COURT TACKLES ISSUE OF FETAL DRUG DEATHS

Thursday, November 7, 2002
Associated Press

COLUMBIA-South Carolina's Supreme Court heard arguments Wednesday in a case
aimed at overturning the state's unique law that prosecutes women for
homicide if they kill their fetus by taking drugs. Defense lawyers are
trying to throw out the conviction of Regina McKnight of Conway, who's
serving 12 years in prison after a jury took 10 minutes to convict her last
year in the death of her stillborn daughter.

Arguments covered several issues - from whether a sentence as harsh as life
in prison was cruel and unusual punishment to whether a pregnant woman
could be prosecuted for smoking. Defense attorney Jodie Kelley said
justices should overturn McKnight's sentence because prosecutors never
excluded any other cause of death for the woman's stillborn fetus.

"At the end of the case, what the state has is just cocaine byproduct and
nothing else," Kelley said.

McKnight's lawyers asked the court to overturn a 1996 decision that allowed
prosecutors to pursue homicide by child abuse charges against women who
harm their viable fetuses. To prove the homicide charge, prosecutors must
prove the mother showed extreme indifference to the unborn child by taking
cocaine.

You've got to show some proof this uneducated homeless person knew taking
cocaine while she was pregnant would harm her baby," Chief Justice Jean
Toal said.

Charles Richardson of the state attorney general's office said it is common
knowledge cocaine can harm a fetus.

Punishing pregnant women for illegal drug use has been a hot issue in South
Carolina for more than a decade. Two years ago, the U.S. Supreme Court
ruled hospitals cannot test pregnant women for drugs without consent then
turn the results over to police.

The South Carolina justices, as is their custom, will issue their decision
at a later date. All five asked the lawyers questions at Wednesday's
hourlong hearing. The most biting queries came from Costa Pleicones, who
was the only justice appointed after the court ruled in the 1996 case.

Pleicones called the prosecution's medical evidence that cocaine killed
McKnight's baby "abysmally weak." He also latched onto Kelley's argument
that the 12-year sentence, suspended from 20 years in prison, was cruel and
unusual punishment.

"I think she could have gotten life, but she instead got 20 years," said
Norman Rapoport, who also argued the case for the attorney general's
office. "I think that shows this is not cruel and unusual punishment."

Also during Wednesday's argument, Justice James Moore brought up smoking.
"What difference does it make whether a substance is legal or illegal if it
harms the fetus?" he asked. Richardson said that was irrelevant to this
case but when pressed by Pleicones he said prosecutors could charge a
pregnant woman who killed her viable fetus by taking over-the-counter
drugs, drinking or smoking "under certain circumstances."

In briefs, McKnight's lawyers argued the justices also should overturn the
1996 case because no other state has followed South Carolina's lead. But
Attorney General Charlie Condon said just because the state is first,
doesn't mean it is wrong.