In what could prove to be a case of first impression in Pennsylvania, Mifflin County Regional Police have charged a pregnant heroin addict with “aggravated assault of unborn child.” On August 2, 2013, police and Fame EMS discovered 29 year old Shavon Fisher unresponsive following a heroin overdose. In addition to empty heroin bags and syringes, the police also found a used pregnancy test, displaying a positive result. Later, tests at Lewistown hospital confirmed that Fisher was six or seven weeks pregnant and that she had opiates in her system.
The crime of aggravated assault of unborn child , located at Section 2606 of the Pennsylvania Crimes Code, was enacted in 1997, with heavy support from groups and politicians, who would ultimately like to ban abortion, should Roe v. Wade ever be overturned. This offense is defined as either 1) attempting to cause serious bodily injury to an unborn child, or 2) causing serious bodily injury to an unborn child, through conduct, which is knowing, voluntary or reckless under circumstances manifesting extreme indifference to human life. It is graded as a first degree felony punishable by a sentence of up to 10 to 20 years incarceration and a fine not to exceed $25,000.
This is obviously not the first time that a heroin addict became pregnant, continued to use, and then had an overdose, however, this is the first case I am aware of where the heroin addict was charged with the offense of aggravated assault of unborn child. In fact, this statute is employed so rarely that there is not a single reported appellate case interpreting this statute. The times I have seen it employed involved abusive husbands or boyfriends punching or kicking their pregnant wives or girlfriends in the abdomen, which would be an obvious violation of this statute.
I believe that the Commonwealth could have a very difficult time proving that Ms. Fisher is guilty of aggravated assault of unborn child. Unless they can present evidence that she was deliberately trying to commit suicide by overdosing, I do not think they can show that she “attempted” to harm the embryo. In all likelihood, she was merely attempting to inject heroin in order to avoid going through withdrawal. Additionally, it will be nearly impossible to prove that the embryo has suffered serious bodily injury, until the baby is actually born. Should the child have any birth defects, it may be difficult to determine the exact etiology.
It appears that in desperation, the Commonwealth is trying to fit a square peg into a round hole. The aggravated assault of unborn child statute really does not apply to Ms. Fisher’s conduct. In some states, prosecutors have gotten even more creative by charging pregnant drug addicts with crimes like “delivery of a controlled substance to a minor,” under the premise that the mother’s contaminated blood was delivering drugs to the embryo or fetus.
The Commonwealth understandably does not want to allow Ms. Fisher to be released from jail if she plans to carry her baby to full term, and I assume that is why they have opted for a creative prosecution. If she is released, chances are she will resume using heroin, endangering both herself and the unborn child. But this course of action is premised upon the assumption that the embryo will eventually become a fetus and then a baby. The fact that Ms. Fisher has a constitutional right to an abortion adds a whole other layer of complexity to this case.
If Ms. Fisher were released, she could legally obtain an abortion, which would make the aggravated assault of unborn child charge seem even more inappropriate. At that point, would the Commonwealth charge her with “tampering with evidence?” After all, it would be pretty hard to prove serious bodily injury if the child is never born. Also, by charging Ms. Fisher with a high bail crime, which does not even fit her alleged conduct, government officials are essentially depriving her of a right to an abortion by keeping her locked up for a crime she did not actually commit.
If you are in the pro-life camp, and you disagree with the Supreme Court’s ruling that reproductive decisions are a “fundamental right,” then you may applaud the Commonwealth’s creativity. If, on the other hand, you are pro-choice, you likely have mixed feelings. You probably want Ms. Fisher to be locked up until the baby is born, should she choose to have the baby, but at the same time, you would feel that a heroin addict, of all people, should certainly have the option of an abortion. I think we can all agree that heroin addicts do not make the best parents. Therefore, I think both the pro-choice or pro-life camps would agree that adoption is the best option, should Ms. Fisher have elect to have the child. That is if she is even able to make that decision.
Given the fact that abortion is legal, it appears that this statute really can be used only against third parties, and not against the mother. I think we can all agree that a guy who kicks his pregnant girlfriend in the abdomen is more guilty than an abuser who kicks his girlfriend in the abdomen when she is not pregnant. If this statute or its cousins, “murder of unborn child” or “voluntary manslaughter of unborn child,” are applied to pregnant women, abortion is effectively outlawed. Yet as long as reproductive decisions remain a fundamental right, these statutes are unconstitutional when applied to pregnant women.
Matt McClenahen is a criminal defense attorney in State College Pennsylvania, home of Penn State University. He limits his practice to criminal law. http://www.mattmlaw.com/About-Attorney-McClenahen/