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Aggravated Assault on Unborn Child Charge Filed Against Pregnant Heroin Addict


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. shavon.fisher.jpg

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. On the other hand, if she were released, she could legally obtain an abortion, which would make the aggravated assault of unborn child charge seem even more inappropriate. 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. If this statute or its cousins "murder of unborn child" or "voluntary manslaughter of unborn child" are applied to pregnant women, that effectively outlaws abortion, which, of course, violates a woman's well-settled constitutional right to abortion.

The obvious solution to the problem of drug use during pregnancy would be for the General Assembly to enact a law making it illegal to use certain non-prescribed drugs during pregnancy. Clearly, Ms. Fisher would be guilty of such an offense, if it existed, and she could be incarcerated until the child is born. As obvious as such a law seems, it could lead to some negative consequences. Drug addicted pregnant women would likely avoid any prenatal care whatsoever, if they knew that they would be charged with a crime, as soon as they test positive for drugs. That could create an even more dangerous situation for the unborn child.

Matt McClenahen is a criminal defense attorney in State College Pennsylvania, home of Penn State University. He limits his practice to criminal law. /Criminal-Defense-Overview/Drug-Possession.shtml

Source: http://lewistownsentinel.com/page/content.detail/id/541370/Woman-charged-with-assault-on-unborn-child.html?nav=5010

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