By Ronnie Ellis
CNHI
FRANKFORT — There they sat, the ACLU, Right to Life and criminal defense attorneys side by side, taking the same position on legislation, strange bedfellows all opposed to a measure to test pregnant women for substance abuse.
House Bill 430, sponsored by Rep. Richard Henderson, D-Jeffersonville, would create the offense of alcohol or controlled substance endangerment of a child prior to birth and permit a court to sentence the pregnant mother to treatment for up to six months.
The bill came before the House Health and Welfare Committee Tuesday for discussion only and no action was taken.
But representatives of the three unlikely allies criticized the bill.
“Criminal penalties with jail sentences will compel some women to avoid the penalty by having an abortion,” said Michael Janocik, legislative agent for the Kentucky Right to Life Association.
“One solution for a pregnant woman to get out of the penalty would be to have an abortion and obviously we don’t want to encourage more abortions,” Janocik said.
Derek Selznick, Reproductive Freedom Project Director for the American Civil Liberties Union, said the bill will put the legislature on a “slippery slope” which might lead to penalties for pregnant women who drink caffeine, smoke or fail to wear a seat belt in motor vehicles.
Selznick conceded pregnant women must be encouraged to adopt good pre-natal health habits, “but prosecuting them is not the answer.”
Henderson told the committee the aim of the bill is to prevent health-impaired newborns or those suffering from the effects of their mother’s substance abuse. His only purpose, he said, is to protect the child who becomes the innocent victim of his mother’s substance abuse.
Ernie Lewis of the Kentucky Association of Criminal Defense Lawyers said that aim is “a health issue that should be dealt with in the health system and not the criminal justice system.”
Lewis said if the bill were to pass, it likely would face constitutional challenges and he cited a U.S. Supreme Court ruling which found the taking of specimens from pregnant women which were then turned over to prosecutors violated the mother’s Fourth Amendment rights against unreasonable search and seizure.
“I understand the intent,” Lewis told the committee, “but for judges, doctors and lawyers to implement this would be very difficult.”
Rep. Jimmie Lee, D-Elizabethtown, commended Henderson’s intent but suggested the bill is misguided.
“It’s a wonderful effort to do something about the problem, but I think it goes about it in the wrong way,” Lee said.
Committee Chairman Tom Burch, D-Louisville, said it would be difficult to determine at what amounts some legal substances posed danger to the fetus of a pregnant woman and said he has never seen a bill commonly opposed by Catholic bishops, ACLU, Right to Life and trial attorneys.
“It has some serious problems,” Burch said of the bill. “It seems to me the bill has a long way to go,” before it can pass out of committee.
Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort. The Richmond Register is a CNHI newspaper.
