As is often the situation in precedent setting new cases, prosecutors chose as their test case one in which there would be little sympathy or support for the woman they targeted. In this case they picked Regina McKnight, an indigent African-American woman with numerous health problems, a limited education, and a drug problem that began after her mother was killed in a hit and run accident.
When Ms. McKnight went to the local hospital and experienced a stillbirth - the focus was not on counseling her or finding the medical, and drug treatment she desperately needed - but rather it was on gathering evidence against her. In this case, as in a significant percentage of stillbirths, there was no obvious cause for the pregnancy loss. There had been no placental abruption, no ruptured membranes, and no malformations. Hospital staff and the state however knew that she had a drug problem - and without any more evidence than a positive test for metabolites of cocaine the state concluded that her pregnancy loss should be treated as a case of homicide and that her drug use would be identified as the cause of the stillbirth.
Ms. McKnight was put on trial. Her public defender argued that the case should be dismissed as a matter of law since the state's homicide by child abuse statute was never intended to be used as a mechanism for punishing women who experienced stillbirths. The trial court rejected this argument and the trial proceeded with main focus being whether or not cocaine caused the stillbirth. At the first trial the state's "experts" testified that they could not say for sure that cocaine caused the stillbirth. That trial ended in a mistrial. At the retrial, the same "experts," without any new evidence now claimed they were sure that the cause of the stillbirth was the cocaine. One of the doctors testified that "cocaine in and of itself can kill you" after only one use. He was forced to concede however that he did not have any medical knowledge that would support this assertion and that, in fact, the sole basis for this opinion was popular press accounts about the death of basketball player Len Bias. The state's case really rested on the claim that since they could not identify the cause of the stillbirth . . . it must have been cocaine. They made this diagnosis by exclusion without having done the tests and examinations that could have ruled out many more likely causes.
Despite the lack of evidence, the judge permitted the case to go to the jury. The jury deliberated for less than 15 minutes and Ms. McKnight became the first woman in America to be convicted of homicide by child abuse based on her behavior during pregnancy. She was sentenced to twenty years imprisonment, with the final eight years suspended
The case was appealed to the State Supreme Court. Numerous medical and public health groups filed amicus briefs in support of Ms. McKnight. The South Carolina Medical Association, represented by the Drug Policy Alliance and joined by other local and national health organizations, filed a brief that carefully evaluated the evidence in the case. This brief concluded that not only was there no evidence that cocaine caused the stillbirth in this case, but that as a matter of science there was little evidence that cocaine itself could even theoretically have been the cause of this kind of stillbirth.
Despite numerous flaws in the trial, the lack of evidence to support the state's claims, very clear legislative history that the state's homicide by child abuse laws was not intended to punish pregnant women - including those who use illegal drugs, and the overwhelming opposition of leading medical groups, a majority of the State Supreme Court upheld the conviction and the new interpretation of the state's homicide law. The Court held that under South Carolina law a viable fetus is a "child" and thus the state's homicide by child abuse statute could be used to prosecute anyone - include the pregnant woman herself - who causes the loss of a pregnancy.
While some state politicians want the public to trust that this judicially expanded homicide statute will be applied only to pregnant women who use illegal drugs or only ones who fail to make "a real good-faith effort" to get help, others candidly admit that the decision permits prosecution of any woman whose behavior can be characterized as the cause of the stillbirth. As the local prosecutor said: "Even if a legal substance is used, if we can determine you are medically responsible for a child's demise, we will file charges." Moreover, the decision makes clear that women must now be the guarantors of pregnancy outcome. In rejecting the Ms. McKnight's arguments - that the statute was obviously meant to apply only to children, the court noted that the statute's definition of "harm" as "inflicting or allowing to be inflicted on the child physical injury. . ." and "failing to supply the child with adequate health care. . ." could both "clearly be applied to an unborn child". Neither of these provisions is limited to illegal drug use. The pregnant woman who "allows" herself to battered, and the woman who misses prenatal care appointments are both now vulnerable to prosecution for murder should something go wrong in the pregnancy.
The decision also reinforces false and misleading information about drug dependency in general and cocaine's effects in particular. Ignoring the medical evidence submitted by leading health experts and organizations, the court relied instead on drug war rhetoric. The decision also reinforces the class and raced based notion that medical treatment for poor people of color who have drug problems is synonymous with jail. As the judge so revealingly stated at Ms. McKnight's sentencing "at least with [twelve] years hopefully you can get beyond this substance problem that you have . . ." . Most disturbing is the fact that the decision provides a grotesque example of the excesses of the war on drugs: It has transformed drug use (at least for pregnant women) into the ultimate crime: murder.
The court's combined disdain for drug users and poor pregnant woman is palpable. No one in this caseónot even the prosecution believed that Ms. McKnight had any intention of harming the fetus or losing this pregnancy. Nevertheless the court views a pregnant woman's use of an illegal drug, as evidence of "extreme indifference to human life" - the intent necessary to convict for homicide by child abuse. Specifically the court viewed her drug dependency - what she did to her own body -- as no different than the actions and intentions of a mother who facilitated the sexual abuse and murder of her ten-month-old baby. Had Regina McNight intentionally sought end her pregnancy by having an illegal 3rd trimester abortion - her sentence would have been two years in jail. Because she lacked any intent to harm at all - but was a drug user - her sentence was twenty-to life.
The case demonstrates that the government will spare no expense in its efforts to expand the war on drugs and women. While the state is willing to have taxpayers pay for Ms. McKnight's imprisonment at $14,000 a year, it would not dream of funding the treatment or services that she so desperately needed.
National Advocates for Pregnant Women with attorneys C. Rauch Wise and David Goldberg are currently seeking review of the case in the US Supreme Court.