By Alexa Richardson
A woman whose hours-old baby was dying admitted to her care providers that she had abused prescription and over-the-counter medications shortly before the birth. This summer, in United States v. Flute, 929 F.3d 584 (2019), the Eighth Circuit held that she could be charged with federal manslaughter for the death of her baby. While some states have charged pregnant people with manslaughter for drug use during pregnancy, Flute marks the first time that federal prosecutors have brought such charges. The decision, which reversed the district court decision dismissing the charge, opens the door for pregnant people to be criminally charged for a wide range of prenatal conduct — should it result in the baby’s death after birth — such as driving recklessly, receiving chemotherapy treatment during pregnancy, failing to obtain adequate prenatal care, or declining a medical recommendation.
Samantha Flute, an American Indian woman, gave birth at a Sisseton, South Dakota hospital on August 19, 2016. She told the medical staff that she had ingested Lorazepam, hydrocodone (possibly laced with cocaine), and cough syrup before coming to the hospital. Four hours after birth, Baby Boy Flute died. The autopsy revealed a full-term baby with no anatomical cause of death, and the pathologist determined the death to be the result of drug toxicity from the substances ingested prenatally by Flute.
In the 2-1 decision written by Judge Shepherd, the court found that the “relevant statutes unambiguously encompass Flute and her conduct.” Because the baby was born alive, Baby Boy Flute fulfilled the definition of “human being” under the federal manslaughter statute, 18 U.S.C. § 1112, and the Born Alive Infants Protection Act of 2002, thus qualifying as a victim that Congress intended to protect. The fact that the fetus was not born alive at the time of Flute’s cited conduct was not relevant, the court reasoned, because manslaughter is a results-based crime, so the status of the victim is determined at the time of death. Turning to whether Flute was an intended defendant under the manslaughter statute, the court found that because there was no exception for the conduct of a pregnant person with respect to a fetus in § 1112, Flute was an intended defendant under the statute.
Judge Colloton dissented, arguing that the common-law meaning of “manslaughter” was incorporated into the statute when it was enacted by Congress in 1909. Under the common-law “born alive” rule, third parties could be charged with homicide if a baby was born alive and subsequently died of injuries suffered prenatally, however pregnant mothers could not. In the absence of an express statement from Congress indicating an intent to criminalize prenatal conduct by pregnant people, Judge Colloton declined to extend criminality to the acts of Samantha Flute.
As both the district court opinion and the dissent by Judge Colloton observe, the majority’s interpretation of § 1112 has broad ramifications for the types of conduct for which pregnant people could be held criminally liable moving forward. The conduct need not be intentional or knowing, simply reckless, and the conduct in and of itself does not need to be criminal, so long as it results in the death of the baby. Given that there is also no exception for medical providers written into § 1112, the court’s interpretation would equally apply to conduct by medical providers, opening up providers for federal manslaughter charges in cases where their errors, either during prenatal care or during birth, result in death of a baby shortly after birth.
On August 9, 2019, Flute submitted a petition for rehearing en banc. An amicus brief in support of an en banc rehearing was submitted by the National Advocates for Pregnant Women and a range of medical, public health, and policy experts on August 21, 2019.