Pubdate: Wed, 13 Jun 2001
Source: National Public Radio (US)
Copyright: 2001 National Public Radio
Show: All Things Considered
Anchors: Robert Siegel
Reporters: Adam Hochberg
Related: National Advocates for Pregnant Women
Family Watch



Next week, the South Carolina Supreme Court will be asked to
re-examine a controversial ruling on pregnant women and substance
abuse.  Back in 1997, the court ruled that expectant mothers who use
drugs can be convicted of child abuse or other crimes.  Several women
have since face criminal charges after delivering babies that tested
positive for marijuana or cocaine.  Critics say the policy is too
harsh and discourages drug-addicted women from seeking prenatal care.
NPR's Adam Hochberg reports.

ADAM HOCHBERG reporting:

South Carolina's position on drug abuse by pregnant women is the
toughest in the nation.  It's the only state where courts have ruled
that harming a viable fetus can carry the same criminal penalties as
harming a person, and the only state where a jury has convicted a
woman of homicide for delivering a stillborn baby while using crack
cocaine.  In the past decade, dozens of South Carolina women have
faced criminal charges after they or their babies tested positive for
drugs.  Prosecutors say the tough measures are needed to protect
children both before and after birth.  Walter Bailey heads the South
Carolina Solicitors Association, a group of prosecutors around the

Mr. WALTER BAILEY (South Carolina Solicitors Association): If you
accept that a viable fetus is a human being, then I don't think the
mother needs to get a free ride to be able to harm the child when
somebody else couldn't.  And of all people, the mother should be the
most protective, not the one who causes the death or bodily harm.

HOCHBERG: Proponents of South Carolina's so-called fetal rights policy
scored an important legal victory in 1997.  That year, the State
Supreme Court upheld the child neglect conviction of Cornelia Whitner,
whose baby was born with traces of cocaine in his body. She was sent
to prison. The child now is being raised by relatives.  In its ruling,
the court said South Carolina's criminal laws apply to fetuses older
than 24 weeks, opening the door for convictions on a variety of crimes
against the unborn.  This month opponents of that decision will ask
the State Supreme Court to revisit it.  The court will hear the case
of Brenda Peppers, who was sentenced to two years probation for child
abuse after she delivered a stillborn baby while addicted to cocaine.
Her attorney, Rauch Wise, says the court overstepped its authority by
applying criminal laws to unborn victims. And he says the ruling puts
South Carolina out of step with the rest of the nation.

Mr. RAUCH WISE (Defense Attorney): Thirty-something other states
who've addressed the issue have all ruled in our favor.  And, granted,
we shouldn't be necessarily a follower for the sake of following, but
I think it gives weight to the logic of our position.  If the
Legislature wants to give some protection to a viable fetus that's not
there now, let them do it.  But it's certainly not up to the South
Carolina Supreme Court to legislate in this area, and I think that's
in essence what they did.

HOCHBERG: Wise says each time an addicted mother gets in trouble with
the law, it scares other addicts away from seeking drug treatment or
prenatal care. Many health care and doctor's organizations agree and
have announced their opposition to South Carolina's policy.  Donald
Palmisano of the American Medical Association says substance abuse
should be treated as a disease, not a crime, and says prosecutions
like the one in South Carolina can make women suspicious of their doctors.

Mr. DONALD PALMISANO (American Medical Association): Trust is
essential to the patient-physician relationship.  So if a patient
knows that they're going to be tested for a drug by the doctor and
that'll be reported to the police, what'll happen--the patients just
won't come. And the child--the unborn child won't get the necessary
treatment during the pregnancy.

HOCHBERG: Supporters of South Carolina's policy discount those
concerns, arguing that women who use drugs during pregnancy aren't
likely to seek prenatal care anyway, even if there were no punishment.
And the state's prosecutors say they rarely pursue criminal charges
against a mother unless she refuses drug treatment.  Solicitor Greg
Hembree in Conway, South Carolina, last month won a homicide
conviction against Regina McKnight, a drug-addicted woman whose baby
was stillborn.  She was sentence to 12 years in prison. Hembree says
in that case, like in most others where women have been taken to
court, the defendant made little attempt to deal with her addiction.

Mr. GREG HEMBREE (Prosecutor): You know, there's one surefire way to
stay out of trouble with something like this and that is to seek help.
And that's our objective for those women that are in that situation
to, you know, take care of their baby and accept the responsibility
for it and take care of it.

HOCHBERG: South Carolina began aggressively pursuing fetal rights
cases in the 1980s, a practice started by state Attorney General
Charles Condon, who was then a local prosecutor.  In those days women
sometimes were tested for drugs at the hospital without their consent,
then handcuffed and jailed if the tests were positive.  The US Supreme
Court has since outlawed secret testing, but Condon still encourages
punishment for expectant mothers who use drugs. Though he didn't
respond to requests for a radio interview, Condon recently issued a
written statement saying he's proud to lead what he calls the fight
for innocent children.  And Attorney General Condon, who's a
Republican candidate for governor, promised South Carolina would
remain on the cutting edge of protecting the unborn.  Adam Hochberg,
NPR News.
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