A Butler County judge has thrown out a felony charge of aggravated assault of an unborn child filed against a woman who allegedly overdosed while seven months pregnant.
Judge William Shaffer's order means that the case against Kasey R. Dischman, 30, will proceed, but without the most serious charge prosecutors had hoped to press against her.
Dischman was charged in June with felony aggravated assault of an unborn child, endangering the welfare of a child, corruption of minors and possession of drug paraphernalia after she allegedly overdosed in her home on June 23.
The overdose — police say Dischman admitted to injecting a bag of heroin she found under her couch — resulted in her unborn baby being prematurely delivered by cesarian section.
But Shaffer, in his order, said prosecutors were overreaching in their attempt to charge Dischman with aggravated assault through Pennsylvania's Crimes Against the Unborn Child Act. He said Dischman was clearly protected from prosecution by a clause in the law that exempts pregnant women from prosecution for crimes against their unborn children.
“The Defendant is alleged to have done a senseless, selfish, and heinous act that, allegedly, resulted in devastating and permanent injuries to her unborn child,” Shaffer's order reads, in part. “This court is nonetheless constrained by the clear, plain and unambiguous language of (the law) and the Pennsylvania Supreme Court's decision in Bullock ...”
Shaffer's order comes after an Oct. 18 hearing in which prosecutors and defense attorney Joe Smith sparred over the aggravated assault charge as well as whether Dischman should be granted immunity from additional under the state's Good Samaritan law, which provides immunity for people who report or experience overdoses.
Smith argued that Dischman should be considered immune from other charges because of that statute. Assistant District Attorney Laura Pitchford argued that the law didn't apply to Dischman because she and her boyfriend, Andrew Lucas, hadn't cooperated with police during their investigation.
In his order Shaffer ruled against Dischman's ability to invoke immunity through the state's Drug Overdose Response law, and said that all other charges against her could proceed in court.