Court Cases by Kentucky

Commonwealth 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.

"The mother was a drug addict. But, for that matter, she could have been a pregnant alcoholic, causing fetal alcohol syndrome . . . The Commonwealth replied that the General Assembly probably intended to draw the line at conduct that qualifies as criminal . . . The Commonwealth's approach would exclude alcohol abuse, however devastating to the baby in the womb, unless the Commonwealth could prove an act of drunk driving; but it is the mother's alcoholism, not the act of driving that causes the fetal alcohol syndrome."

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:

"The General Assembly finds that a woman's ability to bear healthy children is threatened by the consequences of alcoholism and drug abuse; as many as ten percent (10%) of all births in the Commonwealth may be affected by alcohol or drug abuse; drug and alcohol use during pregnancy can result in low birthweight, physical deformities, mental retardation, learning disabilities, and other health problems in newborn infants; fetal alcohol syndrome is the leading identifiable cause of mental retardation in the nation and the only one that is totally preventable; drug and alcohol impaired individuals pose extraordinary societal costs in terms of medical, educational, and support services needed throughout the individual's lifetime. "

864 S.W. 2d at 285. (Emphasis omitted).

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