Addict Mother Won’t Be |Charged in Baby’s Death

(CN) — A woman who injected herself with methamphetamines while pregnant won't be charged with child neglect after her daughter died 11 days after being born, the West Virginia Supreme Court ruled.

The woman at the center of the case, Stephanie Louk, injected meth into her left arm on June 11, 2013, and a few hours later went to Summersville Regional Medical Center complaining of trouble breathing.

At the time, she was nine-months pregnant.

As recounted in the court documents, Dr. Tracey Lester diagnosed Louk with acute respiratory distress caused by her drug use.

Lester later testified that means "your lungs fill up with fluid, and your bloodstream is not able to get oxygen from your lungs and take it to your brain and vital organs to provide your body fuel to survive."

Lester added that "with a pregnant patient, blood is going to be shunted away from the baby, away from the placenta to try to keep the mother alive."

After an emergency Cesarean section, the child, Olivia Louk, was born "essentially brain dead," with "no movement, no spontaneous respirations," and was immediately put on a ventilator to help her breathe, a forensic pathologist testified.

The baby died 11 days later.

Despite noting Louk's drug use, the death certificate states: "other natural causes contributing to the mother's cardiorespiratory insufficiency cannot be excluded."

In January 2014, Louk was indicted by a grand jury of one felony count of child neglect resulting in death.

Louk moved to dismiss, arguing that "the legislature has refused to make women criminally liable for the outcome of their pregnancies," but the circuit court denied the motion.

After a two-day jury trial, Louk was convicted and sentenced to three-to-15 years in prison.

Louk appealed, and a divided West Virginia Supreme Court of Appeals reversed the lower court's ruling Friday, despite noting that "we are troubled by the present case and wish to emphasize our great concern with the issue raised herein."

Various laws make clear that "when the Legislature intends to include an 'unborn child,' 'fetus,' 'unborn individual,' or 'unborn person' within a statute, it does so with absolute clarity," Chief Justice Menis Ketchum wrote for the majority on the five-judge panel, noting that the Legislature excluded those terms from the child-neglect-causing-death statute.

"It is not for this court arbitrarily to read into a statute that which it does not say," the majority states. "Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted."

Therefore, "Louk could not reasonably have known she could be prosecuted for child neglect based on her prenatal conduct," the Ketchum later added.

"Were we to extend the statute to prenatal conduct that affects a fetus in a manner apparent after birth — conduct that would be defined solely in terms of its impact on the victim — the boundaries of proscribed conduct that would subject a pregnant woman to prosecution under W.Va. Code § 61-8D-4a would become impermissibly broad and ill-defined," Ketchum wrote.

The court citied a 2015 Arkansas Supreme Court ruling that "No one wishes to discourage pregnant women who are fighting an addiction from seeking treatment and rehabilitation for substance abuse. The argument has been made that criminal prosecutions will have that effect. However, that balancing of legitimate policies is to be made by the legislature, and not by this court."

Justices Brent Benjamin and Robin Davis concurred with Ketchum. Justices Allen Loughry and Margaret Workman dissented.

The parties' Charleston, W.Va.-based attorneys did not return requests for comment Wednesday.

They are Jason Parmer, of Public Defender Services, who represents Louk; Attorney General Patrick Morrisey, Solicitor General Elbert Lin, and and Assistant Attorney General Julie Warren, who argued on behalf of the state; and Diana Panucci, with 13th Judicial Circuit Public Defender Corp., for amici curiae including the West Virginia State Medical Association and other medical professionals.

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