How many states have used child endangerment and similar criminal statutes to punish pregnant women?

One. South Carolina stands alone in using child neglect and homicide statutes to punish women who are pregnant and engage in a behavior that might endanger a viable fetus. Every state court of last resort and all intermediate appellate courts that have addressed this issue have rejected the approach taken by the South Carolina Supreme Court in the Whitner case.¹

What did the Whitner decision hold?

A majority of the South Carolina State Supreme Court held that the word child in the state's criminal child endangerment statute includes viable fetuses, judicially rewriting the statute as follows:

Any person having legal custody of any child, viable fetus, or helpless person, who shall, without lawful excuse, refuse or neglect to provide, . . .the proper care and attention for such child, viable fetus or helpless person, so that the life, health or comfort of such child, viable fetus or helpless person is endangered or is likely to be endangered, shall be guilty of misdemeanor and shall be punished within the discretion of the circuit court.

How many public health or medical organizations have supported South Carolina's prosecution of pregnant drug users?

None. Every major local and national health organization to address the issue, including the American Medical Association and the South Carolina Medical Association, has repudiated the prosecution of pregnant drug users. The Southern Regional Project on Infant mortality, an initiative of the Southern Governors' Association and the Southern Legislative Conference, found in its comprehensive study of perinatal substance abuse in southern states, including South Carolina, that "States should adopt, as preferred methods, prevention, intervention, and treatment alternatives rather than punitive actions to ameliorate the problems related to perinatal exposure to drugs and alcohol." ² The prosecution of pregnant drug users has no public health rationale. ³

In holding that a Charleston policy of searching and arresting pregnant drug using women who sought medical care violates the Fourth Amendment of the Constitution, the United States Supreme Court observed that the leading medical and public health organizations had all rejected this approach as deeply flawed and counterproductive to the health and well-being of women, fetuses, and children. ⁴

Has the prosecution of pregnant drug users improved the health of South Carolina's children?

No. In the years immediately following the announcement of the Whitner decision, South Carolina's infant mortality rate increased for the first time after a decade of steady decline. ⁵

Has the ingestion of cocaine during pregnancy been proven to be more harmful than smoking cigarettes or drinking alcohol?

No. Recent studies once again confirm that the potential harmful effects of cocaine are not only not greater than alcohol, tobacco, but may in fact be significantly less harmful. ⁶ It is important to note "alcohol is the drug of choice for 90 percent of adults needing treatment in South Carolina." ⁷

Does treatment work?

Yes. Decades of research have established that a variety of treatment methods are successful for treating people who are addicted to alcohol and other drugs. The most recent national surveys have also confirmed the effectiveness of treatment programs. ⁸

Do pregnant drug users voluntarily seek drug treatment and prenatal health care?

Yes. Despite all of the obstacles, studies consistently find that pregnant drug users are particularly motivated to seek health care. ⁹ The problem is not lack of motivation, but rather lack of appropriate, non-punitive services.

Are there enough treatment programs for pregnant and parenting women?

No. For many women, successful treatment requires comprehensive residential programs that do not force mothers to be separated from their children. ¹⁰ While there are now several residential programs in the state, all have limited bed space and place restrictions on the number of family members a woman may bring with her. Even those residential programs that do exist must struggle for funding each year, lack sufficient numbers of available beds and must put people on waiting lists. One such program is located next to a toxic waste site and must move even though no alternative site is yet available. ¹¹ A review of all types of drug treatment in the state concluded that South Carolina's "women, and pregnant women in particular, remain underserved." ¹² Attorney General Condon who has been the chief architect of the State's policy of punishment has put that policy in place despite admitting that: "A wide array of treatment services are desperately needed in every community in the state." ¹³

Where does South Carolina rank among states in spending on programs that address the effects of alcohol and drug abuse?

Last. South Carolina spends fewer state dollars on drug treatment than any other state in the country. ¹⁴ In 2000, the state was only able to treat approximately 52,000 of the 310,000 South Carolinians identified as having substance abuse problems. ¹⁵

Where does South Carolina rank among states in spending in percent of justice dollars spent on corrections?

First. South Carolina spends 48 percent of its total justice system expenditures on imprisonment - more than any other state in the nation. ¹⁶

Which costs less - jail or treatment?

Treatment. Drug treatment costs less money than imprisonment, is effective, and preserves rather than destroys families. According to the Bureau of Justice Statistics, the cost of effective treatment ranges from $1,800 to $6,800 per year while the national average cost of incarceration is over three times as much -- $20, 805 per year. ¹⁷

Under the Attorney General's Post-Whitner Protocol, aren't all women given a chance at treatment before they are arrested?

No. Although the South Carolina Attorney General has insisted that the state "provide full service treatment before embarking upon or seeking criminal prosecution," ¹⁸ numerous women have been arrested and prosecuted since the Whitner decision without any offer of treatment. In many cases punishment was the first and only response. ¹⁹

1. Whitner v. State 492 S.E.2d 777 (S.C. 1997),cert. denied, 118 S. Ct. 1857 (1998).



2. SOUTHERN REGIONAL PROJECT ON INFANT MORTALITY, A STEP TOWARD RECOVERY: IMPROVING ACCESS TO SUBSTANCE ABUSE TREATMENT FOR PREGNANT AND PARENTING WOMEN (1993); accord SOUTHERN LEGIS. SUMMIT ON HEALTHY INFANTS AND FAMILIES, HIGH RISK PREGNANCIES/SUBSTANCE ABUSE (Oct. 4-7, 1990).



3. US CENTER FOR SUBSTANCE ABUSE TREATMENT, DEPARTMENT OF HEALTH AND HUMAN SERVICES, PUBLIC HEALTH SERVICE SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION, DHHS PUBLICATION NO. (SMA) 95-3056, PREGNANT, SUBSTANCE-USING WOMEN (TIP) Series 2, (federally appointed expert panel finding that it "does not support the criminal prosecution of pregnant, substance-using women. Furthermore, there is no evidence that punitive approaches work." Available at http://www.health.org/govpubs/bkd107/2c.htm.)



4. See Ferguson v. City Of Charleston, 121 S.Ct. 1281, 1292, n.23 (2001).



5. See Infant Mortality on Rise in '97, POST & COURIER (Charleston, S.C.), Feb. 19, 1999, at B1; See THE ANNIE E. CASEY FOUNDATION, KIDS COUNT DATA BOOK 160 (2001), http://www.aecf.org/kidscount/kc2001, (reporting that infant mortality decreased from 11.7 in 1990 to 8.4 in 1996, but increased to 9.6 for 1997 and 1998, the two years following the Whitner decision).



6. Deborah Frank, Growth, Development and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review, 285 JAMA 1613 (2001).



7. Drug Strategies, South Carolina Profile 13 (1998).



8. NATIONAL CENTER ON ADDICTION AND SUBSTANCE ABUSE, SHOVELING UP: THE IMPACT OF SUBSTANCE ABUSE ON STATE BUDGETS 81 (2001) (available at http://www.casacolumbia.org/usr_doc/47299.pdf).
9. See SHEIGLA MURPHY & MARSHA ROSENBAUM, PREGNANT WOMEN ON DRUGS: COMBATING STEREOTYPE AND STIGMA 100 (1999); Wendy Chavkin, Mandatory Treatment for Drug Use During Pregnancy, 266 JAMA 1556, 1560 (1991);(stating that an addicted woman's concern for her child often motivates her to seek drug treatment); Marsha Rosenbaum, Women: Research and Policy, in SUBSTANCE ABUSE 654-65 (1997) ("Motherhood is at the core of many drug-using women's identities. They love and care very much about their children, who often provide the impetus for harm reduction through exiting `the life' or instituting safer behaviors."). see also Margaret H. Kearney et al., Mothering on Crack Cocaine: A Grounded Theory Analysis, 38 SOC. SCI. MED. 351-61 (1994) (employing a qualitative analysis to investigate "cocaine users' perspectives on mothering . . . [and] how they actually endeavor to care for their children").



10. Embry M. Howell et al., A Review of Recent Findings on Substance Abuse Treatment for Pregnant Women, 16 J. SUBSTANCE ABUSE TREATMENT 195 (1999).



11. See, e.g., Ben Brazil, Rehab group on Navy base faces eviction, POST & COURIER (Charleston, S.C.), Jan. 20, 2001, at B1 (describing how a "highly-successful, live-in drug treatment center" faced eviction from location next to an overgrown environmental cleanup site on a former Navy base); Ben Brazil, Step Ahead may have new home on old base, POST & COURIER (Charleston, S.C.), Feb. 19, 2001, at B1 (describing environmental ruling that the program must vacate current building, reporting that they may have new space but lack funding to make the site habitable, and how it will have to shut down if the funds are not obtained).



12. Drug Strategies, South Carolina Profile 12 (1998) (emphasis added).



13. CHARLES CONDON, ATTORNEY GENERAL, Whitner Implementation Plan, reprinted in, LAWRENCE J. NELSON & MARY FAITH MARSHALL, ETHICAL AND LEGAL ANALYSIS OF THREE COERCIVE POLICIES AIMED AT SUBSTANCE ABUSE BY PREGNANT WOMEN 185a, 9 (1998).



14. Id.



15. See Kim Baca, South Carolina spends the least on substance abuse prevention, Associated Press State & Local Wire (Jan. 29, 2001).



16. Drug Strategies, South Carolina Profile 18 (1998).



17. NATIONAL CENTER ON ADDICTION AND SUBSTANCE ABUSE, SHOVELING UP: THE IMPACT OF SUBSTANCE ABUSE ON STATE BUDGETS 80 (2001)



18. CHARLES CONDON, ATTORNEY GENERAL, Whitner Implementation Plan, reprinted in, LAWRENCE J. NELSON & MARY FAITH MARSHALL, ETHICAL AND LEGAL ANALYSIS OF THREE COERCIVE POLICIES AIMED AT SUBSTANCE ABUSE BY PREGNANT WOMEN 185a, 9 (1998) (emphasis added).



19. In numerous cases, newspaper reports and court documents indicate that once health officials discovered that a pregnant woman had used an illegal drug, no services were offered before the police were notified and an arrest was made. See, e.g., State v. Mitchell, No. 99-GS-26-24 (S.C. Ct. Gen. Sess. Dec. 1998); State v. McKnight, Docket No. 2000-GS-26-432 (Horry County); Sheryl McCarthy, These Defective Moms Need Treatment, Not Prison, NEWSDAY, May 21, 2001 at A4 (describing Ms. McKnight's unsuccessful attempt to obtain treatment.).