In a split decision, the West Virginia Supreme Court ruled Friday that a woman can't be charged under the state's law prohibiting child neglect resulting in death for harm she caused her child while she was pregnant.
Justices ruled that, because the Legislature has passed several laws specifying that they affect unborn children, other laws that don't specify that can't be applied that way.
Chief Justice Menis Ketchum wrote for the majority in a 24-page opinion that there "may be significant policy implications and social ramifications surrounding the present issue."
He added, though, that West Virginia's existing law is clear.
Ketchum was joined by Justice Robin Davis and, in a concurring opinion, Justice Brent Benjamin. Justices Allen Loughry and Margaret Workman dissented.
Dozens of doctors and organizations, including the West Virginia State Medical Association, the American College of Obstetricians and Gynecologists, the American Society of Addiction Medicine and the Association of Reproductive Health Professionals, joined together to file a friend-of-the-court brief urging justices to rule that state law doesn't include a prenatal act that results in harm to a subsequently born child.
The decision reverses Stephanie Louk's 2014 felony conviction of child neglect resulting in death and her 3- to 15-year prison sentence that was handed down by Nicholas Circuit Judge Gary L. Johnson.
Louk overdosed in June 2013 after injecting methamphetamine in her arm while she was 37 weeks pregnant, according to the opinion. Doctors performed an emergency cesarean section the same day, but Louk's daughter was born "essentially brain dead" and died 11 days later, according to the opinion.
A Nicholas County grand jury indicted Louk on a charge of child neglect resulting in death, alleging that the infant's death was the result of Louk using meth.
Attorneys for Louk tried to get the charge dismissed and wrote that, "The Legislature has refused to make women criminally liable for the outcome of their pregnancies," the opinion states.
Johnson, though, refused to dismiss the indictment and stated that the child was born alive.
After a two-day jury trial, Louk was convicted of the felony charge.
Ketchum, Davis and Benjamin voted to send the case back to Nicholas County for Johnson to dismiss the indictment against Louk.
In the majority opinion, Ketchum noted that West Virginia's law prohibiting child neglect resulting in death does not specifically mention unborn children, but several other state laws do.
"Multiple courts . . . have found that because the [L]egislature specifically provides for the protection of an unborn child, this 'demonstrates the ease and clarity with which the [L]egislature may, if it so chooses, apply a statute to the unborn,' " Ketchum wrote, citing a decision from Wisconsin.
"Like these other jurisdictions, we conclude that when our Legislature intends to include an unborn child in a statute, it writes that language into the statute. Our Legislature has addressed unborn children in a variety of other statutes, and has done so with absolute clarity," Ketchum wrote.
In a separate opinion Friday, Benjamin agreed that "the decision of whether actions such as [Louk's] are criminal is that of the West Virginia Legislature."
"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," Benjamin wrote.
In his dissenting opinion, Loughry wrote that Louk's conviction should have been upheld because state law in the case makes no mention of whether harm to a child must occur before or after birth, even though the harm to the child was done before she was born, she had been alive for 11 days when she died. Workman joined Loughry's dissenting opinion.
Ketchum wrote in the majority opinion that such logic would mean a pregnant woman could be prosecuted for taking drugs or other harmful behavior if her child lived past birth, but not if her child was born dead.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.