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Legislature could look at laws governing women using drugs while pregnant in 2017

CHARLESTON, W.Va. — A ruling by the West Virginia Supreme Court of Appeals could prompt the Legislature to change the state statute’s governing child neglect in 2017.

The Court overturned the conviction of a Nicholas County woman, who was set to face between three and fifteen years in prison for child neglect resulting in death.

Outgoing delegate Patrick Lane (R – Kanawha, 38) suggested that any members of the Legislature who return to Charleston in 2017 consider changing state law to make this type of offense punishable.

“The Supreme Court looked at the law on the books, interpreted the law on the books, and applied the law on the books and found that the conviction of this mother for killing her baby by overdosing on meth at 37 weeks gestation was not a crime in West Virginia,” Delegate Patrick Lane said on the House Floor on Thursday.

Stephanie Louk's conviction was overturned last week in the WV Supreme Court of Appeals.
Stephanie Louk’s conviction was overturned last week in the WV Supreme Court of Appeals.

In July 2013, the Nicholas County Prosecutor’s Office filed charges against Stephanie Louk for child neglect resulting in death. On June 11, 2013, Louk, 37 weeks pregnant at the time, overdosed on meth. Due to the resulting heart attack, doctors were forced to deliver her baby via c-section.

The child, Olivia, would survive just eleven days after her birth–her blood testing positive for meth and several other drugs.

“We all know that drugs are an epidemic,” Lane said. “We all know that it affects every facet of our lives. Increasingly, we’ve become aware that 20 to 25 percent of the children born in West Virginia are born addicted.”

“If Olivia, the baby, had lived, we as policy makers and taxpayers would be responsible for the care of that child.”

A Nicholas County jury agreed with then Prosecutor P.K. Milam and found Louk guilty on the child neglect resulting in death charge in December 2014.

But Louk and her legal representation appealed to the Supreme Court of Appeals, arguing that the Legislature does not define prenatal acts that result in harm to a subsequently born child as part of the statute.

In a 3-2 vote, the WV Supreme Court of Appeals determined that the statutory language in West Virginia state code was clear: “Code ยง 61-8D-4a does not include either an “unborn child” or a “fetus,’ rather, it only refers to a parent neglecting “a child” under his or her care, custody or control.

“Based on the law, I can’t argue with the case,” Lane said. “It was rightly decided. That brings us back to the chairs that we sit in and not the chairs on the third floor of the east wing.”

Lane said the case raised complicated questions regarding whether the child every truly lived. The facts of the case reveal that Olivia was essentially born brain dead, but that a number of drugs were still in her system. Though Lane believed she was born alive, he suggested that the Legislature would need to clarify state code in order to avoid future situations like this.

“I would suggest that it is a multi-faceted problem that requires a multi-faceted approach of care, compassion, treatment, education, and at some point–maybe at the end–there has got to be a hammer that’s brought down on people who simply abuse children because they choose to do that,” Lane said.

The Court added, “we conclude that when our Legislature intends to include an unborn child in a statute, it writes that language into the statute. Our Legislature has addressed unborn children in a variety of other statutes, and has done so with absolute clarity.”

The majority opinion did add that they were “troubled by the present case and wish to emphasize our great concern with the issue raised herein.” The Court said that it is the responsibility of the Legislature to codify changes in the statutes related to this case.

The Court did express concern that harsh punishment for drug-addicted pregnant women could discourage them from seeking treatment, but said ultimately this issue must be decided by the Legislature.

It is now up to the Nicholas County Circuit Court to hear a motion for acquittal. The Nicholas County Prosecutor’s Office did not immediately respond to a request for comment on Friday.

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