynn M. Paltrow argues that treating drug-using pregnant women as criminals targets poor, African American women while ignoring other drug usage and fails to provide the resources to assist them in recovery.
In 1989, fueled by the specter of an epidemic of drug use resulting in the birth of thousands of “crack babies,” the Medical University of South Carolina established a program that required drug-using pregnant women to seek treatment and prenatal care or face criminal prosecution. This program applied only to patients attending the university’s obstetric clinic, primarily poor black women, and not to private patients. Patients enrolled in the clinic saw a video and were given written information about the harmful effects of substance abuse during pregnancy. The information warned that the police, the court system, and child protective services in Charleston, South Carolina, might become involved if illegal drug use were detected.
Women who met certain criteria were required to undergo periodic urine screening for drugs. A patient who had a positive urine test or who failed to keep scheduled appointments for therapy or prenatal care could be arrested and placed in custody. If a woman delivered a baby who tested positive for drugs, she would be arrested immediately after her medical release and her newborn taken into protective custody. If the drug use was detected within the first 27 weeks of gestation, the patient was charged with possession of an illegal substance; after that date, the charge was possession and distribution of an illegal substance to a minor. If the drug use were detected during delivery, the woman would be charged with unlawful neglect of a child.
This stringent policy was developed as a result of clinicians’ concern about the harmful effects of drug use on fetal development and prosecutors’ desires to take a strong public stand condemning drug use. The Supreme Court of South Carolina upheld the law in a 1997 decision involving a woman, Cornelia Whitner, who admitted to using cocaine during pregnancy and whose baby was born with cocaine metabolites in his system. The court wrote that, “The abuse or neglect of a child at any time during childhood can exact a profound toll on the child herself as well as on society as a whole. However, the consequences of abuse or neglect that takes place after birth often pale in comparison to those resulting from abuse suffered by the viable fetus before birth.”
Critics argued, however, that the law punished women without helping them correct their behavior. Although the law’s stated goal was to get women into treatment, there were few places that women could receive treatment and the necessary support, such as transportation and child care. At the time, there was no women-only residential treatment center for substance-abusing pregnant women anywhere in the state.
The program was discontinued in September 1994 as the result of a settlement with the Civil Rights Division of the federal Department of Health and Human Services. By then, 42 pregnant women had been arrested. In recent years, however, similar cases have been tried in other states. In Alabama, prosecutors began filing charges against women under the state’s 2006 chemical endangerment law, whose explicit goal was to prevent adults from bringing children to methamphetamine laboratories and other places where illegal substances are produced or distributed. Prosecutors argued that the law also applied to fetuses exposed to drugs while in the uterus. A long list of medical, legal, and public organizations filed legal briefs arguing against their interpretation of the law, but their prosecutors’ position has been upheld by the Alabama Court of Criminal Appeals. Over 60 women have now been charged under the law.
In Hope Elisabeth Ankrom v. State of Alabama, Justice Liles Burke explains why a majority of the court’s justices found that the state’s chemical endangerment law includes a fetus within its definition of “child.” Lynn Paltrow argues, however, that criminalization of drug use is a punitive response that rejects the humanity of the women who are denied treatment and support for recovering from their addiction.
YES: Hope Elisabeth Ankrom v. State of Alabama
Liles Burke
Hope Elisabeth Ankrom pleaded guilty to chemical endangerment of a child, a violation of [Section 26-15-3.2 of the Code of Alabama]…. The trial court sentenced Ankrom to three years in prison, but the court suspended that sentence and placed her on one year of supervised probation. Ankrom appealed her conviction. We affirm.
Facts and Procedural History
At the guilty-plea hearing, the parties stipulated to the following facts:
“On January 31, 2009, the defendant, Hope Ankrom, gave birth to a son, [B.W.], at Medical Center Enterprise. Medical records showed that the defendant tested positive for cocaine prior to giving birth and that the child tested positive for cocaine after birth.
“Department of Human Resources worker Ashley Arnold became involved and developed a plan for the care of the child. During the investigation the defendant admitted to Ashley that she had used marijuana while she was pregnant but denied using cocaine.
“Medical records from her doctor show that he documented a substance abuse problem several times during her pregnancy and she had tested positive for cocaine and marijuana on more than one occasion during her pregnancy.”
On February 18, 2009, Ankrom was arrested and charged with chemical endangerment of a child. On August 25, 2009, the grand jury indicted Ankrom. The indictment stated that Ankrom “did knowingly, recklessly, or intentionally cause or permit a child … to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A–12–260 of the Code of Alabama….
Circuit Court of Coffee County, 2011
Discussion
Ankrom alleges that based on the facts of this case, she cannot be convicted of violating § 26–15–3.2(a) (1), Ala.Code 1975…. [T]he issue before this Court is whether a mother who ingested a controlled substance during her pregnancy, may be prosecuted under § 26–15–3.2(a) (1), Ala.Code 1975, if at birth the infant tests positive for the controlled substance. We answer that legal question in the affirmative, and we conclude that based on the facts of this case, Ankrom’s conviction was proper…
Turning to the merits of the present case, § 26–15–3.2(a) (1), Ala.Code 1975, provides:
• “(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:
o “(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A–12–260. A violation under this subdivision is a Class C felony.”
Ankrom alleges that the term “child” in § 26–15–3.2, Ala.Code 1975, does not include a viable fetus. The State responds that the plain meaning of the term “child,” as used in the statute, includes an unborn child.
… The legislature has stated that “[t]he public policy of the State of Alabama is to protect life, born, and unborn. This is particularly true concerning unborn life that is capable of living outside the womb.” … Chapter 15 of Title 26, Ala.Code 1975, does not define the term “child.” However, Chapters and 16 of Title 26, Ala.Code 1975, define a “child” as a “person” under the age of 18 years….
Also, the Alabama Supreme Court has interpreted the term “minor child” in Alabama’s wrongful-death-of-minor statute to include a viable fetus that received prenatal injuries causing death before a live birth…. Specifically, the Court held that “the parents of an eight and one-half month old stillborn fetus [are] entitled to maintain an action for the wrongful death of the child”; thus, the Court explicitly recognized the viable fetus as a “child.” Eich, 293 Ala. at 100, 300 So. 2d at 358.
Furthermore, the dictionary definition of a word provides the meaning ordinary people would give the word…. According to Merriam–Webster’s Collegiate Dictionary 214 (11th ed.2003), the word “child” is defined as “an unborn or recently born person.” The word “child” is defined in Black’s Law Dictionary 254 (8th ed.2004), as “[a] baby or fetus.”…
… [W]e do not see any reason to hold that a viable fetus is not included in the term “child,” as that term is used in § 26–15–3.2, Ala.Code 1975. Not only have the courts of this State interpreted the term “child” to include a viable fetus in other contexts, the dictionary definition of the term “child” explicitly includes an unborn person or a fetus. In everyday usage, there is nothing extraordinary about using the term “child” to include a viable fetus. For example, it is not uncommon for someone to state that a mother is pregnant with her first “child.” Unless the legislature specifically states otherwise, the term “child” is simply a more general term that encompasses the more specific term “viable fetus.” If the legislature desires to proscribe conduct against only a “viable fetus,” it is necessary to use that specific term. However, if the legislature desires to proscribe conduct against a viable fetus and all other persons under a certain age, the term “child” is sufficient to convey that meaning. In fact, proscribing conduct against a “child” and a “viable fetus” would be redundant.
The term “child” in § 26–15–3.2, Ala.Code 1975, is unambiguous; thus, this Court must interpret the plain language of the statute to mean exactly what it says and not engage in judicial construction of the language in the statute. Also, because the statute is unambiguous, the rule of lenity does not apply. We do not see any rational basis for concluding that the plain and ordinary meaning of the term “child” does not include a viable fetus.
Ankrom advances three main arguments against interpreting the term “child” in § 26–15–3.2, Ala.Code 1975, to include a viable fetus: (1) The legislature has specifically included the term “fetus” or “unborn child” in other statutes when the legislature’s intent was for the statute to apply to a fetus; (2) most courts from other jurisdictions have held that mothers could not be criminally prosecuted for prenatal substance abuse on the statutory theories of child abuse/endangerment or drug distribution; and (3) the legislature has declined to amend § 26–15–3.2, Ala.Code 1975, to explicitly include an unborn child in the definition of the term “child.” We will address each argument in turn.
Contrary to Ankrom’s argument, the fact that the legislature has included the term “fetus” or “unborn child” in other statutes does not mean that the term “child” in § 26–15–3.2, Ala.Code 1975, does not include a viable fetus. Ankrom specifically points to § 26–23–3, Ala.Code 1975, as an example to support her argument. Section 26–23–3, Ala.Code 1975, provides: “Any physician who knowingly performs a partial-birth abortion within this state and thereby kills a human fetus shall be guilty of a Class C felony and upon conviction thereof shall be punished as prescribed by law.” Ankrom states that “[t]here is no doubt in the plain meaning of that statute of which class it is designed to protect: human fetuses.” … Ankrom then reasons that “[i]f the legislature had intended for § 26–15–3.2(a) to apply to a fetus, then the legislature would have specifically included that language as it has in other statutes.” … However, the flaw in Ankrom’s reasoning is that she misses the distinction between the use of the more specific term “human fetus” and the more general term “child.” As stated earlier, the general term “child” encompasses the more specific term “fetus.” Statutes such as § 26–23–3 can only apply to a fetus or unborn child because it is impossible to perform an abortion after a live birth has been completed, so using the more general term “child” in such a statute would be nonsensical. On the other hand, statutes such as § 26–15–3.2 may proscribe conduct against born and unborn children; thus, the more general term “child” is necessary. Therefore, Ankrom’s first argument is without merit.
Next, we acknowledge the many decisions from appellate courts in other states holding that a mother cannot be criminally prosecuted for prenatal substance abuse under those states’ child abuse/endangerment or drug-distribution statutes…. However, we find that those cases are either distinguishable from the present case or unpersuasive.
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