In cooperation with the national ACLU’s Reproductive Freedom Project, the ACLU of KY submitted an Amicus brief to the Kentucky Supreme Court outlining the constitutional limitations on criminal prosecutions against pregnant women in Cochran v. Commonwealth. The KY Supreme Court granted us a legal victory today. See the story below reprinted from the Bluegrass Politics Blog.
FRANKFORT — Women can not be charged for abusing alcohol or drugs during pregnancy, the Kentucky Supreme Court ruled Thursday in a case that has generated national attention.
In a 5-2 decision, the court ruled that the state’s Maternal Health Act of 1992 expressly precludes women from being charged with crimes if they ingest drugs or alcohol during pregnancy.
At issue is whether police and prosecutors were correct in charging Ina Cochran with first-degree wanton endangerment after she gave birth to a child who tested positive for cocaine in 2005.
Cochran’s lawyer moved to have the charges dismissed. A Casey Circuit Court judge later dismissed the charges, but prosecutors appealed. The state Court of Appeals ruled that the charges should be allowed under Kentucky law.
The Maternal Health Act states that “punitive actions taken against pregnant alcohol or substance abusers would create additional problems, including discouraging these individuals from seeking the essential prenatal care.”
Justice Lisabeth Hughes Abramson, writing for the majority, wrote that it was clear that the legislature never intended women to be charged. “It is the legislature, not the judiciary, that has the power to designate what is a crime,” she wrote.
But in a dissent, Justice Daniel Venters said the General Assembly never intended to create a blanket immunity for pregnant women. Venters also noted that Cochran was not charged while she was pregnant.
“Because the indictment came after her baby was born, it in no way discouraged her from seeking prenatal care and it in no way deterred her from treatment she might need to deliver a healthy baby,” Venters said.
Chief Justice John D. Minton was the other dissenting justice.
The case has garnered national attention from women’s rights groups and national medical associations, who say criminalizing drug abuse of a pregnant mother will only damage the child.
Women who think they might be prosecuted for drug addiction will not seek prenatal care, might abort their children for fear of being prosecuted or will not deliver their children in a hospital, they argue.
But many police officers, prosecutors and even family members of addicted mothers have argued that more should be done to deter pregnant women from causing lasting and sometimes debilitating damage to their children.
At issue in this 11 year-old case are Ten Commandments displays that were posted in prominent locations in the McCreary and Pulaski county courthouses in 1999.County officials claimed that the Ten Commandments provide the foundation of American legal tradition.However, as many courts have found, the Ten Commandments are inherently religious principles and should not be promoted by government officials.
The United States Court of Appeals for the Sixth Circuit today upheld the permanent injunctions prohibiting Pulaski/McCreary Counties from posting three separate Ten Commandments displays in their courthouses.The Court agreed with District Court Judge Jennifer Coffman’s ruling that the displays violated the constitution because the Counties acted with a predominantly religious purpose in erecting the displays, and because they failed to sufficiently establish a predominantly non-religious reason for the third display as of September 2007.
The ACLU of Kentucky filed these two consolidated suits in 1999 on behalf of its members in Pulaski and McCreary counties and individual residents.The ACLU of Kentucky maintained that the displays’ purpose and effect were to endorse religion in violation of the First Amendment’s establishment clause.Judge Coffman initially issued preliminary injunctions prohibiting the Counties’ first and second displays on the basis that the displays likely were unconstitutional.The Counties removed these displays, initially appealed the injunction and then, after obtaining new counsel, dropped their appeals.
Several months after removing the second displays, the Counties posted new Ten Commandments displays. These displays of “historical documents” contained American (and earlier Colonial and British) political and patriotic documents and the Ten Commandments. Judge Coffman held that these displays too were likely unconstitutional given the displays’ history showed that the defendants’ purposes were religious, not secular, and because the displays’ effect was to endorse religion. The judge therefore enjoined this third incarnation of the Ten Commandments displays and the defendants appealed that preliminary injunction.
Both the Sixth Circuit and the U.S. Supreme Court affirmed Judge Coffman’s preliminary injunction ruling.On remand, Judge Coffman issued the permanent injunctions and the Counties again appealed.Today’s decision upholds Judge Coffman’s decision entering permanent injunctions barring the Counties from posting all three displays.
In this criminal matter, the Commonwealth seeks to pursue criminal charges against a pregnant woman for creating a risk of injury to her fetus by ingesting illicit drugs.In cooperation with the national ACLU’s Reproductive Freedom Project, we submitted an Amicus brief to the Kentucky Supreme Court outlining the constitutional limitations on criminal prosecutions against pregnant women.Specifically, we argued that: 1) the Kentucky legislature never intended for Kentucky’s criminal laws to apply to the conduct of pregnant women (in relation to their unborn fetuses) and that recent court decisions that allow criminal prosecutions of 3rd parties for inflicting injuries upon pregnant women (that result in harm to their unborn viable fetuses) do not contradict this intent; 2) criminal prosecution of a pregnant woman in relation to her fetus unconstitutionally violates her right to privacy; and 3) application of Kentucky’s criminal statutes in this manner is unconstitutionally vague becauseit fails to provide pregnant women with fair notice of what conduct might subject them to criminal prosecution, and because it grants virtually unfettered discretion to law enforcement to arbitrarily apply the law.
The ACLU successfully argued these points to the Kentucky Supreme Court in an Amicus brief in 1993 and again to the Kentucky Court of Appeals in 2003.A more recent Kentucky Supreme Court decision has raised some question, however, about the proper application of Kentucky’s criminal laws to pregnant women and we seek to prevent the reversal of those prior favorable precedents.The parties conducted oral argument before the Court in Dec., 2009, and we expect a ruling later this year.
St. Luke / St. Elizabeth hospital merger
Administrative Complaint- Ky. Cabinet for Health and Family Services
The ACLU of Ky.’s Reproductive Freedom Project Director, Derek Selznick, identified a reduction in reproductive health services in Northern Kentucky caused by the merger of two area hospitals - St. Luke’s and St. Elizabeth’s.St. Luke’s traditionally provided the area’s reproductive health services, but its merger with St. Elizabeth’s - a hospital owned and operated under the auspices of the Catholic Church - resulted in the termination of those services due to its obligation to follow Catholic Ethical Directives prohibiting the delivery of such services.
In cooperation with the national ACLU’s Reproductive Freedom Project and other coalition partners, the ACLU of Ky.’s RFP initiated an investigation into the merger and opened a dialogue with the Cabinet for Health and Family Services (the govt. agency tasked with overseeing/approving the merger).This inquiry revealed that in seeking state approval for the merger, St. Luke’s articulated a plan for creating an Ambulatory Surgical Center (ASC) to continue providing reproductive health services in Northern Kentucky.Once the state approved the merger, however, no significant steps were taken to develop the ASC.
On Sept. 10, the ACLU of Kentucky and the national ACLU’s Reproductive Freedom Project filed an administrative complaint with the Cabinet challenging St.Luke’s failure to develop the ASC.In the complaint, we sought a hearing on the impact of the loss of services to Northern Kentuckians and a ruling that the unilateral termination of those services (without creating the ASC to continue them) violated Kentucky law.The Cabinet denied our request and granted the hospital additional time in which to implement the ASC.We continue to monitor the situation.
In Nov., we filed suit on behalf of a Kentucky attorney, John Berry, alleging First Amendment free speech violations against the Kentucky Bar Association’s Inquiry Commission.The basis for this suit started in June, 2007 when Common Cause of Kentucky - an organization dedicated to “open, honest, and accessible state and local government” - filed a complaint with the Kentucky Legislative Ethics Commission (LEC)regarding alleged fundraising irregularities by Senate President David Williams.The complaint resulted in a preliminary inquiry before the Commission in Aug., 2007.Our client attended the preliminary inquiry not as an attorney but in his capacity as a concerned citizen.
As a result of the proceedings (and the manner in which they were conducted), Mr.Berry felt compelled to send a letter to the Commission criticizing its handling of the matter.As a result, someone filed a complaint prompting the KBA to investigate whether Berry’s letter violated the rules governing attorneys’ conduct that prohibit attorneys from recklessly making false statements about judicial officers.
On Mar. 16, 2009 - after an approximately sixteen month investigation - the KBA: 1) concluded that Berry violated the ethical rule by “publicly implying that the Legislative Ethics Commission did not conduct its review appropriately;” and 2) issued a “warning letter” to Mr. Berry in lieu of formal disciplinary action.
We sued on Berry’s behalf because we believe that the KBA’s conclusion - that he violated Kentucky’s rules of professional conduct - unlawfully restricts Berry’s First Amendment right to engage in political speech.We are also challenging the KBA’s authority to enforce the ethical rule at issue on the basis that the rule, by punishing only those comments concerning “the qualifications or integrity” of judicial officers (or other legal-related positions), represents an unconstitutional content (and viewpoint)based restriction upon attorneys’ speech.Working with us on this case are ACLU of Ky. cooperating attorneys David Tachau and Kate McKune.
McQueary v. Stumbo
United States District Court
In 2006, the ACLU of Kentucky filed suit challenging restrictions on freedom of speech in a statute criminalizing protests at military funerals.The law sought to eliminate the protest activities of members of the Westboro Baptist Church whose members appear at military funerals to proclaim that God is punishing the United States for tolerating homosexuality.
Our challenge focused upon those provisions in the law that specifically restricted speech on public property near funerals, wakes, memorial services and burials because these restrictions prohibited even non-disruptive, non-disorderly speech and visual displays.U.S.District Court Judge Karen Caldwell granted our request for a preliminary injunction effectively barring Kentucky’s enforcement of the challenged provisions.
As a result of the Court’s preliminary injunction decision (and before the Court issued a final ruling in the case), the 2007 Ky. General Assembly amended the statute to eliminate those provisions we challenged.In 2008, the parties submitted briefs to the court addressing whether the legislative amendments effectively ended the litigation (rendered the case moot) or whether the state’s ability to reenact the challenged provisions require the court to issue a final ruling.The District Court ultimately agreed with the government and found that because the challenged provisions were repealed by the Legislature,the case should be dismissed as moot.The Court also ruled, however, that despite our initial victory in the litigation in obtaining the preliminary injunction, we were not entitled to recover statutory fees normally entitled to “prevailing parties” in civil rights litigation.
We believe that this ruling undermines the financial disincentive that serves to deter government officials from violating individuals’ civil liberties because it enables the government to defend clear abuses (such as here) only to repeal them once it becomes apparent in litigation that defeat is imminent (thus escaping financial liability).Given the obvious importance of the District Court’s ruling to civil rights litigants and civil rights organizations, we appealed the decision to the Sixth Circuit Court of Appeals.The parties’ briefing on the issue is now complete and we will argue this case before the Court on Apr. 22.
Vicsbingo.com v. Wingate
Kentucky Court ofAppeals / Kentucky Supreme Court
In 2009, the Kentucky Court of Appeals reviewed a decision by Judge Thomas Wingate that would have allowed state officials to seize 141 internet domain names because the websites constituted illegal “gambling devices” in the Commonwealth.We signed onto an Amicus brief with the Electronic Frontier Foundation and the Center for Democracy and Technology that detailed various arguments to the Court of Appeals about why Judge Wingate’s order represented an unconstitutional exercise of authority.Specifically, we argued that Judge Wingate’s order allowed state officials to ostensibly shut down all communications on those websites,including communications that are protected speech under the First Amendment.
The Court of Appeals overturned Judge Wingate’s decision, but did so without reaching the constitutional questions.Rather, the Court of Appeals ruled that internet domain names simply do not constitute “gambling devices” under Kentucky law.State officials then appealed the decision to the Kentucky Supreme Court where we again filed our joint brief identifying the constitutional issues.The parties conducted oral argument on Oct. 22 and we expect a ruling from the Court in the coming months.
These two cases contain the consolidated appeals of nine separate Amish men in Graves County, Kentucky.They were convicted of the crime of failing to display a slow-moving emblem (a fluorescent yellow-orange triangle) on their horse-drawn buggies.These particular defendants are members of the Swartzentruber Amish community, a very orthodox branch of the Old Order Amish.They maintain that the requirement of displaying a SMV emblem violates their sincerely held religious beliefs because it represents a worldly symbol that encroaches upon their adherence to the Biblical teaching to “shun” those things that are “of the world.”County officials refused to consider the Swartzentrubers’ proposed alternative safety measure - grey reflective tape outlining the rear perimeter of the buggies - despite evidence establishing that the reflective tape is equally effective, if not more so, at improving the buggies’ nighttime visibility.
Currently,both sets of cases are pending before the Kentucky Court of Appeals.It is our position that §§ 1 and 5 of the Kentucky Constitution provide greater protection for Kentuckians to freely exercise their religion than does the First Amendment to the U.S. Constitution (a question not squarely addressed previously).Specifically, we believe that where, as here, a state law substantially burdens one’s sincerely held religious belief, it must be one that advances a compelling governmental interest and also be the least restrictive means of achieving that interest.Because the evidence established an equally effective alternative to the slow-moving vehicle emblem (one that is less burdensome to the Swartzentrubers’ religious beliefs), we believe that the law is not “the least restrictive means”necessary; thus, it violates the Kentucky Constitution.
Briefing for both parties has now been completed in Gingerich,et al., and we have filed our opening brief in Zook, et al.The Commonwealth’s response is due mid-March and we hope to conduct oral argument in both cases later this year.Working with us on both sets of cases is ACLU of Kentucky cooperating attorney Tricia LeMeur.
ACLU of Kentucky and Phillipsv. Jackson Co., Kentucky
United States District Court
In 2009, we learned about several serious (and flagrant) religious liberty violations within the Jackson County courthouse.Specifically, we learned that there were several stand-alone framed copies of the Ten Commandments displayed outside the entrance to many ofthe public offices located within the courthouse.We also learned about a larger (approximately 3 feet x 5 feet) stand-alone framed copy of the Ten Commandments that hung on the wall directly behind the judge’s bench in the courtroom.And finally, we uncovered a District Court judge’s practice of opening court sessions in Jackson County with sectarian prayers from the bench.
After compiling sufficient evidence to prove these constitutional violations, we filed suit against Jackson County over the courthouse displays, demanded that the Administrative Office of the Courts immediately remove the courtroom display and took action to discontinue the Judge’s use of his official position to engage in courtroom prayer activities.Within approximately thirty days of our filing suit, Jackson County agreed to resolve the litigation in our favor and consented to a permanent injunction barring the stand-along Decalogues.We also received confirmation of the removal of the large stand-alone Ten Commandments display in the courtroom and the Judge’s agreement to end his practice of engaging in judicial prayers from the bench.In this case, we were assisted by ACLU of Kentucky cooperating attorney Brenda Popplewell.
ACLU of Kentucky, Walker and Howe v. McCreary Co., Kentucky
ACLUof Kentucky, Lee and Durham v. Pulaski Co., Kentucky
United StatesDistrict Court / Sixth Circuit Court of Appeals
On Aug. 4, 2008, United States District Court Judge Jennifer B. Coffman issued permanent injunctions prohibiting Pulaski and McCreary Counties from posting three separate Ten Commandments displays in their respective courthouses.This ruling represented the culmination of almost ten years of litigation over the Counties’ religiously-motivated attempts to post their Decalogue displays.
In her opinion, Judge Coffman recapped the litigation history and noted that the Counties’ first displays, erected in 1999, consisted solely of framed copies of the Ten Commandments and were accompanied by overtly religious ceremonies.After the ACLU of Kentucky initiated litigation on behalf of several McCreary and Pulaski residents, the Counties supplemented their Decalogues with additional documents that “were largely religious in nature” in an attempt to avoid First Amendment liability.Judge Coffman agreed with the ACLU’s arguments regarding the Counties’ religious motivations and issued preliminary injunctions prohibiting both the first and second displays.In response, the Counties removed their second displays, appealed the preliminary injunction decision and then, after obtaining new counsel, dropped their appeals and erected the third displays - the Foundations of American Law and Government display.
The Foundations of American Law and Government displays consisted of “historical documents” including American (and earlier Colonial and British) political and patriotic documents, and the Ten Commandments.Judge Coffman again granted a preliminary injunction barring these displays because the displays’ history showed that the Counties’ purpose in erecting them was predominantly religious in nature and thus in violation of the Establishment Clause.Although the Counties appealed the injunction barring the third displays, both the Sixth Circuit Court of Appeals and the United States Supreme Court upheld Judge Coffman’s decision.
In 2008, Judge Coffman noted that each of the Counties’ three displays violated the Establishment Clause because: (1) the Counties acted with a predominantly religious purpose in erecting them; and (2) the Counties failed to take sufficient action since the Supreme Court’s 2005 decision to “purge” the unlawful taint from their earlier conduct to justify the third displays.
The Counties appealed Judge Coffman’s decision to the Sixth Circuit Court of Appeals.In 2009, the parties completed their briefing of the issues and conducted oral argument.We anticipate a ruling from the Court later this year.
ACLU of Kentucky, Meredith and Harper v. Grayson Co., Kentucky
United States District Court / Sixth Circuit Court of Appeals
This case represents one of those in the second set of challenges to courthouse Ten Commandments displays.In this case, U.S. District Judge Joseph McKinley granted our request for a preliminary injunction in 2001 barring the display before the case was stayed (held in abeyance) pending the outcome of the Supreme Court decision in the McCreary and Pulaski cases.After the McCreary/Pulaski decision, the parties conducted discovery (i.e. factualdevelopment through witness depositions, etc.) and submitted their briefs to the court.In Mar., 2008, Judge McKinley agreed with us that the County erected its display for a predominantly religious reason and granted our request for a permanent injunction prohibiting the County from posting its display.
The County appealed this decision, and the parties briefed (and argued) the case before the Sixth Circuit Court of Appeals in Apr., 2009.In a ruling issued in Jan., 2010, the Sixth Circuit agreed with the County and found that the display did not have the effect of endorsing religion, nor was there sufficient evidence to prove that the County erected the display for a predominantly religious purpose.We have asked the Court to reconsider that portion of its decision directing final judgment in the County’s favor, however, because the procedural posture of the case prevented the Court from hearing additional,disputed evidence that we believe is indicative of the County’s religiously motivated purpose in erecting the display.The Sixth Circuit is currently considering our request.
University of the Cumberlands
Kentucky Supreme Court
The Kentucky Supreme Court is reviewing this case in which several plaintiffs successfully sued Kentucky over its funding of a private, religious college for the construction of a pharmacy school building and the establishment of a scholarship fund.The trial judge,Judge Roger Crittenden, initially ruled that the 10 million dollar appropriation to construct the pharmacy school building violated §§ 5 and 189 of the Kentucky Constitution because it represented a direct payment of public funds to a religious school for educational purposes (contrary to the Constitution’s clear prohibition).Judge Crittenden also found that the permanent scholarship fund violated § 51 because the General Assembly did not reenact or publish at length various Kentucky laws amended by the provision.
In conjunction with Americans United for the Separation of Church and State and the national ACLU’s Program on Freedom of Religion and Belief, we co-authored an Amicus brief in Mar., 2009, supporting Judge Crittenden’s ruling.In our brief, we focused on the historical underpinnings of §§ 5 and 189 of the Kentucky Constitution and the framers’ intent in adopting such provisions.The parties conducted their oral arguments in Sept., 2009 and we expect a ruling later this year.
