Whitner v. South Carolina Fact Sheet
South Carolina Advocates for Pregnant Women
171 Church Street, Suite 160, Charleston, SC 29401

What is Whitner v. South Carolina?

Whitner v. South Carolina is a 1997 State Supreme Court decision holding that pregnant women who risk harm to their viable fetuses may be prosecuted under the state child abuse laws. Specifically targeted are women who use illegal drugs during pregnancy.

What is the greatest risk of harm to viable fetuses?

Although, the media has focused on illegal drugs, the truth is that the leading preventable cause of mental retardation in South Carolina is prenatal exposure to large amounts of alcohol. Many more fetuses are at risk of harm from cigarettes and alcohol than any illegal drug. But whether the drug is legal or not, pregnant women, even those who can't stop their drug use entirely during pregnancy, can give birth to healthy children if they get good prenatal health care.

Doesn't a pregnant woman who uses drugs deserve to be punished?

As the National Association for Families and Addiction Research and Education explains, "these women are addicts who become pregnant, not pregnant women who decide to use drugs and become addicts." They do not want or intend to hurt their future children. Addiction is a chronic relapsing disease that cannot be easily overcome in the few months after a woman recognizes that she is pregnant. Pregnant women with addiction problems need treatment, not jail.

Isn't the threat of jail an effective way to get pregnant women to stop using drugs? No. As the American Medical Association and many other leading medical groups have concluded, drug addiction is a disease that should be treated not punished. Federal and state experts have concluded that there is no evidence that the threat of jail succeeds in reducing drug use or improving birth outcomes. Instead there is evidence that it frightens women away from prenatal care and drug treatment that can help both the woman and her future child.

Aren't the only women arrested those who have refused treatment?

No. Many women in South Carolina have been arrested even though they were never offered drug treatment. Cornelia Whitner begged for treatment. The Judge said "no I think I `ll just give her eight years in jail." In one hospital women were taken out in chains and shackles still bleeding from delivery even though they were never even referred for drug treatment by their health care providers. Virtually every woman arrested so far has been African American despite the fact that the Southern Regional Project on Infant Mortality found that the "typical" "chemically dependent woman is . . . most likely white."

Since the Whitner decision:

  • A pregnant woman in South Carolina was arrested because she was pregnant and used alcohol.
  • When a thirteen-year-old girl experienced a stillbirth her parents were arrested: One charge was for unlawful conduct to a child because the girl's parents had allegedly "failed to get proper care for the fetus."
  • At least two women who have experienced a stillbirth have been prosecuted at least one was charged with homicide, alleging her drug use caused the stillbirth in spite of the fact this cannot be proved to a medical certainty and several other factors the DO contribute to stillbirths were present in this case.
  • The Whitner decision was sought out to use as authority for getting a court order to force a woman to have a cesarean section against her will - while getting a court order was under consideration the woman gave birth naturally.

Is there enough treatment for all women who want it?

Unfortunately, no. Even the Attorney General admits that the state needs more drug treatment programs to help the women, families and children who need it. In fact, South Carolina spends very little of its own money on drug treatment for women. Almost all of the funding comes from the federal government and much of that money may not be renewed in the coming years.

Does treatment work?

YES! Drug treatment does work, and it is far less expensive than imprisonment.

But what about the children?

Groups committed to the health and well-being of children oppose the prosecution of pregnant women because it frightens women away from treatment that helps children and unfairly labels as damaged, children who may be perfectly healthy. Organizations including the South Carolina Alliance for Children, the March of Dimes, the American Academy of Pediatrics, and the Association of Maternal and Child Health Programs oppose prosecution of pregnant women who are addicted to drugs. Moreover, imprisoning a child's mother for ten years will create its own severe social and psychological problems for that child.

What do leading medical groups have to say about prosecution?

Every leading medical group to take a position on this issue opposes the prosecution of pregnant women and new mothers who use illegal drugs or endanger their pregnancies in other ways. Among these organizations are: The American Medical Association, The South Carolina Medical Association, The American College of Obstetricians and Gynecologists, The American Public Health Association, The American Nurses Association, the National Association of Alcoholism and Drug Abuse Counselors; and the American Academy on Physician and Patient.

What is the Attorney General's Intervention Protocol for Drug-Impaired Infants?

Following the Whitner decision, the Attorney General developed a protocol mandating the testing and reporting of pregnant women who use illegal drugs. This protocol, however was never presented to or adopted by the legislature. The South Carolina Nurses Association has officially opposed the protocol and a report prepared for the independent Robert Woods Johnson medical foundation concluded that it is unethical and without legal foundation.

How does Whitner affect health care and social service providers?

Because the state has a mandatory child abuse reporting law, the Whitner decision has had the effect of turning all of the state's health care and social service providers into mandated child abuse reporters when they learn that a pregnant patient uses drugs or engages in any behavior that may endanger the fetus. The result has been to drive pregnant many women in South Carolina out of the health and social service systems endangering their health and that of their future children. Some women will have unwanted abortions to avoid the possibility of arrest.

What can I do to help?

Contact us at SCAPW!!! Demand the development of appropriate, accessible and confidential drug treatment services for women and families in your community. The road to healthy mothers and babies runs through the health care system not the prison system.

South Carolina Advocates for Pregnant Women
171 Church Street, Suite 160
Charleston, SC 29401

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