Pubdate: Sun, 23 Feb 2003
Source: Post and Courier, The (Charleston, SC)
Copyright: 2003 Evening Post Publishing Co.
Author: Kathy Stevens, Of The Post and Courier Staff
Cited: National Advocates for Pregnant Women
The Women's Law Project
South Carolina Advocates for Pregnant Women
Bookmarks: (Ferguson v. City of Charleston) (Whitner v. South Carolina)


State Stands Alone in Arresting Women Who Engage in Risky Behavior During

It should have been among the most celebrated days of Regina McKnight's

She was to deliver her third child, a girl she'd named Mercedes, but the
5-pound infant was stillborn. An autopsy revealed traces of a cocaine
byproduct in the infant's blood.

Results were given to police, and McKnight was charged with homicide by
child abuse. That day she joined more than 100 women in South Carolina who
have faced criminal charges in the past 15 years for using cocaine while

South Carolina is the only state that uses child abuse laws to prosecute
women who while pregnant engage in behavior -- drug use -- that might harm a
viable fetus.

The South Carolina Supreme Court recently upheld McKnight's conviction and
12-year prison sentence, saying the state is right to hold women criminally
responsible for such actions.

While McKnight remains jailed at Leath Correctional Institution in
Greenwood, opponents of the court's decision say there is no scientific
proof that McKnight's drug use caused the stillbirth. Instead, they argue
that juries and justices continue to base decisions on misinformation about
the effects of crack cocaine on fetuses and that the law is too

Supporters argue that it targets only crack cocaine users. Trey Walker,
chief executive assistant to Attorney General Henry McMaster, said McMaster
backs the court's decision.

"Obviously, the legislative intent was to quash a rampant problem of crack
babies being born," Walker said.

The legislation was backed by former Attorney General Charlie Condon.
Condon, whose office initially prosecuted McKnight, began prosecuting
pregnant, cocaine-addicted women while he was Charleston's solicitor in the
late 1980s and continued in 1995 when he became attorney general.

Condon did not return repeated calls seeking comment.

Walker said the law deals specifically with crack cocaine -- not smoking,
drinking or poor nutrition -- because the drug is illegal. The state doesn't
plan to test every pregnant woman, newborn or stillborn for drugs. Instead,
prosecutors will target "people who knowingly use crack while they're
pregnant," Walker said. "Our job is to defend the law as it's written."

The law says any legal custodian who puts the health or life of a child or
viable fetus at risk can be prosecuted under misdemeanor child abuse laws.
It doesn't mention crack cocaine.

South Carolina is the only state that specifically mentions the viable fetus
in such a law. "Viable" means the fetus is developed enough that it could
live outside the mother's body.

Prosecutors say the same term should apply to felony child abuse laws.

Interpretation and Debate

Interpretation of abuse laws and others has again culminated in broad debate
among medical professionals, attorneys and civil libertarians. Some warn
that South Carolina is treading on dangerous ground. Repercussions, they
say, are far-reaching and should concern all pregnant women, who essentially
are subject to jail time for behavior that could include disobeying doctor's

"If the justification for applying these laws is the risk of the behavior on
the fetus, you can't isolate cocaine use from other things," said Charleston
attorney Susan Dunn. She represents eight of 10 Charleston-area women who in
1993 sued the city of Charleston and Medical University Hospital, alleging
their Fourth Amendment rights against unreasonable search had been violated.

"If the reasons for stretching the law is because we're protecting the
fetus," Dunn said, "we have to realize the fetus doesn't care where the risk
is coming from -- maybe it's poor nutrition, maybe it's no health care,
maybe it's not following doctor's orders."

Proponents point to case law dating back to the 1960s that determined the
state can prosecute people for killing a viable fetus. Precedent-setting
cases continued through the 1980s, when a man was convicted of involuntary
manslaughter after stabbing his pregnant wife, which resulted in the death
of her viable fetus.

Dunn said the rush to prosecute drug-addicted pregnant women began in the
mid-1980s when the media heralded a crack-cocaine epidemic that spawned
"crack babies." Ensuing hysteria, she said, prompted legislative proposals
ranging from sterilization to jail time for pregnant women with drug

"What it comes down to is this: When you're sick, do you provide health care
or punishment?" said Lynn Paltrow, one of McKnight's attorneys and the
executive director of New York-based National Advocates for Pregnant Women.
"Do you have evidence-based, cost-effective policies or ones based on myth
and costly misinformation?"

In 1990, 34 states debated legislation addressing prenatal drug use.
Fourteen passed bills aimed at prevention and education. Six states launched
studies to determine the scope of the problem, and eight declined to pass
legislation that would make it a crime to be a pregnant drug addict,
according to a 2000 report by the National Advocates for Pregnant Women and
the Women's Law Project in Philadelphia.

South Carolina reviewed nearly a dozen bills that would hold women
accountable for actions that might endanger fetuses but passed none.
Instead, the state revised existing child abuse laws.

The same process occurred in other states, although ultimately
unsuccessfully: A Wyoming woman was charged with child abuse for drinking
while pregnant; an Illinois woman faced charges of involuntary manslaughter
and delivery of a controlled substance to a minor when her baby's death was
linked to her cocaine use while pregnant; a Virginia woman was charged with
felony child abuse for ingesting cocaine while pregnant.

In California, a battered pregnant woman was arrested under a criminal
statute and charged with "failing to follow her doctor's advice to stay off
her feet, to refrain from sexual intercourse, refrain from taking street
drugs, and to seek immediate medical attention if she experienced
difficulties with the pregnancy," according to a study Paltrow compiled in
1992 of criminal prosecutions of pregnant women in the late 1980s and early

Paltrow noted that a significant number of the women arrested for actions
during pregnancy were in abusive relationships and that the women's alcohol
or drug use during pregnancy was discovered because the women had been
battered. She further suggested that those prosecuted tended to be poor

All cases that were challenged outside South Carolina, she said, were
eventually dropped or dismissed after courts determined laws did not apply
to viable fetuses.

The Charleston Angle

In Charleston County, though, police, prosecutors and health care workers
worked together in the late 1980s and early 1990s to arrest drug-addicted
women who sought prenatal care. A Charleston woman, for example, was
arrested at Medical University Hospital after her newborn tested positive
for cocaine. The woman was jailed and later agreed to certain conditions in
exchange for criminal charges being dropped.

Three South Carolina cases that have spanned the past decade - those of
Crystal Ferguson, Cornelia Whitner and McKnight - highlight the state's
stance on how pregnant women who use drugs are handled. In each case, briefs
have been filed in support of the women.

The Ferguson case was among the first to challenge the collaborative effort
of law enforcement and health care providers to arrest drug-addicted
pregnant women. The city of Charleston in 1989 teamed with police and
prosecutors and began testing pregnant women for drugs.

The women were admitted to Medical University Hospital for prenatal care and
submitted to what they believed were routine medical tests. Only afterward
were they told that test results would be submitted to law enforcement
agencies and that they could be prosecuted. Some women were shackled to
hospital beds, some were arrested after giving birth, and others were
ordered into treatment programs under the threat of prosecution.

The U.S. Supreme Court ruled in March 2001 that those women's rights were
violated because the consent form to conduct drug testing did not specify
that police would get the results or that the women would be arrested.

Two women involved in the lawsuit have died; the remainder, Dunn said, await
a hearing to determine damages.

The landmark Whitner case came next. On April 20, 1992, Whitner pleaded
guilty to criminal child neglect for using cocaine while pregnant. The
evidence that resulted in an eight-year prison sentence was a positive drug
screen before birth and a positive test of her healthy newborn for a cocaine

Whitner didn't appeal the conviction but later petitioned the court, arguing
that the judge accepted a guilty plea on a nonexistent charge. She also said
her court-appointed lawyer had not advised her that the law she was charged
under might not apply to prenatal drug use.

Key in this case was the court's interpretation of the word "child" and
whether a viable fetus was considered a person. In 1995, the state Supreme
Court looked at case law to make its decision. Whitner's attorneys contended
that if justices interpreted the word child to include viable fetuses,
"every action by a pregnant woman that endangers ... a fetus ... legal or
illegal would constitute unlawful neglect. ... A woman might be prosecuted
for smoking or drinking," according to court documents.

The justices upheld the law's application to fetuses, noting, "Although the
precise effects of maternal crack use during pregnancy are somewhat unclear,
it is well documented and within the realm of public knowledge that such use
can cause serious harm to the viable unborn child."

Chief Justice C.J. Finney dissented, saying the child neglect law was
clearly directed at children only. Justice J. Moore wrote that South
Carolina's repeated failure to pass bills addressing drug use during
pregnancy "is evidence the child abuse and neglect statute is not intended
to apply in this instance."

The Whitner case laid the groundwork for McKnight's conviction based on a
revision of a statute to include viable fetus. A sharply divided state
Supreme Court voted 3-2 last month to uphold her conviction. Her supporters
vowed to fight on but had not decided on an appeal strategy.

Fifteenth Circuit Solicitor Greg Hembree, whose office handled the McKnight
appeal, said the law applies to everyone who endangers fetuses but agreed
that, for now, it focuses mostly on drug-addicted women.

"A viable fetus is a person under South Carolina law," he said. "If you're
in the situation, get help. We're about modifying conduct, not about hurting

"You have an ethical and moral obligation to take care of this child,
whether it has come out of the womb, is 2 weeks old or 2 years old."

Hembree has reviewed some medical studies and said he's aware of a debate
among doctors and researchers as to how damaging crack cocaine can be to
fetuses. Some doctors say that because drug users often also smoke, drink
and use multiple other substances, it's difficult to pinpoint what activity
may harm a fetus. There also is debate about when a fetus is viable.

The McKnight decision was based on bad science, Dunn said, and the evidence
used to convict was testimony of a doctor who said he didn't see anything
else that could explain the stillbirth, something that occurs an estimated
500 times each year in this state.

"There is not a shred of proof that cocaine led to (McKnight's) stillbirth.
There is no factual link," Dunn said. "How can South Carolina be the only
state with this punitive attitude? How can the same state be the state that
ranks lowest in the amount of money it commits to alcohol and drug

"We have a real problem in South Carolina in that we haven't even won the
battle of prenatal care," she said. "All of the best science tells us the
earliest we get people into care, the better the baby is going to be even if
the mothers are substance abusers."

This sentiment is shared by the American Medical Association, South Carolina
Medical Association, American Public Health Association, American Medical
Women's Association and American Nurses Association, along with 16 other
organizations and individuals that filed friends-of-court briefs on
Whitner's behalf. In the Ferguson case, more than 80 individuals and
organizations filed, including the American Medical Association. The same
occurred in McKnight's case.

The women's supporters point to studies linking stillbirths to smoking, poor
nutrition and lack of prenatal care. None of those studies, however, have
shown the effect of cocaine use on fetuses. Some say third trimester fetuses
are harmed less by crack cocaine than cigarette smoke. Paltrow said recent
studies confirm that cocaine is no more harmful than alcohol, tobacco or
other actions taken by a woman while pregnant and may be significantly less

"More and more, this state is using the criminal justice system to address
social problems," said Wyndi Anderson, the executive director of S.C.
Advocates for Pregnant Women, a branch of the National Advocates for
Pregnant Women. "(The state) relies more on individual morals to impose laws
than on what does the greatest good for the greatest number."

Instead of spending the bulk - 48 percent - of its justice system
expenditures on imprisonment, Paltrow suggests South Carolina cut costs by
implementing more treatment programs. These range in cost from $1,800 to
$6,800 a year versus the national average cost of incarceration of about
$25,000 a year, according to the Bureau of Justice Statistics.

"We need to stop having knee-jerk responses to very real problems," Dunn
said. "We have to be supportive if what we're really interested in is
healthy babies, and I think we are."
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