COURT REFUSES TO HEAR CASE OF PREGNANT WOMEN PROSECUTED FOR USING COKE

Pregnant Women Can Be Prosecuted

WASHINGTON (AP) -- The Supreme Court today let South Carolina continue
prosecuting women who use crack cocaine or other illegal drugs while pregnant.

The justices, without comment, turned away arguments by two imprisoned
women that the state should not be allowed to use its child-endangerment
law to punish pregnant women for conduct that could affect their fetuses.

The controversy focuses in large part on the same thorny question present
in the divisive national debate over abortion: Is a fetus a person?

The South Carolina law makes it a crime to ``refuse or neglect to provide
the proper care and attention'' so that a child ``is endangered or is
likely to be endangered.'' The state's Supreme Court has ruled that a
viable fetus -- one able to live outside the uterus -- is a child under the
law, and has upheld its use against pregnant women.

But so far, no other state's top court has allowed such prosecutions. The
highest courts in Florida, Kentucky, Nevada and Ohio explicitly have
disallowed them.

Under a line of abortion decisions dating back to the landmark Roe vs. Wade
ruling in 1973, the Supreme Court has never recognized a fetus as a person
entitled to any constitutional protection.

The nation's courts, however, routinely treat the ``unborn viable child''
as a person when someone else has killed or injured a woman's fetus. The
South Carolina court called it ``absurd to recognize the viable fetus as a
person for purposes of homicide laws and wrongful-death statutes but not
for purposes of statutes proscribing child abuse.''

Cornelia Whitner and Malissa Ann Crawley, two women prosecuted

under the challenged South Carolina law, contend the South Carolina court's
interpretation of the child-endangerment law violated their due-process
rights.

Lawyers for the liberal Center for Constitutional Rights and American Civil
Liberties Union, representing the two women, argued that the state court's
interpretation of the law has two major flaws making it unconstitutional.

First, the appeal said, pregnant women cannot know with certainty when
fetal viability has occurred. Second, the law fails to tell women just what
conduct is prohibited.

``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,'' the appeal said.

A coalition of health care providers and social services workers supported
the appeal in a friend-of-the-court brief. The coalition included the
National Association of Alcoholism and Drug Abuse Counselors, American
Nurses Association and American College of Obstetricians and Gynecologists.

The South Carolina law makes it a crime -- punishable by up to six months
in prison -- for such professionals to fail to report a case of child
endangerment by a pregnant woman.

State prosecutors urged the court to reject the two women's appeal. They
said both women were on notice, from previous state court rulings, that ``a
viable fetus was protected by the unlawful-neglect statute.''

Since 1989, South Carolina prosecutors have invoked the state law against
more than 40 women. Ms. Crawley was one of the first, and pleaded guilty
after her son was born with cocaine in his blood in late 1991.

Ms. Whitner was sentenced to eight years in prison for using crack cocaine
while pregnant. She has served about two years of that sentence.

The case is Whitner vs. South Carolina, 97-1562.

Checked-by: Mike Gogulski