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Wednesday, July 8, 2009

BUI (Breastfeeding Under the Influence)

Couldn't ignore this one. Police recently responded to a domestic disturbance call in North Dakota and encountered an intoxicated woman who was breastfeeding her newborn. They arrested her. And she subsequently pleaded guilty to child neglect and faces up to five years in jail. For more of the sordid details on this boozing and boobing saga, click here.

No, I do not know enough about this situation to cast informed and well-calibrated judgment on the actions of the police here -- and no one has compelling scientific evidence about the effects of alcohol in breastmilk on infants -- but as a lawyer and as a mother and as an American, the story troubles me.

As a lawyer of latter day, I'm worried about the very real problem of line-drawing. Are we going to start rounding up pregnant women who are sipping wine or nibbling feta or not eating anything while pregnant because data indicates that these things might not be good for the fetus? Are we going to arrest a woman who has ingested vast amounts of caffeine and is nursing? Where do we draw these legal lines?

As a mother, I am concerned about this story because, well, (gasp), I consumed moderate amounts of wine while nursing both of my daughters. Yes, I was responsible. No, I didn't nurse while intoxicated. But I would be lying if I said I abstained from Pinot during those postnatal months. I would also be lying if I said the Pinot wasn't often a sublime treat at the end of a long and tiring day. And I am no scientist, but both of my girls appear to be thriving. (Brag Moment: Toddler's teacher called her a superstar today!)

As an American, I worry about privacy. I am not sure anyone truly knows how to define privacy or that enigmatic right to privacy. But it's easier to intuit when privacy has been violated. It seems to me that this woman's right to privacy has been compromised in some way I cannot quite articulate. Admittedly, this is an argument I am less sure about. And this is when facts of the case matter. If this woman was conspicuously drunk, unable to care for her tiny baby, and someone in that home or nearby called the police because conditions were unsafe or out of hand, maybe her right to privacy has been surrendered? Who knows. My legal knowledge is rusty. This is where my lawyer friends can maybe help me out?

What are your thoughts on this arrest? Does it trouble you like it does me? Are you better able to articulate what is wrong with this picture? Or maybe there is nothing wrong with this picture and I am simply defending my own questionable behavior?


  1. As a prosecutor who has spent 5 years pursuing violent criminals and the last 9 doing cases that have been (mis)reported in the media, I suspect there is much more to this case. There are many things that strike me as strange, starting with her guilty plea to child neglect based solely on so-called drunken breast feeding. Consider the following: the article noted in passing that she has a criminal history and also that she called the police because her boyfriend had beaten her. He was not in the home at the time the police arrived and has not been arrested, despite the fact she had visible, though minor injuries. No lawyer, not even the most overworked, underpaid incompetent public defender would let her plead guilty under these circumstances. The police took no breathalyzer or conducted common law sobriety tests and would have to rely solely on officers' observations to prove her intoxication. They would also have to testify they were there because of domestic violence and about her corroborating injuries. Finally, an essential element to child neglect endangerment is acting in "a manner injurious to a child." That would require proof that the baby could have been injured as a result of her conduct, something the DA could not prove even theoretically. Of course, I have no idea what really happened but my suspicion is that she had other legal problems and that she wrapped them up with this plea. If I am wrong about this, then this is as much an example of poor legal representation as anything else.
    In terms of the so-called crime here, it is patently ridiculous, and speaking only for my own office, admittedly in Manhattan, we would never prosecute such a case. It is paternalism at its worst and you make excellent points on why it is troubling, not least of which that there is no proven detriment to breastfeeding while intoxicated. (Smoking in front of a baby is at least as bad if not worse, since the effects of second-hand smoke are indisputable.) And at what point do you draw the line, one glass of wine is okay in New York but not in Pennsylvannia? It's just crazy.
    On the privacy question, I can tell you that by allowing the police into her home, she consented to their being there. Despite being called via 911, had she refused to answer the door, barring any articulable exigency, the police could not have lawfully entered her home.
    As for privacy regarding her personal choices, I'm not sure I agree with you. If a police officer sees a crime being committed, he is obligated to stop it. So if she were sitting behind the wheel in a car in her driveway with the motor running, clearly intoxicated, I would expect him to stop her from driving off. And we all agree governments do have an interest in making sure people don't harm their children. So, I don't think this is a case of privacy being violated as much as it is a local government overstepping in its role to protect children to in effect criminalize questionable mothering. (We are all lucky this is a rare occurrence, or I'd have to send myself to jail on occasion, hell, some people would jail me for working in the first place!)

  2. Love your blog title. It's funny. Enjoy reading contrarian stuff by people who think outside the box that's outside the box.

    Can't comment on this case too much. But it does bring to mind that the US has more people in prison (1 out of every 100 adults) than any other country in the world. Something's not right with that legal picture not to mention the fact it costs the public a fortune.

  3. Giulietta - Thanks for the comment. Thrilled to be considered someone "who thinks outside the box that's outside the box." What a tremendous compliment! Come visit my new site - http://ivyleagueinsecurities.com/ and leave a comment there. Cheerio!


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