Civil Liberties

Pregnant Laws

Exposing fetuses to drugs is child neglect in South Carolina.


A pregnant woman in South Carolina is now liable for a longer jail term for exposing her viable fetus to the residue of illegal drugs than she would be for aborting it. That's the result of a July decision by the state's Supreme Court.

The court declared that a viable fetus was legally a person under the state's child neglect statutes, and that taking drugs while pregnant constituted neglect. The decision reverses a lower court ruling that said Cornelia Whitner had been improperly charged for that crime. The decision also goes against the reasoning of numerous high courts in other states, including Ohio, Nevada, Kentucky, and Florida.

"Lots of states have tried these sorts of prosecutions," says Andrea Miller of the Center for Reproductive Law and Policy, which represented Whitner. "They don't always use the same statute–some use drug-delivery statutes, even homicide statutes, all to prosecute woman for their behavior while pregnant. But every other appellate court has rejected such prosecutions for being without legal basis, unconstitutional, or both."

The South Carolina decision does not appear to conflict with the state's abortion laws, since it applies only to viable fetuses, whom it's already illegal to abort in the state. The maximum punishment for that crime is only two years, however, less than the possible 10 under the child-neglect statute.

The range of behavior that could run a pregnant mother afoul of the statute thus applied is quite broad. "There are not enough jail cells in South Carolina to hold the pregnant women who have a drug problem, drink a glass of wine with dinner, smoke cigarettes, fail to take prenatal vitamins, or decide to go to work despite their doctor's advice that they should stay in bed–all of whom could be guilty of the crime of child neglect," said Lynn Paltrow, one of Whitner's attorneys, in a press release.

The decision makes doctors or drug treatment professionals possibly liable for not reporting to the cops anything they know about prenatal drug use. That could make it unlikely that women who might fall afoul of the law will visit doctors or seek drug treatment.

Although her baby was born healthy, Whitner was sentenced to eight years in prison.