Mothers of babies who test positive for drugs could be charged under Iowa proposal

Critics worry about bill's 'collateral consequences'

UPDATE: Mothers who deliver babies that test positive for the presence of illegal drugs could be face criminal charges carrying significant jail time under a proposal making its way through the Iowa Legislature.

House Study Bill 49, which cleared a House subcommittee Wednesday, would create a new child endangerment offense resulting in bodily injury to a child or minor – a Class D felony that could carry a penalty of five years in prison and a maximum fine of $7,500. The offense would apply to action by the child’s mother that would be “a direct and foreseeable consequence” in causing an illegal drug to be present in the body of a newborn child.

Rep. Jared Klein, R-Keota, called HSB 49 “a decent bill” that would act as a deterrent to illegal drug use during a pregnancy which experts say may cause lasting and debilitating damage to a child. “Saving one child is a win in my book,” he said in supporting a measure that would specify the illegal drug presence as a criminal act of child endangerment.

Rep. Mary Wolfe, D-Clinton, said similar laws in other states have not been successful as a deterrent and some have been overturned by court challenges in opposing the proposed measure. She expressed concern that criminalizing drug abuse of a pregnant woman would result in damage to the child because women who believe they may be prosecuted for drug addiction likely would not seek prenatal care or would not deliver their child at a hospital – posing potential risk both to the mother and the newborn child.

Wolfe said the bill raises a valid concern in seeking to protect children, but she worried about “the collateral consequences” that could result from criminalizing the activity and the potential impact on the correctional system in creating another Class D felony. She also noted the bill did not contain any requirement that the woman had to knowingly or intentionally expose the child to an illegal drug to commit a criminal offense.

Sen. Rob Hogg, D-Cedar Rapids, chairman of the Senate Judiciary Committee, said he did not expect to take up the bill if it is passed by the Iowa House.

“To me, that’s not a criminal issue, it’s a public health issue,” he said. “I don’t have interest in that.”

In calendar 2011, there were 861 child abuses in the category of presence of illegal drugs in a child’s body, according to Roger Munns of the state Department of Human Services. Almost all were newborn babies, although a few were infants or toddlers who ingested unlawful drugs. The total was 827 for the previous year, and Munns said the cases accounted for 4 percent to 5 percent of all abuses every year.

The presence of any illegal drug in a child’s body is, by Iowa statute, child abuse, Munns said. When DHS officials are notified of the presence of illegal drugs in a child’s body by hospitals, social work investigators conduct a standard assessment to determine under what conditions it would be safe for the child to remain in the home. If it is not safe, DHS officials try to find relatives who will step in while the caretakers address safety issues and, if that option is not workable, the child is placed in foster care, he said.

Munns noted that child abuse is not automatically a crime, but the alleged perpetrator’s name is listed on the child abuse registry for 10 years.

While the number of cases where the presence of illegal drugs in a child’s body can be documents, Klein said it is hard to track situations where a criminal penalty might deter a pregnant women from engaging in illegal drug use. “If we can get one, that’s a good thing,” he said. "That’s a move in the right direction.”

The bill now goes to the House Public Safety Committee for consideration.Here is a table of abuse by category by county by year.

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