Prebirth Drug Use That Leads To Child’s Death Not Criminal In West Virginia

The West Virginia Supreme Court of Appeals has reversed a criminal conviction for child neglect leading to death where the mother took drugs short ly before giving birth and the child died 11 days later

On June 11, 2013, Ms. Louk injected methamphetamine into her left arm. She was thirty-seven weeks pregnant at that time. A few hours after injecting the methamphetamine, Ms. Louk experienced breathing problems and went to Summersville Regional Hospital. Dr. Tracey Lester treated Ms. Louk upon her arrival at the hospital. Dr. Lester testified that Ms. Louk presented to the emergency room with acute respiratory distress which was caused by her methamphetamine use…

Due to concerns about Ms. Louk’s fetus being deprived of oxygen, Dr. Lukasz Rostocki performed an emergency Cesarean section and delivered the child. The child, Olivia Louk, was born “essentially brain dead,” according to Dr. Susan Venuti, the forensic pathologist who performed Olivia Louk’s autopsy. Dr. Venuti testified that upon being born, Olivia Louk “had no movement, no spontaneous respirations, and they had to immediately put her on a ventilator to help her breathe.” Olivia Louk died eleven days after she was born.

The court majority

We have read the law and it is clear: when enacting our child neglect resulting in death statute, the Legislature did not criminalize a mother’s prenatal act that results in harm to her subsequently born child. We therefore reverse the circuit court’s December 9, 2014, sentencing order. Although we recognize that there may be significant policy implications and social ramifications surrounding the present issue, our review is confined to the plain language of the statute enacted by the Legislature. It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. This Court does not sit as a superlegislature, commissioned to pass upon the social, political, or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions. Thus, the Court’s duty in this matter is to enforce the plain language of the child neglect resulting in death statute enacted by the Legislature.

Justice Benjamin concurred with regret

Words are inadequate for the tragedy occasioned by Ms. Louk’s injection of methamphetamine into her body in her thirty-seventh week of pregnancy. Because of her actions, an innocent child is dead. While I have dedicated much of my service in the judiciary to helping individuals take responsibility for their decisions, overcome their addictions and turn their lives around, I cannot personally excuse the decision taken here by Ms. Louk—a decision which not only harmed herself, but which also resulted in the senseless end of the life of another. However addiction may explain irresponsible behavior, it does not excuse it. What Ms. Louk did was wrong. If I were to step away from my duty to follow the law, and to instead make it, I might be tempted, as others, to affirm this conviction…

And while, out of a desire to assuage a personal sense of outrage, it may be tempting for a judge to here engage in activism under the guise of supposed statutory interpretation, it is beyond this court’s legal and constitutional province to make criminal that which the legislature has not…

Though perhaps emotionally tempting, stretching West Virginia Code § 61­ 8D-4a to permit this criminal prosecution to stand, i.e., the prosecution of a woman for acts committed during pregnancy that contribute to the death of a subsequently born child, renders the statute hopelessly vague. What conduct would constitute unlawful neglect? Would the failure to seek prenatal care constitute neglect if the subsequently born child dies? Could eating raw oysters during pregnancy, which is commonly known to carry a risk of food poisoning, be considered neglect? At what stage in the pregnancy would any such acts be neglectful? Would all the mothers of newborn children that die be the potential subject of investigations to determine if any of their activities while pregnant contributed to the death of their children?

An impassioned dissent by Justice Loughery

Olivia Ann Vangeline Louk was eleven days old when she died as a result of her mother’s neglect. West Virginia Code § 61-8D-4a provides that the mother’s conduct constitutes a felony punishable by a three-to-fifteen-year term of imprisonment. Yet, the majority, undoubtedly persuaded by the amici, has decided that no crime was committed because the neglect occurred before Olivia was born. While it is certainly not unusual for this Court to be presented with intensely emotional issues, this case in particular amplifies the Court’s challenge to render justice in the face of facts that touch upon deeply personal and diversely-held beliefs. Our role in this case was the same as it is in all others: to apply the law in accordance with our established principles of jurisprudence. The majority’s result oriented analysis proves, however, that it allowed policy implications and social ramifications to play a role in its decision. The rule of law commanded one outcome in this case–affirming the petitioner’s conviction. Because the majority has utterly disregarded the plain language of West Virginia Code § 61-8D-4a and vacated the petitioner’s conviction, I dissent.

It is undisputed that Olivia was born alive on June 12, 2013, and subsequently died as a result of her mother’s injection of methamphetamine into her bloodstream just hours before Olivia was born. While Olivia was delivered by emergency Cesarean section, the treating physician testified that the pregnancy was “full term.” There is no evidence that Olivia had a congenital defect that would have otherwise prohibited her from living a normal, healthy life. Olivia only lived eleven days because the methamphetamine injection caused her mother to suffer respiratory distress that inevitably deprived Olivia of oxygen for a significant period of time resulting in irreversible brain damage. There is no question that Olivia’s death was caused by her mother’s decision to neglect her child’s welfare, a fact that her mother readily acknowledged. When asked if she considered Olivia’s welfare when she took the illegal drug, the petitioner confessed, “I didn’t and I should have.” She attributed her behavior to “stupidity.”

… Rather than apply the law as written by the Legislature, the majority chose to focus on the fact that the neglect that caused Olivia’s death occurred before she was born. Under the plain language of the statute, this fact is immaterial.

Justice Workman joined the dissent. (Mike Frisch)