CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, March 10, 2005

Can Pregnant Women Who Ingest Drugs Be Charged With Delivering Drugs to a Child?

Lcunningham Texas Tech CrimProf Larry Cunningham and student attorneys from the Texas Tech Criminal Justice Clinic filed an appeal last week on behalf of Tracy Ward and Rhonda Smith, two women accused and convicted of delivering a controlled substance to a child. The twist to this case is this: The children were fetuses at the time of the alleged delivery. Potter County prosecutors utilized a new Penal Code definition of "person" (which now includes a fetus). They said that the women delivered drugs to persons---their fetuses--- because the women ingested drugs while pregnant.  Cunningham argued in the clinic's March 3rd brief that the state legislature never intended for this new definition to apply to pregnant women. In fact,the bill made specific exceptions in other areas of the law. The bill in question -- S.B. 319 -- was intended to punish third-parties for criminal actions against pregnant women. The brief also argues that the prosecution violates due process, Roe v. Wade, and constitutes cruel and unusual punishment. The State's brief is expected April 3. Argument is expected sometime this Summer or in the Fall.  More . . .  [Mark Godsey]

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