- The Washington Times - Thursday, August 3, 2006

ANNAPOLIS (AP) — Pregnant women who use illegal drugs can’t be convicted of reckless endangerment even if their babies are born with drugs in their bodies, the state Court of Appeals ruled yesterday.

The court reversed the convictions of Kelly Lynn Cruz and Regina Kilmon, who were prosecuted in Talbot County Circuit Court after tests revealed the presence of cocaine in their babies.

In a unanimous decision, the seven judges of the state’s highest court said a pregnant woman, like anyone else, can be prosecuted for possession of drugs.

But it said the General Assembly has refused on numerous occasions to amend the reckless endangerment act “to impose additional criminal penalties for the effect that her ingestion of those substances might have on the child, either before or after birth.”

“It has consistently rejected proposals that would have allowed such conduct to constitute murder, manslaughter, child abuse or reckless endangerment,” said the opinion written by Judge Alan Wilner.

“It deliberately opted, instead, to deal with the problem by providing drug-treatment programs for pregnant women, and using the child in need of assistance and termination of parental rights remedies if the women failed to take advantage of the treatment programs,” the opinion said.

Attorneys for the state had argued that the two women should be subject to prosecution for reckless endangerment because their babies’ bodies contained drugs that the mothers had taken before the deliveries.

The American Civil Liberties Union, which filed a brief on behalf of Cruz after she was charged after the Jan. 13, 2005, birth of her son, hailed the ruling, saying it is “illegal and wrong-headed to prosecute women who carry their pregnancies to term despite the drug dependencies they suffer.”

“We believe that using criminal law to regulate a pregnant woman’s conduct on the theory that it might harm a fetus or her later-born child is … ultimately bad for children and society,” said the ACLU’s Maryland chapter.

It said the Maryland court’s decision is in line with rulings issued by courts in virtually all other states.

The appeals court said interpreting the reckless endangerment statute as applying to ingestion of drugs by a pregnant woman would expand the application to a wide range of activities that might hurt an unborn child, such as improper diet, smoking, failing to wear a seat belt, “indeed to engage in virtually any injury-prone activity that, should an injury occur, might reasonably be expected to endanger the life or safety of the child.”

“Such ordinary things as skiing or horseback riding could produce criminal liability,” the court said.

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