Issue 9
Should a Pregnant Woman Be Punished for Exposing Her Fetus to Risk?
YES: Jean Toal, from Majority Opinion, Cornelia Whitner, Respondent, v. State of South Carolina, Petitioner (July 15, 1997)
NO: Lynn M. Paltrow, from “Punishment and Prejudice: Judging Drug-Using Pregnant Women,” in Julia E. Hanigsberg and Sara Ruddick, eds., Mother Troubles: Rethinking Contemporary Maternal Dilemmas (Beacon Press, 1999)
ISSUE SUMMARY
YES: In a case involving a pregnant woman’s use of crack cocaine, a majority of the supreme court of South Carolina ruled that a state legislature may impose additional criminal penalties on pregnant drug-using women without violating their constitutional right of privacy.
NO: Attorney Lynn Paltrow argues that treating drug-using pregnant women as criminals targets poor, African American women while ignoring other drug usage and fails to provide the resources to assist them in recovery.
At first glance, Cornelia Whitner and Bobbi McCaughey have absolutely nothing in common. Cornelia Whitner gave birth to a baby after using crack cocaine in the last trimester of pregnancy. She was arrested and convicted of child neglect. Bobbi McCaughey gave birth to seven babies in November 1997 to public acclaim and an avalanche of gifts and community support. Yet she too placed her babies at risk, simply by the use of fertility drugs and her decision to continue the multiple pregnancy. Through laws and public attitudes, society views the risks taken by Whitner and McCaughey very differently and punishes or rewards women accordingly.
In 1989, fueled by the specter of an epidemic of drug use resulting in the birth of thousands of “crack babies,” the Medical University of South Carolina established a program that required drug-using pregnant women to seek treatment and prenatal care or face criminal prosecution. This program applied only to patients attending the university’s obstetric clinic, primarily poor black women, and not to private patients. Patients enrolled in the clinic saw a video and were given written information about the harmful effects of substance abuse during pregnancy. The information warned that the Charleston, South Carolina, police, the court system, and child protective services might become involved if illegal drug use were detected.
Women who met certain criteria were required to undergo periodic urine screening for drugs. A patient who had a positive urine test or who failed to keep scheduled appointments for therapy or prenatal care could be arrested and placed in custody. If a woman delivered a baby who tested positive for drugs, she would be arrested immediately after her medical release and her newborn taken into protective custody. If the drug use was detected within the first 27 weeks of gestation, the patient was charged with possession of an illegal substance; after that date, the charge was possession and distribution of an illegal substance to a minor. If the drug use were detected during delivery, the woman would be charged with unlawful neglect of a child.
This stringent policy was developed as a result of clinicians’ concern about the harmful effects of drug use on fetal development and prosecutors’ desires to take a strong public stand condemning drug use. Although the stated goal was to get women into treatment, there were few places that women could receive treatment and the necessary support, such as transportation and child care. At the time there was no women-only residential treatment center for substance-abusing pregnant women anywhere in the state.
The program ended because the federal Office of Protection from Research Risks determined that it constituted human experimentation conducted without required institutional review board approval. This determination was based on a published report comparing the outcomes before and after the program. The university’s approval as a site that could receive federal funds was placed in jeopardy.
By the time the policy was discontinued in September 1994 as the result of a settlement with the Civil Rights Division of the federal Department of Health and Human Services, 42 pregnant women had been arrested. One of those women was Cornelia Whitner, whose baby was born with cocaine metabolites in his system. Whitner admitted to using crack cocaine during her pregnancy. Charged with criminal child neglect, she pled guilty and was sentenced to eight years in prison. She appealed the decision on the grounds that the law covered children, not fetuses, and her case went to the supreme court of South Carolina.
The court’s majority decision, written by Justice Jean Toal, found that the state’s statute includes a fetus within its definition of “child” and ruled that the state was not violating Whitner’s constitutional right of privacy by punishing her for endangering her child through an already illegal activity. This ruling was appealed to the U.S. Supreme Court. Lynn Paltrow believes that criminalization of drug use is a punitive response that denies the humanity of the women who are denied treatment and support for recovering from their addiction.
YES
Jean Toal
Majority Opinion
Whitner v. South Carolina . . . ,
This case concerns the scope of the child abuse and endangerment statute in the South Carolina Children’s Code. We hold the word “child” as used in that statute includes viable fetuses.
Facts
On April 20, 1992, Cornelia Whitner (Whitner) pled guilty to criminal child neglect, S.C.Code Ann. § 20-7-50 (1985), for causing her baby to be born with cocaine metabolites in its system by reason of Whitner’s ingestion of crack cocaine during the third trimester of her pregnancy. The circuit court judge sentenced Whitner to eight years in prison. Whitner did not appeal her conviction.
Thereafter, Whitner filed a petition for Post Conviction Relief (PCR), pleading the circuit court’s lack of subject matter jurisdiction to accept her guilty plea as well as ineffective assistance of counsel. Her claim of ineffective assistance of counsel was based upon her lawyer’s failure to advise her the statute under which she was being prosecuted might not apply to prenatal drug use. The petition was granted on both grounds. The State appeals.
Law/Analysis
. . . South Carolina law has long recognized that viable fetuses are persons holding certain legal rights and privileges. In 1960, this Court decided Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960). That case concerned the application of South Carolina’s wrongful death statute to an infant who died four hours after her birth as a result of injuries sustained prenatally during viability. The Appellants argued that a viable fetus was not a person within the purview of the wrongful death statute, because, inter alia, a fetus is thought to have no separate being apart from the mother.
We found such a reason for exclusion from recovery “unsound, illogical and unjust,” and concluded there was “no medical or other basis” for the “assumed identity” of mother and viable unborn child. In light of that conclusion, this Court unanimously held: “We have no difficulty in concluding that a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person.”
Four years later, in Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964), we interpreted Hall as supporting a finding that a viable fetus injured while still in the womb need not be born alive for another to maintain an action for the wrongful death of the fetus.
Since a viable child is a person before separation from the body of its mother and since prenatal injuries tortiously inflicted on such a child are actionable, it is apparent that the complaint alleges such an “act, neglect or default” by the defendant, to the injury of the child. . . .
Once the concept of the unborn, viable child as a person is accepted, we have no difficulty in holding that a cause of action for tortious injury to such a child arises immediately upon the infliction of the injury. . . .
More recently, [in State v. Horne,] we held the word “person” as used in a criminal statute includes viable fetuses. . . . The defendant in that case stabbed his wife, who was nine months’ pregnant, in the neck, arms, and abdomen. Although doctors performed an emergency caesarean section to deliver the child, the child died while still in the womb. The defendant was convicted of voluntary manslaughter and appealed his conviction on the ground South Carolina did not recognize the crime of feticide.
This Court disagreed. In a unanimous decision, we held it would be “grossly inconsistent . . . to construe a viable fetus as a ‘person’ for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context.” Accordingly, the Court recognized the crime of feticide with respect to viable fetuses.
Similarly, we do not see any rational basis for finding a viable fetus is not a “person” in the present context. Indeed, it would be 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. Our holding in Hall that a viable fetus is a person rested primarily on the plain meaning of the word “person” in light of existing medical knowledge concerning fetal development. We do not believe that the plain and ordinary meaning of the word “person” has changed in any way that would now deny viable fetuses status as persons.
The policies enunciated in the Children’s Code also support our plain meaning reading of “person.” S.C. Code Ann. § 20-7-20(C) (1985), which describes South Carolina’s policy concerning children, expressly states: “It shall be the policy of this State to concentrate on the prevention of children’s problems as the most important strategy which can be planned and implemented on behalf of children and their families.” . . . 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. 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. Furthermore, the scope of the Children’s Code is quite broad. It applies “to all children who have need of services.” . . . When coupled with the comprehensive remedial purposes of the Code, this language supports the inference that the legislature intended to include viable fetuses within the scope of the Code’s protection.
Whitner advances several arguments against an interpretation of “person” as used in the Children’s Code to include viable fetuses. We shall address each of Whitner’s major arguments in turn.
Whitner’s first argument concerns the number of bills introduced in the South Carolina General Assembly in the past five years addressing substance abuse by pregnant women. Some of these bills would have criminalized substance abuse by pregnant women; others would have addressed the issue through mandatory reporting, treatment, or intervention by social service agencies. Whitner suggests that the introduction of several bills touching the specific issue at hand evinces a belief by legislators that prior legislation had not addressed the issue. Whitner argues the introduction of the bills proves that section 20-7-50 was not intended to encompass abuse or neglect of a viable fetus.
We disagree with Whitner’s conclusion about the significance of the proposed legislation. Generally, the legislature’s subsequent acts “cast no light on the intent of the legislature which enacted the statute being construed.” . . . Rather, this Court will look first to the language of the statute to discern legislative intent, because the language itself is the best guide to legislative intent. . . . Here, we see no reason to look beyond the statutory language. . . . Additionally, our existing case law strongly supports our conclusion about the meaning of the statute’s language.
Whitner also argues an interpretation of the statute that includes viable fetuses would lead to absurd results obviously not intended by the legislature. Specifically, she claims if we interpret “child” to include viable fetuses, every action by a pregnant woman that endangers or is likely to endanger a fetus, whether otherwise legal or illegal, would constitute unlawful neglect under the statute. For example, a woman might be prosecuted under section 20-7-50 for smoking or drinking during pregnancy. Whitner asserts these “absurd” results could not have been intended by the legislature and, therefore, the statute should not be construed to include viable fetuses.
We disagree for a number of reasons. First, the same arguments against the statute can be made whether or not the child has been born. After the birth of a child, a parent can be prosecuted under section 20-7-50 for an action that is likely to endanger the child without regard to whether the action is illegal in itself. For example, a parent who drinks excessively could, under certain circumstances, be guilty of child neglect or endangerment even though the underlying act—consuming alcoholic beverages—is itself legal. Obviously, the legislature did not think it “absurd” to allow prosecution of parents for such otherwise legal acts when the acts actually or potentially endanger the “life, health or comfort” of the parents’ born children. We see no reason such a result should be rendered absurd by the mere fact the child at issue is a viable fetus.
Moreover, we need not address this potential parade of horribles advanced by Whitner. In this case, which is the only case we are called upon to decide here, certain facts are clear. Whitner admits to having ingested crack cocaine during the third trimester of her pregnancy, which caused her child to be born with cocaine in its system. Although the precise effects of maternal crack use during pregnancy are somewhat unclear, it is well documented and within the realm of public knowledge that such use can cause serious harm to the viable unborn child. . . . There can be no question here Whitner endangered the life, health, and comfort of her child. We need not decide any cases other than the one before us.
We are well aware of the many decisions from other states’ courts throughout the country holding maternal conduct before the birth of the child does not give rise to criminal prosecution under state child abuse/ endangerment or drug distribution statutes. . . . Many of these cases were prosecuted under statutes forbidding delivery or distribution of illicit substances and depended on statutory construction of the terms “delivery” and “distribution.” . . . Obviously, such cases are inapplicable to the present situation. The cases concerning child endangerment statutes or construing the terms “child” and “person” are also distinguishable, because the states in which these cases were decided have entirely different bodies of case law from South Carolina. . . .
Massachusetts, however, has a body of case law substantially similar to South Carolina’s, yet a Massachusetts trial court [in Commonwealth v. Pellegrini,] has held that a mother pregnant with a viable fetus is not criminally liable for transmission of cocaine to the fetus. . . . Specifically, Massachusetts law allows wrongful death actions on behalf of viable fetuses injured in utero who are not subsequently born alive. Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975). Similarly, Massachusetts law permits homicide prosecutions of third parties who kill viable fetuses. See Commonwealth v. Cass, 392 Mass. 799, 467 **783 N.E.2d 1324 (1984) (ruling a viable fetus is a person for purposes of vehicular homicide statute); Commonwealth v. Lawrence, 404 Mass. 378, 536 N.E.2d 571 (1989) (viable fetus is a person for purposes of common law crime of murder). Because of the similarity of the case law in Massachusetts to ours, the Pellegrini decision merits examination.
In Pellegrini, the Massachusetts Superior Court found that state’s distribution statute does not apply to the distribution of an illegal substance to a viable fetus. The statute at issue forbade distribution of cocaine to persons under the age of eighteen. Rather than construing the word “distribution,” however, the superior court found that a viable fetus is not a “person under the age of eighteen” within the meaning of the statute. In so finding, the court had to distinguish [Commonwealth v.] Lawrence and [Commonwealth v.] Cass, both of which held viable fetuses are “persons” for purposes of criminal laws in Massachusetts.
The Massachusetts trial court found Lawrence and Cass “accord legal rights to the unborn only where the mother’s or parents’ interest in the potentiality of life, not the state’s interest, are sought to be vindicated.” In other words, a viable fetus should only be accorded the rights of a person for the sake of its mother or both its parents. Under this rationale, the viable fetus lacks rights of its own that deserve vindication. Whitner suggests we should interpret our decisions in Hall, Fowler, and Horne to accord rights to the viable fetus only when doing so protects the special parent-child relationship rather than any individual rights of the fetus or any State interest in potential life. We do not think Hall, Fowler, and Horne can be interpreted so narrowly.
If the Pellegrini decision accurately characterizes the rationale underlying Mone, Lawrence, and Cass, then the reasoning of those cases differs substantially from our reasoning in Hall, Fowler, and Horne. First, Hall, Fowler, and Horne were decided primarily on the basis of the meaning of “person” as understood in the light of existing medical knowledge, rather than based on any policy of protecting the relationship between mother and child. As a homicide case, Horne also rested on the State’s—not the mother’s—interest in vindicating the life of the viable fetus. Moreover, the United States Supreme Court has repeatedly held that the states have a compelling interest in the life of a viable fetus. . . . If, as Whitner suggests we should, we read Horne only as a vindication of the mother’s interest in the life of her unborn child, there would be no basis for prosecuting a mother who kills her viable fetus by stabbing it, by shooting it, or by other such means, yet a third party could be prosecuted for the very same acts. We decline to read Horne in a way that insulates the mother from all culpability for harm to her viable child. Because the rationale underlying our body of law—protection of the viable fetus—is radically different from that underlying the law of Massachusetts, we decline to follow the decision of the Massachusetts Superior Court in Pellegrini. . . .
Right to Privacy
Whitner argues that prosecuting her for using crack cocaine after her fetus attains viability unconstitutionally burdens her right of privacy, or, more specifically, her right to carry her pregnancy to term. We disagree.
Whitner argues that section 20-7-50 burdens her right of privacy, a right long recognized by the United States Supreme Court. . . . She cites Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), as standing for the proposition that the Constitution protects women from measures penalizing them for choosing to carry their pregnancies to term.
In LaFleur, two junior high school teachers challenged their school systems’ maternity leave policies. The policies required “every pregnant school teacher to take maternity leave without pay, beginning [four or] five months before the expected birth of her child.” A teacher on maternity leave could not return to work “until the beginning of the next regular school semester which follows the date when her child attains the age of three months.” The two teachers, both of whom had become pregnant and were required against their wills to comply with the school system’s policies, argued that the policies were unconstitutional.
The United States Supreme Court agreed. It found that “[b]y acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms.” The Court then scrutinized the policies to determine whether “the interests advanced in support of” the policy could “justify the particular procedures [the School Boards] ha[d] adopted.” Although it found that the purported justification for the policy—continuity of instruction— was a “significant and legitimate educational goal,” the Court concluded that the “absolute requirement[s] of termination at the end of the fourth or fifth month of pregnancy” was not a rational means for achieving continuity of instruction and that such a requirement “may serve to hinder attainment of the very continuity objectives that they are purportedly designed to promote.” Finding no rational relationship between the purpose of the maternity leave policy and the means crafted to achieve that end, the Court concluded the policy violated the Due Process Clause of the Fourteenth Amendment.
Whitner argues that the alleged violation here is far more egregious than that in LaFleur. She first suggests that imprisonment is a far greater burden on her exercise of her freedom to carry the fetus to term than was the unpaid maternity leave in LaFleur. Although she is, of course, correct that imprisonment is more severe than unpaid maternity leave, Whitner misapprehends the fundamentally different nature of her own interests and those of the government in this case as compared to those at issue in LaFleur.
First, the State’s interest in protecting the life and health of the viable fetus is not merely legitimate. It is compelling. . . .
Even more importantly, however, we do not think any fundamental right of Whitner’s—or any right at all, for that matter—is implicated under the present scenario. It strains belief for Whitner to argue that using crack cocaine during pregnancy is encompassed within the constitutionally recognized right of privacy. Use of crack cocaine is illegal, period. No one here argues that laws criminalizing the use of crack cocaine are themselves unconstitutional. If the State wishes to impose additional criminal penalties on pregnant women who engage in this already illegal conduct because of the effect the conduct has on the viable fetus, it may do so. We do not see how the fact of pregnancy elevates the use of crack cocaine to the lofty status of a fundamental right.
Moreover, as a practical matter, we do not see how our interpretation of section 20-7-50 imposes a burden on Whitner’s right to carry her child to term. In LaFleur, the Supreme Court found that the mandatory maternity leave policies burdened women’s rights to carry their pregnancies to term because the policies prevented pregnant teachers from exercising a freedom they would have enjoyed but for their pregnancies. In contrast, during her pregnancy after the fetus attained viability, Whitner enjoyed the same freedom to use cocaine that she enjoyed earlier in and predating her pregnancy—none whatsoever. Simply put, South Carolina’s child abuse and endangerment statute as applied to this case does not restrict Whitner’s freedom in any way that it was not already restricted. The State’s imposition of an additional penalty when a pregnant woman with a viable fetus engages in the already proscribed behavior does not burden a woman’s right to carry her pregnancy to term; rather, the additional penalty simply recognizes that a third party (the viable fetus or newborn child) is harmed by the behavior.
Section 20-7-50 does not burden Whitner’s right to carry her pregnancy to term or any other privacy right. Accordingly, we find no violation of the Due Process Clause of the Fourteenth Amendment.
Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997).
NO
Lynn M. Paltrow
Punishment and Prejudice: Judging Drug-Using Pregnant Women
The Villain Cocaine
In the late 1980s and into the 1990s newspapers, magazines, and television were full of stories documenting the devastating effects of cocaine and predicting a lost generation irredeemably damaged by the effects of their mothers’ cocaine use. For example, in 1991 Time magazine ran a cover story on the subject.1 Bold yellow letters read “Crack Kids” followed by the headline: “Their mothers used drugs, and now it’s the children who suffer.” The face of a tearful child filled the page beneath the words. . . .
The same year the New York Times ran a front page story entitled “Born on Crack and Coping with Kindergarten.”2 The story is accompanied by a photograph of a school teacher surrounded by young children. Underneath the caption reads: “I can’t say for sure it’s crack, said Ina R. Weisberg, a kindergarten teacher at P.S. 48 in the Bronx, but I can say that in all my years of teaching I’ve never seen so many functioning at low levels.”
Throughout these years medical and popular journals, public school teachers and judges alike were willing to assume that if a child had a health or emotional problem and he or she had been exposed prenatally to cocaine, then cocaine and cocaine alone was the cause of the perceived medical or emotional problem. Rather than wait for careful research and evaluation of the drug’s effect there was, as several researchers later criticized, a “rush to judgment” that blamed cocaine for a host of problems that the research simply has not borne out.3
Indeed, an article in the medical journal Lancet in 1989 found that scientific studies that concluded that exposure to cocaine prenatally had adverse effects on the fetus had a significantly higher chance of being published than more careful research finding no adverse effects.4 The published articles, delineating the harmful effects on infants prenatally exposed to cocaine, reported brain damage, genito-urinary malformations, and fetal demise as just a few of the dire results of a pregnant woman’s cocaine use. Infants that survived the exposure were described as inconsolable, unable to make eye contact, emitting a strange high-pitched piercing wail, rigid and jittery. These early studies, however, had numerous methodologic flaws that made generalization from them completely inappropriate. For example, these studies were based on individual case reports or on very small samples of women who used more than one drug. Researchers often failed to control for the other drugs and problems the mother might have, and/or failed to follow up on the child’s health.5 The articles describing these studies were nevertheless relied upon to show that cocaine alone was the cause of an array of severe and costly health problems.
Like alcohol and cigarettes, using cocaine during pregnancy can pose risks to the woman and the fetus. More carefully controlled studies, however, are finding that cocaine is not uniquely or even inevitably harmful. For example, unlike the devastating and permanent effects of fetal alcohol syndrome, which causes permanent mental retardation, cocaine seems to act more like cigarettes and marijuana, increasing certain risks like low birth weight but only as one contributing factor and only in some pregnancies.6 Epidemiological studies find that statistically speaking many more children are at risk of harm from prenatal exposure to cigarettes and alcohol. In fact, one recent publication on women and substance abuse has created the label “Fetal Tobacco Syndrome” to draw attention to the extraordinarily high miscarriage and morbidity rates associated with prenatal exposure to cigarette smoke.7
By the late 1980s it was already becoming clear to researchers in the field that the labels “crack babies” and “crack kids” were dangerous and counterproductive.8 If one read far enough in the Time article—past the pictures of premature infants and deranged children—the story reported that
[a]n increasing number of medical experts, however, vehemently challenge the notion that most crack kids are doomed. In fact, they detest the term crack kids, charging that it unfairly brands the children and puts them all into a single dismal...
Januszek66