Prosecutor wants pre-birth intervention

By Kevin Dayton
Advertiser Big Island Bureau

HILO, Hawai'i — Alarm over drug-exposed children has prompted Big Island prosecutor Jay Kimura to ask for a change in state law to allow authorities to intervene immediately when a pregnant woman is addicted to ice.

In a recent presentation in Hilo to the Joint House-Senate Task Force on Ice and Drug Abatement, Kimura suggested that the Legislature empower Child Protective Services to get involved when a pregnant woman is using drugs and take steps "in the best interest of the unborn child."

Currently, CPS has no jurisdiction until after the child is born, Kimura said.

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The issue is sensitive for both civil libertarians and law enforcement authorities.

Pamela Lichty, president of the nonprofit Drug Policy Forum of Hawai'i, said there is "near-universal" agreement among public health groups and medical associations that forcing a pregnant woman into drug treatment is a bad idea.

One concern is that addicted pregnant women who fear state intervention might avoid doctors and hospitals and get no prenatal care at all, Lichty said.

She said that research shows that even if a woman uses drugs throughout her pregnancy, the baby is healthier if the mother gets prenatal care than if she doesn't.

"I'm just saying that forcing somebody into treatment is not right," Lichty said. "I think there is an incredible civil rights violation doing that."

Susan Dorsey, interim legal director at the American Civil Liberties Union of Hawai'i, said the ACLU would "oppose any measure that would separate the fetus from the woman in the eyes of the law. The health of the woman is primary."

Privacy issues also are involved, because by law, pregnant women must consent before their healthcare information, including a positive drug screening, can be disclosed to CPS or anyone else, Dorsey said.

Still, the problem of children being exposed to drugs is troubling to law enforcement officials.

Big Island Police Chief Lawrence Mahuna said that when his officers raid "ice houses," they routinely find children living in dirty, dangerous conditions, with more babies on the way.

"That's one of the things that we find in an ice house almost every time," Mahuna said. "You always find one or two pregnant women who are using crystal methamphetamine and then give birth to children that have congenital brain disorders, and on and on. That's where the cycle begins."

Kimura said his suggestion that CPS be given some authority over pregnant drug addicts grew in part out of a Kona case in which a known cocaine user became pregnant and continued to use drugs.

Although possession of drugs is illegal, being under the influence of drugs is not a crime in Hawai'i, which meant there were no grounds for a criminal case against the woman, he said.

Kimura said he isn't certain what sort of system the Legislature should adopt, and doesn't necessarily believe that criminal prosecution would be required in such a case. But he wants a way for the authorities to get involved to protect the fetus.

Honolulu Prosecutor Peter Carlisle said Kimura's proposal deserves further study, although Carlisle has not researched the issue to determine how pre-birth intervention might be accomplished.

"I think it's out-of-the-box thinking, and I think that we're in a situation where we have to think out of the box," Carlisle said. "I think standing by and allowing us to have a generation of ice babies poses a serious danger to the future safety of our community and the children."

Carlisle said he is not aware of any criminal prosecutions of pregnant women in Hawai'i for harming a fetus by using drugs.

The problem with such a case would be that the fetus is not legally defined as a person separate from the mother until after birth, and Carlisle said it therefore may not be possible to treat the fetus as a victim of a crime.

After the baby is born, authorities can prosecute a mother for drug use if it harms the infant.

A Riverside, Calif., methamphetamine addict, Amy Leanne Prien, was convicted of second-degree murder after her 3-month-old son, Jacob Wesley Smith, died of an overdose of drugs he consumed through breast milk early last year.

Thus far, researchers have not been able to precisely identify the effects of methamphetamine use on a fetus, in part because there are so many variables at work.

Pregnant women who use ice often do not get adequate prenatal care, may smoke cigarettes and may drink alcohol, which are all associated with higher-than-average numbers of health problems for newborns.

That mix of risk factors makes it difficult to identify exactly what causes problems for infants born to ice-using mothers.

Fred Holschuh, a retired emergency room physician who worked at Hilo Medical Center, said his experiences convinced him that ice use does indeed damage the fetus before birth, although it may be difficult to prove.

Holschuh said he has argued for years that the state ought to be able to impose some sort of "custodial care" on pregnant women, perhaps against their will, to keep them from using drugs. Holschuh said he envisions some sort of "mandatory treatment program," not jail.

"What you have to look at is you have a dreadful addiction that is so out of control, so essentially impossible to deal with, that unless we all help from a medical, psychiatric, public-health perspective, babies will be damaged," he said. "I think there's no question."

Reach Kevin Dayton at kdayton@honoluluadvertiser.com or (808) 935-3916.