Drug-Pregnancy Case Prosecutions OKd in S.C.

In an unprecedented action, South Carolina’s Supreme Court has ruled that a woman can be prosecuted for child abuse if she takes drugs during pregnancy.

The court said a healthy, viable fetus can be considered a “child” or “person” under state law, and should, as a result, be afforded legal protection.

The 3-2 ruling Monday marked the first time a state high court has approved such prosecutions. Top courts in Florida, Kentucky, Nevada and Ohio have all reached opposite conclusions.

The decision reinstates an eight-year sentence given to Cornelia Whitner, whose son, now a healthy 8-year-old, tested positive for cocaine after he was born. Her lawyer said she would appeal.

Writing for the majority, Justice Jean Toal said state child abuse law and previous court rulings clearly consider a viable fetus a person. Since 1984, South Carolina prosecutors have been able to charge other people with injuring or killing a woman’s viable fetus.

State Atty. Gen. Charlie Condon said he would instruct prosecutors and social workers to begin monitoring and punishing pregnant women who abuse drugs.

Critics of the ruling, including advocates for women and civil liberties, said it undermines women’s health and would discourage pregnant addicts from seeking medical help.

Lynn Paltrow, a lawyer for the Center for Reproductive Law and Policy in New York, said: “If you were a pregnant woman, would you talk honestly or go for help if you think you could go to jail?”

In a dissenting opinion, Justice James E. Moore said the ruling would make women liable for criminal prosecution for anything that could be construed as dangerous to a fetus.

“Is a pregnant woman’s failure to obtain prenatal care unlawful? Failure to take vitamins and eat properly? Failure to quit smoking or drinking?” Moore wrote.

Under this ruling, he said, a woman would be better off to illegally abort her third-trimester fetus and face a two-year sentence rather than give birth to a baby after taking drugs and face a 10-year sentence for child abuse.