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Court Rules New York State Child Endangering Law May Not Be Used To Punish Pregnant Woman for Health Problems

A Warren County, New York, judge yesterday dismissed charges against a woman arrested on two counts of child endangering based on allegations that she consumed alcohol in her 35th week of pregnancy.

In dismissing the charges, Judge David B. Krogman, ruling as a city court judge in Glens Falls, New York, held that the attempt to base a child endangering charge against Stacey Gilligan on the allegation that “at the time of the birth she knowingly fed her blood” to her baby through the umbilical cord was “without legal basis.” Ms. Gilligan was arrested and charged with two counts of child endangering in September of 2003.

“The ruling dismissing the charges is a victory for the rule of law as well as public health statewide,” said Rebekah Diller, director of the New York Civil Liberties Union’s Reproductive Rights Project, which represents several health and child welfare groups as friends of the court in this case.

In response to her arrest, more than 50 medical, public health, child welfare and family justice organizations, as well as leading medical health care providers and experts, sent an open letter to the Warren County District Attorney’s office opposing the prosecution. While taking seriously the problems posed by alcohol and drug use – problems that are not limited to pregnant women – these concerned organizations and individuals condemned the arrest and prosecution of pregnant women as dangerous to the welfare of both women and children. The signatories agreed that the arrest and prosecution of Ms.Gilligan would not be an effective child protection method, that threat of jail would not address the woman’s alcohol dependency problem, and that the arrest would send a dangerous message that seeking pre- and postnatal care can lead to criminal sanctions.

In addition to the open letter, the American Public Health Association, National Council on Alcoholism and Drug Dependence and the National Coalition for Child Protection Reform filed a friend of the court brief asking the Glens Falls City Court to dismiss the prosecution of Ms. Gilligan because it violated New York law as well as the well-established consensus in the medical community that such prosecutions are irrational, ineffective and counterproductive.

After careful examination of New York State case law and legislation, the Court ruled that the charges were “without legal basis.” The court found that the state’s child endangerment law was not intended to apply to pregnant women in relationship to the fetuses they carry and rejected the argument that Ms. Gilligan delivered alcohol to her newborn through the umbilical cord after its birth. Agreeing with a 1992 decision by another New York court in a similar case, the Court held that “public policy and due process considerations militate against the prosecutions of mothers for transfer of drugs through the umbilical cord for that brief instant before the mother and the newborn are separated.”

“We are very pleased that the court recognizes that New York, along with 48 other states, has chosen to address pregnancy and addiction as health issues, not criminal justice matters,” said Lynn Paltrow, Executive Director of National Advocates for Pregnant Women, co-counsel on the amicus brief. “This decision is consistent with court rulings in more than 22 other states and with the recommendations of every leading medical and public health group to address the issue.”

Richard Wexler, Executive Director of the National Coalition for Child Protection Reform, a non-profit child advocacy organization and one of the amici said, “Every time a grandstanding prosecutor tries to score political points by taking a swing at so-called ‘bad mothers’ the blow lands squarely on children.”

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