Missouri Court of Appeals Rules that Pregnant Women Cannot Be Prosecuted for Child Endangerment Based on Drug Use During Pregnancy

Via the St. Louis Post-Dispatch:

The Missouri Court of Appeals in Kansas City recently upheld a circuit judge's dismissal of a child endangerment case against a Buchanan County mother — Janet S. Wade — who, along with her baby, tested positive for marijuana and methamphetamine the day after he was born. The court said the same section of Missouri law that allows criminal and civil action against a person who harms a pregnant woman doesn't allow prosecution of a mother for causing indirect harm to a fetus.

St. Charles County Prosecutor Jack Banas said the appellate court's ruling was devastating.

"The way this is decided, essentially, it opens the door for a person who is pregnant to kill the child up until the moment of birth by just literally consuming too much alcohol or too many different types of drugs," Banas said....

A law enacted in 1986 lies at the center of the controversy. It says that the life of a human being begins at conception and that unborn children have "protectable interests in life, health and well-being."...

But Judge Lisa White Hardwick, in her written opinion on the recent appeal, said the same section of law made an exception for a mother who harmed her unborn child. It reads:

"Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care."...

Susan Appleton, a law professor at Washington University in St. Louis and a former board member of Planned Parenthood, said that if the state wanted to make activity criminal, it had to make it clear before someone committed the crime what the consequences were. It could be difficult to draw a line on what activity is illegal, she said.

For example, Appleton said, if a pregnant woman is working in a dangerous environment, could she be prosecuted? What about not taking prenatal vitamins? Would there be a difference between consuming illegal drugs and consuming alcohol?