CHARLESTON – The state Supreme Court has ruled that a woman who injected meth while pregnant won’t be charged for child neglect after her daughter died 11 days after being born.

Ketchum
Ketchum

The 3-2 decision says state child neglect laws don’t specify anything about unborn children while other state laws do specifically mention unborn children. So, the Court says current child neglect laws can’t be applied to the case of Stephanie Louk.

Chief Justice Menis Ketchum, who authored the May 27 majority opinion and noted current law is clear, said there “may be significant policy implications and social ramifications surrounding the present issue.”

In 2014, Louk was convicted of felony child neglect resulting in death. Nicholas Circuit Judge Gary Johnson sentenced her to a 3- to 15-year sentence. She had overdosed on June 11, 2013, after shooting methamphetamine into her arm when she was 37 weeks pregnant. Doctors at Summersville Regional Hospital performed an emergency cesarean, but her daughter was born “essentially brain dead” and died 11 days later.

A Nicholas County grand jury charged Louk, saying the daughter’s death was caused by Louk using meth. Louk’s attorneys argued that the state Legislature has “refused to make women criminally liable for the outcome of their pregnancies.”

The state Supreme Court ruling sends the case back to Johnson to dismiss the indictment against Louk. Justices Robin Davis and Brent Benjamin joined Ketchum in the majority, while Justices Allen Loughry and Margaret Workman dissented.

In the majority opinion, Ketchum notes a Wisconsin decision regarding the specific mention of unborn children in state law. He said because West Virginia has laws regarding unborn children and the child neglect laws that apply to this case do not mention them, the Court has to proceed as if the statutes do not apply to unborn children.

“Multiple courts outside of our jurisdiction, confronted with this issue, have found that because the Legislature specifically provides for the protection of an unborn child, this ‘demonstrates the ease and clarity with which the Legislature may, if it so chooses, apply a statute to the unborn,’” Ketchum wrote. “Like these other jurisdictions, 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.”

In a separate concurring opinion also issued May 27, Benjamin says the decision of whether Louk’s actions were criminal belongs to state Legislature.

“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,” Benjamin wrote. “The law in inadequate to address this tragedy.

“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. … What Ms. Louk did was wrong.”

Benjamin also says his personal outrage about Louk’s actions are “driven by frustration.”

“No matter how much I may wish to simply judge under the law, I cannot ignore or forget the victim here,” he wrote. “This child should today be playing, laughing and engaging in the things children do. This child was a victim.

“If there is a victim, one might expect that there should be a crime. But, no matter how much others may argue to the contrary, here the Legislature has decided otherwise.”

In a dissenting opinion joined by Workman, Loughry writes that Louk’s conviction should have been upheld because state law doesn’t mention when the harm to the child has to occur – before or after birth.

Loughry says the majority was swayed by an amicus brief submitted by several medical organizations and doctors urging the Court to rule to vacate Louk’s indictment because state law doesn’t specifically mention prenatal acts of harm.

“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,” Loughry wrote. “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.”

Loughry says the law as written by the Legislature was ignored by the majority.

“The majority chose to focus on the fact that the neglect that caused Olivia’s death occurred before she was born,” he wrote. “Under the plain language of the statute, this fact is immaterial.”

Loughry also cites the “born alive” rule of common law that has been part of state law since West Virginia became a state in 1863.

“Moreover, our common law provides that if a ‘child is born alive, and dies by reason of injuries received in the womb, or in the act of birth, the person who deliberately inflicted those injuries may be guilty of murder,’” he wrote.

Louk was represented by Jason D. Parmer of Public Defender Services in Charleston, while the state was represented by Elbert Lin and Julie Warren from Attorney General Patrick Morrisey's office. The amici were represented by Diana Panucci of Public Defender Corp. and Farah Diaz-Tello of National Advocates for Pregnant Women in New York.

West Virginia Supreme Court of Appeals case number 15-0021

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