House Bill 1195 would establish certain fetal harm as an assault.
The bill would apply 22-18-1 (simple assault – class 1 misdemeanor) to pregnant people who use a controlled substance if the child is “either born with a physical dependence on a controlled substance or is harmed by a controlled substance and the dependence or harm is a result of the woman’s illegal use of a controlled substance.”
The ACLU of South Dakota opposes this bill. House Bill 1195 is yet another example of South Dakota attempting to solve complex addiction issues via criminalization and incarceration, a strategy that has failed time and time again.
This strategy will seek only to apply a criminal penalty to new mothers rather than enabling them to get the help they need.
Women of color, especially Native American women, are arrested and incarcerated for drug use at a far higher rate than their white peers. This bill creates yet another avenue for the over-incarceration of Indigenous women in South Dakota.
The bill creates an affirmative defense if the woman was enrolled in an addiction recovery program before birth, remained in said program after delivery, and successfully completed the program.
This creates an avenue where people with resources who can access addiction treatment are not criminalized. This avenue may not be available for low income women, especially those in very rural areas.