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FOR TUESDAY, May 27th, 2003
On May 27, 2003 counsel for Regina McKnight filed a petition with U.S. Court Supreme Court requesting review of a South Carolina Supreme Court decision that effectively rewrote the state's homicide by child abuse law to permit prosecution and conviction of pregnant women who experience stillbirths.
In 1999 Regina McKnight a 22 year old native of Horry County went to the Conway hospital expecting to deliver her new baby. Instead, she suffered a stillbirth and five months later was arrested on charges of homicide by child abuse. In 1998, Ms. McKnight's mother was killed by a hit and run driver. Left without the support system on which she had relied, Ms. McKnight turned to drugs to ease her depression and grief. She became pregnant. Lacking access to support services, including mental health and drug treatment, she was unable to overcome her drug dependence. No amnesty policy existed at Conway Hospital and no offer of drug treatment was made prior to her arrest.
Ms. McKnight's first trial ended in a mistrial. Her second trial ended in a conviction and, Ms. McKnight who had no prior arrest history was sentenced to 20 years in prison suspended to 12 years. Ms. McKnight's conviction was based on the jury's acceptance of a medically disputed claim that her cocaine use caused the stillbirth. Leading medical groups, including the South Carolina Medical Association filed a friend of the court brief concluding that there was no evidence that her drug use was the cause of this stillbirth.
On January 27th of 2003, a bare majority the South Carolina Supreme Court upheld the conviction. The petition asks the United States Supreme Court to review that opinion and argues that the decision violates the due process clause notice of the Constitution, the Eighth Amendment's prohibition on cruel and unusual punishment, and the right to procreate. The petition also raises the fact that the Court adopted an extraordinarily low standard of proof in a criminal case and that by treating a woman who experiences a stillbirth as a "depraved heart" murderer the opinion marks a radical departure from our Nation's legal tradition.
Specifically, McKnight argues that she could not have known that having a drug dependency co-occurring with pregnancy would be treated as murder. She also argues that view of the vast range of conditions, circumstances, and actions known to contribute to fetal risk -including smoking -- and the substantial limitations on even medical expert's understanding of pregnancy loss - pregnant women in South Carolina are left without any reliable basis for determining whether, in the event of stillbirth, they could be punished, with life imprisonment, for "homicide." The petition notes that the Chief Prosecutor for Horry County has explicitly stated that "The fact that it happened to be an illegal substance" was not decisive: "Even if a legal substance is used, if we determine you are medically responsible for a child's demise, we will file [homicide] charges." E. Gaston, Conway Homicide Case Sets Precedent, The Sun News A1 (May 19, 2001).
Five hundred women in South Carolina suffer stillbirths. Often the reasons for stillbirth are simply unknown. Counsel of record, David Goldberg explained that "as interpreted by the state supreme court the line separating stillbirth as personal and family tragedy from stillbirth as "depraved heart" homicide is now wholly obscure to women and doctors in South Carolina."
Ms. McKnight's arrest and conviction has provoked an outcry from the members of the medical community, drug treatment experts, and family members who believe that treatment rather than punishment is the appropriate response to the issue of drug use. Co-counsel Lynn Paltrow, Executive Director of the Pregnancy Justice explained, "Despite the fact that the legislature has said no to punishment over treatment and that a majority of South Carolinians across party lines believe that treatment and not punishment is the right response to all people including pregnant women with drug problems, the court rewrote the law so that pregnant women get jail time instead of treatment."
The petition also cites the fact that threatening pregnant women with jail time does not promote fetal health interests but instead deters women from seeking prenatal care and other vital services, as has been the case in South Carolina since the Whitner ruling. C. Rauch Wise, also counsel in the case on behalf of the ACLU of South Carolina Foundation said "The decision, unfortunately, sends a message that pregnant women who can't guarantee that they will overcome an addiction -whether to drugs, alcohol or cigarettes - that they ought to avoid the health care system altogether or get an abortion unless they want to go to jail."
Briefs amici curiae in support of appellant, Regina McKnight in the State Supreme Court were submitted on behalf of:
South Carolina Medical Association
South Carolina Association of Alcoholism and Drug Abuse Counselors
American Nurses Association
National Association of Social Workers
Association of Maternal and Child Health Programs
Institute For Health and Recovery
The South Carolina Nurses Association
The American Society of Addiction Medicine
The American Academy of Addiction Psychiatry
The Association of Reproductive Health Professionals
South Carolina Primary Health Care Association