Manslaughter, Pregancy, and Drug Use in Hawaii

More than sixty organizations, including the Drug Policy Alliance, asked the Supreme Court of Hawai'i to overturn the conviction of Tayshea Aiwohi this week. Aiwohi is the first woman in the state to be charged and convicted of manslaughter on the theory that pregnant women can be held criminally liable for the outcomes of their pregnancies. The state and national public health, child welfare and drug treatment organizations and experts who filed a friend of the court brief Wednesday argue that the conviction is not authorized by Hawai'i law and violates well-established consensus in the medical community that such a prosecution is irrational, ineffective, and counterproductive to maternal, fetal and newborn health.

“Punishing women for failing to have healthy pregnancy outcomes undermines health care for both pregnant women and their future children by frightening women away from that health care,” said friend of the court Leslie Hartley Gise, MD, Clinical Professor of Psychiatry at the University of Hawai`i.

In October 2003 Aiwohi, a 31-year-old Native Hawaiian, was indicted for manslaughter on the theory that her ingestion of methamphetamine during pregnancy contributed to the death of her 2-day-old son, Treyson. (Treyson, who was born approximately four weeks premature, died at home hours after being released from the hospital).

Aiwohi sought to have the case dismissed arguing that the state’s criminal laws were not intended to be used as a mechanism to police pregnancy. Two judges ruled against her, and rather than face a trial Ms. Aiwohi accepted a conditional plea bargain that allowed her the right to appeal the trial court’s order. In fall of 2004 Ms. Aiwohi's legal counsel filled a notice of appeal and an opening brief in the Hawai'i Supreme Court.

The drug treatment professionals, physicians and nurses who care for pregnant women and their children, medical researchers who study the effects of drug use during pregnancy, and counseling professionals who filed the brief in support of Ms. Aiwohi acknowledge that the problems posed by drug use during pregnancy are serious public health issues. However, they condemn the arrest and prosecution of pregnant women. Alliance Legal Affairs Director Daniel Abrahamson, who worked on the brief, explained, "Drug dependency is a medical condition. When it is prosecuted as a crime, pregnant women are less likely to seek prenatal care and substance abuse treatment - medical services that are proven to benefit women and their children. Punitive approaches, by contrast, cause more harm than good."

While the friends of the court do not suggest that using methamphetamine during pregnancy is benign, they nevertheless challenge the assumption that “illegal” drugs, such as methamphetamine, pose uniquely high risks of fetal or infant harm. Abrahamson notes, "The adverse effects of in utero exposure to methamphetamine are less well-established – and likely far less grave – than those of any number of legal substances such as tobacco and alcohol."

Oral argument in the case is scheduled before the Hawai`i Supreme Court on October 19, 2005.

This story was provided by the Drug Policy Alliance. Visit their website at: http://www.drugpolicy.org.