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 miscarriage.