Eighth Circuit Court of Appeals: Mother can be criminally prosecuted for baby’s death from toxic drugs she consumed while pregnant

by Rox Laird | July 12, 2019

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit reinstated manslaughter charges against a South Dakota woman who gave birth to a live baby that died within hours of toxicity from a combination of legal and illegal drugs the mother ingested while she was pregnant.

The July 5 panel decision was divided 2-1, with Judges Bobby Shepherd of Arkansas and David Stras of Minneapolis in the majority. Judge Steven Colloton of Des Moines filed a dissenting opinion. Seven Midwest states in the Eighth Circuit — including Iowa — are bound by the decision, which Colloton acknowledged in his dissent presents “profound moral and policy questions.”

The mother, Samantha Flute, said she needed to get high and had taken three times the recommended dose of an anti-anxiety prescription drug, snorted hydrocodone she believed to have been laced with cocaine, and ingested cough medicine.

The child, identified in this case as Baby Boy Flute, was born fully developed at 38 weeks of gestation, but died four hours later. An autopsy concluded the baby died from combined drug toxicity due to the substances the mother had ingested while the baby was still in utero.

She was charged in U.S. District Court in South Dakota with involuntary manslaughter in an indictment that read, in part: “Samantha Flute did unlawfully kill Baby Boy Flute by ingesting prescribed and over-the-counter medicines in a grossly negligent manner, and did thereby commit the crime of involuntary manslaughter,” in violation of U.S. Code section 1112, which criminalizes the unlawful killing of a human being without malice in the commission of a lawful act that might produce death.

Flute argued that the baby was not a human being under federal law, but the appeals court disagreed, citing the Born Alive Infants Protection Act, passed by Congress in 2002, which defined “human being” as including any infant born alive at any stage of development.

“Because he was born alive, under the plain language of these statutes, BabyBoy Flute was a ‘human being,’ ” Judge Shepherd wrote for the panel. “And because the language of the manslaughter statute plainly encompasses the death of a born-alive child — a child at the earliest possible moment that it exists outside of the womb — the statute necessarily extends to conduct that occurred in utero and caused death to this born-alive child. BabyBoy Flute’s death and Flute’s conduct while pregnant thus fall within the ambit of the involuntary manslaughter statute.”

The panel also dismissed Flute’s argument that the baby was not a human being while in utero, and thus not protected by the federal law. Shepherd wrote that “Flute’s argument is inconsistent with the common law understanding that homicide does not occur unless and until the victim actually dies; because death completes the offense of manslaughter, the victim’s status at death is the determination rather than the victim’s status when the injuries were sustained.”

In his dissenting opinion, Judge Colloton wrote that he would have upheld the trial court’s dismissal of the mother’s criminal charges because the definition of manslaughter in the context of such cases has never included prenatal acts of a mother.

Congress has long followed the English and American common law understanding of the crime of manslaughter in cases where the acts of a third party caused the death of a child born alive, Colloton wrote. But, he added, “willful and negligent” failure of a mother to care for herself during pregnancy does not amount to manslaughter under that common law tradition, even though the child dies shortly after birth from the mother’s neglect.

“In sum, the common-law meaning of manslaughter did not encompass prenatal neglect by a mother that later caused the death of her child born alive. Research reveals no decision in England or the United States before 1909 holding that a mother’s prenatal neglect constituted manslaughter,” Colloton wrote.

“This case raises profound moral and policy questions,” he added, “but it requires an Act of Congress to extend federal criminal liability to a mother whose drug use during pregnancy causes the death of her child.”


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