ACLU of Maryland Declares Victory as High Court Unanimously Rules Pregnancy Prosecutions Are Illegal

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CONTACT: media@aclu.org

BALTIMORE, MD – The American Civil Liberties Union of Maryland applauded today’s decision by the Maryland Court of Appeals unanimously ruling that the reckless endangerment statute does not apply to women who take drugs while pregnant.

“The ACLU of Maryland is heartened that the high court agrees that prosecuting drug-dependent pregnant women is not what the state of Maryland considers good policy,” said David Rocah, staff attorney for the ACLU of Maryland. “We believe that using criminal law to regulate a pregnant woman’s conduct on the theory that it might harm a fetus or her newborn child is counterproductive, illegal, and, ultimately bad for children and society.”

In reaching its decision in Cruz v. State of Maryland, the Maryland Court of Appeals stressed that the General Assembly has consistently rejected efforts to allow criminal prosecutions of women for drug use while pregnant because the approach to the problem is not good public policy. The high court ruled that state law does not support such criminal prosecutions and reversed the conviction of Kelly Cruz, a Talbot County woman who was convicted in August 2005 of reckless endangerment because she gave birth to a drug-exposed baby.

“The Court of Appeals correctly interpreted the law, as the legislature intended, not to criminalize the drug addiction of pregnant women, in effect, but to recognize that this difficult problem is most effectively addressed through drug treatment programs,” said ACLU cooperating attorney Beth S. Brinkmann, who argued the case before the Court of Appeals.

The case arose when, on January 13, 2005, Cruz gave birth to a son. Blood tests taken at the hospital showed the presence of cocaine, and based solely on those toxicology results, Cruz was charged with child abuse, reckless endangerment, contributing to the delinquency of a minor and drug possession. In response to a motion to dismiss filed by the ACLU on her behalf, the state’s attorney dropped all of the charges except for the reckless endangerment count. Cruz was ultimately convicted on that charge, which the court reversed today.

The court of appeals reaffirmed the virtually unanimous view of courts around the country that such broad prosecutions under reckless endangerment statutes could make pregnant women vulnerable to criminal liability for a wide range of activities, some as mundane as not maintaining a proper and sufficient diet or exercising too much or too little.

Prosecuting pregnant women who suffer from drug dependencies is almost uniformly regarded as bad public policy, with no benefit for a child once it is born. Such a tactic deters women from seeking prenatal care, from going to a hospital to give birth and encourages pregnant women struggling with addiction to have abortions to avoid prosecution.

Cruz was represented by ACLU cooperating counsel Beth Brinkmann, Doane Kiechel, and Seth Galanter, in the Washington office of Morrison & Foerster, LLP, Lila Bateman of the firm’s Denver office, Joshua Treem, of Schulman, Treem, Kaminkow, Gilden & Ravenell, P.A., and by ACLU-MD staff lawyers David Rocah and Deborah Jeon.

Today’s decision is online at: www.aclumd.org/aPress/Press%202006/Cruz_decision.pdf

The brief in the case is online at: www.aclu-md.org/aPress/Appellant_brief.pdf