People For the American Way

Confirmed Judges, Confirmed Fears: Trump Circuit Judge Casts Deciding Vote to Allow Prosecution of Woman for Manslaughter due to Prenatal Drug Use

News and Analysis
Confirmed Judges, Confirmed Fears: Trump Circuit Judge Casts Deciding Vote to Allow Prosecution of Woman for Manslaughter due to  Prenatal Drug Use

“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

On July 5, Trump 8th Circuit judge David Stras cast the deciding vote in United States v. Flute that a woman could be charged with manslaughter for using drugs while she was pregnant, which helped cause the death of her newborn child. Judge Steven Colloton, a George W. Bush appointee who was on Trump’s shortlist for a possible Supreme Court appointment, strongly dissented.

Samantha Flute is a Native American from Indian Country in South Dakota. Her newborn baby’s death in 2016 was attributed to drug toxicity after Flute ingested non-prescription and prescription drugs while pregnant. She was “not alleged to have consumed an illegal substance.” Federal prosecutors charged her with involuntary manslaughter committed within Indian Country in violation of federal manslaughter law, claiming that she had taken drugs “in a grossly negligent manner.”

A federal district court dismissed the indictment against Flute. The judge explained that a provision in the Unborn Victims of Violence Act (UVVA) prohibits prosecution of “any woman with respect to her unborn child,” and that the law was “a clear statement from Congress” that federal manslaughter and other laws “cannot be applied to the pregnant woman herself for any action she takes with respect to her unborn child.”

The government appealed the dismissal, and the majority of an Eighth Circuit panel, including Judge Stras, reversed in United States v. Flute. The majority pointed to the federal Born Alive Infants Protection Act, under which it ruled that Baby Flute was a ”human being” since he had been born alive and subject to the protection of the federal manslaughter law. The majority maintained that the law “necessarily extePil” to conduct that occurred before birth that later caused death. It ruled that the district court had misinterpreted the UVVA, which it held provides “[n]o applicable exception” for a mother’s conduct before birth that results in an infant’s death after birth The majority thus ruled that, apparently for the first time in history, that the federal government can prosecute a drug-using mother for the death of a newborn.

Judge Steven Colloton, who was appointed by President Bush and was on President Trump’s Supreme Court shortlist, strongly dissented. Although he did not agree with the lower court’s analysis of the UVVA, he maintained that the federal manslaughter statute, adopted in 1909, does not impose “criminal liability on a mother for prenatal conduct that results in the tragic death of her child.” Prior to the 1909 statute and other provisions criminalizing it, manslaughter was a crime under common law – that is, court precedents in England and America that preceded statutes passed by legislatures. Because the federal statute defined manslaughter in accord with the common law definition of the killing of someone without malice, Colloton explained, it is a “settled principle of interpretation” that Congress intended to incorporate the “well-settled meaning” of common law terms that it used. According to the common law in England and America, Colloton went on, although actions by a third party prior to an infant’s birth that cause death can be considered manslaughter, it “did not encompass prenatal neglect by a mother that later caused the death of her child born alive.” The majority was wrong to claim that the common-law meaning of manslaughter “does not fit” with the federal manslaughter law, Colloton explained, because the historical record was clear that Congress in 1909 had simply criminalized the “traditional offense” of manslaughter and gave it the “common law definition” that dates back centuries, so the words of the law and the common law meaning “fit hand in glove.”

As Judge Colloton concluded, the issues in this case raise “profound moral and policy questions,” but it properly required an “Act of Congress to extend federal criminal liability to a mother whose drug use during pregnancy causes the death of her child.” In fact, the implications of the majority’s ruling are even broader; as the district court had pointed out, if Ms. Flute’s actions constitute manslaughter, [then] women could similarly be charged with assault or manslaughter if they “consume alcohol during pregnancy,” [or] “use chemotherapy to treat cancer,” or “negligently drive an automobile and cause an accident” that result in injury or death to their as-yet unborn children. Stras’ deciding vote threatens to create such far-reaching results, in South Dakota and elsewhere.