Pregnancy and Addiction

Last fall the Supreme Court of South Carolina, in a bizarre 3-to-2 decision,
ruled that a viable fetus is legally a "child" and that therefore a pregnant
woman who does something detrimental to the fetus can be prosecuted for
child abuse.

Malissa Ann Crawley smoked cocaine when she was pregnant in 1991. It doesn't
matter that her son from that pregnancy is now 6 years old and quite
healthy, or that Ms. Crawley overcame her drug habit, obtained employment
and has successfully been raising three children. Those kids are now with
relatives and Ms. Crawley is in prison because of a criminal justice policy
that is irrational and extreme, and law enforcers who frequently are
merciless.

As a judge told one of Ms. Crawley's lawyers, "I'm sick and tired of these
girls having these bastard babies on crack cocaine and until they change the
law, the law they gave me, it said I could put them in jail."

In March, her legal appeals having failed, Ms. Crawley entered state prison
to begin serving a term of five years.

Few people are suggesting that society close its eyes to behavior that is
potentially very harmful to fetuses. But drug addiction, like alcoholism, is
a public-health problem. Breaking up functional families in order to send
the mother up the river for a long stretch is hardly the answer.

"Malissa was doing a great job with her kids," said C. Rauch Wise, one of
the lawyers representing Ms. Crawley. "My frank opinion is that more harm is
being done to those children by her being in jail than was ever even
remotely done to the 6-year-old by her cocaine use."

Since 1989 law enforcement officials in parts of South Carolina have zeroed
in on a particular class of pregnant women at public hospitals who test
positive for illegal drug use. Dozens have been arrested, virtually all of
them African-Americans who went to the hospitals for prenatal care or to
deliver babies.

In Charleston, 30 women were arrested "out of their hospital beds" at the
Medical University of South Carolina, according to the Center for
Constitutional Rights in New York, which is providing legal assistance to
some of the women. A briefing paper prepared by the center said, "Many were
taken away in chains and shackles, some still bleeding from delivery."

The arrests at the Medical University stopped in 1994 following an
investigation by the U.S. Department of Health and Human Services. But the
arrest and prosecution of pregnant women and new mothers in South Carolina
continued, although with less vigor.

Now proponents of such prosecutions have the State Supreme Court ruling to
bolster their dangerous efforts. Health-care and social service officials in
South Carolina are required by law to report evidence of child abuse. With a
viable fetus having the same legal status as a child, these officials face
criminal prosecution and possible imprisonment themselves for failing to
notify authorities of women who are taking drugs, drinking or engaging in
other behavior that poses a risk to the fetus.

The South Carolina ruling is unprecedented. It is the first time in the
post-Roe era that the highest court of any state has upheld the prosecution
of a woman for behavior that endangered a fetus. All other top courts that
have addressed the issue, including the supreme courts of Florida, Kentucky,
Nevada and Ohio, have ruled the other way.

Law enforcement officials in South Carolina who favor the prosecutorial
approach say their goal is to protect the fetus and, by holding out the
threat of imprisonment, to encourage the mothers to seek drug treatment.

Most health-care professionals and organizations, including the American
Medical Association, the American Academy of Pediatrics and the March of
Dimes, believe that is a wildly misguided approach. Pregnant women who are
addicted to drugs and know that health-care officials are required by law to
report them to the authorities will, in many cases, refuse to seek either
prenatal care or drug-abuse counseling.

"We know that drug treatment, when available, can work,"said Lynn Paltrow, a
lawyer who also represents Malissa Crawley. "But we have reached a point
culturally, it seems, where people think the only way to encourage
responsibility is to imprison people."

Copyright 1998 The New York Times Company

Checked-by: "R. Lake"