By Hannah Hubbard
Wyoming charged Leigh Stewart with child endangerment six days after she gave birth to her baby in Cheyenne. The State alleged that Ms. Stewart violated state law W.S. § 6-4-403(b)(iv), which provides that “[n]o person shall knowingly…[s]ell, give or otherwise furnish a child any drug prohibited by law without a physician’s prescription.” According to Wyoming, Ms. Stewart had “furnished” a child, her newborn baby, with drugs via the umbilical cord connecting the two of them before it was severed by ingesting amphetamines and opiates ten to fourteen days prior to giving birth. Ms. Stewart petitioned the Wyoming Supreme Court for a writ of review on October 30, 2020, asking the Court to find that the facts presented by her case do not constitute a crime under Wyoming law. If the Court grants the writ of review, it will decide whether W.S. § 6-4-403(b)(iv) confers criminal liability on people, like Ms. Stewart, whose drug use occurred during pregnancy and incidentally passed drugs along to their newborn children in the brief period before their umbilical cords were severed. Although her legal arguments are largely confined to statutory interpretations of state law within Wyoming courts, Ms. Stewart’s case is only one of many in which authorities across the United States have sought to prosecute individuals for drug use during pregnancy, a trend that deters prenatal care, disproportionately leverages the criminal justice system against Black and Indigenous women, and puts both parents and children at risk.
The State’s prosecution of Ms. Stewart depends on interpreting W.S. § 6-4-403(b)(iv) to include unborn children or fetuses in the term “child,” while Ms. Stewart’s defense argues that this interpretation goes beyond the scope of the legislature’s intent, so the Wyoming Supreme Court will likely resolve Wyoming v. Stewart through statutory interpretation of state law. Stewart’s writ petition insists that W.S. § 6-4-403(b)(iv) should not apply to her because her relevant conduct—the ingestion of amphetamines and opiates—occurred before her child was born, and Wyoming courts do not consider unborn children or fetuses to be included in the term “child” absent language clearly indicating that the state legislature intended such a meaning. Stewart notes that the Wyoming legislature repeatedly chose not to pass bills criminalizing drug use by pregnant people as evidence that interpreting W.S. § 6-4-403(b)(iv) to cover cases like hers would be an illegitimate expansion of the law past what the Wyoming legislature had contemplated. Although Ms. Stewart’s argument draws on Wyoming courts’ traditional interpretation of Wyoming statutes in order to explain why her prosecution represents an inappropriate expansion of legislative intent, the State’s choice to charge Ms. Stewart under W.S. § 6-4-403(b)(iv) fits into a larger, national flurry to prosecute women for their use of drugs during pregnancy by whatever means available.
Expanding the scope of existent state law is only one mechanism by which prosecutors have sought to punish individuals for drug use during pregnancy. Authorities in at least 45 states have sought to prosecute individuals for exposing their fetuses to drugs in utero under a “wide variety of laws” since 1973. National Advocates for Pregnant Women (“NAPW”) documented 413 cases between 1973 and 2005 in which pregnancy was “a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty,” a likely underestimate. Illicit drug use was mentioned as a factor in 84% of these cases; additionally, 59% involved people of color, 71% involved indigent defendants, and most originated either in the South or Midwest (56% and 22%, respectively). Lawmakers in some states explicitly criminalize drug use during pregnancy as an act of fetal endangerment, which the Tennessee General Assembly did in 2014 with the Fetal Assault Law, T.C.A. § 39-13-107. (Tennessee’s Fetal Assault Law sunset in July 2016, and no new prosecutions are permitted pursuant to it; in 2019, lawmakers considered but decided against reviving this law.) Beyond criminal prosecution, however, threats of “loss of parental rights and loss of personal autonomy” by laws that contemplate removing children from their homes or civilly committing pregnant people for drug use during pregnancy “are powerful deterrents to seeking appropriate prenatal care,” according to The National Perinatal Association. In addition to eighteen states defining drug use during pregnancy as an act of child abuse and fifteen states requiring health care professionals to report suspected drug abuse during pregnancy to the authorities, two state Supreme Courts, those of Alabama and South Carolina, have interpreted existing child endangerment statutes to include harm to viable fetuses as “children” in cases paralleling Wyoming v. Stewart.
Statutes such as the Tennessee Fetal Assault Law that more clearly enable prosecution of pregnant drug users, forcing vulnerable individuals to choose between protecting their health (and the health of their unborn children) and minimizing their exposure to the criminal justice system, demonstrate the possible harm associated with expanding laws such as W.S. § 6-4-403(b)(iv) to cover individuals such as Ms. Stewart. By analyzing differences over time, across neighboring states, and between different populations, researchers found that the effect of Tennessee’s Fetal Assault Law was to “discourage prenatal care utilization among high-risk populations,” defined as those in which the child had “newborn abnormal condition after delivery, such as assisted ventilation, admission to the NICU, surfactant replacement therapy, antibiotics given for suspected neonatal sepsis, seizure and birth injury,” supporting the conclusion that criminalizing drug use during pregnancy discourages the use of prenatal support services for those who need them most. Advocates also note that criminalizing drug use during pregnancy aligns with broader “war on drugs” rhetoric that presents drug use as criminal rather than pathological and has “racial discrepancies in prosecutions…related to racial prejudices among people who report maternal substance abuse and the criminal justice system as a whole.” This should alarm anyone concerned about parent-child health outcomes, given that Black, American Indian, and Alaska Native individuals are already two to three times more likely to die from pregnancy-related causes than whites, while Black babies die in their first year of life at twice the rate of white babies.
Because Wyoming charged Ms. Stewart under existent state law that did not specifically criminalize drug use during pregnancy or define the term “child” as including the unborn, Ms. Stewart has access to a defense that she would not otherwise; however, her case presents the Wyoming Supreme Court with the ability to subject countless other individuals to criminal prosecution for their ingestion of drugs while pregnant. With an amicus brief filed in November, NAPW brought together statements by “leading maternal and child health professionals” in support of Ms. Stewart. NAPW draws on “Tennessee’s experiment,” with its short-lived Fetal Assault Law, to argue that expanding W.S. § 6-4-403(b)(iv) “poses grave risks to public health” by dissuading “pregnant women who desire drug treatment and prenatal care…from seeking it.” In addition to its potential effects on the utilization of prenatal care by high-risk populations, this case exists against a backdrop of harm reduction movements that seek to end medical professionals’ “collusion with the carceral system” that disproportionately targets Black and Indigenous women for “entry into the carceral system through health care institutions.” Although the Court’s decision will make all the difference in the life of Ms. Stewart and anyone else who might have been or might be prosecuted for drug use during pregnancy under W.S. § 6-4-403(b)(iv), her case ultimately demonstrates the precarious position of pregnant individuals and new parents living in the nexus of healthcare and criminal justice across the United States regardless of its outcome.
Hannah Hubbard is a second year law student at Harvard Law School.