[ad_1]
Oklahoma resident Amanda Aguilar was arrested after utilizing marijuana whereas pregnant. Although Aguilar had a medical marijuana prescription, prosecutors reasoned that her fetus didn’t. They charged the mom of 5 with little one neglect, a felony.
Now, the state’s highest legal court docket says prosecutors had no foundation to try this.
The ruling ought to be excellent news for girls who use marijuana to assist with morning illness and different being pregnant illnesses. However the opinions on this case clarify that some Oklahoma judges would like to see pregnant marijuana customers criminalized.
“The child has no medical marijuana license,” wrote Decide Gary L. Lumpkin in a dissenting opinion.
Even Decide Scott Rowland, who wrote the bulk’s opinion, burdened that the court docket doesn’t “condone marijuana use by an expectant mom” and urged Oklahoma lawmakers “to contemplate an addition to the regulation making clear when, if ever, the licensed use of marijuana could represent little one neglect.”
Aguilar’s Arrest Is Not an Remoted Incident
Aguilar is not the one Oklahoma mom who has been charged for exposing a fetus to marijuana that she was utilizing legally. In accordance to the nonprofit Being pregnant Justice, “at the very least eight ladies have been charged beneath this principle since 2019.”
One other Oklahoma mom, Brittany Gunsolus, is one such lady. After her son examined constructive for marijuana at beginning, she—like Aguilar—was charged with felony little one neglect, although she additionally had a medical marijuana prescription and that little one welfare employees investigated and deemed her match.
Gunsolus’ attorneys argued that utilizing prescription marijuana whereas pregnant ought to be handled identical to taking another prescription drug throughout being pregnant. However Comanche County prosecutors apparently disagreed. “At a court docket listening to in Comanche County in August [2023], a prosecutor argued Gunsolus broke the regulation as a result of her unborn little one didn’t have its personal, separate state license to make use of medical marijuana,” The Frontier reported.
With the assistance of Being pregnant Justice, Gunsolus requested the Oklahoma Supreme Courtroom to listen to her case and rule that pregnant marijuana customers with a legitimate medical marijuana license can’t be criminally charged. The Courtroom declined.
Charged With ‘a Crime Which Does Not Exist’
Aguilar’s case obtained its day in court docket due to an overzealous Kay County prosecutor.
After being charged with little one neglect, Aguilar filed a movement to quash for inadequate proof, arguing that utilizing medical marijuana whereas pregnant will not be unlawful. “There’s so many mothers which might be going to take these fees simply because they’re terrified,” Aguilar advised The Frontier. Not her.
A choose granted Aguilar’s movement and the case towards her was dismissed. However Kay County District Legal professional Brian Hermanson pressed on, interesting to Oklahoma’s highest legal court docket.
On July 18, the Oklahoma Felony Courtroom of Appeals dominated in favor of Aguilar.
“For us to search out that Aguilar’s marijuana use, absolutely licensed by her medical marijuana card, grew to become unlawful resulting from her being pregnant, would require us to rewrite the statutes in a method we merely don’t assume is suitable for courts to do,” Rowland wrote within the court docket’s opinion, affirming the decrease court docket’s granting of Aguilar’s movement to quash.
Oklahoma regulation consists of in its definition of kid neglect “the failure or omission to guard a baby from publicity to…the use, possession, sale, or manufacture of unlawful medication.” In Aguilar’s charging paperwork, police say she was responsible of exposing a baby to “managed harmful substances.”
“Thus, the charging doc accuses Aguilar of against the law which doesn’t exist,” Rowland writes. He factors out that managed harmful substances and unlawful medication usually are not synonymous phrases, since many managed substances are authorized to own and use with a prescription. On this case, Aguilar had a prescription for marijuana, which signifies that she was not possessing or utilizing it illegally.
Beneath the Affect of Fetal Personhood
In a dissenting opinion, Lumpkin argued that Aguilar’s marijuana use ought to have been unlawful as a result of “solely [she] has a allow to make use of it, not her child.” Thus, “the child’s publicity to [Aguilar’s] use and possession of marijuana, a Schedule I drug, is illegitimate.”
Decide David B. Lewis takes up the same theme in his dissent, writing that “a medical marijuana license is actually not a authorized authorization to share, switch, or distribute marijuana to others who haven’t any license, particularly these for whom its use or possession is unauthorized by regulation.” And “who may actually doubt {that a} licensed marijuana client would face authorized penalties for willfully sharing, distributing, or allowing the unlicensed ingestion of marijuana by youngsters for whose welfare they’re accountable?”
Rowland rejects these assertions. By this logic, it might be “illegal for any expectant mom to ever be prescribed any managed harmful substance by any physician,” he factors out.
However the majority doesn’t appear satisfied that it ought to be authorized for pregnant ladies to make use of marijuana with a prescription. “We perceive [Lumpkin’s] apparent need to discourage marijuana use by pregnant ladies,” Rowland writes at one level, asking the Legislature “to deal with the issue.”
And each the bulk and dissenting opinions are steeped within the language of fetal personhood, an idea that sees the fetus as an individual with authorized rights separate from the mom carrying it.
Fetal personhood is most frequently invoked as a justification for banning abortion. But it surely additionally can be utilized to justify all kinds of restrictions on pregnant ladies or legal penalties for individuals who do something that the state says is not in a fetus’ finest pursuits. It is grounds for all the pieces from fees towards ladies who do medication whereas pregnant (one thing Rowland usually endorses, writing that “an expectant mom who exposes her unborn little one to unlawful methamphetamine may very well be convicted of kid neglect”) to punishing a pregnant lady for getting shot as a result of she put herself in harms’ method.
It additionally paves the best way to extra carefully monitoring all pregnant ladies and regulating a broad vary of their actions.
Those that wish to criminalize all pregnant drug customers usually are not solely waxing that slippery slope but additionally failing to behave in the perfect curiosity of youngsters. Worry of arrest usually is not going to cease somebody who’s hooked on medication from utilizing, nevertheless it may cease them from in search of substance abuse therapy, receiving correct prenatal care, or delivering in a hospital—issues that may compound any unwell results of prenatal drug publicity.
And the matter will get much more murky after we’re trying particularly at marijuana.
Not like the unwell impact of extreme alcohol throughout being pregnant—which is nicely documented—the impact of the usage of marijuana throughout being pregnant is way much less sure. There is no clear proof that it produces any adverse results, and plenty of research purporting to search out as a lot undergo from critical flaws (like marijuana-using moms of their pattern additionally utilizing different medication, together with cocaine.) In the meantime, many ladies report that utilizing marijuana whereas pregnant helps with morning illness and different being pregnant maladies.
As with so many points regarding ladies’s our bodies, selections about marijuana use throughout being pregnant are finest left as much as pregnant ladies and their medical doctors.
Let’s hope Oklahoma legislators agree.
[ad_2]
