LIMITS DURING PREGNANCY SHOULD BE DEFINED IN LAW

It shouldn't surprise anyone that officials at the state's anti-drug
agency are confused over the state of South Carolina's law concerning
pregnant women.

Earlier this month, the Department of Alcohol and Other Drug Abuse
Services pulled brochures that said it was a crime in South Carolina
for pregnant women to "smoke, drink, use other drugs or engage in
other activities that risk harming their babies."

The agency regrouped after Attorney General Charlie Condon insisted
that state law only prohibits illegal drug use during pregnancy.

As far as Mr. Condon is concerned, that's true. But as far as the law
is concerned, it's not so clear.

The problem is that South Carolina doesn't have a law that
criminalizes specific behaviors during pregnancy. What South Carolina
has is a state Supreme Court decision upholding a prosecutor's
interpretation of laws that were written before anyone ever thought of
prosecuting pregnant women for actions that could harm their babies.

Some women have been prosecuted under drug laws, a route that doesn't
appear to leave room for expansion into other areas of behavior. The
idea is that using cocaine and other drugs is illegal in and of itself
and that women who test positive for such drugs during medical
screenings can be charged just like anyone else who uses drugs.

But the more common way of charging pregnant women has been under the
state's child abuse and neglect statutes. And that route does open the
door to charges against women who do things that would normally be
considered legal. After all, we know that drinking alcohol during
pregnancy can harm the fetus -- even more than using cocaine does. We
know that smoking during pregnancy can harm the fetus. We know that a
woman with certain complications who engages in strenuous activity can
harm her fetus. There's no legal reason that charges couldn't be
brought against women who do such things while they are pregnant.

And perhaps, in some cases, those women should be prosecuted. But
that's a decision that needs to be made by our legislators -- and they
have not done that. It was certainly not what legislators had in mind
when they wrote the child abuse and neglect laws. And since Mr. Condon
pioneered this approach as a local prosecutor, the Legislature has
refused to write laws spelling out what is and isn't legal.

Lawmakers have been derelict by abdicating their duty to courts and
prosecutors. This should concern people all along the political
spectrum, from those who believe women should never be charged for
their activities during pregnancy to those who think charges should be
brought for any behavior, legal or not, that could harm a baby.

Without a properly written law, prosecutors are free to bring charges
that the public does not support. They are free to bring charges for
actions that pregnant women do not realize could land them in jail,
and that violates an essential principle of a free society -- that the
laws be spelled out so that people know what they can and can't do.

Without a law that makes specific activities during pregnancy illegal,
a court could invalidate all charges. When our state Supreme Court
upheld child-abuse charges in 1996, it did so on a 3-2 ruling; a later
court could change its mind. Likewise, the U.S. Supreme Court is
considering a South Carolina case, and it could rule that the current
approach is unconstitutional or not supported by state law. A properly
written law might be able to overcome either ruling.

The idea of declaring certain activities during pregnancy to be
illegal is a sound one. The question is what activities should be
covered and what the punishment should be. Those are not decisions
that a court or a prosecutor should make. They are decisions that a
Legislature should make. Our Legislature needs to get to work.