This morning, the Kentucky Supreme Court heard oral argument in the case of Cochran v. Commonwealth, a case that could have enormous consequences for healthy moms and babies in that state.

Ms. Cochran’s road to Kentucky’s Supreme Court has been a long one. Almost four years ago, Ms. Cochran gave birth to a baby girl. Her daughter allegedly tested positive for cocaine, and for that alone, Ms. Cochran was charged with felony child abuse. However, before her case could go to trial, the court dismissed the prosecution. The court was right: Ms. Cochran never should have been charged. In 1993, in Commonwealth v. Welch (the ACLU represented Ms. Welch in that case), the Kentucky Supreme Court ruled that Kentucky’s criminal laws could not be used to punish women who become and choose to remain pregnant despite a substance abuse problem.

You might think that the court’s dismissal of her case would have been the end of Ms. Cochran’s ordeal; unfortunately it was not. The state appealed, arguing that in later cases the Kentucky Supreme Court had actually reversed itself, even though it could point to no explicit language where the court had done so. Surprisingly, the appeals court agreed (though not one of the three judges on that court agreed for the same reason). With the law now totally in flux, the state Supreme Court accepted the case to settle the issue — again — of whether becoming and remaining pregnant is ever a crime in the state of Kentucky.

The ACLU filed a friend-of-the-court brief in support of Ms. Cochran, not only because we believe Welch is still good law, but, more fundamentally, because using criminal laws to punish pregnant women who are struggling with addiction makes for bad law and even worse public policy. If a pregnant woman can be charged with a crime for potentially harming her fetus, then literally everything she does or does not do — including choosing to continue her pregnancy to term despite an underlying health condition — could land her in jail. What if a pregnant woman has a glass of wine with dinner now and then, or lives with a smoker; what if she drives over the speed limit, fails to get regular pre-natal care, or works in a coal mine, as many women in Kentucky do?

Allowing the government to exercise such unlimited control over women’s bodies, and every aspect of their lives, would essentially reduce pregnant women to second-class citizens, denying them the basic constitutional rights enjoyed by the rest of us.

Moreover, from a public health perspective, these prosecutions are simply counterproductive. Fifty-nine organizations and experts, including the American College of Obstetricians and Gynecologists and the Kentucky Psychiatric Medical Association, joined friend-of-the-court briefs in this case, explaining that punitive approaches to improving fetal health just don’t work. Seems obvious, right? By forcing doctors to turn in their own patients, these prosecutions only drive women away from the health care and treatment they need. If the state of Kentucky was truly interested in supporting healthy moms and babies, these groups point out, it would not be violating its own laws to throw the pregnant women who need health care the most in jail.

We are hopeful that the Kentucky Supreme Court will agree and uphold nearly two decades of sound law and policy in the state of Kentucky. Indeed, the court’s decision will have ramifications beyond Ms. Cochran’s case. At least two other women have been charged with similar “crimes” since Ms. Cochran’s arrest. Our efforts should be focused on ensuring that pregnant women with underlying health conditions can get the care they need. Hopefully, this case will set us squarely on that path.

If  you or someone you know has been prosecuted or threatened with prosecution for allegedly harming their fetus, please contact us.  Any information you provide will be treated as confidential.  You can email rfp@aclu.org or send a letter to the Reproductive Freedom Project at 125 Broad Street, 18^th floor, NY, NY 10004.  For more information about the ACLU’s work on pregnancy prosecutions and other reproductive freedom issues, please visit http://www.aclu.org/.

On Sunday, May 31, Dr. George Tiller, a doctor in Wichita, Kansas, who for decades provided abortions for women even in the face of harassment and violence, was murdered at his place of worship. Sondra Goldschein and Allie Bohm, both of the American Civil Liberties Union (ACLU), attended events in New York City and Washington, D.C., honoring Dr. Tiller’s life.

Sondra Goldschein writes:

When I heard about the murder of Dr. Tiller on Sunday evening, I went from shock to tears to fear to loss. I could feel those emotions but I couldn’t put into words what a tragedy his death is. I finally found the words from Dr. Tiller himself.I attended one of at least forty events across the country honoring Dr. Tiller’s life on Monday night. I was one of a large group of people in downtown Manhattan who heard a story about Dr. Tiller that cut to the core of who this remarkable man was. The story was told by New York City Council Speaker Christine Quinn.

As many of us have now heard, Dr. Tiller was shot in both arms in 1993. What we haven’t heard as much is that he came back to work the very next day. Why? When he needed medical attention, he had received it. His patients needed his care and he was going to be there. “There was never any question in my mind that I was going back to work the next day.”  

Dr. George Tiller truly understood that a woman facing an unintended pregnancy should have the opportunity to make the best decision for herself and her family, whether her decision is raising a child, adoption, or abortion. He respected women and their decisions, and with his wonderful staff, was there to help women from all over the country. According to Dr. Tiller, “abortion is about women’s hopes, dreams, potential, the rest of their lives. Abortion is a matter of survival for women. . . . It is my fundamental philosophy that patients are emotionally, mentally, morally, spiritually and physically competent to struggle with complex health issues and come to decisions that are appropriate for them.“   

Thank you, Dr. Tiller, for your humanity, your bravery, and for treating women with dignity and respect.   

Allie Bohm writes: 

“When you come here, bring only love . . .” read the banner that backdropped the Washington DC vigil in honor of Dr. Tiller. Some 200 people circled the banner, standing in front of the White House. One woman tearfully read prepared remarks, and then the floor was opened up, and women and men of all ages came forward to speak as the spirit moved them. Some of them knew Dr. Tiller personally. Many did not. Some were long-time veterans of the pro-choice movement; for others, Dr. Tiller’s murder had galvanized them to come to a pro-choice event for the first time. 

“When you come here, bring only love . . .” Many of us in DC live in a heady world of policy debates, political statements, and moralizing. Dr. Tiller did not. Speaker after speaker emphasized that while we debate policy, the doctors, nurses, and receptionists in abortion clinics see their jobs as helping women and providing health care services, not as making a political statement. Dr. Tiller is a hero to many of the vigil’s attendees and a martyr to others. But, he did not set out to be a hero or a martyr. He set out to be a doctor. The speakers who knew Dr. Tiller emphasized his compassion and understanding for women.     

One of the vigil’s speakers was a man who has been a clinic escort for 20 years, influenced by a high school classmate of his who died from a botched illegal abortion before Roe v. Wade; at the time she could not afford to go to NY for a safe legal abortion. Those of us who work in the policy sphere sometimes forget that access to safe abortion is a public health issue. He said, “I do not want my son to have to continue escorting when I finally retire.” 

At the same time, a young woman who works with college students reported that in April Dr. Tiller told her, “Now, it’s your generation’s turn.” It is now all of our turns. Doctors should not have to risk their lives so that women do not have to die from pregnancy complications or back-alley abortions. As signs at the DC vigil read, it is time to “keep abortion providers safe now.”

The Associated Press is reporting that Plan B (emergency contraception) will soon be available without a prescription for teens 17 and under. We expect the FDA to shortly announce its compliance with the court decision we reported on last month that slammed the FDA for its politically driven decision to impose an age restriction. We hope that this is the first step in making Plan B accessible and affordable for all women who need it.

Written by Elizabeth Alexander of the ACLU’s National Prison Project. 

Shackling pregnant women during active labor and childbirth is, unfortunately, all too common in our nation’s prisons and jails. One such victim of this practice was Shawanna Nelson, who entered the Arkansas prison system when she was six months’ pregnant, with a short sentence for a non-violent crime. When she went into labor, the correctional officer accompanying her shackled her legs to opposite sides of the bed, and removed the shackles only long enough for the nurses to examine her. Ms. Nelson remained with both her legs shackled to the bed until she was taken to the delivery room, and she was re-shackled immediately after the birth of her son, who weighed almost ten pounds. The shackles caused Ms. Nelson to suffer cramps and intense pain, as she could not adjust her position during contractions. After childbirth, the use of shackles caused her to soil the sheets, because she could not be unshackled quickly enough to get to a bathroom. The correctional officer knew that Ms. Nelson was not a flight risk, and knew that the restraints caused pain and unsanitary conditions. According to expert obstetricians, shackling women during labor is inherently dangerous.

A federal district judge ruled that a jury should decide whether Ms. Nelson’s treatment violated the Eighth Amendment, but the defendants appealed to the 8th Circuit Court of Appeals. A three-judge panel reversed the district court and dismissed Ms. Nelson’s case. With the help of the ACLU’s National Prison Project (NPP), Ms. Nelson was able to persuade the court of appeals to grant rehearing before the entire court and in September 2008 NPP staff argued on Ms. Nelson’s behalf that her case should go to trial. We await a decision.

Meanwhile, the ACLU works to persuade prisons and jails to end this barbaric practice. The National Prison Project, together with the ACLU’s Reproductive Freedom Project, the Women’s Rights Project, and many of our state affiliates are part of a national coalition advocating for changes in policy and law at the federal and state level. To date, the Federal Bureau of Prisons and the U.S. Marshals’ Service have both issued policies severely limiting the shackling of pregnant women and several state legislatures are now considering bills to limit or end the practice. Our policy and advocacy work continues to raise national awareness about efforts to ban shackling of pregnant women prisoners across the country. In addition we continue to negotiate with Immigration and Customs Enforcement to ensure that pregnant women held as immigration detainees in federal, state and local facilities are not subject to this cruel and degrading practice.

Learn more about how pregnant women prisoners are treated in your state.

If you haven’t already, be sure to submit your comments supporting President Obama’s proposed rescission of the Heath Care Denial Rule by Thursday, April 9. The rule, finalized in the waning hours of the Bush administration, severely limits access to medical care and information by allowing heath care providers to deny care to anyone who needs services the provider objects to.

Now, we at the ACLU are all about protecting religious freedom. But that isn’t what this rule is about. This rule doesn’t just apply to protect individual religious belief. It allows corporations like insurance companies and hospitals to deny patients care. Individuals’ religious beliefs are already protected by a federal law that carefully balances religious liberty with the need for patients to access health care. But this Bush rule takes patients’ needs completely out of the equation.

Which is why it’s essential that those of us who support access to heath care for all—whether it’s the morning-after pill for a rape victim or an HIV test for a college student—submit comments to support the rescission of this rule.

President Obama needs our support. When President Bush first proposed the rule back in August, more than 200,000 comments were submitted, most of them in opposition to the rule. We need to show President Obama that we support his actions to protect our access to health care.

So give the administration the backing it needs and submit a comment. Add your name to the growing list of people and organizations calling on the Obama administration to restore access to health care. Take action now.