• Taking Chances2:24

In the 1992 case of The State of South Carolina v. Whitner, Cornelia Whitner was convicted of child abuse after admitting that she ingested crack cocaine during the third trimester of her pregnancy. Her newborn son had been born with cocaine metabolites in his system. She was sentenced to eight years in prison. With the help of a new attorney, she later appealed her conviction, arguing that the child abuse statute was not intended to apply to unborn children.

The South Carolina Supreme Court heard Whitner's appeal and upheld her conviction. The Court reasoned that when she used cocaine in her third trimester, her fetus was viable.

Other South Carolina laws give rights and protections to a viable fetus. For example, under South Carolina law, if a person is responsible for the death of a viable fetus, he or she can be prosecuted for homicide and sued for wrongful death. So, the Court said, if a viable fetus is a "person" to be protected from homicide or wrongful death, then a fetus is likewise a "child" to be protected from child abuse.

South Carolina is one of several states which have considered whether mothers can be prosecuted for child abuse— for drug distribution— if they ingest drugs during pregnancy. However, it is the only state to decide that a woman can be prosecuted on this basis.

California and Kentucky courts, for example, said that a drug-abusing pregnant woman cannot be prosecuted for child abuse because a fetus is not yet a child in the eyes of the law. Florida, Michigan, and Georgia courts have decided that ingesting drugs during pregnancy is not "distribution" nor "delivery" of drugs, so women cannot be prosecuted on these grounds.

Ohio, Massachusetts, and Pennsylvania have also heard this type of case and disallowed the criminal prosecutions. Pelligrini, the Massachusetts case, was decided in 1990 by the Superior Court. There have not been any appellate level cases on this topic in Massachusetts so far.

The South Carolina decision has been criticized as an extreme solution to a complicated societal issue— a solution that could have unintended side effects. There is a fear, for example, that this type of law will discourage women who struggle with drug problems from seeking prenatal care. There is speculation that this ruling could encourage women to have illegal, late-term abortions for which they could face a lesser penalty instead of the possible ten year penalty for child abuse. And there is concern that this case sets up health care providers in a police role, with a duty to repon this type of potential child abuse, further eroding the bond of trust between patients and providers.

Social workers in South Carolina, for example, are being instructed by the State Attorney General to begin monitoring and reporting pregnant women who abuse drugs. In Massachusetts, courts have not ruled that health care providers have a legal duty to report drug abuse during pregnancy as potential child abuse.

Not only has Whitner been criticized on public health grounds, but it has also drawn fire from women's rights advocates. Some see it as the start of a slippery slope which could lead to punishment of women who smoke, drink, or even fail to eat nutritionally balanced meals during pregnancy. Others see it as a step toward regulating earlier and earlier behavior by pregnant women, which may eventna1ly come into conflict with women's reproductive and abortion rights. Because imprisonment of new mothers for their intemperate actions during pregnancy raises so many other policy issues, few states are likely to follow South Carolina's lead.

But even in the states where physicians do not have a statutory duty to report drug abuse by their pregnant patients, physicians want to protect newborns from harm. Drug use, alcohol intake, and smoking among pregnant women are preventable causes of infant drug addition, cognitive disorders, and low birth weight. Many physicians use pregnancy as a window of opportunity to encourage women to seek treatment for their addictions and to educate them about other harmful behaviors. Reference to these discussions should be placed in the patient’s medical record.

The problem of newborns who are drug-addicted, malnourished, or mentally impaired is costly in terms of societal resources and, more importantly, human potential. South Carolina's attempt to shore up their ability to fight this problem is understandable. And yet, from the reaction to the case and from the decisions of other states, it seems that criminal prosecution will not be a widely-adopted solution. Physicians, social workers, and other providers will remain on the front line, cajoling and educating pregnant mothers but not being required to report to the police.

Reporting In Vitro Child Abuse

by Attorney Frank E. Reardon

September 1996

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