South Carolina Supreme Court extends childabuse law to fetus

In a ruling that runs contrary to every other state supreme court that has
addressed the issue, South Carolina's highest court this week upheld the
criminal prosecution of pregnant women who used drugs, finding that a
viable fetus is a "person" covered by the state's childabuse laws.

The ruling came in the case of Cornelia Whitner, who in 1992 pleaded guilty
to child neglect after her baby was born with traces of cocaine in its
system. Whitner, 33, of Central, S.C., a tiny town in the area of the
state, was sentenced to eight years in prison.

"The abuse or neglect of a child at any time during childhood can exact a
profound toll on the child herself as well as on society as a whole," the
state's high court said in its ruling on Monday. "However, the consequences
of abuse or neglect which takes place after birth often pale in comparison
to those resulting from abuse suffered by the viable fetus before birth.
This policy of prevention supports a reading of the word `person' to
include viable fetuses."

Whitner was released in 1994 after serving 16 months, when a lower court
agreed to her request for a review of her case based on her claim of
inadequate legal representation and the argument that the fetus had not
been a person. Her baby is living with relatives.

Lawyers for Whitner, who plan to appeal the case to the U.S. Supreme Court,
say that giving a fetus the same legal status as a child will have dire
consequences: If women who use drugs during pregnancy can be prosecuted for
child abuse, they say, what about women who drink or smoke while pregnant,
or fail to get prenatal care?

"If fetus is a person, everything a pregnant women does is potentially
child abuse, abortion is murder, and women lose the right to make medical
decisions on their own behalf during pregnancy," said Lynn Paltrow, a
reproductiverights lawyer from New York who represented Whitner. "The
effect of declaring fetal personhood is to declare the pregnant woman's
nonpersonhood."

The question of whether a fetus is a person has arisen frequently over the
last decade, both as a response to the growing number of babies being born
with crack cocaine in their systems, and as an offshoot of abortion
politics, a marker of the tensions between women's autonomy and fetal welfare.

Since 1990, prosecutors in at least 30 states have used a variety of
criminal laws to bring charges against pregnant women who abuse drugs or
alcohol. Some, as in South Carolina, have used childendangerment statutes,
while others turned to the drug laws, charging that women were delivering
drugs through the umbilical cord. So far, only South Carolina has upheld
such charges. State supreme courts in Florida, Kentucky, Nevada, Ohio and
Wisconsin, and many lower courts, have struck them down, usually ruling
narrowly that a fetus was not a person under the particular criminal law
and avoiding broader constitutional issues.

In South Carolina, the high court ruled 32 against Whitner, with the chief
justice one of the dissenters. The majority opinion said that a viable
fetus was a person, unambiguously, under the plain meaning of the
childabuse law.

Whitner's lawyers disagreed: "They heard the case in May '95," said C.
Rauch Wise, of Greenwood, S.C. "When it takes five judges 29 months to
decide what `child' means, that's not plain or unambiguous."

The court also rejected the argument that the prosecution had violated
Whitner's constitutional right of privacy, saying, "It strains belief for
Whitner to argue that using crack cocaine during pregnancy is encompassed
within the constitutionally recognized right of privacy."

Many feminists and health groups argue that although prosecutors say they
hope the threat of criminal charges will encourage pregnant drugusers to
get treatment, the actual effect is to frighten such women away from the
medical system.