Briefs Address Drug Testing, Same-Sex Adoption

— Heidi Sfiligoj, News Staff


NASW has recently filed two amicus briefs addressing criminal prosecution of pregnant women and adoption by same-sex couples.

Kentucky Brief

NASW joined an amicus brief in the Cochran v. Commonwealth of Kentucky case, which was filed in the Commonwealth of Kentucky Supreme Court. The case challenges the criminal prosecution of a woman who continued her pregnancy in spite of a drug addiction. NASW is in disagreement with the appellate court opinion in the case.

"In that decision, the court ignored established precedent and effectively rewrote state law to permit the punishment of a woman who carries her pregnancy to term in spite of a drug problem," the brief states.

The case involves a woman and her daughter who were drug-tested a few hours after the daughter's birth. "Referring only to the [positive] test results, the Commonwealth indicted Ms. Cochran for Wanton Endangerment in the First Degree. The trial court properly determined that it was bound by this court's decision in Commonwealth v. Welch ... and dismissed the indictment," the brief states. "On appeal, the Court of Appeals usurped this court's role, holding that Welch is no longer 'binding precedent' and judicially expanding the Commonwealth's wanton endangerment statute to reach and punish women who become pregnant and give birth in spite of a drug problem."

Three arguments are presented in the brief:

  • This court should reaffirm the decision in Welch as mandated by state law, constitutional principles, and the public health interests of pregnant women, children, and families.
  • Overturning Welch and judicially expanding the endangerment statute will result in harm to the health and welfare of pregnant women and children.
  • Science does not support the assumption that illicit drugs, such as cocaine, pose unique risks of harm, greater than other pregnancy risks, that would justify expansion of state law.

"Overturning Welch will cause real and devastating health consequences by deterring some women from seeking prenatal care and drug and alcohol treatment altogether," the brief states.

West Virginia

NASW has joined a friend-of-the-court brief in a legal case addressing the adoption of a child by a same-sex couple. The brief, filed in the Supreme Court of Appeals of West Virginia, opposes the Twelfth Judicial Circuit Court's ruling that it is in the child's best interest to be removed from the care of her foster parents, who have elected to adopt her, so that the pursuit of a heterosexual couple can be undertaken. At the Permanency Hearing, the Circuit Court stated it would consider adoption by a "nontraditional" family only if there were no other alternative.

The brief points out that the child has formed lasting attachments to her foster parents and that there is a severe shortage of potential adoptive couples in West Virginia.

"Elevating the Circuit Court's view of a 'traditional' family above all other factors in placement decisions would block optimal placements for children and is inconsistent with the individualized, case-by-case determination that is required by the 'best interests of the child' standard and child welfare policy," the brief states. "In addition, such a policy has the potential to result in the displacement of many children ... who are currently living happily with same-sex foster parents, may delay permanent placements for foster children, and may discourage capable gay men and lesbians from seeking to become foster and adoptive parents, thereby exacerbating the dire shortage of nurturing homes."

The brief argues:

  • Social science research shows that children raised by same-sex couples are as healthy and well-adjusted as those raised by heterosexual couples.
  • Disfavoring adoption by same-sex couples is inconsistent with the favored individualized approach to placement decisions and contrary to the best interests of children.

NASW was joined in the brief by the association's West Virginia Chapter; the Evan B. Donaldson Adoption Institute; the North American Council on Adoptable Children; and the West Virginia Coalition Against Domestic Violence.

"The representatives of the American Civil Liberties Union of West Virginia, the West Virginia National Organization for Women, Fairness West Virginia and other organizations who attended the proceeding were impressed by the quality of the questioning from the justices, and very much appreciative of NASW's friend-of-the-court brief," said Samuel A. Hickman, executive director of the NASW West Virginia Chapter.