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RRP: State of New York v. Gilligan (Amicus; November 5, 2003)




                   – against –



Docket No. 2003-1192
J. Krogmann



Brief For Amici Curiae American Public Health Association,
National Council On Alcoholism And Drug Dependence
And National Coalition For Child Protection Reform
In Support Of Defendant’s Motion To Dismiss


Interest Of Amici Curiae

Amici curiae, American Public Health Association, National Council on Alcoholism and Drug Dependence and National Coalition for Child Protection Reform wish to bring to the Court’s attention the troubling and unwarranted departure from established medical practice and state law occasioned by the prosecution of Stacey Gilligan. In this case, the prosecution seeks to charge Ms. Gilligan with the crime of child endangering on two co-occurring medical conditions: pregnancy and alcohol dependence. Reinterpreting the state’s child endangering law not only contradicts clear legislative intent, it also violates the fundamental precepts of public health and child protection embodied in New York State law, threatens to undermine the health care provider–patient relationship, and ignores the longstanding recognition of courts and the medical community that addiction is a disease, not a crime. For the reasons explained below, the health and well-being of both New York children and their mothers require that the dismissal of charges against Ms. Gilligan.

Amicus Curiae American Public Health Association (“APHA”) is a national organization devoted to the promotion and protection of personal and environmental health. Founded in 1872, APHA is the largest public health organization in the world, representing over 50,000 public health professionals. It represents all disciplines and specialties in public health, including maternal and child health and substance abuse. APHA strives to improve public health for everyone by proposing solutions based on research, helping to set public health practice standards, and working closely with national and international health agencies.

Amicus Curiae National Council on Alcoholism and Drug Dependence (“NCADD”), with its nationwide network of affiliates, provides education, information, and hope in the fight against the chronic diseases of alcoholism and other drug addictions. Founded in 1944 and based in New York, NCADD historically has provided confidential assessment and referral services for alcoholics and other drug addicts seeking treatment. In 1990, the NCADD Board of Directors adopted a policy statement on “Women, Alcohol, Other Drugs and Pregnancy” recommending that “[s]tates should avoid measures which would define alcohol and other drug use during pregnancy as prenatal child abuse and should avoid prosecutions, jailing or other punitive measures which would serve to discourage women from seeking health care services.”

Amicus Curiae National Coalition for Child Protection Reform (“NCCPR”) is an organization of professionals, drawn from the fields of law, academia, psychology and journalism, who are dedicated to improving child welfare systems through public education and advocacy. NCCPR, a tax-exempt non-profit organization founded at a 1991 meeting at Harvard Law School, is incorporated in Massachusetts and headquartered in Alexandria, Virginia. Further information about the organization is available on its website, NCCPR devotes much of its attention to public education concerning widespread public misconceptions about the child protective system and its impact on the children it is intended to serve. Lawyer members of NCCPR also individually have litigated numerous precedential cases involving child protection policies and proceedings. See, e.g., Santovsky v. Kramer, 455 U.S. 745 (1982); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert den., 120 S.Ct. 1832 (2000); Valmonte v. Bane, 18 F.3d 992 (2d. Cir. 1994); Youakim v. McDonald, 71 F.3d 1274 (7th Cir. 1995), cert den., 518 U.S. 1028 (1996); R.C. v. Nachman, 969 F. Supp. 682, aff’d per curiam, table, 145 F.3d 363 (11th Cir. 1998); Norman v. McDonald, 930 F. Supp. 1219 (N.D. Ill. 1996).

NCCPR is concerned that, contrary to promoting the interests of vulnerable newborn children a policy which calls for the arrest of those children’s mothers based upon urine or blood toxicology screens causes children to suffer unnecessary psychological harm and trauma from being separated from their mothers. NCCPR is also concerned that such a separation interferes with the children’s constitutionally protected liberty interest in their relationship with their mothers.

Preliminary Statement

On September 27, 2003, Stacey L. Gilligan gave birth to a baby boy who allegedly tested positive for alcohol exposure. Several days later Ms. Gilligan was arrested by Glens Falls police and was charged with two counts of child endangerment. In two Amended Misdemeanor Informations dated October 8, 2003, the People charge Ms. Gilligan with two counts of Endangering the Welfare of a Child, N.Y. Penal Law § 260.10(1), based on the allegation that she “knowingly fed her blood” (via the umbilical cord), which contained alcohol, to her baby in the process of giving birth.

The New York State Legislature has not passed a law making it a crime to be pregnant and to consume alcohol or to have an alcohol dependency problem. Nor has it criminalized the act of delivering a newborn after having consumed alcohol. Nor has any court in the state ever found—as it could not—the alleged conduct to warrant penal sanctions. Unable to properly charge Ms. Gilligan with an existing crime, the prosecution attempts to wedge allegations of drinking and pregnancy into an interpretation of the child endangering statute that runs contrary to its plain meaning—an interpretation that has already been explicitly rejected in a New York case. People v. Morabito, 151 Misc. 2d 259, 580 N.Y.S.2d 843 (Geneva City Ct. 1992), aff’d, slip op. (Ont. Cty. Ct. Sept. 24, 1992). (A copy of this decision is attached hereto as Exhibit A.) Since the Morabito decision, the Court of Appeals has also addressed the issue of a pregnant woman’s drug use, holding that evidence of drug use by a pregnant woman may not alone give rise to a finding of civil child neglect under the Family Court Act. In re Nassau County Dep’t of Soc. Servs. ex rel. Dante M., 87 N.Y.2d 73, 79 (1995).

Despite this clear authority, the prosecution now asks this court to rewrite state law, creating a crime that lacks foundation in the statute’s plain language and that flouts legislative intent. In doing so, the prosecution not only usurps the role of the Legislature, but also asks the court to apply the statute in a manner that would violate Ms. Gilligan’s fundamental rights to due process and privacy. Moreover, the prosecution pursues a course that state policy-makers and the medical community have rejected because they recognize that alcohol dependency is a disease not a crime, because such prosecutions are likely to deter pregnant women from seeking prenatal care and treatment for drug and alcohol addiction that is beneficial to them and their children, and because such punitive approaches have no proven benefits for the health of children. For the reasons set forth herein, the Court should dismiss the Informations.

I. The Informations Should Be Dismissed As Jurisdictionally Defective Because The Child Endangering Statute Does Not Make It A Crime To Be Pregnant And Have An Alcohol Dependency Problem.

A. The Plain Language of the Statute Makes Clear That it Does Not Extend to Pregnant Women and Their Fetuses.

The two charging instruments—both captioned Amended Misdemeanor Information and both dated October 8, 2003 (“the Informations”)—must be dismissed as facially insufficient because they fail to allege facts constituting endangering the welfare of a child under Penal Law § 260.10(1).1   People v. Hall, 48 N.Y.2d 927, 927–28 (1979); People v. McGuire, 5 N.Y.2d 523, 525–26. “To be facially sufficient, an information must contain allegations of every element of the offense charged and the defendant’s commission thereof.” People v. Tarka, 75 N.Y.2d 996, 997 (1990) (citing N.Y. Crim. Pro. Law §§ 100.40(1)(c), 100.15(3)).

The Endangering the Welfare of a Child statute (“the statute”) makes it unlawful to “knowingly act[] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old . . . . ” Penal Law § 260.10(1) (emphasis added). The Informations attempt to make out the charge based on allegations that Ms. Gilligan drank while pregnant and then gave birth. The prosecution has utterly failed to allege facts constituting endangering the welfare of a child because it does not—as it cannot—allege an essential element of the crime: that the alleged victim was, at the time of the alleged drinking of alcohol, a “child” under the age of seventeen. In the one New York case to have considered this issue, the Geneva City Court and Ontario County Court, on appeal, both rejected a nearly identical attempt to judicially expand the statute to penalize pregnant women. People v. Morabito, 151 Misc. 2d 259, 580 N.Y.S.2d 843 (Geneva City Ct. 1992), aff’d, slip op. (Ont. Cty. Ct. Sept. 24, 1992). In Morabito, the defendant was charged with endangering the welfare of a child based on the allegation that she smoked two bags of cocaine when she was five and a half months pregnant. Within hours of using cocaine, she gave birth to her infant daughter. Morabito, slip op. at 1. Both the trial court and county court squarely held that the endangering statute’s reach could not be extended to include a fetus in the definition of child and dismissed the charge. Morabito, 151 Misc.2d at 259; slip op. at 2–3. “It is readily apparent that ‘such child’ who is the subject of the legislation and who is to be protected from various acts and dangerous occupations cannot be one yet to be born.” Morabito, 151 Misc.2d at 264.

As Morabito held, this interpretation of the statute is required by well-established canons of statutory construction. Under New York law, penal statutes are to be construed according to the natural plain meaning and fair import of their terms. Penal Law § 5.00. Any ambiguity in a penal law must be construed in favor of the defendant. N.Y. Stat. Law § 271. People v. Santorelli, 95 Misc.2d 886, 889 (Sup. Ct. 1978); People v. Buckmire, 167 Misc.2d 581, 583 (Sup. Ct. 1995). Indeed, Penal Law § 260.10 uses “ordinary terms to express ideas which find adequate interpretation in common usage and understanding . . . .” People v. Ali, 144 Misc.2d 543, 546–47 (N.Y. City Crim. Ct. 1989) (quoting People v. Byron, 17 N.Y.2d 64, 67 (1966)). In People v. Alexander, 149 Misc.2d 361, 363 (N.Y. City Crim. Ct. 1990), the court noted that the purpose of the statute is to protect “children of our community”—i.e. children in being.

In contrast, when our Legislature intends a law to apply to fetuses, it states so explicitly. Morabito, 151 Misc.2d at 264. See, e.g., N.Y. Real Prop. Acts. Law §§ 928, 967, 1531, 1753, 1764 (employing the terms “person not in being” and “infant not in being”); N.Y. Dom. Rel. Law §§ 13, 81 (employing the terms “unborn child” and “child likely to be born,” respectively); N.Y. Surr. Ct. Proc. Act § 1408 (employing the term “persons not in being”); N.Y. Ins. Law § 5102 (defining “serious injury” for motor vehicle insurance reparations to include “personal injury which results in . . . loss of a fetus”); N.Y. Pub. Health Law § 4300 (defining decedent for anatomical gifts statute to include “a stillborn infant or fetus”). Similarly, when the state seeks to reach or address pregnancy or pregnant women in particular, it uses those terms. See, e.g., N.Y. Correct. Law § 611 (establishing procedures for incarcerated pregnant women to deliver); N.Y. Exec. Law § 296(1)(g) (forbidding employers from forcing pregnant employees to take leaves of absence); N.Y. Pub. Health Law § 2520 (establishing prenatal care assistance program benefit for pregnant women).

The Legislature is similarly clear with regard to its regulation of alcohol consumption. Personal use of alcoholic beverages by adults twenty-one years of age or older is not prohibited under New York state law. When the state intends to criminalize the personal use of alcohol or actions taken while intoxicated, it does so explicitly. See, e.g., N.Y. Al. Bev. Con. Law § 65 (prohibiting sale of alcohol to anyone who is under the age of twenty-one, visibly intoxicated, or “[a] habitual drunkard known to be such”); N.Y. Alco. Bev. Cont. Law § 65-c (prohibiting “possession of an alcoholic beverage with the intent to consume by persons under the age of twenty-one years”); N.Y. Veh.&Traf. Law § 1192 (prohibiting operation of a motor vehicle while intoxicated).

The prosecution attempts to avoid these clear limitations by recharacterizing the culpable act as having occurred during the delivery process. Both Amended Misdemeanor Informations, dated October 8, 2003, charge Ms. Gilligan with endangering her child “when she gave birth to a child . . . , and at the time of the birth she knowingly fed her blood which had a BAC of more than .26%, through the umbilical cord to Nathanial Gilligan . . . ” (emphasis added). This attempted end run around the plain meaning of the statute has also been foreclosed by the Morabito decision. Slip op. at 3. The county court held that “public policy and due process considerations militate against the prosecution of mothers for transfer of drugs through the umbilical cord for that brief instant before the mother and the new born are separated.” Id. In rejecting the charge in Morabito, the county and city courts both relied on extensive authority from other states refusing to extend child endangering or similar laws so as to punish pregnant women. See State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992) (child neglect statute’s language and legislative history do not support prosecuting pregnant woman for substance addiction); Reyes v. Superior Court, 75 Cal. App. 3d 214 (1977) (child abuse statute not intended to include woman’s alleged drug use during pregnancy; such application violates due process notions of fairness and renders statute impermissibly vague); Commonwealth v. Pelligrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990) (drug delivery charge against pregnant woman whose newborn tested positive for cocaine violated legislative intent and rights to privacy and due process); State v. Osmus, 276 P.2d 469 (Wyo. 1954) (failure to obtain prenatal care not predicate offense of child abuse under manslaughter statute).

The prosecution’s theory defies logic as well as core criminal law principles. In Johnson v. State, 602 So.2d 1288 (Fla. 1992), one of the cases the Morabito court relied upon, Morabito, slip. op. at 3, the Florida Supreme Court rejected an identical umbilical cord theory in a prosecution for delivery of a controlled substance where the defendant had ingested cocaine the night before she delivered. The court wrote:


[T]here was no evidence that Johnson timed her dosage of cocaine so as to be able to transmit some small amount after her child’s birth. Predicting the day or hour of a child’s birth is difficult to impossible even for experts. Had [the defendant] given birth one or two days later, the cocaine would have been completely eliminated, and no “crime” would have occurred. But since she went into labor which progressed to birth after taking cocaine when she did, the only way Johnson could have prevented the “delivery” [of cocaine] would have been to have severed the cord before the child was born which, of course, would probably have killed both herself and her child. This illustrates the absurdity of applying the delivery-of-a-drug statute to this scenario.

Johnson, 602 So.2d at 1292 (emphasis added). See also People v. Hardy, 469 N.W.2d 50, 52–53 (Mich. App. 1991) (rejecting umbilical cord theory for delivery of a controlled substance); Sheriff, Washoe County, Nevada v. Encoe, 885 P.2d 596, 598 (Nev. 1994) (umbilical cord theory “a strained and unforeseen application” of drug delivery statute and “radical incursion upon existing law”).

Here too, the charge depends on the impossible assumption that Ms. Gilligan somehow consciously and knowingly predicted the date and time that she would deliver her child. See People v. Simmons, 221 A.D.2d 994 (4th Dep’t 1995) (endangering statute requires actual knowledge). It further assumes that Ms. Gilligan had control over her internal blood flow at any time during her pregnancy or during delivery. These assumptions fly in the face of the law’s minimal requirement for criminal liability: “the performance by a person of conduct which includes a voluntary act …” Penal Law §15.10. See also State v. Alexander, No. CF-92-2047, Transcript of Decision (Dist. Ct. Tulsa Cty., Okla. Aug. 31, 1992) (dismissing charges of unlawful delivery of a controlled substance to a minor, finding transfer through umbilical cord not volitional).

Moreover, the prosecution seeks to hold Ms. Gilligan criminally liable for conduct that the Court of Appeals has held insufficient to support a civil finding of neglect under the Family Court Act. In re Nassau County, 87 N.Y.2d at 79. Neglect under the Family Court Act is established when a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired.” Fam. Ct. Act § 1012(f)(i)(B). A positive toxicology report revealing the presence of a controlled substance in a newborn “does not in and of itself prove that a child has been physically, mentally or emotionally impaired.” Id. Such a result, the Court of Appeals held, “fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child.” Id. When a positive test for an illegal drug is insufficient, as a matter of law, to support a civil finding of neglect, the allegation of the transmission of blood containing a legal substance—alcohol—cannot be sufficient to state a criminal endangering the welfare of a child charge. Cf. People v. Roselle, 84 N.Y.2d 350, 359, 618 N.Y.S.2d 753, 757 (1994) (“In the prosecution of a parent for [child endangerment], the District Attorney bears the heavy burden of demonstrating defendant’s guilt beyond a reasonable doubt, whereas in an Article 10 proceeding, the determination that a child is neglected must be based on a preponderance of the evidence offered by the civil presenting agency.”) (citation omitted).

B. Prosecuting Ms. Gilligan Contradicts the Expressed Will of the New York Legislature and its Leading Public Health Agencies to Address Pregnancy and Addiction as Public Health, Not Criminal Justice, Issues.

The court need not go beyond the plain language of the statute to deduce that the Legislature did not intend to reach pregnant women and their fetuses. Even if there were ambiguity, however, nothing in the legislative history suggests any intent to reach pregnant women or fetuses.

In the wake of Morabito, the Legislature has not passed a law expanding the scope of the criminal child endangerment statute to encompass pregnant women and their fetuses. Indeed, the Legislature has repeatedly considered and failed to adopt proposals to base a civil neglect finding solely on a positive test for the presence of alcohol or a controlled substance in a newborn.2   Instead, the Legislature has adopted a variety of laws to address the issue of pregnancy and alcohol and drug dependency through an educational and public health approach. This approach is consistent with recommendations of every leading medical group to address the issue, see infra at III.B.1., and is undoubtedly the result at least in part of New York’s counterproductive experiment with punitive approaches in the late 1980s.3

Through both legislation and agency action New York has demonstrated its commitment to non-punitive public health approaches that enhance education and increase the availability of treatment. For example, the state has specifically chosen an education and awareness approach to the issue of pregnancy and alcohol use, requiring that products containing alcohol require warning labels regarding the risks associated with alcohol use during pregnancy. See Al. Bev. Con. Law § 105-b (requiring retailers licensed to sell alcohol to post signs warning pregnant women of the risks associated with drinking while pregnant); N.Y. Agric.&Mkts. § 200(13). (requiring warnings on products that use a specified amount of alcohol as a flavoring).

Similarly, the New York State Legislature has passed a variety of laws encouraging education and treatment rather than punishment, and the Department of Health has implemented policies furthering this approach. See, e.g., N.Y. Pub. Health Law § 2522 (prenatal care assistance program services include education regarding alcohol and tobacco use and substance abuse); N.Y. Soc. Serv. Law § 409-a(10) (preventive services funded by federal Adoption and Safe Families Act of 1997, see 42 U.S.C. § 673b, include substance abuse treatment for pregnant women); N.Y. Mental Hyg. Law § 19.09(d) (requiring mental hygiene commissioner to formulate plan for adequate alcohol and substance abuse services for pregnant women); N.Y. Comp. Codes R.&Regs. tit. 10, § 85.40(e)(2)(iii) (Prenatal Care Assistance Program assists pregnant woman in obtaining necessary psychosocial, drug and substance abuse services); Id. § 405.21(c)(8)(iii) (hospitals required to “assure the availability of prenatal childbirth education classes which address effects of smoking, alcohol and other drugs on the fetus”); Id. § 754.7(b)(2) (similar classes must be provided at birth centers). In furtherance of New York State policy to treat rather than punish pregnant women with alcohol dependency and drug problems, state and local public health agencies have sought funding to expand non-punitive treatment approaches, and new treatment-based programs have been established.4

For all the above reasons, the prosecution and the Informations upon which it has been instituted are wholly unauthorized by the Legislature and should be dismissed.

II. Judicial Enlargement Of Penal Law § 260.10(1) Through Application To Ms. Gilligan Violates Due Process Of Law Guaranteed By The Federal And State Constitutions.

A. Ms. Gilligan Had No Notice That Penal Law § 260.10(1) Would be Applied in a Novel and Indefensible Fashion to Punish Her for Continuing a Pregnancy to Term in Spite of an Alcohol Problem.

Prior to Ms. Gilligan’s arrest, she had no warning that continuing her pregnancy to term in spite of an alcohol problem could subject her to punishment under the statute. Indeed based on prior interpretation, state policy, and sister state decisions, Ms. Gilligan would and should have rightly assumed that New York’s endangering the welfare of a child law was not a means for policing pregnancy or punishing pregnant women. This unprecedented expansion of a penal statute deprives Ms. Gilligan of fair notice of the statute’s scope and denies her due process in violation of the federal and New York state constitutions. U.S. Const. amend. XIV; N.Y. Const. Art. I, § 6.

Basic principles of due process prohibit states from “applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” United States v. Lanier, 520 U.S. 259, 266 (1997); Douglas v. Buder, 412 U.S. 430 (1973); Bouie v. City of Columbia, 378 U.S. 347, 361 (1964). The New York courts have long recognized this due process protection against being “held criminally responsible for conduct which [one] could not reasonably understand to be proscribed.” People v. Cruz, 48 N.Y.2d 419, 424 (1979) (citations omitted); People v. Smith, 44 N.Y.2d 613, 619 (1978); People v. Pagnotta, 25 N.Y.2d 333, 337 (1969). The constitutional requirement of fair notice is also codified at Penal Law § 1.05(2), which states that among the purposes of the New York Penal Law is “[t]o give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction.”

The prosecution’s interpretation of the statute to reach a pregnant woman who used a legal substance and who was apparently experiencing the disease of addiction during pregnancy could not be reasonably anticipated and is thus “indefensible.” Rogers v. Tennessee, 532 U.S. 451, 461 (2001) (internal quotation omitted). As discussed above, the prosecution’s resort to an unexpected application of the statute relies on a novel interpretation of the term “child” to include “fetus” for the purposes of Penal Law § 260.10(1) that is unsustainable as a matter of statutory construction. The only state court to have considered the issue recognized as much and resoundingly declined the state’s invitation to enlarge the statute’s scope to apply to women suffering drug dependency during pregnancy. Morabito, slip op. Indeed, the Court of Appeals has ruled that evidence of a drug addiction during pregnancy alone is insufficient to find civil child neglect. In re Nassau County, 87 N.Y.2d at 79. No reasonable individual could therefore be on notice that the more serious consequences of criminal liability for the use of a legal substance could attach through judicial enlargement of the endangering the welfare of a child statute.

In Morabito, the court stressed the near-unanimity of each of New York’s sister states to have considered such a sweeping and unanticipated expansion of a criminal statute as precluding any expectation that such a statute could apply to pregnant women dependent on drugs: “In light of the uniformity of various state courts in determining the appropriateness of criminal prosecution under similar statutes it seems unlikely that a mother could anticipate that her action might be a violation of the endangering statute.” Morabito, slip op. at 4.

In addition to the extensive authority cited in Morabito, numerous other courts at the time had also refused to judicially expand similar laws to reach fetuses and punish pregnant women. See, e.g., United States v. Foreman, 1990 WL 79309 (A.F.C.M.R. 1990) (no legal basis for criminal child neglect charge based on pregnant woman’s drug use, since fetus was not intended to be included as victim under military code); State v. Carter, No. 89-6274, Order on Motion to Dismiss (Cir. Ct. Escambia Cty, Fla. July 23, 1990), aff’d, 602 So.2d 995 (Fla. App. 1992); State v. Gethers, 585 So.2d. 1140 (Fla. App. 1991) (applying child abuse laws to pregnant women is misconstruction of the purpose of the law).

Subsequent to Morabito, numerous state supreme and appellate courts have examined laws similar to New York’s and continued to reject judicial expansion of existing laws to reach fetuses and punish pregnant women, holding that such interpretations would contravene legislative intent and/or violate principles of due process. The supreme courts of Kentucky, Nevada, and Wisconsin have refused to expand the scope of their state’s child endangering laws to apply to a pregnant woman’s use of illegal drugs. See Commonwealth v. Welch, 964 S.W.2d 280 (Ky. 1993) (applying criminal child abuse statute to pregnant woman would violate law’s plain meaning and render it unconstitutionally vague); Sheriff, Washoe County, Nevada v. Encoe, 885 P.2d 596 (Nev. 1994) (same); State ex rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729 (Wis. 1997) (impermissible to take custody of a pregnant woman under the state’s civil child protection statute because legislature never intended definition of “child” to include “fetus”). Appellate courts in Georgia, Pennsylvania, Texas, Arizona, Indiana, Washington, Illinois, and Wisconsin all have refused to expand their drug delivery and/or criminal child endangering laws to include fetuses. See State v. Luster, 419 S.E.2d 32 (Ga. App. 1992) (application of statute proscribing distribution of cocaine to pregnant women and fetuses would deprive pregnant women of fair notice); Commonwealth v. Kemp, 75 Westmoreland L.J., slip op. (Ct. C.P. Westmoreland Cty., Pa. Dec. 16, 1992) (dismissing child endangering and drug delivery charges against pregnant woman because neither “child” nor “person” included a fetus), aff’d, No. 114 Pittsburgh 1993, slip op. (Super. Ct. Pitts. Dist., Pa. Feb. 22, 1994), aff’d, 647 A.2d 264 (1994); Collins v. State, 890 S.W.2d 893 (Tex. Ct. App. 1994) (applying injury to a child statute to woman’s conduct during pregnancy violates legislative intent and due process principles), Reinesto v. State, 894 P.2d 733 (Ariz. Ct. App. 1995) (same for criminal child abuse statute); Herron v. State, 729 N.E.2d 1008 (Ind. Ct. App. 3rd Dist. 2000) (same for criminal neglect charge); State v. Dunn, 916 P.2d 952 (Wash. App. 1996) (dismissing child mistreatment charges because legislature did not intend to include fetuses within the scope of the term “child”). See also People v. Bedenkop, 625 N.E.2d 123 (Ill. Ct. App. 1993) (woman sentenced to seven years imprisonment after giving birth to infant allegedly “addicted” to cocaine was deprived of due process and unduly punished); State v. J.Z., 596 N.W.2d 490 (Wisc. Ct. App. 1999) (granting motion to dismiss first-degree intentional homicide and reckless conduct charge against woman who used alcohol during pregnancy).

In fact, with the exception of South Carolina, every one of the state and federal courts to consider the question of whether an existing criminal statute could be expanded to reach a pregnant woman’s conditions or behaviors affecting a fetus has rejected such attempts. In 1997, the South Carolina Supreme Court, in a closely divided opinion, interpreted the word “child” in its state’s child endangering statute to include viable fetuses. See Whitner v. South Carolina, 492 S.E.2d 777 (S.C. 1997). As the Whitner decision clearly states, it is based on unique state law. In distinguishing itself from all of its sister states, that court noted that all of the other states that had unanimously rejected judicial expansion of existing child abuse or related laws had done so based on “entirely different bodies of case law from South Carolina.” Whitner, 492 S.E.2d at 782. Moreover, the South Carolina Supreme Court, unlike New York and most other states, retains the power to create common law crimes. This power, explicitly exercised in State v. Horne, 319 S.E.2d 703, 704 (1984), provides the unique basis for South Carolina’s aberrant decision. State v. McKnight, 575 S.E.2d 168 (2003), South Carolina’s recent decision applying the state’s homicide by child abuse statute to a pregnant woman who used drugs, is likewise based on South Carolina’s unique state law. The U.S. Supreme Court’s recent denial of certiorari, McKnight v. South Carolina, 2003 WL 21313734, 71 USLW 3759, 72 USLW 3210, 72 USLW 3235 (Oct. 6, 2003), is not an adjudication by the Court, and thus neither the South Carolina aberrational decisions nor the Supreme Court’s refusal to review the McKnight decision provide any basis for judicially expanding New York State Law. See Brown v. Allen, 344 U.S. 488, 491-92 (1953) (Frankfurter, J.) (repeating admonition that “denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times”) (citations and internal quotation marks omitted).

Ms. Gilligan is being charged with drinking a legal substance in a state that has no statute or case law that has ever made such behavior a crime. As a thoroughly “unexpected and indefensible” expansion of an existing law, Rogers, 532 U.S. at 461 (internal quotation omitted), the prosecution’s application of the statute must be barred as a violation of due process guarantees of fair notice of prohibited conduct. Bouie, 378 U.S. at 352 (“unforeseeable and retroactive judicial expansion of narrow and precise statutory language” may violate constitutional fair notice requirement).

Moreover, the prosecution’s interpretation of a clear legislative enactment operates to punish Ms. Gilligan’s conduct after the fact by creating an entirely new category of criminal behavior that was not in existence at the time of Ms. Gilligan’s pregnancy. The prosecution thus invites this Court to fashion an ex post facto law in violation of Article I, § 10 of the United States Constitution. “The ex post facto prohibition forbids the Congress and the States from enacting any law which imposes punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28 (1981) (internal quotation marks omitted); accord Collins v. Youngblood, 497 U.S. 37 (1990). Because the prosecution’s indefensible interpretation of a clear legislative enactment operates to punish Ms. Gilligan’s conduct after the fact, it achieves the same effect as an impermissible ex post facto law. Bouie, 378 U.S. at 353.

B. Interpreting the Statute to Apply to Fetuses and to Permit Punishment of Pregnant Women Renders It Impermissibly Vague.

The application of the statute to Ms. Gilligan would render the endangering statute impermissibly vague and invite arbitrary and discriminatory enforcement in violation of the constitutional right to due process enshrined in the Fourteenth Amendment. U.S. Const. amend XIV, §1. The due process guarantee protects individuals from criminal prosecution under statutes that are so indefinite that a reasonable person cannot discern the type of conduct proscribed or permitted. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1981); Connally v. General Constr. Co., 269 U.S. 385, 391 (1925). Moreover, the more serious consequences of criminal prosecution warrant greater precision in penal statutes than in other statutes. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498–99 (1982). The Court of Appeals recently restated the two-part approach to assessing the vagueness of criminal statutes: first, a statute must be “sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute”; second, the enactment must provide officials with “clear standards for enforcement.” People v. Stuart, 100 N.Y.2d 412, 420 (2003) (citations and internal quotation marks omitted). If this Court interprets the statute to apply to pregnant women in relationship to their fetuses, the statute becomes impermissibly vague in both respects.

For the reasons argued above, application of the statute to pregnant women renders unclear the meaning of the statute’s key terms and the precise conduct it criminalizes. While a pregnant woman might well know of the potential harms caused by alcohol and a wide range of other legal and illegal substances, she would have no way of knowing, based on the statute’s plain language—which refers to “a child less than seventeen years old,” Penal Law § 260.10(1)—that she could be subject to criminal prosecution for the use of these substances or an addiction to them.5   “The statute’s application to pregnant mothers is not sufficiently definitive and explicit to inform them that their taking drugs will render them subject to penalties.” Morabito, slip op. at 4. Courts in other states have also refused to permit application of similar statutes to women while pregnant because of intolerable vagueness. See, e.g., Welch, 864 S.W.2d at 283; Reinesto, 894 P.2d 733. As the Illinois Supreme Court has recognized, to impose criminal or, indeed, even civil, liability on a woman for pregnancy outcomes in the absence of “the best prenatal environment possible . . . would have serious ramifications for all women and their families, and for the way in which society views women and women’s reproductive abilities.” Stallman v. Youngquist, 531 N.E.2d 355, 359 (Ill. 1988) (rejecting expansion of state tort law to impose civil liability on all women whose prenatal “act[s] or omissions” may affect fetal outcomes).

Under the prosecution’s interpretation, pregnant women who use a wide range of substances, whether illegal, controlled, or unregulated, which may have teratogenic effects on fetuses, could be subject to criminal investigation and prosecution. Like alcohol, cigarettes are linked to serious potential harm to the developing fetus. Cigarette packages must carry the warning: “Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight,”6   and as the Campaign for Tobacco-Free Kids states in stark terms:


Smoking during pregnancy creates a more serious risk of spontaneous abortion and a greater threat to the survival and health of newborns and children than using cocaine during pregnancy. It is also a much more pervasive problem.7

Under the prosecution’s broad theory of criminal liability women could now also be criminally liable for smoking cigarettes. See, e.g., Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 898 (1992) (opinion of O’Connor, Kennedy&Souter, JJ.) (pregnant woman has no duty to notify husband “before drinking alcohol or smoking” or “engaging in conduct causing risks to the fetus,” including procuring a legal abortion). In rejecting on vagueness grounds a criminal child abuse prosecution for prenatal heroin use, the Arizona Appellate Court explained all the potential consequences of extending a similar statute:


A pregnant woman’s failure to obtain prenatal care or proper nutrition also can affect the status of the newborn child. Poor nutrition can cause a variety of birth defects: insufficient prenatal intake of vitamin A can cause eye abnormalities and impaired vision; insufficient doses of vitamin C or riboflavin can cause premature births; deficiencies in iron are associated with low birth weight. Poor prenatal care can lead to insufficient or excessive weight gain, which also affects the fetus. Some researchers have suggested that consuming caffeine during pregnancy also contributes to low birth weight.

Other factors not involving specific conduct also can affect the fetus and, eventually, the status of the newborn child. The chance a woman will give birth to a child with Down’s Syndrome increases if the woman is over the age of thirty-five. A couple may pass to their children an inheritable disorder, such as TaySachs disease or sickle-cell anemia. Occupational or environmental hazards, such as exposures to solvents used by painters and dry cleaners, can cause adverse outcomes. The contraction of or treatment for certain diseases, such as diabetes and cancer, also can affect the health of the fetus.

Reinesto, 894 P.2d at 736–37 (internal citations omitted).

Regardless of her intentions, the biology of pregnancy means that everything a pregnant woman does or does not do can have an impact on pregnancy outcome. If this court accepts the prosecution’s request to expand the statute, a pregnant woman’s life circumstances, her health, and her actions relating to her own body during pregnancy could all become the subject of criminal prosecution. Such an interpretation of the statute clearly violates the proscription against vague criminal laws. See Id. at 736. Similarly, the degree of risk of harm that could be considered “likely to be injurious to the physical, mental or moral welfare of a child” within the meaning of Penal Law § 260.10(1) is completely unknowable under the prosecution’s interpretation. Application of the statute to attenuated risks of injury in utero, particularly in the absence of reliable medical evidence about causation, is unsustainable. While it is clear that alcohol unquestionably has teratogenic effects, see, e.g., Grace Chang, Alcohol-Screening Instruments for Pregnant Women, 25 Alcohol Research&Health 204 (2001), much remains unknown about the specific effects, if any, that any individual pregnant woman’s pattern of alcohol use may have in any particular pregnancy. While many medical experts, particularly in the United States, recommend as a precautionary matter abstaining from alcohol during pregnancy altogether,8   there is in fact no medical certainty regarding the level of alcohol consumption during a particular pregnancy that will result in negative fetal outcomes.9   Even the exact mechanism that establishes a causative link between alcohol ingestion and manifestation of harmful fetal symptoms has yet to be definitively established.10  

Moreover, the difficulty of isolating the influence of alcohol from that of other factors, such as poverty, poor nutrition, or smoking, on fetal outcomes or infant health renders inferences about causation based on in utero exposure to alcohol alone unreliable. See Kenneth R. Warren&Laurie L. Foudin, Alcohol-Related Birth Defects—The Past, Present, and Future, 25 Alcohol Research&Health 153, 156 (2001) (“[D]efining the factors that place certain women at risk of giving birth to an alcohol-affected child is a key research issue. Risk factors include maternal age, socioeconomic status, ethnicity, genetic factors, and maternal alcohol metabolism, among others” and noting that “further research is needed to evaluate the relative contributions of the various risk factors for FAS [fetal alcohol syndrome]”) (citations omitted); Elizabeth M. Armstrong&Ernest L. Abel, Fetal Alcohol Syndrome: The Origins of a Moral Panic, 35 Alcohol&Alcoholism 276 (2000) (disproportionate incidence of symptoms associated with fetal alcohol syndrome among poor women may result from their simultaneous experience with “smoking and poor diet, [which] exacerbate the effects of alcohol”) (citation omitted) (A copy of this article is appended hereto as Exhibit C.); Nesrin Bingol et al., The Influence of Socioeconomic Factors on the Occurrence of Fetal Alcohol Syndrome, 6 Advances in Alcohol&Substance Abuse 105 (1987) (differences in infant health attributable to differences in economic status).11  

If medical experts have not yet been able to make these determinations with certainty, ordinary individuals with no scientific training certainly cannot be held to a higher standard pursuant to vague criminal laws that permit totally discretionary enforcement.12   The prosecution’s attempt to impose criminal liability on women whom they believe to be in violation of Penal Law § 260.10(1) raises the impermissible risk of standardless discretion for state law enforcement officials, the second factor in vagueness analysis. As is illustrated above, if the statute is applied to include fetuses within the meaning of “child,” pregnant women, and transmissions through the umbilical cord within its scope, its sweep would be limitless. The prosecution’s interpretation, if validated, could open the floodgates to criminal prosecutions for any number of acts or omissions by women while pregnant. In Welch, 864 S.W.2d at 283, the Kentucky Supreme Court noted that to apply the law in this fashion would render pregnant women subject to arbitrary enforcement for smoking, abusing prescription or over-the-counter medicine, or any other number of reasons:


[S]he 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?”

Id. Such a lack of standards for law enforcement under an open-ended construction of a criminal statute invites selective enforcement, a result the Constitution cannot tolerate.

III. Criminal Prosecution Of Ms. Gilligan Under The Endangering Law Violates Her Constitutional Right To Privacy.

A. Application of the Statute to Ms. Gilligan Impermissibly Burdens Her Right to Carry A Pregnancy to Term

Interpretation of the endangering statute to apply to Ms. Gilligan violates two aspects of the constitutionally protected right to privacy. First, given the ill-defined contours and unconstitutional vagueness of the statute if judicially rewritten to include pregnancy and fetuses, the prosecution’s interpretation would authorize the state to monitor the activities of all pregnant women in contravention of the right to bodily integrity and the fundamental “right to be let alone.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Any conduct that could be said to affect the fetus would be the subject of state intrusion. See Reinesto v. Superior Court, 894 P.2d at 736-37 (Ariz. App. 1995); Commonwealth v. Welch, 864 S.W.2d at 283.

Second, this unanticipated application of the statute to prosecute a woman addicted to alcohol who carries a pregnancy to term violates the fundamental right to “bear or beget a child.” Carey v. Population Servs. Int’l, 431 U.S. 678, 685 (1977); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Constitutional protection of this right includes the right to carry a pregnancy to term without fear of penalty. Casey, 505 U.S. at 859 (Roe v. Wade, 410 U.S. 113 (1973), “has been sensibly relied upon to counter . . . suggestions” that “the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it”).

Imposition of the burden on a woman of having to choose between ending a pregnancy or facing prosecution for giving birth “at peril of her life, liberty or property,” Morabito, slip op. at 4, violates her fundamental right to liberty guaranteed by the United States and New York Constitutions. Roe v. Wade, 410 U.S. 113 (1973); Hope v. Perales, 83 N.Y.2d 563, 575 (1994). In Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974), the U.S. Supreme Court invalidated a school district’s requirement that pregnant schoolteachers take unpaid maternity leave at an arbitrary time prior to delivery because it operated in effect as an unconstitutional burden on “freedom of personal choice in matters of marriage and family life.” Certainly, the threat of imprisonment from this prosecution is a far more onerous infringement of reproductive freedom.

That the state’s interpretation of the Endangering statute impermissibly infringes upon a fundamental right becomes obvious when one recognizes that Ms. Gilligan would face no criminal sanction had she chosen to terminate her pregnancy instead of carrying it to term. As the Morabito court stated, such use of the Endangering statute “encourag[es] drug addicted mothers to abort their babies rather than to carry them to full term.” Morabito, slip. op. at 4; see also Johnson v. State, 602 So.2d at 1296.

Ms. Gilligan makes no claim to a right to alcohol dependence during pregnancy nor to a right to harm her fetus. Rather, it is her right to become pregnant and to give birth despite her drug dependence or other health problems that the prosecution violates. See Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419, 1445 (1991) (“[i]t is the choice of carrying a pregnancy to term that is being penalized”) (emphasis in original). As the Supreme Court has recently clarified, even when the state acts in the name of protecting the fetus—and even when the issue is drug use by a pregnant woman—pregnant women are entitled to the full protections of the United States Constitution. Ferguson v. City of Charleston, 532 U.S. 67 (2001). Cf. Int’l Union v. Johnson Controls, 499 U.S. 187 (1991) (holding that employer could not invoke potential harm to fetuses to justify policy barring fertile women from jobs involving lead exposure); see also Int’l Union v. Johnson Controls, 887 F.2d 871, 914 (Easterbrook, J., dissenting) (an estimated 15-20 million jobs entail exposure to chemicals that pose fetal risk) .

B. The Prosecution of Ms. Gilligan Furthers No State Interest But Instead Would Endanger Public Health and Deter Women from Seeking Health Services Beneficial to Them and Their Future Children.

Because fundamental privacy rights are implicated, the burden shifts to the People to prove that this prosecution furthers a compelling interest. Carey, 431 U.S. at 685–86. The prosecution, however, cannot establish that its application of the statute serves any legitimate, much less compelling, state interest because it is irrational, ineffective, and counterproductive.

1. Prosecuting Women Because they are Pregnant and Drinking Alcohol Is an Ineffective Means of Protecting Fetal Health.

Public health and welfare organizations uniformly object to the prosecution of pregnant women for conditions they have or the circumstances they encounter during pregnancy because such prosecutions have been shown to erode women’s willingness to seek health care or to confide in their health care providers. These organizations include the American Medical Association,13   American College of Obstetricians and Gynecologists,14   American Academy of Pediatrics,15   March of Dimes,16   American Society of Addiction Medicine,17   United States General Accounting Office,18   National Association of Public Child Welfare Administrators,19   National Council on Alcoholism and Drug Dependence,20   American Nurses Association,21   American Academy of Addiction Psychiatry,22   and Center for the Future of Children.23  

Early, high-quality, comprehensive prenatal care is one of the most effective weapons against infant mortality.24   Prenatal care greatly improves pregnancy outcomes, especially among women with addictions.25   However, the threat that alcohol use during pregnancy could lead to criminal sanctions will likely deter pregnant women from seeking treatment and prenatal care that is critical to the health of both mother and fetus.

Moreover, if the statute is interpreted in this fashion, it will dangerously compromise the health care provider-patient relationship. When an alcohol-dependent patient is pregnant, trust is paramount in order to reduce or prevent potential harm and ensure optimum safety for woman and child before, during, and after delivery. Important medical benefits accrue when patients feel sufficiently comfortable to divulge highly personal and often stigmatizing information to their treatment providers.26  

Medical and public health professionals and the courts have long recognized that the obligation of patient confidentiality is not solely a matter of principle—it is a necessary precondition of every relationship between a patient and a health practitioner or counselor. See Jaffee v. Redmond, 518 U.S. 1, 10 (1996). A woman’s fear of prosecution for child endangerment and loss of contact with her child is likely to diminish her willingness to speak openly with her care provider during prenatal care visits or hospitalization. Ferguson, 532 U.S. at 78 n.14. Alcohol and drug use are one of the most commonly missed diagnoses in obstetric and pediatric medicine.28   In most cases, a patient’s alcohol use is not readily apparent if the patient does not disclose it.29   Permitting the prosecution of Ms. Gilligan to go forward would send a perilous message to pregnant women with substance abuse problems not to seek prenatal care or drug treatment, not to confide their addiction to health care professionals, not to give birth in hospitals, or not to carry the fetus to term—all in order to avoid detection by law enforcement authorities. See Ferguson, 532 U.S. at 84 n.23 (health care facility’s regime of disclosing pregnant women’s medical test to criminal prosecutors “harm[s], rather than advance[s], the cause of prenatal health”). The result would be to undermine, not advance, the State’s objective of promoting maternal and fetal well-being.

2. Applying the Statute to Punish the Disease of Alcoholism, Particularly in the Face of Ongoing Barriers to Treatment, Serves No Legitimate Purpose.

Such a prosecution is particularly inappropriate, given the long-standing barriers to treatment for pregnant alcohol- and drug-using women in New York. Historically pregnant women were categorically or effectively excluded from treatment programs in the state. See e.g., Wendy Chavkin, Drug Addiction and Pregnancy: Policy Crossroads, 80 Am. J. Pub Health at 485 (surveying New York drug treatment programs and finding that 54% categorically excluded pregnant women, 67% refused to take women who relied on Medicaid for payment, and 87% refused to take pregnant women on Medicaid who specifically suffered from cocaine addiction); Elaine W. v. Joint Diseases North General Hospital, Inc., 613 N.E. 2d 523 (N.Y. 1993) (drug treatment program’s categorical exclusion of pregnant women constituted sex discrimination and violated New York State public accommodations law).

The issues women bring to alcohol- and drug-abuse treatment are more numerous and complex than men’s issues. Compared to the general population, women in treatment show significantly higher rates of: childhood sexual abuse; childhood and adult domestic violence; medical problems; and mental health problems, including depression and post traumatic stress disorder. Marsha Rosenbaum, Women, Research and Policy, in Substance Abuse 654–65 (Joyce H. Lowinson et al. eds., 3d ed. 1997) (“Researchers have consistently found high levels of past and present abuse in the lives of women drug users. Many have suggested that there is a relationship, if not absolutely causal, between violence experienced by women and drug use.”) (citations omitted); New York State Office for the Prevention of Domestic Violence, Ways in Which Victimization May Put Women at Increased Risk for Substance Abuse, available at In addition, women often have primary caretaking responsibilities for children and other family members and have high levels of shame and guilt related to their alcohol dependence. See Sheila B. Blume, Women and Alcohol: Issues in Social Policy at 470. Successful treatment for women substance abusers must address these sensitive issues with an emotionally and physically safe context.

Although access to treatment in the state has improved significantly, there continue to be numerous barriers to care for many women. A 1994 survey documented significant improvement in the number of programs that would accept pregnant women, but also significant ongoing barriers to that care. See Vicki Breitbart et. al., The Accessibility of Drug Treatment for Pregnant Women: A Survey of Programs in Five Cities, 84 Am. J. Pub. Health 1658, 1659–61 (1994) (finding significant increase in the number of programs in New York City that accepted pregnant women but that many barriers remained, including significant obstacles if a woman was a Medicaid recipient, the failure to refer women for prenatal care, and the finding that three-quarters of the outpatient programs in New York City accepting pregnant women did not provide child care). The study concluded by saying:


Although the treatment door is now open to pregnant women, institutional barriers are still widespread, preventing poor women with children from getting care. Criminal prosecution and other similar policies that target the individual behavior of drug-using women implicitly discount the systemic inadequacies documented here.

Id. at 1661. See also New York State Office of Alcoholism and Substance Abuse Services Fact Sheet, FACTS: Women and Addiction, available at (“Barriers facing women today are similar to those of 40 years ago. Their greatest fear is not caring for or losing their children. Other barriers are greater social stigma, lack of money or health insurance, inadequate transportation, and lack of treatment services sensitive to gender needs.”) (citation omitted).

The prosecution of Ms. Gilligan for failing to overcome her alcohol dependency while pregnant not only contradicts legal precedent, legislative will, and medical research, but also disregards the unfortunate fact that Ms. Gilligan and many women like her simply cannot access appropriate treatment through no fault of their own.

IV. Punishing Ms. Gilligan For Suffering From The Disease Of Alcohol Addiction Serves No Legitimate Purpose

Both the New York and United States Constitutions prohibit cruel and unusual punishment. U.S. Const amend. VIII; N.Y. Const. Art. 1, § 5 (“Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted . . . ”). As long ago as 1925, the Supreme Court observed that drug dependent persons “are . . . proper subjects for [medical] treatment.” Linder v. United States, 268 U.S. 5, 18 (1925). The Supreme Court reaffirmed this principle nearly four decades later in Robinson v. California, 370 U.S. 660, 667 n.8 (1962), when it found unconstitutional a law making the status of narcotic addiction an offense. The Court stated that “narcotic addiction is an illness . . . . which may be contracted innocently or involuntarily.” Id. at 667 (citation omitted).

The medical profession has long recognized that alcohol dependence is an illness that cannot generally be overcome without treatment.30   Indeed, as described in the DSM-IV, one of the hallmarks of alcohol dependency is the inability to reduce or control substance abuse despite adverse consequences.31   New York State Mental Hygiene law similarly defines alcoholism as “a chronic illness in which the ingestion of alcohol usually results in the further compulsive ingestion of alcohol beyond the control of the sick person to a degree which impairs normal functioning.” N.Y. Mental Hyg. Law § 1.03, subd. 13; see also id. § 1.03, subd. 3 (classifying alcoholism as a type of disability). Because of the compulsive nature of drug and alcohol dependency, criminal sanctions are unlikely to achieve the goal of deterring drug and alcohol use among pregnant women; rather, such sanctions will further stigmatize the medical condition of addiction and drive addicted women further into the shadows and away from critical health care opportunities.

Despite the florid language of the charging document accusing Ms. Gilligan of “fe[eding] her blood” to her son, she engaged in no willful action. Cf. People v. Davis, 33 N.Y.2d 221 (1973) (distinguishing Robinson where defendant engaged in actual behavior of possessing and using a hypodermic needle). Rather, she experienced two conditions simultaneously: pregnancy, a protected right under the constitution, and a drug dependency problem, a medically recognized health condition. As the court in People v. MacGregor, 90 A.D.2d 675, 676 (4th Dept. 1982) noted, “[I]mprisonment solely because of a condition is cruel and inhuman punishment….”

The prosecution of Ms. Gilligan is at odds with the understanding of addiction espoused by the medical community and endorsed by the U.S. Supreme Court and New York State law. See also In re William J. Quinn v. State Comm’n on Judicial Conduct, 54 N.Y.2d 386, 394 (1981) (discussing alcoholism as a disease). To seek to punish a person for exhibiting the tell-tale behaviors of a chronic, debilitating illness is as illogical as it is unlawful. Accordingly, the charges against Ms. Gilligan should be dismissed.


For the foregoing reasons, amici curiae respectfully request this Court to dismiss the informations against Ms. Gilligan.

Dated: November 4, 2003

Respectfully submitted,


Rebekah Diller
Arthur Eisenberg
New York Civil Liberties Union Foundation
125 Broad Street, 17th Floor
New York, NY 10004
(212) 344-3005

Lynn Paltrow
National Advocates for Pregnant Women
153 Waverly Place, 6th Floor
New York, New York 10014
(212) 255-9252

Attorneys for Amici Curiae
National Council on Alcoholism and Drug Dependence
National Coalition for Child Protection Reform


















1   The Informations are further facially defective because they fail to set forth non-hearsay allegations as to essential elements of the crime. N.Y. Crim.Pro.Law §100.15(3); People v. Dumas, 68 N.Y.2d 729, 731 (1986); People v. Case, 42 N.Y.2d 98, 100 (1977). The complainant does not claim to have witnessed first-hand any of the factual allegations and instead makes them upon information and belief, based on “facts contained in the attached supporting deposition of Defendant and medical records.” However, no medical records are attached and Ms. Gilligan’s deposition makes no reference to blood alcohol content or delirium tremens. All the allegations are thus hearsay and legally insufficient to constitute a charging instrument.

2   See S.B. 5732, 219th Legis. (N.Y. 1996); A.B. 8215, S.B. 557-A, 220th Legis. (N.Y. 1997); A.B. 6379, S.B. 1075, 222d Legis. (N.Y. 1999); A.B. 7157, S.B. 390, 224th Legis. (N.Y. 2001). A.B. 4839 and S.B. 1014, 226th Legis., are currently pending in both state houses. See also A.B. 8271, 220th Legis. (N.Y. 1997); A.B. 6974, 222d Legis. (N.Y. 1999) (Assembly bill would have provided for testing of newborns for presence of alcohol and controlled substances and allow use of a positive toxicology report to trigger child neglect investigation).

3   At that time, New York embarked on a policy of reporting and treating all newborns who tested positive for illegal drugs as neglected children, Wendy Chavkin, Drug Addiction and Pregnancy: Policy Crossroads, 80 Am. J. Pub Health 483, 483 (1990), resulting in a dramatic upsurge in the number of infants kept in hospitals for extended periods of time while awaiting disposition by Child Protective Services. Vicki Breitbart et al., The Accessibility of Drug Treatment for Pregnant Women: A Survey of Programs in Five Cities, 84 Am. J. Pub. Health 1658, 1659 (1994). A class action lawsuit was filed on behalf of New York City mothers and their children who were separated by New York City child welfare agencies and hospitals solely on the basis of allegedly positive drug tests performed on newborns and/or their mothers. The case was resolved by a consent decree in which the city agreed to cease using positive toxicologies as the sole basis for child removals. Judgement and Order Upon Consent, Ana R. v. Sabol, No. 90-3863 (S.D.N.Y.). Because the child removal policy was viewed as a violation of state law as well as a costly and ineffective intervention, it was later rescinded by the state Department of Social Services. See Sheila B. Blume, Women and Alcohol: Issues in Social Policy, in Gender and Alcohol: Individual and Social Perspectives 462, 475–76 (Richard Wilsnack&Sharon C. Wilsnack eds., 1997) (reprinting portions of Letter from Susan Demers, Deputy Commissioner, New York State Department of Social Services, to Barbara Gil, American Enterprise Institute of 8/21/90 (quoting General Counsel, Department of Social Services)).

4   For example, in 1990, New York City created the Family Rehabilitation Program, a network of programs operated by community-based family service agencies to provide comprehensive services to families with a drug-using parent, giving priority to families with in-utero drug-exposed infants and/or a child under six years of age in the home. See Stephen Magura et al., Effectiveness of Comprehensive Services for Crack-Dependent Mothers with Newborns and Young Children 31 Journal of Psychoactive Drugs 321(1999). In 1999, the New York State Office of Alcohol and Substance Abuse Services (OASAS) and the New York State AIDS Institute applied for and received a three-year federal grant to expand drug treatment services for women, especially pregnant women and women with children, to help prevent mother-to-child HIV transmission through education and outreach efforts to encourage high-risk pregnant women, including drug- and alcohol-using pregnant women, to receive prenatal care. See In the same year, OASAS and the New York State AIDS Institute received a $600,000 federal grant for Community Action for Prenatal Care. See This program’s effectiveness relies on the ability to persuade pregnant and drug- and alcohol-using women to seek care without fear of criminal retribution.

5   See, e.g., March of Dimes, Field Advisory, “Alcohol Use During Pregnancy” (“The March of Dimes urges women to avoid all beer, wine, and hard liquor during pregnancy. . . . but . . . opposes legal actions that make pregnant women criminally liable or that force them into treatment based on exposure of the unborn child to alcohol.”)

6   See 15 U.S.C. § 1333(a)(1) (mandating warning labels).

7   Campaign for Tobacco-Free Kids, Harm Caused by Pregnant Women Smoking or Being Exposed to Secondhand Smoke, available at (citation omitted).

8   See, e.g., Armstrong&Abel, Fetal Alcohol Syndrome at 277 (comparing warning of the United States Surgeon General in 1981 that “women who are pregnant (or considering pregnancy) not to drink alcoholic beverages and to be aware of the alcoholic content of foods and drugs” to 1996 guidelines of the British Royal College of Obstetricians and Gynaecologists recommending that “women should be careful about alcohol consumption in pregnancy and limit this to no more than one standard drink per day”) (citations omitted).

9   See, e.g., Elizabeth M. Armstrong, Diagnosing Moral Disorder: The Discovery and Evolution of Fetal Alcohol Syndrome, 47 Soc. Sci. Med. 2025–42, 2029 (noting disagreement among American and European researchers over risks of alcohol ingestion during pregnancy to fetal outcomes) (appended hereto as Exhibit C); Ulrik Kesmodel et al., Does Alcohol Increase the Risk of Preterm Delivery?, 11 Epidemiology 512, 512 (2000) (noting controversy among researchers over “whether there is a safe level of drinking during pregnancy”); Eugene Pergament, et al., Alcohol and Pregnancy, 2 Ill. Teratogen Information Service Newsletter (1994), available at

10   See, e.g., Armstrong, Diagnosing Moral Disorder, at 2028 (noting possibility that effect of enzyme deficiencies that prevent breakdown of alcohol—rather than effect of alcohol itself—may explain why similar patterns of alcohol consumption do not necessarily correlate with the same incidence of fetal symptoms).

11   Indeed, alcohol (ethanol) intake during pregnancy has been shown to have a beneficial effect on women and fetal health by preventing pre-term labor, which poses high risks of infant morbidity. Nancy D. Berkman et al., Tocolytic Treatment for the Management of Preterm Labor: A Review of the Evidence, 188 Am. J. Obstet. Gynecol. 1648 (2003). Until the recent development of alternative pharmacological agents offering lower risks and greater benefits, alcohol was routinely used in some circumstances to prevent pre-term labor in order to promote optimal fetal development in utero. Marc J.N.C. Keirse, The History of Tocolysis, 110 Br. J. Obstet. Gynecol. 94, 95 (2003) (describing history of use and research on ethanol as a tocolytic agent for preterm labor as recently as 1981 and citing reports that “for ethanol to be effective you needed to achieve blood levels between 1.2 and 1.8 g/l. However, this caused depression and incontinence in women . . . “); Nancy D. Berkman et al., Tocolytic Treatment for the Management of Preterm Labor: A Review of the Evidence, 188 Am. J. Obstet. Gynecol. 1648, 1649 (2003) (noting ethanol as among “five classes of tocolytic agents currently used to treat women in preterm labor,” although ethanol has been surpassed in usage by new treatments that are more effective and have fewer harmful side effects). Uncertainty about the optimal and, of course, harmful, dosage and timing of ethanol infusion merely highlights the difficulty of charging women without medical expertise with such knowledge for the purposes of imposing criminal liability.

12   Indeed, medical advice given to pregnant women has changed significantly over time. One generation ago, for example, pregnant women were encouraged to limit their smoking to ten cigarettes or fewer per day. Nicholson Eastman, M.D., Expectant Motherhood 78 (3d ed. 1957). If, however, they had “been used to smoking considerably more than this for several years,” then they were told “by no means to try to give them up during pregnancy,” as doing so would be too upsetting. Id. Baths during the later stages of pregnancy were forbidden because of fear (later proved unfounded) of infection from bath water, among other reasons. See id. at 71. Fetal welfare and that of pregnant women further mandated, as an “extremely important and absolute” rule, that “[u]nder no circumstances could pregnant women engage in sexual intercourse during the last month of pregnancy. Eastman, supra, at 73. Pregnant women’s diet was likewise strictly regulated: They were told to eat “no more and no less” than they had eaten before they became pregnant, id. at 46; to limit salt intake drastically, id. at 65; and to gain between 20 and 24 pounds, id. Some physicians even went so far as to advise pregnant women to wear attractive clothing in the name of promoting problem-free deliveries: “[O]nly then will you really enjoy entertaining your friends and meeting your husband’s friends. . . . The more you are in the company of others, the better off you are; indeed, I have long chronicled the impression that patients who start in labor while playing bridge invariably have an easy time.” Id. at 67–68.

13   The Board of Trustees of the American Medical Association determined that where the criminal justice system is used to deal with drug-abusing mothers, “[p]regnant women will be likely to avoid seeking prenatal or other medical care for fear that their physicians’ knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.” American Medical Association, Board of Trustees Report, Helene M. Cole, ed., Legal Interventions During Pregnancy 264 J. Am. Med. Ass’n 2663, 2667 (1990).

14   American College of Obstetricians and Gynecologists, Substance Abuse in Pregnancy, 195 Am. Coll. Obstetricians Gynecologists Technical Bulletin 1 (1994).

15   American Academy of Pediatrics, Committee on Substance Abuse, Drug-Exposed Infants, 86 Pediatrics 639, 642 (1990).

16   March of Dimes, Statement on Maternal Drug Abuse 1 (Dec. 1990); March of Dimes, Field Advisory, Alcohol Use During Pregnancy (Sept. 1998). Both documents are attached hereto as Exhibit B.

17   American Society of Addiction Medicine, Board of Directors, Public Policy Statement on Chemically Dependent Women and Pregnancy (Sept. 25, 1989).

18   United States General Accounting Office, ADMS Block Grant: Women’s Set Aside Does Not Assure Drug Treatment for Pregnant Women 5, 20 (1991).

19   National Association of Public Child Welfare Administrators, Guiding Principles for Working with Substance-Abusing Families and Drug-Exposed Children: The Child Welfare Response (Jan. 1991).

20   National Council on Alcoholism and Drug Dependence, Women, Alcohol, Other Drugs and Pregnancy (1990).

21   American Nurses Association, Position Statement (Apr. 5, 1992).

22   American Academy of Addiction Psychiatry, Use of Illegal Substances by Pregnant Women (Nov. 2001).

23   Center for the Future of Children, Recommendations, 1 The Future of Children 8, 9, 14-15 (1991).

24   Southern Regional Project on Infant Mortality, A Step Toward Recovery: Improving Access to Substance Abuse Treatment for Pregnant and Parenting Women 6 (1993).

25   See e.g., Andrew Racine et al., The Association Between Prenatal Care and Birth Weight Among Women Exposed to Cocaine in New York City, 270 J. Am. Med. Ass’n 1581, 1585–86 (1993) (noting that pregnant women who use cocaine but who have at least four prenatal care visits significantly reduce their chances of delivering low birth weight babies) (citation omitted).

26   See Aaron Lazare, Shame, Humiliation, and Stigma in the Medical Interview, in The Medical Interview: Clinical Care, Education and Research 333 (M. Lipkin Jr. et al. eds., 1995).

27   Ferguson, 532 U.S. at 78 n.14.

28   Ira Chasnoff, Drug Use in Pregnancy: Parameters of Risk, 35 Pediatric Clinics N. Am. 1403, 1410 (1988).

29   Grace Chang, Alcohol-Screening Instruments for Pregnant Women, 25 Alcohol Research&Health at 204–05 (documenting the difficulty of accurately screening for pregnant women’s alcohol consumption patterns and/or alcohol dependency).

30   American Medical Association, Board of Trustees Report, Helene M. Cole, ed., Legal Interventions During Pregnancy 264 J. Am. Med. Ass’n 2663, 2667–68 (1990).

31   “Alcohol Dependence” is listed as a mental illness with specific diagnostic criteria in the manual used by psychiatrists to diagnose mental illness. American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders 195 (4th ed. 1994).

















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