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Billings (MT) Gazette, Oct. 3, 2005
CHEYENNE - Rep. Elaine Harvey is having a bill drafted to make it clear that a new Wyoming law protecting children from methamphetamine also applies to an unborn child.
Last week, a state district judge in Lander dismissed a child endangerment case against a woman whose newborn child tested positive for methamphetamine because the state law did not specifically say it applied to fetuses.
Harvey, R-Lovell, was the chief sponsor of the 2004 felony child endangerment law the defendant, Michele Ann Foust, 31, was charged under.
"I thought we were covered. The intent was to protect unborn children but apparently this is a gray area," Harvey said.
The law was designed to punish parents who endanger their children by making or taking meth.
Foust, who was on probation for previous meth use, delivered a boy Oct. 31. Both mother and son tested positive for meth in the hospital.
The law carries a penalty of five years in prison, a $5,000 fine, or both for allowing a child to be in a place where meth is "possessed, stored or ingested."
Harvey said she will take her proposed changes to the law to a meeting of the Governor's Task Force on Drug Endangered Children this week in Cheyenne.
Meanwhile, the prosecutor in the Foust case, Ed Newell, said he will also seek legislation to attack the problem, but through existing laws rather than by changing the child endangerment law.
"I don't want to jump into that whole abortion briar patch," Newell said. "I have no interest in spawning a lot of pro-choice, pro-life debates."
He suggested amending the law against use of a controlled substance to increase the penalty for a pregnant user. A second step would be to require a mandatory minimum sentence for people who deliver meth to a pregnant woman.
State policy-makers have struggled with the question of how society should deal with women's prenatal substance abuse.
Linda Burt, director of the Wyoming Chapter of the American Civil Liberties Union, said such laws put women in a vulnerable position and discourage them from getting prenatal care or treatment for abuse problems.
"They're not helpful to women and they're not helpful to children," Burt said.
The only bill the Legislative Service Office could find that dealt specifically with prenatal substance abuse was never introduced, said its sponsor, former House Speaker Bruce Hinchey of Casper.
Hinchey's bill, prepared for the 1996 budget session, would have required medical professionals to report neonatal substance abuse by the mother. It also authorized the Department of Family Services to take into temporary protective custody a newborn infant that tested positive for illegal drugs.
Hinchey said he sponsored the bill because of the number of reported cases of women taking illegal drugs during pregnancy.
He never introduced the bill partly because people warned him it would touch off a debate on abortion rights.
"This was about doing something to protect the baby," Hinchey said. "I didn't want it to be an abortion debate."
Sen. Jayne Mockler, D-Cheyenne, said one argument against such laws is that they could increase the number of abortions.
A woman who uses illegal drugs and learns she is pregnant, she said, is more likely to get an abortion if she knows she will be prosecuted if authorities find out.
"I think it's an extra pressure on the women to abort the baby," Mockler said. "I'm sure we'll have the same arguments again."