When Regina McKnight delivered a stillborn baby in May 1999 after 81/2 months of pregnancy she did what many other mothers who lose a baby do: She grieved. McKnight named the dead infant Mercedes and asked to hold it. She wanted photographs and the baby's footprints as a remembrance and she sought the hospital chaplain.
With an estimated 28,000 women a year suffering a stillborn delivery, McKnight's situation was hardly unique. Except for one thing: McKnight was arrested for it.
McKnight, who is poor, black, and has an IQ of 72, was charged with "homicide by child abuse" for smoking crack cocaine during a pregnancy that ended in a stillbirth. After two trials in Horry County, S.C., McKnight, then 24 years old and a mother of three with no prior criminal record, was sentenced to 12 years in prison with no chance at parole.
South Carolina should change its license plate motto from "Smiling Faces, Beautiful Places" to the far more apt "Antepartum Police State." The state has tried persistently and for years to make women criminally liable for their pregnancies. More specifically, Charlie Condon, the state's former attorney general who is running for U.S. Senate, has been the architect of the state's attempts to punish pregnant women. He helped to formulate a program of drug testing pregnant women at a Charleston public hospital that was struck down by the U.S. Supreme Court in 2001.
In Condon's program, pregnant women were searched for evidence of drug use without their consent, with test results turned over to police. At least one woman was arrested still bleeding from delivery.
This shameful man has made a career of setting unborn children against the women carrying them. His attempts to get the law to recognize fetal rights as separate and distinct from the mother are just another swipe at Roe vs. Wade. It is the same approach used by the Bush administration in its recent expansion of a children's health insurance program, which grants health service benefits to the unborn, not their mothers. Abortion opponents hope that by establishing enough law that says unborn children have independent legal interests, it will lead inexorably to pregnant women being stripped of the right to control their bodies.
Certainly women who want to give their developing baby the best chance at a healthy start should stay away from all illicit drugs. But the law shouldn't be allowed to treat women as little more than incubators - where the pregnancy police rush in whenever she veers from the prescribed regimen.
We all know that avoidance of illegal drugs isn't the last word in healthy pregnancies. There are all sorts of ways women can harm their developing fetus, including by being exposed to too much stress, alcohol and caffeine, among a hefty list of other taboos. Cigarette smoking has been found so dangerous to fetal health that the Campaign for Tobacco-Free Kids warns that "smoking during pregnancy creates a more serious risk of spontaneous abortion . . . than using cocaine during pregnancy."
Any one of these behaviors could be used as the basis for a child abuse charge in South Carolina, where the law covers any death to a child under age 11 that results from abuse or neglect. Keep smoking or stay in a job that you've been warned is too stressful and suffer a stillbirth, and you could be facing 20 years to life. Here, every stillbirth is a matter for police investigation, even though most are caused by conditions and diseases having nothing to do with what a woman ingests.
South Carolina isn't the only place where scenery-chewing prosecutors hungry for publicity have tried to punish women for how they conduct their pregnancies. But only in South Carolina has a state high court approved the practice by including viable fetuses within the definition of child abuse laws.
Interestingly, as hyperconcerned as the state seems to be with keeping pregnant women from drug use, it ranks dead last in the nation in state funding for drug treatment. McKnight's incarceration will cost the state about $300,000, hugely more expensive than providing her with treatment. This suggests the real motive isn't promoting public health but exacting a puritanical punishment for being unhealthy, promiscuous and poor.
It is worth noting that no state legislature has so far passed a law specifically penalizing drug use by pregnant women. Because, when such bills come up, the medical establishment loudly declares them counterproductive to fetal and maternal health. Such laws are far more likely to drive women from prenatal care and hospital deliveries than to prevent drug use. In fact, 26 public health and medical groups, including the South Carolina Medical Association and the National Stillbirth Society, have joined in a brief asking the U.S. Supreme Court to take up McKnight's appeal.
It is vital that the Supreme Court takes their advice. Nothing short of the future of women's personal autonomy is at stake.