Commonwealth v. Welch
864 S.W. 2d 280 (Ky. 1993)
Welch had used the illegal narcotic oxycodone during her
pregnancy. She was charged with criminal abuse because she had used the
drug during the pregnancy. The baby, although testing negative for
oxycodone, had allegedly suffered from "neonatal abstinence syndrome."
The question in the case was whether drug use during a pregnancy
could constitute a crime against the fetus. The Kentucky Supreme Court
held, over a dissent, that such drug use did not constitute a crime
against the fetus. This was an abortion-related dispute; underlying the
appeal was whether an unborn fetus should be treated as a human being.
The ACLU represented Welch.
The majority opinion argued that if what Welch did was a crime, it
would also be a crime to drink alcohol while pregnant.
"The mother was a drug addict. But, for that matter, she could
have been a pregnant alcoholic, causing fetal alcohol syndrome . . . The
Commonwealth replied that the General Assembly probably intended to draw
the line at conduct that qualifies as criminal . . . 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."
864 S.W. 2d at 283. Note that the majority incorrectly assumes that
only alcoholics have children with FAS.
The dissent objected that this was a "false issue." "[T]his Court
has not business fretting, as has the majority, over whether a pregnant
woman could be prosecuted if she ingested alcohol." 864 S.W. 2d at 286.
It is unclear whether the dissenters thought that it was obvious that such
a woman could be prosecuted, or that it was obvious she could not.
The majority opinion quoted the preamble to a 1992 Kentucky
statute that contained the following passage:
"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
medical, educational, and support services needed throughout the
individual's lifetime. "
864 S.W. 2d at 285. (Emphasis omitted).