Court Tackles Issue Of Fetal Drug Deaths

March 14, 2006


Thursday, November 7, 2002 Associated Press

COLUMBIA-South Carolina's Supreme Court heard arguments Wednesday in a case aimed at overturning the state's unique law that prosecutes women for homicide if they kill their fetus by taking drugs. Defense lawyers are trying to throw out the conviction of Regina McKnight of Conway, who's serving 12 years in prison after a jury took 10 minutes to convict her last year in the death of her stillborn daughter.

Arguments covered several issues - from whether a sentence as harsh as life in prison was cruel and unusual punishment to whether a pregnant woman could be prosecuted for smoking. Defense attorney Jodie Kelley said justices should overturn McKnight's sentence because prosecutors never excluded any other cause of death for the woman's stillborn fetus.

"At the end of the case, what the state has is just cocaine byproduct and nothing else," Kelley said.

McKnight's lawyers asked the court to overturn a 1996 decision that allowed prosecutors to pursue homicide by child abuse charges against women who harm their viable fetuses. To prove the homicide charge, prosecutors must prove the mother showed extreme indifference to the unborn child by taking cocaine.

You've got to show some proof this uneducated homeless person knew taking cocaine while she was pregnant would harm her baby," Chief Justice Jean Toal said.

Charles Richardson of the state attorney general's office said it is common knowledge cocaine can harm a fetus.

Punishing pregnant women for illegal drug use has been a hot issue in South Carolina for more than a decade. Two years ago, the U.S. Supreme Court ruled hospitals cannot test pregnant women for drugs without consent then turn the results over to police.

The South Carolina justices, as is their custom, will issue their decision at a later date. All five asked the lawyers questions at Wednesday's hourlong hearing. The most biting queries came from Costa Pleicones, who was the only justice appointed after the court ruled in the 1996 case.

Pleicones called the prosecution's medical evidence that cocaine killed McKnight's baby "abysmally weak." He also latched onto Kelley's argument that the 12-year sentence, suspended from 20 years in prison, was cruel and unusual punishment.

"I think she could have gotten life, but she instead got 20 years," said Norman Rapoport, who also argued the case for the attorney general's office. "I think that shows this is not cruel and unusual punishment."

Also during Wednesday's argument, Justice James Moore brought up smoking. "What difference does it make whether a substance is legal or illegal if it harms the fetus?" he asked. Richardson said that was irrelevant to this case but when pressed by Pleicones he said prosecutors could charge a pregnant woman who killed her viable fetus by taking over-the-counter drugs, drinking or smoking "under certain circumstances."

In briefs, McKnight's lawyers argued the justices also should overturn the 1996 case because no other state has followed South Carolina's lead. But Attorney General Charlie Condon said just because the state is first, doesn't mean it is wrong.

US SC: Court Tackles Issue Of Fetal Drug Deaths
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Pubdate: Thu, 07 Nov 2002
Source: Post and Courier, The (SC)
Copyright: 2002 Evening Post Publishing Co.
Author: Associated Press