INTERESTS OF AMICI CURIAE*
Amici include national and South Carolina associations of
physicians, nurses, counselors, social workers, and public health practitioners, as well as
organizations with specific expertise in addressing stillbirths and pregnancy loss.1 Amici
consist of experts in the fields of maternal and neonatal health and share a collective interest in
providing appropriate and effective care to women who suffer from the tragedy of stillbirth.
Through this brief, amici seek to expose the substantial health risks that will likely
result when courts depart from science, medical knowledge and established legal precedent in
prosecuting, convicting and imprisoning women who have suffered a stillbirth for the crime of
homicide by child abuse. Because of the intolerable risks to the well-being of both women and
children unleashed by the South Carolina Supreme Court's decision in State v. Regina D.
McKnight, 576 S.E. 2d 168 (2002), amici urge this Court to grant certiorari in
order to undo the damage of this decision to medical practice and public health.
A deeply splintered South Carolina Supreme Court undertook a dangerous and
unprecedented departure from law, science and established medical practice when upholding the
homicide conviction of Regina McKnight. The prosecution, conviction, and sentencing of Ms. McKnight
for her stillbirth not only distorts the law, but contradicts the clear weight of available medical
evidence, violates fundamental notions of public health, and undermines the physician-patient
relationship. The McKnight decision creates two groups of women who suffer the misfortune of
pregnancy loss: those who are alleged to have engaged in activities or have exposed themselves to
situations that, according to "public knowledge", can cause fetal demise, and those women about
whom no such allegation is made. By sanctioning this differentiation - heretofore unrecognized
by law - and locating it in the State's criminal codes, the South Carolina Supreme
Court's decision will undermine the provision of health care services in such a way that
threatens the health and well-being of every mother, fetus and newborn child.
Tens of thousands of women suffer from stillbirths each year. In a substantial
number of these cases, medical professionals are unable to provide parents with an explanation
(beyond mere conjecture) of how or why the stillbirth occurred. As in the case of Regina McKnight,
parents typically experience stillbirths as unexpected and undesired personal tragedies. Yet, by
imposing "public knowledge" as a legal standard for determining criminal liability - and by
deeming there to be "public knowledge" for a medical claim steadfastly discredited by a clear
consensus of scientific researchers and unsupported by the record evidence in this case - the
South Carolina Supreme Court in McKnight confers boundless discretion on prosecutors to
investigate and punish women who suffer pregnancy losses. In so doing, the Court severely
compromises accepted protocols of care for women who suffer stillbirths; namely providing medical
treatment for the physical trauma accompanying fetal loss, and providing psychosocial support to
alleviate often debilitating parental grief and guilt.
The McKnight decision, moreover, transforms prenatal and postnatal health
care and social services professionals into agents of law enforcement by virtue of their mandatory
reporting obligations under state law. As a result, the decision turns a fundamentally medical
matter into a criminal justice issue. The likely harms to public health are hard to overstate: the
McKnight decision makes a potential prosecutorial target of all women in South
Carolina who are unfortunate enough to suffer stillbirths.
Amicis' longstanding commitment to the care of pregnant women and
their unborn fetuses gives rise to their concerns about the implications of the decision below.
Amici in no way condone the non-medical use of drugs - including alcohol or tobacco
- by either parent during pregnancy. Nor do amici contend that there are no health
risks associated with illicit drug use during pregnancy. Although the medical literature
unequivocally belies South Carolina's assertion that prenatal cocaine exposure caused the
stillbirth experienced by Ms. McKnight, it does not indicate that such exposure is benign.
Nonetheless, amici contend that the factual record and current state of medical science
wholly fail to support any claim that Ms. McKnight's stillbirth was caused by the ingestion
of cocaine. Instead, the factual record and medical science underscore two points, both of which
illuminate the dangers of the McKnight precedent. First, medical factors other than
cocaine are likely to have caused the stillbirth, and second, it is exceedingly difficult to
reliably isolate, beyond a reasonable doubt, any one factor (or group of factors) as having caused
Finally, if let stand, the McKnight decision will greatly erode the
standard of care for pregnant women and stillbirth mothers. These women (particularly those most at
risk for losing their pregnancies) will be deterred from accessing medical care, prenatal treatment
and related services for fear of a criminal investigation and possible prosecution if they are
unable to deliver a living and full-term child.
REASONS FOR GRANTING THE PETITION
I. Review Should Be Granted Because The McKnight Decision Threatens The
Health of All Child-Bearing Women in South Carolina.
In State v. McKnight, a sharply divided South Carolina Supreme
Court sanctioned the prosecution of women for homicide by child abuse when they suffer stillbirths
after engaging in activities that are "well documented and within the realm of public
knowledge . . . [to potentially] cause serious harm to the viable unborn child." 352 S.C. 635,
645, S.E. 2d 168, 173 (2003) (emphasis added). Notwithstanding the facts of the case, the South
Carolina Supreme Court's holding in McKnight is in no way limited to the ingestion of
illicit substances during pregnancy. The McKnight decision instead creates an untenable
standard for punishing women who engage in any conduct, or who suffer from any number of
"preventable" medical conditions that are commonly believed - whether accurately or not - to be harmful to a fetus. The sweeping breadth of liability is confirmed by South Carolina's
law enforcement personnel2and threatens to turn many, if not most stillbirth mothers in South
Carolina into potential targets for criminal investigation. This expansion of potential criminal
liability, in turn, will almost certainly undermine the ability of health professionals to deliver
appropriate care to women who suffer pregnancy loss.
A. Given the Numerous Acts, Omissions and Conditions that Can Precipitate
Stillbirth, The McKnight Decision Casts A Wide Net of Potential Criminal Liability For Pregnant
About 28,000 American women suffer from stillbirths each year,3 an estimated 500
of whom are from South Carolina.4 As many as 20 to 30 percent of all pregnancies end in miscarriage
or stillbirth.5 A wide range of medical conditions, actions, omissions, and environmental factors
are known to contribute to fetal death. Nevertheless, a small but significant number of pregnancies
progress without apparent complication until something simply goes awry, resulting in unexplained
pregnancy loss. These tragic and inexplicable outcomes account for approximately ten percent of all
Fetal abnormalities account for 25 to 40 percent of fetal demise,7 and include
birth defects, chromosomal abnormalities, and various fetal infections (bacterial, viral and
other).8 Chromosomal abnormalities are discovered in as many as eight percent of all stillbirths.9
Placental defects constitute 25 to 35 percent of fetal demise.10 Maternal illness accounts for
between five and ten percent of fetal demise and encompasses such conditions as trauma, sepsis,
hypertensive disorders, syphilis, diabetes, lupus anticoagulant, anticardiolipin antibodies, and
hereditary thrombophilia (serious edema of the fetus).11 Most of these causes can be identified by
specific pathological factors.
In addition, a wide range of conduct by pregnant women is commonly believed to
cause significant harm to a fetus. Under the McKnight standard, each one of these acts (or
omissions) is "within the realm of public knowledge" for increasing the risk of stillbirth and is
now actionable. For example, a recent study indicates that women who smoke tobacco during pregnancy
double their risk of delivering a stillborn child.12 Many workplace environments are similarly known
to present significant risks to fetal health. See, e.g. Automobile Workers v. Johnson
Controls, 499 U.S. 187 (1991). Other factors also increase the likelihood of pregnancy loss.
Becoming pregnant after the age of 35 carries with it a heightened risk, even when controlling for
diabetes, hypertension, and other complications associated with increased maternal age.13
Additionally, women who experience even a single stressful event during pregnancy are more than
twice as likely to experience reproductive loss.14
It is likewise well publicized through both the media and labeling that many
over-the-counter15 and prescription drugs can cause fetal death or serious fetal harm.16 One
particularly stark example is the use of the popular acne medication Accutane. Pregnant women who
take this medication have a 25-35 percent increased chance of delivering a child with multiple
major deformities in addition to an increased risk of miscarriage, stillbirth, or infant death.17
Although these risks are listed prominently on Accutane's label and have been reported in the
news media,18 nearly three out of 1,000 women between ages 15 and 44 use Accutane to improve their
After McKnight, any pregnant South Carolinian who smokes
cigarettes, is over 35, uses certain over-the-counter or prescription medications, or works in a
factory where there is a danger of exposure to hazardous waste, and suffers a miscarriage or
stillbirth can face prosecution for homicide. And, as discussed below, not only does
McKnight cast an impermissibly broad net of potential criminal liability on pregnant women,
it saddles their health care providers with a duty of breathtaking scope and uncertain dimensions:
to report stillbirths that the provider believes may have been caused by these same
"publicly known" risks taken on the part of the mother.
- The McKnight Decision Undermines Accepted Standards of Care for Treating Women Who
Following stillbirth, parents, and particularly mothers, usually experience
intense bereavement and grief. 20 Feelings of depression, guilt, anxiety, isolation, and
bitterness are often heightened when fetal loss occurs late in pregnancy.21 Grief is exacerbated by
the physical and emotional strain stemming from birthing a dead child (or one that dies shortly
after birth), as well as by the hormonal imbalances of pregnancy. Consequently, parents who suffer
fetal loss often grieve with the same intensity as those who lose a close relative,22 and need to
engage in certain rites and rituals.23
In this regard, the record reflects that Ms. McKnight responded to her
stillbirth like many women who suffer this misfortune: she asked to and did hold her stillborn
baby; she named the baby; she asked that photographs be taken; and she requested to be given a
"memory certificate" with the baby's footprints and hospital bracelet. Ms. McKnight also
sought solace from the hospital's chaplain.
The McKnight decision, however, upends all accepted medical standards for
the care of women who suffer stillbirths. As with other momentous medical events, physicians and
psychologists have developed treatment protocols to address the psychosocial difficulties that
accompany stillbirth. Many women who miscarry or suffer stillbirth experience feelings of
self-blame, guilt and/or shame. These emotions are heightened by the increased tendency for
self-blame prompted by a growing body of popular literature,24 warning labels, and general confidence
in the advances of modern medicine, which create the false sense that "good mothers" have healthy
pregnancies. As a result, women who suffer stillbirths or miscarriages inevitably re-live their
entire pregnancy, searching for the event or events - the cup of coffee, the stress at work,
or the strenuous exertion at home - to explain their loss and to blame themselves.
Addressing these feelings is critical to recovery and is a core concern of
healthcare providers.25 Recommended protocols involve medical and psychological care to address
specific patient needs.26 Post-partum contact by obstetricians and nurses, for example, is considered
to be an essential part of caring for women who have suffered pregnancy loss.27 One essential goal of
treatment providers is to "creat[e] an atmosphere of unconditional acceptance and compassion."28
Despite enormous achievements in health care and scientific understanding, health care workers
addressing pregnancy loss must teach the sad truth that pregnancy outcome is never guaranteed, that
pregnancy loss is not always preventable, and that the reasons for poor pregnancy outcomes are
By contrast, the McKnight decision now requires medical personnel who
learn of a stillbirth to make a critical decision as they meet the grieving parents: did the mother
engage or not engage in conduct commonly known to affect pregnancy. If they believe that the woman
was not engaging in such conduct she is offered sympathy, counseling, and professional
support. If, by contrast, it is suspected by any law enforcement authority or medical official that
the woman might have engaged in conduct that is "publicly known" to endanger fetuses -
applying this new and amorphous medico-legal standard - the woman must become the subject of
criminal interrogation, testing, and invasive physical examination for the purpose of
investigating, prosecuting and incarcerating her for her pregnancy loss.
It is difficult to overstate the degree to which the McKnight decision
distorts the provision of maternal health care. The decision shifts pregnancy loss from a medical
and public health matter (occasioning treatment), to a potential criminal act (requiring forensic
investigation and state sanctioned punishment). As a likely consequence of McKnight, therapy
and support for many women who suffer stillbirths will be compromised and curtailed, if not
withdrawn altogether, in the wake of law enforcement needs. Instead of receiving sympathy for the
trauma they have experienced, stillbirth mothers will be met with suspicion by the health
and social services professionals with whom they interact. As explained further below, this
dramatic shift portends potentially devastating health consequences.
II. Review Should Be Granted Because There is No Reliable Medical Evidence
That Ms. McKnight's Cocaine Use Caused Her Stillbirth.
- The Record Fails to Support South Carolina's Claim that Cocaine Caused
The protocol for accurately determining the cause of fetal demise must take into
account the many possible factors that might be responsible for the stillbirth. Isolating and
identifying the potential causes of fetal demise can be quite difficult and is often unsuccessful.
Such determinations require an interdisciplinary team of obstetricians, neonatologists,
pathologists, and geneticists, employing an array of scientific procedures. The investigative
process is typically one of exclusion; however, investigators are often left not with a single,
clear explanation for fetal demise, but rather a series of clues and various alternative, possible
causes. As observed by the Guidelines established by the College of American Pathologists,
"although many conditions can be ruled out, it may be impossible to determine the actual cause of
death in a fairly large number of cases."29 In fact, approximately ten percent of all fetal deaths
remain entirely unexplained.30
Fetal autopsies are commonly performed. Such autopsies usually consist of both
gross and microscopic evaluation of the stillborn fetus, the cord, membranes and placenta.31
Measurements of crown-rump length, foot length and body weight,32 and skeletal radiographs or
xeroradiography also serve as diagnostic tools.33 Specialists perform laboratory and diagnostic
examinations of the mother to determine the existence of infections or maternal conditions that
could have resulted in the stillbirth; review obstetric and family histories; and investigate
pertinent information in the maternal and paternal pedigrees.34
These procedures were not followed in Ms. McKnight's case, where
the overwhelming weight of the scientific evidence not only does not support the conclusion
that cocaine caused Ms. McKnight's stillbirth, but affirmatively points to other
non-cocaine-related explanations. Research published at the time of Ms. McKnight's trial
indicated that only two complications could potentially be associated with prenatal cocaine
exposure and stillbirths: placental abruption and premature rupture of the membrane.35 Neither
condition was present in this case. The fetal autopsy report fails to mention placental abruption,
and neither of the State's pathologists testified that Ms. McKnight experienced this
condition. Similarly, the State's pathologists, Ms. McKnight's medical records, and the
autopsy report indicate no premature rupture of membranes. Furthermore, other fetal conditions that
some researchers have found to be associated with in utero cocaine exposure, e.g.,
reduced birth weight and congenital defects36 (conditions that research has been unable to isolate
from factors such as maternal exposure to alcohol, tobacco, or poverty) were also absent in this
In light of the absence of any recognized indicia for cocaine-associated
fetal demise, the State's claim that cocaine use caused Ms. McKnight's
stillbirth must derive from a "presumptive diagnosis," or the elimination of alternative causes.
The factual record in this case, however, undercuts this analysis. In particular, the autopsy
report identifies chorioamnionitis (inflammation of the fetal membranes) and funisitis
(inflammation of the umbilical cord) as two additional causes of fetal death. Ms. McKnight also was
diagnosed with syphilis, suffered from hypothyroidism, was homeless, and (like many South
Carolinians) smoked tobacco. Any one of these factors increases the risk of pregnancy loss; in
combination, the risk is magnified.
Even though the full weight of medical evidence in this case points to a cause
or causes for fetal demise other than cocaine exposure, the trial record shows that the
State apparently halted its investigative inquiries after obtaining positive tests for cocaine
metabolites. Because the State did not consider, let alone rule out the other, proven risk factors
for fetal demise present in Ms. McKnight's medical and social history, the most that can be
said, on the basis of the State's investigation, is that there is no identifiable
cause of the stillbirth.
The fact that a positive toxicology for cocaine coincides with a stillbirth
simply does not establish causation, for medical or legal purposes. South Carolina's failure
to adequately investigate the cause of Ms. McKnight's stillbirth - and the inaccuracy of
its unsupported claim that cocaine was the cause - is underscored by two studies from the
Medical University of South Carolina ("MUSC"). These studies highlight the difficulty in
determining the cause of stillbirths, not to mention the near impossibility of concluding that
cocaine can be its sole cause. In a ten-year retrospective (Jan. 1989 - December 1998) of
pediatric toxicological deaths, not a single neonatal or fetal death was attributed to cocaine use,
even in those cases where cocaine metabolites were present. 38 A second study focused on the 42 fetal
deaths referred for autopsy to the Forensic Section of MUSC between 1990 and 1999.39 In a full 29
percent of the fetal deaths examined, the cause of death could not be determined.40 As with the
previous study, all of the cocaine associated deaths were designated as "natural" or
"undetermined," - not as homicides (as was done in Ms. McKnight's case). In
short, in a large number of fetal deaths, forensic pathologists at MUSC were unable to establish
causation, and even where cocaine was present, it was not listed as a primary cause of death.
Against this backdrop, the State's assertion that cocaine caused Ms. McKnight's
stillbirth appears to derive not from medical fact and scientific method, but rather prosecutorial
B. There Can Be No "Public Knowledge" of the Effects of Prenatal Cocaine
Ingestion When Medical and Scientific Research is Inconclusive On This Point.
In finding Ms. McKnight criminally culpable in the homicide of her fetus, the
McKnight majority reasons that it is appropriate to expect adult women to be aware of the
dangers to fetal health that can result from ingesting cocaine during pregnancy. That Court's
expectation in this regard is unfounded. Indeed, the scientific community that specializes in
researching the teratogenic effects of cocaine is itself currently unable to reach consensus about
the nature of the harms posed by prenatal cocaine exposure or the likelihood those harms will
materialize when cocaine is ingested during pregnancy.41 Nevertheless, according to the South
Carolina Supreme Court, the general public is expected to know that which the world's most
credentialed experts are unwilling to pronounce: that maternal cocaine use by itself poses unique
and heightened dangers of fetal death.
Contemporary research on the developmental impact of cocaine use during
pregnancy has debunked the myth that mere exposure to cocaine causes certain fetal harms. In
advance of Ms. McKnight's trial the Journal of the American Medical Association ("JAMA"),
published a comprehensive and authoritative analysis of medical research assessing the relationship
between maternal cocaine use during pregnancy and adverse developmental consequences for the fetus
and child.42 JAMA researchers identified all seventy-four English-language studies of the effects of
in utero cocaine exposure43 and then reviewed those which complied with accepted scientific
practices. The researchers concluded that "there is no convincing evidence that prenatal cocaine
exposure is associated with any developmental toxicity different in severity, scope, or kind from
the sequelae of many other risk factors."44 In light of these findings, the JAMA researchers condemn
as "irrational" policies that selectively "demonize" in utero cocaine exposure or target
pregnant cocaine users for special criminal sanction. 45 Similarly, there are no methodologically
sound studies that prove prenatal cocaine exposure significantly increases the risk of
None of this is to say that prenatal cocaine exposure is benign. While current
studies are unable to link cocaine use to adverse fetal developments, neither do they exclude
cocaine as a potential fetotoxin.46 Without doubt, more research is needed. But it is precisely this
fact that exposes the injustice and irrationality of the McKnight decision. Where science
has yet to speak with causal assurance, the Court below found sufficient mens rea to convict
Ms. McKnight of homicide. Whether one looks to the evidence in the record that fails to support an
inference of cocaine-induced death (and affirmatively points to other likely causes) or one
consults the scientific literature, the South Carolina Supreme Court's ruling is simply
III. Review Should Be Granted Because the McKnight Decision Will Deter Women
From Obtaining Adequate Prenatal Health Care.
Amici are firmly convinced that the McKnight decision will
undermine the quality and accessibility of health care for many women who are pregnant or
recovering from delivery, miscarriage or stillbirth.47 Trust and confidence have long defined the
relationship between a patient and her caregiver. By sanctioning law enforcement's intrusion
into the sphere of prenatal care and post-stillbirth treatment, however, the McKnight decision guts
the traditional expectations of patient candor and medical confidentiality. In so doing, the
decision endangers the future health and well-being of women and their fetuses, particularly
mothers who suffer from drug dependency.48
Many medical conditions or forms of conduct that can affect the course of
pregnancy for the mother and/or fetus, including drug use, are not readily apparent to treatment
providers.49 Thus, the ability to provide appropriate and timely medical care rests, in large part,
on the ability of treatment providers to elicit from patients medical and social information that
will inform the diagnosis and proper course of treatment to promote maternal and fetal health.
The sanctity of the health care provider-patient relationship is particularly
critical where the treatment of pregnant drug using women is involved, because "[t]he promise of
confidentiality encourages patients to disclose sensitive subjects to a physician without fear that
an embarrassing condition will be revealed to unauthorized people."50 A strong health
provider-patient relationship promotes the integration of substance abuse treatment with primary or
prenatal care resulting in healthier babies.51 In recognition of this medical reality courts have
long viewed the obligation of confidentiality as not solely a matter of principle, but a necessary
precondition of the patient-care provider relationship.52
McKnight, however, eviscerates fundamental tenets of medical
confidentiality. Any pregnant South Carolinian who now confides in her health care provider that
she has engaged in any activity that is "publicly known" to cause harm to her fetus, places herself
at risk of becoming the target of criminal investigation for homicide if she later suffers a
Clinicians and researchers warn that the mere suggestion that obtaining health
care could lead to criminal sanctions will deter many pregnant women from seeking critical prenatal
care. As the Board of Trustees of the American Medical Association states: where such danger of
criminal sanctions exists, "[p]regnant women will be likely to avoid seeking prenatal or other
medical care for fear that their physicians' knowledge of substance abuse or other
potentially harmful behavior could result in a jail sentence rather than proper medical treatment."54
The threat that a stillbirth could result in a homicide conviction (and a lengthy sentence)
simply exacerbates such fears and will hinder access to vital medical care and substance abuse
services for South Carolinian women. Virtually every other major public health and medical
organization to address this issue has also inveighed against the path taken by the McKnight
majority and has warned about the harmful consequences that will result.55
The criminal investigation and possible prosecution of women like Ms. McKnight
sends a perilous message to pregnant addicts not to seek prenatal care or drug treatment,
not to confide their addiction to health care professionals, and not to give birth in
hospitals - or not to carry the fetus to term. Accordingly, such prosecutions fail to serve
any legitimate purpose, and in fact undermine South Carolina's objectives of promoting
maternal and fetal health. Instead of saving lives, the McKnight decision prosecution is likely to
Because the prosecution and conviction of Regina McKnight for homicide by child
abuse is not supported as a matter of science, inappropriate as a matter of public health, and
unfounded as a matter of law amici curiae respectfully request this Honorable Court to grant
the petition for certiorari.
Judith K. Appel
Daniel N. Abrahamson
Counsel of Record
Drug Policy Alliance
717 Washington Street
Oakland, CA 94607
Attorneys for Amici Curiae
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Life, 154 Am. J. Epidemiology 322 (2001)
Woods, J. R., Pregnancy Loss: Medical Therapeutics and Practical
Considerations (J. Esposito ed., Williams &
* No entity or counsel apart from those whose names appear on this Brief have contributed monetarily or substantively to its production.
Sup. Ct. R. 37.6
- Descriptions of the Amici are set forth in the Appendix to this brief.
- In comments to the media, Horry County Chief Prosecutor Greg Hembree declared his intent to use the McKnight decision to prosecute
women "[e]ven if a legal substance is used, if we determine [they] are medically responsible for a childıs demise." [emphasis added]. E.
Gaston, Conway Homicide Case Sets Precedent, The Sun News (Myrtle Beach, SC) May 19, 2001, at A1.
- See Natıl Ctr. for Health Statistics, Ctr. for Disease Control, Births: Final Data for 2000, 50(5) National Vital Statistics Report 27
(2002) at http://www.cdc.gov/nchs/data/nvsr/nvsr50/50_05_01.pdf (stating number of births each year); Natıl Ctr. for Health Statistics,
Ctr. for Disease Control, Table 23: Infant Mortality Rates, in Health, United States, 2002, at 109 (2002) available at
http://www.cdc.gov/nchs/data/hus/tables/2002/02hus023.pdf (stating annual rates of fetal death).
- See e.g., Div. of Biostatics, S.C. Dept. of Health & Envtl. Control, Table 52: Fetal Mortality and Fetal Mortality Rate by Race of
Mother,  1 Annual Vital Statistics Series 107.
- C. Malacrida, Complicating Mourning: The Social Economy of Perinatal Death, 9(4) Qualitative Health Research 504, 505 (July 1999).
Pregnancy loss falls into two categories: miscarriage and stillbirth. Miscarriage describes pregnancy loss within the first 20 weeks of
pregnancy and stillbirth generally refers to pregnancy loss that occurs after 20 weeks. L. Friedman, A Woman Doctorıs Guide to
Miscarriage, at xi-xii (Laurie Abkemeier ed., Hyperion 1996).
- Williams Obstetrics 1075 (F. Cunningham et al. eds., 21st ed. 2001). See also, M.A. Sims & K.A. Collins, Fetal Death: A 10-Year
Retrospective Study, 22 Am. J. Forensic Med. & Pathology 261 (2001) ("Despite efforts to identify the etiological factors contributing to
fetal death, a substantial portion of fetal deaths are still classified as unexplained intrauterine fetal demise."); SHARE Pregnancy & Loss
Support, Inc., Report on Stillbirth Workshop at the National Institute of Health (April 2001) at
http://nationalshareoffice.com/SBWkspReport.asp (noting that the cause for up to 50 percent of stillbirths may not be determinable).
- Williams Obstetrics, supra, at 1074 (referring to Cunningham and Hollier (1997)).
- Id. at 1076.
- Williams Obstetrics, supra, at 1074.
- Id. at 1074-75.
- K. Wisborg et al., Exposure to Tobacco Smoke in Utero and the Risk of Stillbirth and Death in the First Year of Life, 154 Am. J.
Epidemiology 322, (2001).
- R. Fretts et al., Increased Maternal Age and the Risk of Fetal Death, 333(15) New Eng. J. Med. 953, 956 (1995).
- R. Neugebauer et al., Association of Stressful Life Events With Chromosomally Normal Spontaneous Abortion, 143 Am. J.
Epidemiology 588 (1996).
- "Large doses of aspirin may result in delayed onset of labor, premature closure of the fetal ductus arteriosus . . . or neonatal bleeding."
The Merck Manual of Diagnosis and Therapy 1859 (R. Berkow ed., 16th ed. 1992) [hereinafter Merck Manual].
- Myriad prescription medications are "publicly known" to cause severe birth defects. See, e.g., K.L. Jones, Smithıs Recognizable
Patterns of Human Malformation 495, 504 (J. Fletcher ed., 5th ed. 1997) (anticonvulsants and anticoagulants); J.G. Bernstein,
Handbook of Drug Therapy in Psychiatry 415 (2d ed. 1988) (citing G.E. Robinson et al., The Rational Use of Psychotropic Drugs in
Pregnancy and Postpartum, 31 Can. J. Psychiatry 183 (1986) (lithium and other mood-stabilizers); Physicianıs Desk Reference 3391
(57th ed. 2003) (antibacterials); Merck Manual, supra, at 1859, 1861 (thyroid medications and antihypertensive drugs).
- Org. of Teratology Information Systems, Accutane (Isotretinoin) and Pregnancy (2002) at www.otispregnancy.org/pdf/accutane.pdf.
Additionally, the risk of miscarriage for women who use accutane is possibly as high as 50%. Id. See also M.A. Honein et al., Continued
Occurance of Accutane-Exposed Pregnancies, 64 Teratology 142 (2001).
- See, e.g., E. Rafsoon, What Price Beauty, Boston Globe, April 27, 2003, Magazine, at 15 (explaining "why [Accutane] has become the
most widely prescribed birth-defect-causing medicine in the United States.").
- M.A. Honein et al., supra, at 144.
- R. Neugebauer et al., Major Depressive Disorder in the 6 Months After Miscarriage, 277(5) JAMA, 383, 387 (1997); J. DeFrain et al.,
The Psychosocial Effects of Miscarriage: Implications for Health Professionals, 14(3) Fam. Sys. & Health 331, 335 (1996); L.
Hammersley & C. Drinkwater, The Prevention of Psychological Morbidity Following Perinatal Death, 47 British Journal of General
Practice 583 (September 1997).
- H. Janssen et al., Controlled Prospective Study on the Mental Health of Women Following Pregnancy Loss, 153 Am. J. Psychiatry 226
- L. G. Peppers & R. J. Knapp, Maternal Reactions to Involuntary Fetal/Infant Death, 43 Psychiatry 155 (May 1980) (citing K. Kowalski
& W. Bowes, Parents' Response to a Stillborn Baby¸ 8 Contemporary Obstetrics and Gynecology 53-57 (1976); P. Giles, Reactions of
Women to Perinatal Death, 10 Austl. & N. Z. J. Obstetrics & Gynecology 207 (1970)).
- L. Layne, Motherhood Lost: Cultural Dimensions of Miscarriage and Stillbirth in America, 16(3) Women & Health 69 (1990).
- See, e.g., A. Eisenberg et al., What To Expect When Youıre Expecting 54-57 (2d ed. 1996) (popular pregnancy advice book warning
women to avoid, inter alia, changing a cat litter box, consuming unpasteurized cheese or undercooked meat, gardening without gloves,
inhaling when handling household cleaning products, and ingesting caffeine).
- See J. R. Woods, Pregnancy Loss: Medical Therapeutics and Practical Considerations 64-65 (J. Esposito ed., Williams & Wilkins
1987). See also, Friedman, supra.
- C.R. Geerinck-Vercammen, With a Positive Feeling: The Grief Process After Stillbirth in Relation to the Role of Professional Caregivers, 87 Eur. J. Obstetrics & Gynecology and Reproductive Biology 119 (1999) (research in progress). See also, C.S.W. Rand et
al., Parental Behavior After Perinatal Death: Twelve Years of Observations, 19 J. Psychosomatic Obstetrics & Gynecology 44 (1998) (discussing importance of being flexible in responding to parents' wishes about how to mourn and grieve).
- (27?) J. R. Woods, supra, at 111-131.
- K. Kluger-Bell, Unspeakable Losses 146 (New York, WW Norton & Co. 1998).
- K.E. Bove & The Autopsy Comm. of the Coll. of Am. Pathologists, Practice Guidelines for Autopsy Pathology, 121 Archives
Pathology & Laboratory Med. 368, 373 (1997).
- See supra note 6.
- Am. Acad. of Pediatrics & Am. Coll. of Obstetricians and Gynecologists, Guidelines for Perinatal Care 202 (4th ed. 1997).
- Bove et. al., supra, at 373.
- C. Curry & L.H. Honoré, A Protocol for the Investigation of Pregnancy Loss, 17 Clinics in Perinatology 723, 726 (1990).
- Guidelines for Perinatal Care, supra, at 202.
- A. Addis et al., Fetal Effects of Cocaine: An Updated Meta-Analysis, 15 Reprod. Toxicology 341, at 348-49, 354 (2001). See also N.
Bingol et al., Teratogenicity of Cocaine in Humans, 110 J. Pediatrics 93, 94 (1987) (finding abruption placentae present in all stillbirths
suffered by group of cocaine using women).
- Bingol et al., supra, at 94. But see D. Frank et al., Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine
Exposure: A Systematic Review, 285 JAMA 1613 (2001).
- The Stateıs pathologists testified that the organs of McKnightıs fetus were normal, R. 176-77, 328:17-18, 340:14-15, and that it
appeared to have developed without incident prior to the stillbirth, R. 325:9-10.
- See T.A. Campbell & K.A. Collins, Pediatric Toxicologic Deaths: A 10 Year Retrospective Study, 22 Am. J. Forensic Med. &
Pathology 184 (2001).
- See Sims, supra.
- Id. at 263.
- Writing for the majority in McKnight, Justice Waller states "Given the fact that it is public knowledge that usage of cocaine is
potentially fatal, we find the fact that McKnight took cocaine knowing she was pregnant was sufficient evidence to submit to the jury on
whether she acted with extreme indifference to her child's life." McKnight, 352 S.C. at 646.
- See Frank, supra.
- Id. at 1614.
- Id. at 1621, 1624.
- Id. at 1621.
- See, e.g., I. Morild & M. Stajc, Cocaine and Fetal Death, 47 Forensic Sci. Intıl 181 (1990).
- South Carolina ranks last among the states in spending on programs that address the effects of alcohol and drug abuse. See K. Baca,
South Carolina Spends the Least on Substance Abuse Prevention, Associated Press State and Local Wire, Jan 29, 2001 (noting that in
2000, the state was only "able to treat about 52,000 of the 310,000 South Carolinians identified as having a substance abuse problem.")
(citing Nat'l Ctr. on Addiction and Substance Abuse, Shoveling Up: The Impact of Substance Abuse on State Budgets, available at
- South Carolinaıs Department of Alcohol and Other Drug Abuse Services forthrightly acknowledges that "[u]nfortunately . . . there are
women who do not seek treatment, primarily out of fear; fear of what others might say; fear of prosecution; fear of losing their children;
fear of losing their jobs; and fear of losing the support of their families." South Carolina Dept. of Alcohol and Other Drug Abuse Services
("DAODAS"), Prevention, Intervention & Treatment: Treatment Services, at http://www.daodas.state.sc.us/web/treatment.html, (last
visited July 23, 2003).
- I. Chasnoff, Drug Use in Pregnancy: Parameters of Risk, 35 Pediatric Clinics N. Am. 1403, 1410 (1988).
- R. Arnold et al., Medical Ethics and Doctor/Patient Communication, in The Medical Interview: Clinical Care, Education and Research
365 (M. Lipkin, Jr. et al. eds., 1995) (citing W. Winslade, Confidentiality, in Encyclopedia of Bioethics (W. T. Reich ed.)). See also, S.
H. Ebrahim & J. Gfroerer, Pregnancy-Related Substances Use in the United States During 1996-1998, 101(2) Obstetrics and Gynecology
374 (February 2003) ("Pregnancy-or childbirth-related contact of women with the health care system gives health care providers a unique
opportunity to access women who use substances and possibly their partners to facilitate substance abuse treatment, the benefits of which
extend to their infants and future pregnancies.").
- M.A. Armstrong, et al., Perinatal Substance Abuse Intervention in Obstetric Clinics Decreases Adverse Neonatal Outcomes, 23 J.
Perinatology 3 (2003).
- See Jaffee v. Redmond, 518 U.S. 1, 10 (1997) ("the mere possibility of disclosure may impede development of the confidential
relationship necessary for successful treatment").
- It appears likely that the McKnight decision may well open the floodgates to a rash of like prosecutions. In May, 2003, South Carolina
prosecutors decided to charge Angela Shannette Kennedy with homicide for a stillbirth that she experienced on December 11, 1998. See
T. Langhorne, Solicitor: Woman's Cocaine Use Killed Fetus, Spartanburg Herald Journal, May 3, 2003.
- Am. Med. Assın, Legal Intervention During Pregnancy, 264 JAMA 2663, 2667 (1990). See also id. at 2670 (reporting AMA resolution
that "[c]riminal sanctions or civil liability for harmful behavior by the pregnant woman toward her fetus are inappropriate").
- This Court recently recognized that there is "a near consensus in the medical community that programs of the sort at issue, by
discouraging women who use drugs from seeking prenatal care, harm, rather than advance, the cause of prenatal health." Ferguson v. City
of Charleston, South Carolina, 532 U.S. 67 at 83, n.23 (2001). See also Bd. of Directors, Am. Socıy of Addiction Med., Public Policy
Statement on Chemically Dependent Women and Pregnancy (September 25, 1989); Comm. on Substance Abuse, Am. Acad. of Pediatrics,
Drug-Exposed Infants, 86 Pediatrics 639, 642 (1990); March of Dimes, Statement on Maternal Drug Abuse 1 (December 1990); Natıl
Assın of Pub. Child Welfare Administrators, Guiding Principles for Working with Substance-Abusing Families and Drug-Exposed
Children: The Child Welfare Response (January 1991); Am. Psychiatric Ass'n, Care of Pregnant and Newly Delivered Women Addicts:
Position Statement (March 2001); Natıl Council on Alcoholism and Drug Dependence, Women, Alcohol, Other Drugs and Pregnancy
(1990); and Am. Nurses Assın, Position Statement (April 5, 1992).