FETAL ABUSE: Supreme Court Lets South Carolina Law Stand
The U.S. Supreme Court, without comment, yesterday declined to hear the case of Whitner v. South Carolina, essentially allowing South Carolina to "continue prosecuting women who use crack cocaine or other illegal drugs while pregnant," the AP/Columbia State reports. The law in question makes it illegal to "refuse or neglect to provide the proper care and attention" that endangers "or is likely" to endanger a child's life. The South Carolina Supreme Court ruled "that a viable fetus ... is a child under the law." The case involved Cornelia Whitner and Malissa Crawley, who both pleaded guilty in 1992 to using crack during their pregnancies. Both are serving jail terms at present (Carelli, 5/26).
Big Baby Victory
South Carolina Attorney General Charles Condon (R) called yesterday's ruling "a big, big victory for the babies of South Carolina." He said the state "can continue to protect innocent children from the devastation caused by illegal drugs." Rauch Wise, attorney for the two women, said the decision causes a "real dilemma" for health care providers. "Tomorrow morning every alcohol and drug abuse counselor in this state has got to go to work and live with this case and any patient who uses drugs and is pregnant they have to turn them in to the government," he said (Murray, Washington Times, 5/27). Lynn Paltrow of the New York-based Center for Constitutional Rights, which filed the appeal on behalf of the women, said, "In this case, both women gave birth to healthy children, as many women who use cocaine do ... and yet, they are being targeted selectively as African-American women to be the first to go to jail on a theory of fetal rights that hurts both children and women" ("All Things Considered," 5/26).
Since the landmark Roe v. Wade case 25 years ago, the High Court has not recognized a fetus as a person entitled to constitutional rights, but courts "routinely treat the 'unborn viable child' as a person when someone else has killed or injured a woman's fetus," the AP/State notes (5/26). The New York Times reports that in their appeal, the women "argued that the state court's interpretation made the law unconstitutionally vague and would deter pregnant women addicted to drugs, alcohol or other substances from seeking treatment." In addition, the women's case, filed by lawyers at the Center for Constitutional Rights in New York, argued that the "new interpretation" of the child-abuse law violated the basic principle of due process that "require[s] giving people fair notice that their actions would be regarded as criminal" (Greenhouse, 5/27). "By retroactively applying a new, judicially created crime of fetal abuse, the court below walked down a path that the law, public policy, reason and common sense forbid it to tread," said the appeal (Washington Times, 5/27).
But the court ruling did not please right-to-life groups either. The National Right to Life released a statement which said the recent case illustrates the "schizophrenic manner" in which society regards unborn children. "On the one hand, the state can prevent a mother from taking drugs that will harm her unborn child, on the other she has the legally protected right to kill that same child through abortion" (release, 5/26). Jane Emerson, executive director of Planned Parenthood of South Carolina, commented, "I'm afraid some women are going to decide to have abortions because they're not sure they are going to be able to control their addictions successfully" (Breckenridge, AP/State, 5/27).
NPR's Brenda Wilson reported that since 1989, South Carolina has convicted hundreds of women under the child-abuse law, including the two imprisoned women who were appealing the South Carolina law to the Supreme Court. The Supreme Court's refusal to hear the case permits "such prosecutions [to] continue, although ... counselors and health experts [urge] treatment in such cases," said Wilson ("All Things Considered," 5/26). The AP/Columbia State reports that "some medical professionals say the law creates fear and drives many women away from health services." Dr. Nelson Weston, former president of the South Carolina Medical Association, said, "It presents a lot of potential problems." However, Condon "says the law encourages women to seek drug treatment and prenatal care they might otherwise ignore" (5/27). He said, "If someone insists on using illegal drugs repeatedly and continually, there will be a prosecution." He notes, however, that the state will not prosecute someone who "agrees to stop using drugs" ("All Things Considered," 5/26). The AP/State reports that a coalition that included the National Association of Alcoholism and Drug Abuse Counselors, American Nurses Association and American College of Obstetricians and Gynecologists supported the women's appeal in a friend-of-the-court filing (5/26).