Kasey Dischman

What happens between a woman and her unborn child is no business of Pennsylvania’s criminal justice system, according to a recent state Superior Court decision involving a Butler County case.

A Superior Court decision reaffirmed a lower court’s decision of last year to drop a felony charge of aggravated assault against Kasey R. Dischman, a Butler woman who is accused of overdosing while she was seven months pregnant.

“At this point the law is, there’s an immunity preventing prosecution of pregnant mothers,” said Joseph Smith, a public defender representing Dischman. “It’s unfortunate that the case was even prosecuted. This decision vindicates the defense.”

Butler’s District Attorney Richard Goldinger argued that Dischman, 31, should be held responsible for endangering her then unborn child when she reportedly overdosed on June 22, 2017, forcing her baby to be prematurely delivered through an emergency cesarean section.

Last year, Judge William Shaffer threw the felony case against Dischman out. In his order, he said prosecutors were overreaching in their attempt to charge Dischman with aggravated assault using 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 ... to find that our legislature intended for prosecution under the Crimes Against the Unborn Child Act, to be barred as a defendant, a then pregnant woman, for crimes against her then unborn child.”

Butler County prosecutors appealed Shaffer’s decision late last year to the state Superior Court.

“That immunity statue is some of the clearest and strongest language in the country that’s in place regarding immunity for pregnant women,” Smith said.

The law was drafted by state Rep. Dennis O’Brien in the 1990s, and at the time when the act was being considered, Rep. Babette Joseph said to O’Brien “I am worried ... Pennsylvania will be encouraging the prosecution of pregnant women who engage in arguably unhealthy behavior during their pregnancies. Is it the intention of the Senate language to this bill or the bill that it should be used against pregnant women in any way?”

To which O’Brien said, “The answer to that question is, nothing in this chapter shall impose criminal liability upon the pregnant woman in regard to crimes against her unborn child.”

Using this exchange and the language of the law, Judge Carolyn H. Nichols wrote in the Superior Court’s opinion that it “dictates that a pregnant woman cannot be held liable ... for crimes against her unborn child.”

And therefore, the Superior Court court concluded, Shaffer was correct in his reading of the law.

Butler County Assistant District Attorney Laura Pitchford declined to comment on the case, noting that her office has 30 days to respond and make a decision.

The case is also one of first impression, meaning that a question of interpretation of this law is presented which has never arisen before in any reported case within the state.

“It does set a statewide precedent,” Smith said. “It clearly put the commonwealth on notice that there is an immunity on pregnant women.”

But that doesn’t mean Dischman’s legal troubles are over.

In August, Shaffer resentenced Dischman to up to a year in jail for violating her probation on a 2016 retail theft case. She was also accused of violating pretrial supervision in the alleged overdose case.

The status of the three misdemeanors — endangering the welfare of children, corruption of minors and possession of drug paraphernalia — is uncertain pending the finality of the appeals process in relation to her actions on June 22, 2017.

Dischman’s boyfriend, Andrew Lucas, 37, is in state prison for 2 to 5 years in a related case.