Judicial safety net for the unborn proposed

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Gerald “Jay” Harris

Guest Column

Children are sacred. The innocence and vulnerability of children demand our best efforts to ensure their protection and well-being. This includes “the ones that are on their way,” to use a traditional Cheyenne concept.

The Big Horn County struggle against methamphetamine and alcohol abuse continues. It is a battle we will win, but while we engage in the ongoing fight against the evils of addiction, the health and well-being of our children and, accordingly, the future of our community, cannot be governed by the judgment of drug or alcohol-addicted parents.

Need for greater efforts

Prior to Jan. 11, the policy in Big Horn County was for the state to take custody of any newborns testing positive for methamphetamine or other controlled substances classified as dangerous drugs under Montana law, or in circumstances where it was known and provable that the expecting mother was using dangerous drugs or alcohol.

While this remains a necessary recourse, it has not proven an effective policy to deter the dangers of in utero drug and alcohol abuse in our community – not surprising, considering the gripping power of meth and alcohol addiction.

Mothers choosing drugs and alcohol over their children have been observed time and again in our youth.

Starting Jan. 11, the Big Horn County Attorney’s Office is proactively engaging this concerning issue by ensuring maximum efforts are made to abate drug use while a mother is expecting. These actions minimize the risk that an innocent person be subject to lifelong disabilities caused by chemical dependency.

Judicial safety net


Health care professionals in our community strongly encourage expecting but addicted mothers – including those not yet pregnant, but seeking to start a family – to receive the care and support needed to help battle their substance addiction. This should not be controversial at all.

The major friction is presented when an expecting mother does not come in to seek help, and chooses the life of chemical intoxication over the basic duties of a mother to her child. In such a case, what do we do?

Seeking civil remedy in the courts to protect the ability of an innocent child to experience life without disability should be considered secondary to the primary approach of medical treatment. This treatment includes trauma-informed counseling and whole person (spiritual, mental, physical, financial, relational) health intervention. However, without a judicial safety net through the courts, a drug addict or alcoholic expecting mother is placed in an “honor system” approach at best.

In the event there is evidence sufficient to prove an expecting mother is engaged in the use of alcohol or dangerous drugs, such that it is provable that a substantial likelihood of major disability exists for the unborn child, the state will seek an order of protection for the as-of-yet unborn child by the filing of a civil complaint. This is the same order used to protect against further injury in an instance of physical violence or threats.

In the event a protective order is issued by the court and the order is later violated, the court (as is the case with any order issued in any case) may hold the offending party in contempt. In this instance, such a ruling includes the prospect of commitment to an inpatient treatment program or jail. Ideally, this policy will lower the number of youth in need of care petitions, especially if the effect is to help steer more expecting mothers to medical care without any judicial involvement at all.

This policy is a final remedy, but an unfortunate necessity. History shows us the future does not favor the uncourageous, and it is the future of Big Horn County – especially the Crow and Northern Cheyenne tribal communities – that hangs in the balance. Justitia virtus serves.

Other jurisdictions, including Hill County in Montana, recently have sought criminal prosecution for expecting mothers ingesting dangerous drugs. These local authorities know best the dynamics of their communities.

The Big Horn County policy has drawn some criticism because it unfortunately touches upon one of American society’s most sensitive raw nerves: the abortion debate. The complexity of this issue demonstrates the importance Northern of statewide and national leadership to formulate appropriate public policies. It no longer can be ignored or given half measures.

Montana values and

ancient ideals

Under the Bald and Golden Eagle Protection Act, it is a federal offense punishable by prison to knowingly or with wanton recklessness damage an eagle’s egg or even a nest. Most will honor the importance of protecting eagles, but I strongly believe Montanans would agree that humans are deserving of greater protection by law.

I also believe the sensibility of our state’s citizens would agree that the potentially destructive impact to an innocent, vulnerable life cannot be placed in the hands of an honor system approach.

I have taken the position that protecting an innocent, unborn life is a just cause supported by the principles contained in our Montana Constitution, the United States Constitution and the Declaration of Independence – that all people are created equal by God with unalienable rights to life, liberty and the pursuit of happiness. This must include a healthy and productive life without disabilities and hardship caused at the most critical time in our physical development.

As Dr. Martin Luther King Jr. famously declared 50 years ago, “We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history there is such a thing as being too late.” Dr. King also stated that “There is an invisible book of life that faithfully records our vigilance or our neglect.”

Our efforts or inertia today will reverberate throughout successive generations if we fail to obligate ourselves to justice and a renewal of our commitment to providing for the protection of each other. The Founders of our Nation proclaimed popular sovereignty and injustice as the legal justification to our nation’s existence and the reason “governments are instituted amongst men.” Now, the assurance of the general welfare contains a specific charge of duty to our exercise of public authority.

I propose that we are true in making every effort we can to celebrate and honor the gift of life by ensuring that we can someday look an innocent, healthy and happy child in the eye and say, “We valued the sacredness of your life enough to have fought for you and we ask that you instill this value into your own children.”

As set forth in the Citizen’s Oath of ancient Athens, we must transmit our community not only, not less, but greater and more beautiful than it was transmitted to us.

For justice.