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Big Horn courthouse

Big Horn County Courthouse in Hardin April 19, 2017.

LARRY MAYER, Gazette Staff

A group of advocacy organizations is pushing back on a recent announcement by the Big Horn County attorney that he plans to crack down on drug use among pregnant women.

In a press release issued Wednesday, the American Civil Liberties Union of Montana and eight other health care, human rights and women’s organizations in Montana joined the organization in a statement condemning Big Horn County Attorney Jay Harris’ recent announcement.

Harris issued a statement on Thursday that his office would begin an “immediate crackdown” on pregnant women using drugs or alcohol, starting with a restraining order. If a woman was found to have violated the restraining order, Harris’ office would seek to jail the woman.

Harris also called on community members to alert the Big Horn County Sheriff’s Office of instances in which pregnant women used drugs or alcohol.

The joint statement issued Wednesday condemned the policy announcement.

“These cruel policies will foster a climate of anxiety and mistrust between doctors and patients and will drive women away from the health care and treatment they need,” the statement read.

The groups said Harris’ announcement “places the health of pregnant women and their families at risk while failing to address the issue of addiction and rehabilitation.”

Harris’ announcement last week pulled the attorney general’s office into the debate.

“In the event an expecting mother chooses to abort an unborn child instead of refraining from drug or alcohol use and litigation extends beyond our local courts, we trust Attorney General (Tim) Fox will make the right decision on behalf of all Montanans and continue this fight to the extent necessary to ensure justice is afforded to the most vulnerable of our society," Harris wrote.

Harris has not spoken to Fox on the matter, but he said he hoped to soon.

When reached Wednesday, Fox’s office said they had not yet reviewed the ACLU letter, but noted Harris had not contacted them prior to his announcement last week.

“I don’t think we’ve seen a county attorney take this approach in the state of Montana,” Spokesman Eric Sell said. “And if Mr. Harris does go forward with this, and the ACLU does launch a legal challenge, then a court will decide if a county attorney has the legal authority to do this.”

Sell said Fox recognized the challenge facing the state with pregnant women who have a substance use disorder, but that Harris’ crackdown was not an approach Fox would back.

“But as far as the legal grounds that Mr. Harris has promulgated this policy on,” Sell said, “they’re quite dubious.”

Harris said his new policy rests on Article II, Section 3 of the Montana Constitution, which provides for the “inalienable rights” to personal safety and happiness, among other provisions.

Harris' new policy is reminiscent of a 2014 case in Ravalli County, in which a woman was charged with criminal child endangerment for allegedly putting her unborn child at risk by using illegal drugs. The case was thrown out by a district court judge, and Harris said his office had been advised against pursuing the same legal strategy.

But the difference between Ravalli’s approach and Big Horn County’s, he added, is that he will only pursue civil prosecutions against those expectant mothers, rather than criminal charges.

The ACLU, which issued the press release on behalf of the nine organizations, sent a letter to Harris saying his new policy violated, “at a minimum,” the privacy, equal protection, dignity and due process protections laid out in the state constitution, as well as the Montana Human Rights Act’s prohibitions on discrimination based on sex and pregnancy.

“If Harris attempts to enforce his policy, the ACLU of Montana is prepared to challenge his actions in court,” the organization wrote.

The letter to the county attorney was signed by Alex Rate, legal director of ACLU of Montana. Copies were provided to the Office of the Public Defender and to Fox’s office.

Reached by phone Wednesday, Harris confirmed he had received the letter from ACLU. Asked about the ACLU’s arguments that the policy violated provisions of the Montana Constitution and the Montana Human Rights Act, he declined to comment.

“We’ll address legal issues at such time as may be appropriate, either in a courtroom or through legal filings,” Harris said.

Signing the press release condemning the Big Horn County policy were ACLU of Montana, Blue Mountain Clinic, Montana Association of Christians, Montana Coalition Against Domestic and Sexual Violence, Montana Racial Equity Project, Montana Human Rights Network, Montana Women Vote, NARAL Pro-Choice Montana and Planned Parenthood of Montana.

Sam Wilson, of The Billings Gazette, contributed reporting. 



Justice Reporter

Justice reporter for the Billings Gazette.