Pregnant and Parenting Women, Access to Treatment in South Carolina|
Questions and Answers
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
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