Judge to decide if assault charge against pregnant woman who overdosed is legal
A Butler County judge began to deliberate Tuesday on whether a criminal charge brought against a woman who overdosed while pregnant runs afoul of state law.
Common Pleas Judge William Shaffer heard arguments on both sides of the controversial case during a preliminary hearing for Kasey Dischman, 31, of East Butler.
In June, Dischman was charged with aggravated assault of an unborn child after she overdosed on heroin while seven months pregnant, forcing doctors to perform an emergency cesarean section. She gave birth to a premature infant girl who may suffer lasting injuries from the heroin, according to court records.
Public defender Joseph Smith, who represents Dischman, argued Tuesday that state law specifically forbids prosecutors from charging
a pregnant woman with aggravated assault of her own unborn child.
Dischman is charged under a law that makes it a crime to maim or kill an unborn baby. However, the law also establishes three exceptions: It can’t be used to prosecute people who perform legal abortions, medical personnel, or pregnant women for harming their own unborn children.
Mr. Smith brought that argument before Judge Shaffer during Tuesday’s proceedings.
“We cannot prosecute women and make them felons for seeking help,” Mr. Smith said. “This immunity is a blanket immunity, and it has to stand, your honor.”
Assistant district attorney Laura Pitchford countered that the state law was not intended as blanket immunity and suggested that lawmakers could not have anticipated the heroin epidemic or its effects when they put the lawin place in 1997.
She argued that prosecutors need to be able to bring such charges to protect infants like Dischman’s daughter, who she said may have lasting brain damage because of the overdose.
“For the court not to allow this to proceed would mean there is no justice for this poor infant,” Ms. Pitchford said.
Mr. Smith presented Judge Shaffer with an open letter sent from the National Advocates for Pregnant Women to the Butler County District Attorney’s Office on Oct. 12 in which the national organization lobbied against the prosecution of Dischman. The letter was signed by nine state and national organizations, as well as 10 individual medical providers and scholars.
Judge Shaffer reviewed the letter but declined to take it into evidence.
The judge also conducted a preliminary hearing for three charges prosecutors added to Dischman’s case in July: endangering the welfare of children, corruption of minors and possession of drug paraphernalia.
Ms. Pitchford said the charges were warranted because Dischman’s 8-year-old daughter was home at the time of Dischman’s overdose, and her boyfriend, Andrew Lucas, 37, was not sober enough to care for the girl. Investigators also found a hypodermic needle in Dischman’s bathroom, near the place where she overdosed, she said.
Two state troopers who testified for the prosecution said Lucas appeared to be under the influence on the night of Dischman’s overdose and tested positive for opioids when administered a urine test the next day.
One trooper also noted that the 8-year-old girl was awake and watching cartoons when first responders arrived at the home around 3 a.m. June 23.
Mr. Smith asked Judge Shaffer to dismiss all three additional charges against Dischman, which he characterized as an attempt to continue the prosecution’s case if the aggravated assault charge is dismissed. Mr. Smith argued that the state’s overdose immunity laws nullified the drug paraphernalia charge and suggested that Ms. Pitchford did not present enough evidence to show Lucas could not care for the 8-year-old girl. Ms. Pitchford disagreed. “Without a sober parent, both charges fit,” she said.
The judge did not render a decision Tuesday on any of the charges. He said he would issue a written order but provided no time frame for doing so.
Dischman is being held in the Butler County Prison on a $500,000 bond.