Over 60 Leading Medical, Public Health, Child Welfare and Drug Treatment Organizations and Experts Ask Hawai’i Supreme Court to Overturn Conviction of Tayshea Aiwohi

Hawai’i – More than sixty leading state and national public health, child welfare, and drug treatment organizations and experts (full list below) today asked the Supreme Court of Hawai’i to overturn the conviction of Tayshea Aiwohi, the first woman in Hawai’i to be charged and convicted of manslaughter based on the theory that pregnant women can be held criminally liable for the outcomes of their pregnancies. Amici (friends of the court) argue that this conviction is not authorized by Hawai`i law and violates well-established consensus in the medical community that such a prosecution is irrational, ineffective, and counterproductive to maternal, fetal and newborn health.

“Punishing women for failing to have healthy pregnancy outcomes undermines health care for both pregnant women and their future children by frightening women away from that health care,” said Amici Leslie Hartley Gise, MD, Clinical Professor of Psychiatry, John A Burns School of Medicine, University of Hawai`i.

She added that “Suggesting that a pregnant woman who is struggling with a drug dependency problem is no different from a man who attacks her, reflects a terrible disregard for pregnant women and a profound misunderstanding of the nature of drug dependency.”

On October 9, 2003, Tayshea Aiwohi, a thirty-one- year old Native Hawaiian, was indicted for the offense of manslaughter on the theory that her ingestion of methamphetamine during pregnancy contributed to the death of her 2-day-old son, Treyson. (Treyson, who was born approximately four weeks premature, died at home, hours after being released from the hospital)

Ms. Aiwohi sought to have the case dismissed arguing that the state’s criminal laws were not intended to be used as a mechanism to police pregnancy. On June 3, 2004, Hawai’i Circuit Judge Michael Town ruled that Hawai`i state law does not give a woman “immunity” for “allegedly harming her fetus if it is later born and dies.” Judge Town determined that pregnant women in relationship to their own bodies could be treated as the same as third parties – who attack pregnant women. Rather than face a trial, Ms. Aiwohi accepted a conditional plea bargain in which she plead no contest to manslaughter but preserved the right to appeal the trial court’s order. On September 22, 2004, Ms. Aiwohi’s legal counsel Todd Eddins of Honolulu, Hawai`i, filed a notice of appeal and on October 19, 2005 he filed the opening brief in the Hawai`i Supreme Court.

Today, drug treatment professionals; physicians and nurses who care for pregnant women and their children; medical researchers who study the effects of drug use during pregnancy; and professionals who counsel women and families who have experienced the tragedy of perinatal loss filed an amicus (friend of the court) brief explaining why the decision as a matter of law, logic, and public health must be overturned.

David T. Goldberg, as counsel for National Advocates for Pregnant Women is representing these organizations and individuals in support of Ms. Aiwohi. They explain that the problems posed by drug use during pregnancy are serious public health issues but condemn the arrest and prosecution of pregnant women because drug dependency is a disease not a crime; because such prosecutions are likely to deter pregnant women from seeking prenatal care and treatment for drug and alcohol addiction that is beneficial to them and their children; and because such punitive approaches have no proven benefits for the health of children.

While Amici do not suggest that using methamphetamine during pregnancy is in any way benign, they nevertheless challenge the assumption that “illegal” drugs, such as methamphetamine, pose uniquely high risks of fetal or infant harm. Amici note that the adverse effects of in utero exposure to methamphetamine are less well-established – and likely no more grave – than those of any number of “legal” substances including tobacco and alcohol, whose pregnancy risks have been widely known and extensively documented for many years.

“Instead of prosecuting pregnant women with drug problems, we should be working together to increase access to family drug treatment programs and respectful, confidential health care services that will in fact improve the health of mothers and babies,” said Katherine Irwin, PhD, Assistant Professor, Department of Sociology, University of Hawai’i, Manoa

Oral argument in the case is scheduled before the Hawai’i Supreme Court on October 19, 2005.

Organizations

• American Academy of Addiction Psychiatry
• American Association for the Treatment of Opioid Dependence
• American College of Obstetricians and Gynecologists
• American Psychiatric Association
• American Society of Addiction Medicine
• Association for Medical Education and Research in Substance Abuse
• Association of Women Psychiatrists
• Center for Gender and Justice
• Citizens for Midwifery
• Doctors of the World-USA
• Drug Policy Alliance
• Drug Policy Forum of Hawai’i
• Finding Common Ground
• Global Lawyer and Physicians
• Harm Reduction Coalition
• Hawai’i Substance Abuse Free Environment Council
• The Hygeia Foundation, Inc.
• National Advocates for Pregnant Women
• National Asian Pacific Women’s Health Forum
• The National Association for Alcohol and Drug Abuse Counselors (NAADAC)
• The National Council on Alcoholism and Drug Dependence
• The National Association of Nurse Practitioners in Women’s Health
• National Association of Social Workers
• National Association of Social Workers – Hawai’i Chapter
• National Latina Health Organization
• National Latina Institute for Reproductive Health
• National Perinatal Association
• Our Bodies Ourselves

Individuals – Organizations for identification only

• Elizabeth M. Armstrong, PhD, MPA, Assistant Professor of Sociology and Public Affairs
• Adrienne Asch, Henry R. Luce Professor in Biology, Ethics and the Politics of
• Human Reproduction, Wellesley College
• Marylou Behnke, MD, Professor of Pediatrics at the University of Florida
• Michael Berman, MD, Clinical Professor of Obstetrics, Gynecology and Reproductive Sciences, Yale University School of Medicine
• Mona Bomgaars, MD, Hawai’i Academy of Family Physicians
• Nancy D. Campbell, Assistant Professor, Renssclaer Polytechnic Institute
• Wendy Chavkin, MD, MPH, Heilbrunn Department of Population and Family Health, Mailman School of Public Heath, Columbia University
• Maureen Corry, Executive Director, Maternity Center Association
• Stephanie S. Covington, Co-director, Center for Gender and Justice
• Nancy Day, PhD, Professor of Psychiatry and Epidemiology, Western Psychiatric Institute and Clinic, University of Pittsburgh Medical Center
• Virginia Delaney-Black, MD, MPH, Wayne State University
• Ernest Drucker, PhD, Montefiore Medical Center/ Albert Einstein College of Medicine
• Fonda Davis Eyler, PhD, Professor in the Department of Pediatrics of the University of Florida College of Medicine in Gainesville, Florida
• Bruce B. Ettinger, MD, MPH Academy on Violence and Abuse
• Jennifer B. Frank, MD, University of Hawai’i at Manoa
• Leslie Heartly Gise, MD, Clinical Professor of Psychiatry, John A Burns School of Medicine, University of Hawai’i
• Leonard Glantz, PhD, Boston University School of Health
• Maichael A. Grodin, M.D. Professor of Health Law, Bioethics, and Human Rights
• Boston University School of Public Health, Professor of Socio-Medical Sciences, Community Medicine, and Psychiatry, Boston University School of Medicine
• Martin Guggenheim, Professor at NYU Law School
• Katherine Irwin, PhD, Assistant Professor, Department of Sociology, University of Hawai’i, Manoa
• Stephen R. Kandall, M.D., Professor of Pediatrics
• David C. Lewis, MD, Professor of Community Health and Medicine, Brown University
• Ruth Macklin, MD, Albert Einstein College of Medicine
• Wendy K. Mariner, JD, LLM, MPH, Professor of Health Law, School of Public Health, Professor of Law, School of Law, Professor of Socio-Medical Sciences, School of Medicine, Boston University
• Luz Alvarez Martinez, National Latina Health Organization
• Diana Romero, Project Director of Finding Common Ground
• Ruth Rose-Jacobs, PhD, Assistant Professor of Pediatrics, Boston University, School of Medicine
• F. David Schneider, MD, MSPH
• Carol Sakala, PhD, MSPH
• Deborah Spitz MD, American Psychiatric Association
• Andrea Stolar, MD, Case School of Medicine
• Keerthy Sunder, MD, University of Pittsburgh Medical Center
• Linda L.M. Worley, MD, University of Arkansas for Medical Sciences
• Susan Wysocki, President and CEO, National Association of Nurse Practitioners in Women’s Health