The War on Drugs Coming to a Womb Near You

Pregnancy Justice works on behalf of all pregnant women including pregnant women who have been arrested and charged with child abuse or some other crime because they continued a pregnancy to term in spite of a drug problem. These pregnant women are particularly unpopular. Liked or disliked, misunderstood or understood, their cases have huge legal implications for all pregnant women- potentially setting devastating precedent that could establish special, separate legal rights for the fetus and the basis for punishing all pregnant women, including those who suffer miscarriages.

The good news is that a surprisingly broad and mainstream group of organizations oppose such arrests and prosecutions. Among these are the March of Dimes and the American Medical Association. They recognize that threatening women with arrest and frightening them away from treatment is bad for women and bad for babies. They understand that many of the women who come to police attention started to use drugs long before they became pregnant as way of numbing the pain of violence and other significant traumas.

Because prosecutions don’t actually protect children, and because the only way a woman who has a drug problem can be sure to avoid arrest is to have an abortion, no state legislature in the country has actually passed a law making it a crime for a woman with a drug problem to continue her pregnancy to term and give birth.

Even South Carolina’s state legislature refused to pass such a law. Unfortunately, however, activist judges on the South Carolina Supreme Court rewrote state law to permit the arrest of any pregnant woman who even “risks” harm to her viable fetus. For example, Cornelia Whitner gave birth to a perfectly healthy baby. The baby, however, tested positive for cocaine. Ms. Whitner was charged with child abuse based on the claims that a fetus is a child under state law. Although not a single residential treatment program designed to meet the needs of pregnant women existed in South Carolina at the time, Ms. Whitner pleaded guilty thinking it would help get her access to the treatment she needed. Instead of treatment Ms. Whitner got eight years in prison.

Regina McKnight, another South Carolina woman suffered a stillbirth. Although the stillbirth was the result of an infection unrelated to Ms. McKnight’s drug problem, she was charged with homicide by child abuse. Prosecutors in South Carolina knew that they could win a conviction for homicide simply by putting a low-income, African-American woman in front of a jury and telling them that this woman had used cocaine while pregnant. Ms. McKnight was convicted after only 15 minutes of deliberation and sentenced to twelve years in jail.

After Ms. McKnight had already served eight of those years, attorneys Rauch Wise and Susan Dunn from South Carolina (with the help of attorneys from the law firm Jenner and Block on behalf of the DKT Liberty Project and Pregnancy Justice), finally got the conviction overturned. The court ruled that Ms. McKnight had not been adequately represented at trial. Specifically, the court found that Ms. McKnight’s public defender had ignored "recent studies showing that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor."

As of this writing, however, South Carolina still ranks number one in the country for the arrest of pregnant women and last in the amount of state dollars spent on drug treatment.

Pregnancy Justice knows that many people who support the arrest of drug-using pregnant women make assumptions about them. They cannot see beyond the color of their skin, or the fact that they are poor and pregnant, or that the woman is a "drug-user." But those of us who work on behalf of “drug-using” women, see something different. We see past the drug war and anti-abortion rhetoric. We see beyond the racism and the politics of blame. We see precious human beings who deserve support. These are women whose capacity for love, learning, giving, growing and healing never comes as a surprise to us.

Once such woman is Trena Walker, featured in the video below. I met Ms. Walker many years ago when my family was visiting South Carolina. Ms. Walker babysat for my children. What I remember most about her is that she was a remarkably sensitive and gifted child-care provider.

Her pregnancy and her struggle with addiction, however, could far too easily have become the excuse to lock her up. The ongoing political effort to separate the fetus from the mother in the eyes of the law has not only resulted in the arrest of women who seek abortion, but also scores of pregnant women in South Carolina who have continued their pregnancies to term.

With the aid of a talented advocate, Susan Dunn, Ms. Walker avoided what more than 90 other women in South Carolina experienced when they went to term in spite of a drug problem. These women were turned over to the police by healthcare providers, they were arrested, prosecuted, imprisoned, and then subject to life-long shame and stigmatization. These are women who love their children but who couldn’t overcome an addiction faster than any other person with an addiction, including privileged public figures like Rush Limbaugh and Daryl Strawberry

All of these women are precious, and they all deserve to be treated with dignity, as human beings entitled to treatment that works, and support that will enable them and their children to thrive.