In November 1997 the South Carolina Supreme Court, in Whitner v. South Carolina (492 S.E.2d 777 [S.C. 1997]), held that pregnant women who use drugs can be criminally prosecuted for child maltreatment. The court found that a viable (potentially capable of surviving outside the womb) fetus is a person covered by the state's child abuse and neglect laws. The ruling was handed down in a case appealed by Cornelia Whitner, who was sentenced to eight years in prison in 1992 for pleading guilty to child neglect. This was the first time the highest court of any state upheld the criminal conviction of a woman charged with such an offense. Whitner's newborn tested positive for cocaine.
In March 1998 Malissa Ann Crawley, charged with the same criminal offense, began serving a five-year prison sentence in South Carolina. In June 1998 the U.S. Supreme Court refused to hear appeals by Whitner and Crawley.
Whitner's lawyer had argued that if a woman could be prosecuted for child abuse for having used drugs while pregnant, what was to keep the law from prosecuting her for smoking or drinking alcohol or even for failing to obtain prenatal care? Other critics claimed that women who are substance abusers, fearing prosecution, might not seek prenatal care and counseling for their drug problems, which would further endanger the child.
Cases similar to Whitner v. South Carolina had been brought before other state courts, but none had convicted a substance-ingesting pregnant woman. These included Florida, Kentucky, Michigan, Nevada, Ohio, Washington, and Wyoming.
First Case of Homicide by Child Abuse for Illegal Drug Use During Pregnancy
In another South Carolina case Regina McKnight, a crack addict, was arrested in 1999 after giving birth to a stillborn. In 2001 she was convicted of homicide by child abuse and was sentenced to twelve years in prison. The jury found her guilty of killing a viable fetus, considered a child under South Carolina law. In January 2003 the South Carolina Supreme Court ruled against McKnight (State v. Regina D. McKnight, Opinion No. 25585). The court pointed out that the state legislature amended the homicide by child abuse statute in 2000, about three years after the court held in Whitner v. South Carolina that the term "child" includes a viable fetus. The court added, "The fact that the legislature was well aware of this Court's opinion in Whitner, yet failed to omit "viable fetus" from the statute's applicability, is persuasive evidence that the legislature did not intend to exempt fetuses from the statute's operation." In October 2003 the U.S. Supreme Court refused to hear McKnight's case.
Mandatory Reporting of Child Abuse by Pregnant Women
As of June 2004 the District of Columbia and twenty-three states had laws requiring the mandatory reporting of drug-exposed infants. (See Table 7.1.) After receiving a report of a drug-exposed infant, CPS typically comes to the mother's aid, sometimes removing the infant from her custody on a temporary or permanent basis. As of September
States with reporting laws regarding drug-exposed infants, 2003
SOURCE: "States That Have Reporting Laws Regarding Drug-Exposed Infants," 2003 Child Abuse and Neglect State Statutes Series Ready Reference, Reporting Laws: Drug-Exposed Infants, U.S. Department of Health and Human Services, National Clearinghouse on Child Abuse and Neglect Information, June 2003
District of Columbia
2004 South Dakota alone mandated the reporting of substance-ingesting pregnant women for "child abuse" to law enforcement instead of to social services. Failure to report such cases of child abuse would constitute a crime punishable by up to six months in prison.
In 1989 a public hospital in Charleston, South Carolina, run by the Medical University of South Carolina (MUSC), offered to work with the city officials and police to test pregnant women suspected of drug use. The women were not told they were being screened for drugs and would be turned over to police if they tested positive. Many of the women were prosecuted and subsequently imprisoned for child abuse.
In 1993 ten women who had been subjected to the "Search and Arrest" policy of the hospital and police filed a lawsuit, charging that "warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches" prohibited by the Fourth Amendment. In 1997, in Ferguson v. City of Charleston, the U.S. District Court upheld the policy. In 1999 upon appeal, the U.S. Court of Appeals for the Fourth Circuit, in Ferguson v. City of Charleston (186 F.†3d 469), affirmed the judgment of the district court, saying that the searches constitute a "special needs" exception to the Fourth Amendment, which justifies searches done for non-law-enforcement ends, in this case, the medical interests of the mothers and infants, even though law-enforcement means were used.
The U.S. Supreme Court reviewed the ruling by the Fourth Circuit Court to determine whether the MUSC policy involved searches justified by "special needs." On March 21, 2001, the Court ruled 6–3 that MUSC's policy was unconstitutional (Ferguson v. City of Charleston, 532 U.S. 67). The Court noted:
While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal. Given that purpose and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of "special needs."
The Supreme Court remanded the case to the U.S. Court of Appeals for the Fourth Circuit to determine whether or not the women gave informed consent to the hospital to test them for drugs. On October 17, 2002, the appellate court, in Ferguson v. City of Charleston (No. 972512), noted that eight of the women did not provide informed consent to the drug testing; therefore, the "Search and Arrest" policy violated their Fourth Amendment rights. The City of Charleston appealed to the U.S. Supreme Court, but the Court declined to rehear the case.
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