Pregnancy II: Expectant Mothers Who Expose Fetuses to Drugs Can't Be Convicted as Drug Dealers Under Fetal Rights Law, Texas Appeals Court Rules 4/7/06

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The Texas 7th Court of Appeals in Amarillo has overturned the drug dealing convictions of two Potter County women who admitted using illegal drugs late in their pregnancies. The cases were prosecuted by former Potter County District Attorney Rebecca King, who cited a newly passed state law granting fetuses the rights of individuals -- a reading of the law widely criticized at the time by a spectrum of groups, including the anti-abortion groups that pushed for the law.

In its March 29 opinion in Ward v. Texas, the three-judge appeals court panel overturned the conviction of Tracey Ward, who admitted smoking cocaine after it was detected in the blood of her newborn infant. In a companion opinion, it overturned the conviction of Rhonda Smith, who admitted to having used methamphetamine. But it did not rule on the scope of the law that defined a fetus as an individual.

Instead, the court held a pregnant mother's transfer of a drug to her fetus through ingestion did not constitute delivery of a controlled substance because the fetus never actually "possessed" the drug. "All agree that the 'actual transfer' contemplated here consisted of the ingestion by appellant of a controlled substance that eventually entered into the unborn child's body via conveyance through the umbilical cord," wrote 7th Appeals Court Chief Justice Brian Quinn in the unanimous opinion.

"Nowhere are we cited to evidence suggesting that the unborn child actually handled, touched, manipulated or otherwise exercised physical possession over the drug. Again, the substance was merely discovered in the unborn child's body. And, therein lies the rub, for the majority of jurisdictions that have considered the issue hold that the mere presence of a controlled substance in one's blood or urinary system does not constitute possession."

(At least one state, South Dakota, does make "internal possession" of a drug a crime.)

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Issue #430 -- 4/7/06

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Editorial: Stopping Bongs, Not Bombs (Evidently) | Feature: Measure to Make Drug Czar Research "Frankenstein Fungus" to Destroy Drug Crops Heads to the Senate | Feature: Pittsburgh Needle Exchange Under Attack, But May Come Out Ahead | Feature: As the Well Runs Dry, Texas Drug Task Forces Ride Off Into the Sunset | Offer: Important New Legalization Video Available | Feedback: Do You Read Drug War Chronicle? | Law Enforcement: This Week's Corrupt Cops Stories | Law Enforcement: NYPD Shuts Down Chelsea Clubs Over Drug Violations | Search and Seizure: Cops, School District to Pay Students $1.2 Million in Goose Creek Raid Settlement | Paraphernalia: ICE Raids South Florida Head Shops | Pain Medicine: Ohio Doctor Freed on Bail During Appeal of Drug Trafficking Conviction | Pregnancy I: Cocaine Use is Not Child Abuse, New Mexico Appeals Court Says | Pregnancy II: Expectant Mothers Who Expose Fetuses to Drugs Can't Be Convicted as Drug Dealers Under Fetal Rights Law, Texas Appeals Court Rules | Medical Marijuana: Reagan Aide Lyn Nofziger Dead at 81 -- Supported Patients' Rights | Europe: Italy Sets Quantity Guidelines for Tough New Drug Law | Latin America: Pro-Coca Upstart Poised to Win First Round of Peruvian Presidential Election | Web Scan: WOLA at House Andes Hearings, Mycoherbicides Again, Broken Windows Debunked, CBC on Coca and Peru's Election, Denver Post, Meth Legalization | Weekly: This Week in History | Job Opportunities: System Administrator and Grassroots Organizer at MPP | Weekly: The Reformer's Calendar

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