Source: The Augusta Chronicle (Georgia)
Pubdate: June 2, 2003
S.C. Law To High Court
The U.S. Supreme Court is being asked to review an extremely controversial
South Carolina legal issue involving women who destroy their advanced pregnancy
by taking addictive substances.
Specifically, Regina McKnight, of Conway, S.C., was found guilty in May 2001
of homicide by child abuse for causing her baby to be stillborn by taking crack
cocaine. She was sentenced to 12 years in prison and the state Supreme Court
upheld her conviction earlier this year.
McKnight's attorneys contend that the ruling "effectively rewrote the state's
homicide by child abuse law."
They've petitioned the U.S. Supreme Court justices to consider the McKnight
case from the perspective that the South Carolina law "permits prosecution and
conviction of pregnant women who experience stillbirths," according to a
statement the National Advocates For Pregnant Women gave the Associated Press.
The petition goes on to argue that the state Supreme Court's decision
violates the due process clause notice of the Constitution, the Eighth Amendment
's prohibition against cruel and unusual punishment, and the right to procreate
-- though we don't see how a woman's right to procreate is being breached when
it's she who kills the baby with drugs.
Punishing pregnant women for illegal drug use has been a hot issue in South
Carolina for more than a decade. It is the only state that applies the homicide
by child abuse law so severely. As far as is known, it has only been used
against pregnant women addicted to unlawful drugs, but if it survives appeal
there is nothing to stop it from being used on women whose unborn babies die as
a result of addiction to smoking or drinking.
Lynn Paltrow, executive director of the NAFPW, says McKnight should have
received treatment, not punishment. NAFPW attorneys also say the decision
against McKnight sends a message to pregnant women -- whether addicted to drugs,
alcohol or cigarettes -- to stay away from the health care system altogether or
get an abortion, lest they be sent to prison.
The U.S. Supreme Court made it harder for South Carolina authorities to
determine a pregnant woman's medical condition two years ago when it ruled that
hospitals cannot test them for drugs without consent and then turn the results
over to law-enforcement.
But does that also mean a stillborn baby can't be tested for an addictive
substance and the mother criminally charged if the test is positive? The Supreme
Court will have to decide that issue too.
Incidentally, prosecutors can't just prove the mother was on an addictive
substance to win a conviction; they have to prove the substance caused the
miscarriage -- not always easy to do.
In any event, this could be a truly historic ruling. Or the Supreme Court
could just decide to duck it. But the high court won't be able to duck the fetal
homicide issue in the Laci Peterson murder case. Surely if her husband, the
suspected killer, cannot be charged with fetal homicide then it's hard to see
how the court would let an addicted woman be criminally punished for having a