MD. ENDANGERMENT LAW CHALLENGED

Court Hears Appeals of Women Convicted After Babies Born With Drugs In Systems

Lawyers for two Talbot County women convicted of reckless
endangerment after their babies were born with cocaine in their
systems argued before Maryland's highest court yesterday that using
criminal law to regulate the conduct of pregnant women is
unconstitutional and potentially harmful to both mother and child.

The state held in both cases that the women, Kelly Lynn Cruz and
Regina Kilmon, had violated Maryland's reckless endangerment statute,
and that the prosecutions were a tool for protecting children. But
Assistant Attorney General Mary Ann Ince had little chance to defend
that position because of questioning by Court of Appeals judges.

"Let me start you off with a question: How about the man?" Judge Dale
R. Cathell asked as Ince rose to speak in Kilmon's case. If a man has
unprotected sex with a crack addict and knows she might get pregnant,
the judge said, "Are you going to arrest him? My next question is,
why not?" Judge Irma S. Raker said she was "tremendously" concerned
about the issue of jurisdiction. "Where is it stated that the
ingestion of cocaine took place in Talbot County, Maryland?" she
said. "That cocaine could have been ingested anywhere."

Over the past three years, Talbot County prosecutors charged mothers
with endangering the lives of their newborn children by using drugs
while pregnant in at least six cases -- including those of Kilmon and
Cruz. Kilmon pleaded guilty to reckless endangerment in January 2005
and was sentenced to four years in prison before filing an appeal.
Cruz was convicted in August and sentenced to 2 1/2 years in state
prison. She is out on parole, according to David Rocah, an attorney
with the American Civil Liberties Union of Maryland, which
represented Cruz in Circuit Court and at yesterday's hearing, where
it asked for a reversal of the criminal conviction.

Legal observers say Talbot County appears to be the only jurisdiction
in Maryland, and one of just a few places nationwide, where police
and prosecutors send mothers to prison because their babies have
drugs in their systems. Similar attempts to criminalize drug abuse by
pregnant women became common in the United States during the 1980s
and early 1990s, when crack use soared, but the courts struck down
criminal convictions in dozens of cases as unconstitutional or beyond
lawmakers' intent.

"There's a comprehensive state system for dealing with what is a
genuine social problem, and the Talbot County state's attorney has
chosen to completely disregard that and to disregard the repeated and
considered judgment of the state legislature," Rocah said before the
hearing. "To turn pregnancy and childbirth into a crime means that
pregnant women facing drug addiction won't get the prenatal care they
need, they won't go to hospital to give birth ... and they may be
pushed to choose abortion." Ince declined to comment on the cases
outside the courtroom. The judges appeared interested yesterday in
arguments proffered by Cruz's lawyer, Beth Brinkmann, on behalf of
the ACLU, and Kilmon's public defender, Nancy Forster, about the
seemingly limitless nature of the state's interpretation of the statute.

Under the state's reading, Forster said, pregnant women could be
arrested for anything from speeding to drinking alcohol.

"If the statute is construed the way you're suggesting, couldn't it
cover failing to wear a seat belt and all those other things?" asked
Judge Alan M. Wilner. "Does the reckless endangerment statute include
any foolish or reckless thing a woman does for the whole nine
months?" "Reckless endangerment is the crime," Ince responded. "It
does not require an illegal act."

Lawyers for Cruz and Kilmon also argued that if the mothers ingested
cocaine while pregnant, they couldn't be accused of endangering
children. The legislature clearly did not intend the reckless
endangerment statute to apply to fetuses, they said.