A South Carolina woman whose newborn son tested positive for cocaine was sent to jail Friday under a first-in-the-nation court ruling that permits use of child endangerment laws to prosecute women who use drugs during pregnancy.
Chief Justice William H. Rehnquist turned down an emergency plea to block the woman’s incarceration while her lawyers appeal her conviction in the Supreme Court.
South Carolina is the only state to have broadly interpreted its child endangerment law to cover a “viable fetus.”
The woman, Malissa Ann Crawley, gave birth to a child with cocaine in his system in 1991 and pleaded guilty to the child neglect charge brought against her. She was given a five-year prison term but was put on probation.
Since then, Crawley’s probation was revoked over a fight with a boyfriend, and on Friday she was ordered to report to prison and to serve out her five-year sentence. She has two other children.
The legality of prosecutions such as Crawley’s in South Carolina had been in doubt until October, when the state Supreme Court--on a 3-2 vote--ruled that a late-term fetus was covered by the traditional child endangerment law.
Crawley’s case, while setting no precedent, has emerged at the center of a new debate over the legal status of a fetus and whether children are helped or hurt by punishing their mothers for drug abuse.
In 1973’s Roe vs. Wade case, the U.S. Supreme Court ruled that women have a right to abort a pregnancy until the time a fetus is “viable,” or capable of living on its own. Medically, this is considered to come at roughly the sixth month of a pregnancy.
South Carolina Atty. Gen. Charles Condon has campaigned on the theme that a “viable fetus is a fellow South Carolinian,” and entitled to legal protection. He has brought criminal charges against more than a dozen women for cocaine abuse while pregnant.
“The state of South Carolina is going to take care of its children. We have a moral and a legal obligation to do it, and we are proud of the fact that we are first to do it,” Robb McBurney, Condon’s spokesman, said Friday. The get-tough prosecution policy will help children and their mothers by encouraging drug abusers to get treatment, he said.
Lawyers for Crawley said they plan to file an appeal to the U.S. Supreme Court next month that challenges her prosecution. The lawyers also said that putting a mother in jail will hurt her children, not help them.
“This woman has been drug-free for three years. She has been caring for her children. And all of them are fine. Yet now she is ripped out of her home,” said Lynn Paltrow, a lawyer for the Center for Constitutional Rights in New York. “This policy is destroying families and undermining children.”
She also disputed the state’s policy of prosecuting women who have used cocaine during their pregnancies but not those who have abused alcohol.
McBurney said the policy is to prosecute over “illegal substances,” such as cocaine, but not legal ones.
Over the last decade, prosecutors in several states have brought child endangerment charges against pregnant women for using drugs or alcohol. But most of the charges have been thrown out because such laws apply only to children, not to fetuses.
The South Carolina Supreme Court noted that a fetus has been treated as a person under other laws. A person who assaults or kills a pregnant woman can be charged with the murder of an unborn child.
If so, the state can also define a fetus as a child under the law which makes it a crime to “endanger” or “neglect any child or helpless person” in a person’s custody, the court ruled.