                                                                              FILED
No. 15-0021 – State of West Virginia v. Stephanie Elaine Louk               May 27, 2016
                                                                              released at 3:00 p.m.
                                                                            RORY L. PERRY II, CLERK

                                                                          SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA

Benjamin, Justice, concurring:

              Words are inadequate for the tragedy occasioned by Ms. Louk’s injection

of methamphetamine into her body in her thirty-seventh week of pregnancy. Because of

her actions, an innocent child is dead. While I have dedicated much of my service in the

judiciary to helping individuals take responsibility for their decisions, overcome their

addictions and turn their lives around, I cannot personally excuse the decision taken here

by Ms. Louk—a decision which not only harmed herself, but which also resulted in the

senseless end of the life of another.    However addiction may explain irresponsible

behavior, it does not excuse it. What Ms. Louk did was wrong. If I were to step away

from my duty to follow the law, and to instead make it, I might be tempted, as others, to

affirm this conviction.



              The law is inadequate to address this tragedy. However much I might

believe that Ms. Louk was wrong, the decision of whether actions such as hers are

criminal is that of the West Virginia Legislature. That is the essence of a government and

a judicial system based upon the constitution, the rule of law, and the fundamental

precept that the policy of this state is the prerogative of the political branches of

government—not a handful of judges making decisions behind closed doors.                Our

Legislature has chosen not to criminalize behavior such as Ms. Louk’s. No amount of

wishful thinking or artful reading of our law permits another conclusion.               The


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unambiguous laws at issue, West Virginia Code § 61-8D-4a (1997) and West Virginia

Code § 61-8D-1 (2005),1 are as plain as they are specific—they do not provide for the

criminal prosecution undertaken herein of Stephanie Louk under these facts. And while,

out of a desire to assuage a personal sense of outrage, it may be tempting for a judge to

here engage in activism under the guise of supposed statutory interpretation, it is beyond

this court’s legal and constitutional province to make criminal that which the legislature

has not.



              Pursuant to West Virginia Code § 61-8D-4a, a parent is guilty of a felony if

that parent “neglect[s] a child under his or her care, custody or control and by such

neglect causes the death of said child.” As used in this section, “‘[c]hild’ means any

person under eighteen years of age not otherwise emancipated by law.” W. Va. Code §

61-8D-1. As reflected in the majority opinion, West Virginia Code § 61-8D-1

unambiguously refers to a child in being, not the unborn. Had the Legislature intended

“child” to include the unborn, it would have expressly said so, which it has done

elsewhere in the Code.



              Contorting West Virginia Code § 61-8D-1 to include the unborn within the

definition of a “child” creates irreconcilable conflicts between the provisions of article

8D, chapter 61 and other provisions in the Code. For example, under West Virginia Code


       1
          This statute was amended in 2014, but the changes did not affect the definition of
“child” as it appeared in the 2005 version of the statute.
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§ 61-8D-2a, it is a crime for a parent to knowingly allow another person to inflict upon

their child any impairment of physical condition that results in death to the child. If

“child” includes the unborn, West Virginia Code § 61-8D-2a would criminalize behavior

explicitly excluded as criminal behavior elsewhere in the Code. See W. Va. Code § 61-2­

30(d)(1) (2005) (excluding the acts of a pregnant woman with respect to the embryo or

fetus from giving rise to prosecution under the Unborn Victims of Violence Act); W. Va.

Code § 16-2M-6 (2015) (providing that “[n]o penalty may be assessed against any patient

upon whom an abortion is performed or induced”). It is illogical to assume that the same

legislature which immunized a woman from prosecution for receiving an illegal abortion,

such as a late term abortion, nevertheless intended to permit the prosecution of a woman

for taking drugs during pregnancy that ultimately resulted in the death of her fetus or

subsequently born child.



             A similar absurdity arises when forcing the nearly identical definitions of

“child” in other sections of the Code to include the unborn. For instance, in the article

addressing grandparent visitation, West Virginia Code § 48-10-202 (2001) defines

“child” as “a person under the age of eighteen years who has not been married or

otherwise emancipated.” This definition is almost a mirror image of the definition of

“child” provided in West Virginia Code § 61-8D-1. If the Legislature had intended that

“child” include the unborn in West Virginia Code § 61-8D-1, then the substantively

identical language in West Virginia Code § 48-10-202 must also include the unborn. It

would necessarily follow, then, that grandparents could file a motion or petition for

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visitation with a fetus. See W. Va. Code § 48-10-301 (“A grandparent of a child residing

in this State may, by motion or petition, make application to the circuit court or family

court of the county in which that child resides for an order granting visitation with his or

her grandchild.”). Likewise, fetuses could be subject to custody determinations under the

Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), W. Va. Code §

48-20-101 to -404. See W. Va. Code § 48-20-102 (2001) (defining “child” as “an

individual who has not attained eighteen years of age”). Unmistakably, straining the

grandparent visitation statutes and the UCCJEA to apply to the unborn defies common

sense, just as it does in West Virginia Code § 61-8D-4a.



              Though perhaps emotionally tempting, stretching West Virginia Code § 61­

8D-4a to permit this criminal prosecution to stand, i.e., the prosecution of a woman for

acts committed during pregnancy that contribute to the death of a subsequently born

child, renders the statute hopelessly vague. What conduct would constitute unlawful

neglect? Would the failure to seek prenatal care constitute neglect if the subsequently

born child dies? Could eating raw oysters during pregnancy, which is commonly known

to carry a risk of food poisoning, be considered neglect? At what stage in the pregnancy

would any such acts be neglectful? Would all the mothers of newborn children that die be

the potential subject of investigations to determine if any of their activities while

pregnant contributed to the death of their children?2


       2
         A study examining pregnant women between 2008 and 2011 revealed that more than 1
in four pregnant women in West Virginia smoked during their pregnancies. David Boucher,
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              My personal outrage at Ms. Louk’s actions is admittedly driven by

frustration. No matter how much I may wish to simply judge under the law, I cannot

ignore or forget the victim here. This child should today be playing, laughing and

engaging in the things children do. This child was a victim. If there is a victim, one

might expect that there should be a crime. But, no matter how much others may argue to

the contrary, here the legislature has decided otherwise.



              I recognize that the Legislature was faced with many considerations in

making the public policy as it relates to the facts of this case. My personal concerns,

which are based upon the facts of this case, are in no way meant to minimize or disregard

such other considerations. Aside from the statutory conflict and vagueness that would

result from the State’s position, there are overriding health and safety concerns which the

legislature could look to in justifying the immunization of pregnant women from

prosecution for things they may do to themselves—such as ingesting harmful

substances—that may harm fetuses they carry. Chief among these is the concern that




Many Pregnant Women in WV Smoke, Health Data Shows, Charleston Gazette-Mail, September
16, 2014, http://www.wvgazettemail.com/article/20140916/DM01/140919386/1420. Data
collected by the U.S. Centers for Disease Control and Prevention showed that in 2011, 29% of
pregnant women in West Virginia smoked during their pregnancies. Id. West Virginia had the
highest rate of pregnant smokers in the nation between 2008 and 2011. Id.

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pregnant women may not seek health care that might be of great benefit to them and their

unborn children for fear of criminal prosecution.3



               Regardless of any feelings we may have regarding what the law should be,

the Legislature announces what the law is, and it has defined “child” in West Virginia

Code § 61-8D-1 to exclude the unborn. Were this Court to itself legislate West Virginia

Code § 61-8D-4a to include the unborn, which would brush aside succinctly stated

statutory language, this Court would engage in the worst kind of result-oriented judicial

activism.




       3
         Two years ago, the Tennessee Legislature enacted a “fetal assault” statute that permits
the prosecution of a woman who gives birth to a child that is addicted to narcotics or harmed as a
result of the woman’s illegal narcotic use during pregnancy. Tenn. Code Ann. § 39-13-107
(2014). The statute excludes from punishment women who are “actively enrolled in an addiction
recovery program” before delivery as long as they successfully complete the program after
delivery. Id. The statute includes a sunset clause whereby it is set to expire on July 1, 2016. Id.

        The penalty provided in the Tennessee law was intended to act as an incentive for drug-
addicted pregnant women to either avoid illegal drug use or to enroll in a drug treatment program
before delivery. Sheila Burke, Doctors Applaud End of Tennessee’s Fetal Assault Law,
Associated                    Press,              April                   1,                 2016,
http://bigstory.ap.org/article/08ce8448799148bf852babadc33d1aef/doctors-applaud-end­
tennessees-fetal-assault-law. According to Tennessee doctors, however, fear of prosecution
drove some pregnant women using illegal drugs “to avoid prenatal care[,] . . . exposing their
babies to more risks while failing to reduce the astronomical costs of treating newborns who
suffer from drug withdrawal.” Id. Furthermore, since the fetal assault law was enacted, there has
been no decrease in the number of afflicted children born. Id. With no observable decrease in
children born to drug-addicted mothers and with reports of pregnant women avoiding seeking
health care for fear of criminal prosecution, Tennessee legislators voted not to extend the law
passed its expiration date. Id.

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             As a judge following the rule of law, this must be my decision. But let me

be clear: While the legislature has chosen not to criminalize the type of behavior in

which Ms. Louk engaged, she factually was responsible for the death of her child. I pray

that she recovers from her addiction.




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