Cochran v. Com., No. 2008-SC-000095-DG.

315 S.W.3d 325

Ina COCHRAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2008-SC-000095-DG.

Supreme Court of Kentucky.

June 17, 2010.

Kathleen Kallaher Schmidt, Jamesa J. Drake, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, James Coleman Shackelford, Assistant Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Allison G. Harris, Shearman & Sterling LLP, Tiloma Jayasinghe, Lynn M. Paltrow, Kathrine D. Jack, National Advocates for Pregnant Women, New York, NY, Michael L. Goodwin, Louisville, KY, Counsel for Amicus Curiae American College of Obstetricians and Gynecologists; American Psychiatric Association; American Society of Addiction Medicine; Baron Edmond De Rothschild Chemical Dependency Institute of Beth Israel Medical Center; Carol Stange, MSSW; Child Welfare Organizing Project; Fran Belvin, CPAT; Kentucky Coalition for Women's Substance Abuse Services; Kentucky Psychiatric Medical Association; Law Students for Reproductive Justice; Lynn Posze, MA, LPCC; Nancy Day, Phd; National Asian Pacific American Women's Forum; National Association of Social Workers; National Coalition for Child Protection Reform; National Perinatal Association; Northwest Women's Law Center; Our Bodies Ourselves; Pathways, Inc.; People Advocating Recovery; Sistersong Women of Color Reproductive Health Collective; Stephanie S. Covington, Phd, LCSW; Susan Barron, Phd; Susan Boyd, Phd; The Drug Policy Alliance; The Healing Place Women's and Children's Community.

Sheryl G. Snyder, Amy D. Cubbage, Frost Brown & Todd LLC, Louisville, KY, Jill C. Morrison, Washington, DC, Counsel for Amicus Curiae Legal Momentum and National Women's Law Center.

Caroline Bettinger-Lopez, Columbia Law School, New York, NY, Michael Jay O'Hara, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, KY, Counsel for Amicus Curiae Anti-Sexism Committee of the National Lawyers Guild; Center for Reproductive Rights; Columbia Law School Human Rights Clinic; Columbia Law School Sexuality and Gender Law Clinic; Constitutional Litigation Clinic at Rutgers School of Law—Newark; Criminal Justice Clinic at Hofstra Law School; International Mental Disability Law Reform Project in the Justice Action Center at New York Law School; International Reproductive and Sexual Health Law Programme at the University of Toronto; Jamie O'Connell (University of California, Berkeley School of Law, International Human Rights Law Clinic); Justice Now; Leitner Center for International Law & Justice at Fordham Law School; Mindy Jane Roseman (Harvard Law School, Human Rights Program); Southwest Women's Law Center.

David Alan Friedman, William Ellis Sharp, ACLU of Kentucky, Louisville, KY, Counsel for Amicus Curiae American Civil Liberties Union Foundation Reproductive Freedom Project; American Civil Liberties Union of Kentucky.

Forrest Roberts, Owensboro, KY, Lawrence J. Nelson, Law Offices of Lawrence J. Nelson, San Francisco, CA, Counsel for Amicus Curiae American Academy of Addiction Psychiatry; Anna C. Mastroianni, JD, MPH; Bryan Hilliard, Phd; C. Ronald Koons, MD, FACP; Cavin P. Leeman, Phd; David Magnus, Phd; Donald Brunnquell, Phd, LP; Elaiane Morgan, MD; Glenn McGee, Phd; Global Lawyers and Physicians; Gregory Loeben, Phd; Hilde Lindemann, Phd; Howard Brody, MD, Phd; Howard Minkoff, MD; Inmaculada De Melo-Martin, Phd, MS; Jeffrey Kahn, Phd, MPH; Judith Bernstein, RNC, Phd; Katherine A. Taylor, JD, Phd; Lauren G. McAliley, MSN, MA, CNP; Lois Shepard, JD; Mary Faith Marshall, PHD; Peter J. Cohen, MD, JD; Rebecca Bigoney, MD; Rev. Timonthy A. Thorstenson; Robert A. Deweese, MD, MA; Rosamond Rhodes, Phd; Stephen S. Hanson, Phd; Susan K. Palmer, MD; Timothy F. Murphy, Phd.

OPINION OF THE COURT

This appeal considers whether a woman may be charged with wanton endangerment of her child based on having ingested illegal drugs while pregnant. As this Court previously recognized in Commonwealth v. Welch, 864 S.W.2d 280 (Ky.1993), the General Assembly has expressly precluded such a prosecution by the Maternal Health Act of 1992. Therefore, we hold that the trial court properly dismissed the indictment in this case.

On December 29, 2005, Appellant, Ina Cochran, gave birth to a child who tested positive (as did Cochran) for cocaine. As a result, Cochran was indicted for first-degree wanton endangerment,¹ and for being a second-degree persistent felony offender (PFO II).² The indictment alleged that Cochran,

under circumstances manifesting extreme indifference to the value of human life ... wantonly engaged in conduct which created a substantial danger of death or serious physical injury to C.C. (DOB: 12/29/2005) when she ingested cocaine while C.C. was in utero and thereafter gave birth to C.C. at such time as both the Defendant and C.C. were positive for cocaine....

Cochran moved to dismiss the indictment pursuant to Commonwealth v. Welch, 864 S.W.2d 280. The trial court granted the motion and dismissed the indictment. The Commonwealth appealed. The Court of Appeals reversed the trial court's order dismissing the indictment, erroneously concluding that Commonwealth v. Morris, 142 S.W.3d 654 (Ky. 2004), had, sub silentio, overruled Welch. This Court granted discretionary review and we reverse the Court of Appeals. As we previously recognized in Welch, which was not overruled by Morris, the prosecution of Cochran on the grounds stated in the indictment has been prohibited by the General Assembly.

The prosecution in this case is basically identical to that which we held invalid in Welch. The appellant therein, Connie Welch, was arrested in a drug raid when she was eight months pregnant, and was discovered by police to have just injected herself with oxycodone. Three weeks later she gave birth. The child did not test positive for illegal substances, but did suffer symptoms of drug withdrawal, resulting from having become passively addicted due to Welch's drug abuse during her pregnancy. Welch was charged with, and convicted of, second-degree criminal abuse of the child for having used oxycodone while pregnant.³ We held that two grounds required reversal of the conviction—that application of the criminal abuse statutes to prenatal conduct would render the statutes void for vagueness, and that the General Assembly, in the Maternal Health Act of 1992, expressly prohibited the prosecution.

First, we recognized that the application of the criminal abuse statutes⁴ to a woman's conduct during pregnancy, "could have an unlimited scope and create an indefinite number of new `crimes'... a `slippery slope' whereby the law could be construed as covering the full range of a pregnant woman's behavior—a plainly unconstitutional result that would, among other things, render the statutes void for vagueness." Welch, 864 S.W.2d at 283 (citation omitted). We explained:

The mother was a drug addict. But, for that matter, she could have been a pregnant alcoholic, causing fetal alcohol syndrome; or she could have been addicted to self abuse by smoking, or by abusing prescription painkillers, or over-the-counter medicine; or for that matter she could have been addicted to downhill skiing or some other sport creating serious risk of prenatal injury, risk which the mother wantonly disregarded as a matter of self-indulgence. What if a pregnant woman drives over the speed limit, or as a matter of vanity doesn't wear the prescription lenses she knows she needs to see the dangers of the road? The defense asks where do we draw the line on self-abuse by a pregnant woman that wantonly exposes to risk her unborn baby? The Commonwealth replies that the General Assembly probably intended to draw the line at conduct that qualifies as criminal, and then leave it to the prosecutor to decide when such conduct should be prosecuted as child abuse in addition to the crime actually committed.

However, it is inflicting intentional or wanton injury upon the child that makes the conduct criminal under the child abuse statutes, not the criminality of the conduct per se. The Commonwealth's approach would exclude alcohol abuse, however devastating to the baby in the womb, unless the Commonwealth could prove an act of drunk driving; but it is the mother's alcoholism, not the act of driving that causes the fetal alcohol syndrome. The "case-by-case" approach suggested by the Commonwealth is so arbitrary that, if the criminal child abuse statutes are construed to support it, the statutes transgress reasonably identifiable limits; they lack fair notice and violate constitutional due process limits against statutory vagueness.

Id.

While the appellant in Welch was charged with second-degree criminal abuse, the identical analysis would apply to a construction of the wanton endangerment statutes to cover a pregnant woman's conduct. Such a construction would similarly render the statutes void for vagueness.⁵Id.

What Welch found most telling, however, in ascertaining that the legislature did not intend criminal sanctions for prenatal use of drugs and alcohol, is the language of the Maternal Health Act of 1992, 1992 Ky. Acts, ch. 442 (H.B.192). 864 S.W.2d at 283-84. The Preamble states the Act's purpose as follows:

WHEREAS, The General Assembly finds that a woman's ability to bear healthy children is threatened by the consequences of alcoholism and drug abuse; as many as ten percent (10%) of all births in the Commonwealth may be affected by alcohol or drug abuse; drug and alcohol use during pregnancy can result in low birthweight, physical deformities, mental retardation, learning disabilities, and other health problems in newborn infants; fetal alcohol syndrome is the leading identifiable cause of mental retardation in the nation and the only one that is totally preventable; drug and alcohol impaired individuals pose extraordinary societal costs in terms of the medical, educational, and support services needed throughout the individual's lifetime;

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