By Jonathan Lange, Cowboy State Daily columnist
Clarissa was born on the bathroom floor, weighing only three and a quarter pounds. She arrived six weeks premature, induced by an overdose on methamphetamine, cocaine and, possibly, heroine. Her maternal grandmother scooped up the tiny baby and helped her take her first breaths.
An ambulance rushed Clarissa to the NICU where she was treated for neonatal abstinence syndrome (NAS). She was withdrawing from the illegal drugs shared with her mother throughout her gestation.
Clarissa had her struggles, but by the love of her foster family and the skill of her doctors, she pulled through. Her rough entry into the world is now a story she has a passion to share. This bright and strong Wyoming woman knows that she speaks for others, many less fortunate. Some are still born. Others die unattended. Survivors sometimes have life-long birth defects.
Statistically, a child is born with NAS every fifteen minutes. The tragedy of America’s addiction epidemic is that it affects not only men and women, but tens of thousands of unborn persons every year. The unjust injury and death inflicted upon people with no say in the matter, cries out for justice. We, as Wyomingites, have a duty to intervene for their protection.
Exercising that duty, the State of Wyoming recently filed charges against a Torrington mother. On August 18, 2019, hospital employees called Child Protective Services after a newborn tested positive for methamphetamine. When police tested the mother, it was clear that the baby was exposed in utero. “She was charged with felony child abuse and delivery of methamphetamine to a minor,” according to the Torrington Telegram.
But, on March 26, 2020, her charges were dismissed. Public Defender David MacDonald argued that Wyoming’s statutory language does not specifically designate an unborn Wyomingite as a “child.” Therefore, the charge of delivering meth to a minor child must be dismissed. He further argued that it does not specifically call a pregnant woman a “mother.” If not a mother, she cannot be a “parent” in the eyes of the law. Therefore, she cannot be charged with parental abuse for action taken before the birth.
The Torrington Telegram headlined the story, “Charges dropped; attorney proves a fetus isn’t a person, according to state statute.” Actually, MacDonald is more modest about his achievement. Charges were dismissed when the state’s prosecutor failed to answer his brief. By default, the Eighth District Court found that the statutory language fails to stipulate that an unborn child is a person, or that a pregnant woman is a mother.
This ought to alarm every pregnant woman and every expectant couple in the state. By denying that a fetus has any legally recognized parents prior to birth, the court not only exonerated one mother of parental responsibilities, it also wiped away the corresponding parental rights for all parents.
Anybody from a medical worker, to a state agency, to a total stranger can interfere with the parent child relationship before the child is born. Neither parent has parental standing to advocate for the child.
As for the unborn child, the Eighth District Court has just wiped away any legal protection that the child formerly had under Wyoming law. If a child has no right to be protected from illegal and harmful drugs, she also has no right to be protected from murder. Should a boyfriend kill the child through battery, or drugs, the state has no authority to charge him with murder.
During the 2019 general session, Senator Lynn Hutchings introduced the Unborn victims of violence act (SF 128) to repair this injustice in Wyoming law. It would have provided statutory language that allows Wyoming to prosecute the murder of an unborn child.
Sadly, the bill was heavily amended in the Senate Judiciary Committee. Every reference to “unborn child” was replaced with “fetus,” and every reference to “mother,” was replaced with “pregnant woman.” The bill ultimately failed. It remains legal in Wyoming to murder an unborn child against the will of the mother.
Now, the Torrington case has shown that it is likewise legal to deliver harmful drugs to an unborn child. It has exposed the legal fiction that children can be adequately protected without legal recognition of the parent-child relationship in the womb. The Eighth District Court has now made clear that nothing short of a legislative fix will address the problem.
For Wyoming, this also means that state law fails to protect what Wyoming’s Constitution guarantees. The Declaration of Rights, paragraph 2 of the Constitution of the State of Wyoming stipulates “In their [the people’s] inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.”
Equal protection for life in Wyoming is not affected by any subjective stage of development or subcategory of human being. Regardless of whether a member of the human race may be dehumanized with terms like “embryo” and “fetus,” or humanized with words like “child” and “person,” the Constitution recognizes equality for “all members of the human race.”
In recent centuries, deeply anti-human “personhood theories” have sought to separate “human beings” from “persons.” By this sleight of hand, they have justified slavery, the Jewish holocaust, and other racist atrocities.
Wyoming’s Declaration of Rights, written after the war to free the slaves, deliberately side-steps the tainted terminology of “personhood,” giving equal protection under law to all members of the human race without regard to any discriminatory and undefined distinction between persons and non-persons.
The court should have recognized that the language of personhood theories are not only foreign to the Wyoming Constitution, they were explicitly rejected. The state’s prosecutor should have defended the Constitution’s intent to avoid the vagaries of personhood theory and stick with clear, provable statements.
The Torrington case highlights the failure of Wyoming law to adequately guarantee the protections promised in the Wyoming Constitution. Clarissa’s life reminds us that this failure is not merely theoretical. It causes tangible harm to real people with lives worth protecting.
It is past time for Wyoming’s executive branch, judicial system, and legislators to enact and enforce laws that give equal protection to every member of the human race as the Constitution expressly requires.