Court Cases by KentuckyCommonwealth 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.
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:
864 S.W. 2d at 285. (Emphasis omitted).