Pregnant Women Who Take Drugs Can Be Prosecuted for Child Abuse Rules South Carolina Supreme Court

IN THE COURTS September 1996

In a July 15 decision, the South Carolina Supreme Court ruled that if a pregnant woman takes drugs that could threaten her baby's health, she can be prosecuted for child abuse (Whitner v. State (South Carolina), SC SupCt, No. 24468, July 15, 1996, 1996WL393164, 59 CrL 1377; Associated Press, "Carolina ruling favors unborn; Court describes fetus as a person," Washington Times, July 17, 1996, p. A1).

The unprecedented ruling says that a pregnant woman can be criminally liable for actions that endanger the health of a viable fetus, Attorney General Charlie Condon said. He claimed the 3-2 decision as "a landmark decision for protecting children." The decision reinstates an eight-year prison sentence given to Cornelia Whitner, whose healthy 8-year-old son had tested positive for cocaine use after he was born. Whitner's attorney said she would appeal.

Mr. Condon said he would instruct prosecutors and social workers to monitor and punish pregnant women who abuse drugs. As a prosecutor, Mr. Condon helped create a program that let doctors report pregnant addicts at the Medical University of South Carolina in Charleston. The women were then given the choice of entering a drug-prevention program or facing a criminal trial. The program was discontinued after federal officials raised questions of discrimination.

Medical professionals, civil liberties advocates and advocates for women say the ruling undermines the effort to get more women into prenatal health care. Medical studies show that the best way to insure healthy children is to get women into prenatal health care, not by threatening them with prosecution, said Dr. Ira J. Chasnoff, president of the National Association for Families and Addiction Research and Education. "You give the state the right to police every woman's pregnancy," said Lynn Paltrow, an attorney for the Center for Reproductive Law and Policy in New York, which also challenged Condon's university program. "If you were a pregnant woman, would you talk honestly or go for help if you think you could go to jail?" asked Paltrow.

The ruling makes women liable for anything that could be construed as dangerous to the fetus, said Justice James E. Moore in a dissenting opinion. "Is a pregnant woman's failure to obtain prenatal care unlawful? Failure to take vitamins and eat properly? Failure to quit smoking or drinking?" wrote Justice Moore. He added that, under the ruling, a woman would be better off having an illegal third-trimester abortion and face a two-year sentence rather than giving birth to a baby after taking drugs and facing a 10-year sentence for child abuse.