SC Supreme Court Hears Appeal: Don't Punish Women for Stillbirth

March 14, 2006

For Immediate Release
Contact: Wyndi Anderson

November 6, 2002

SC Supreme Court Hears Appeal:

Don't Punish Women for Stillbirth

Medical Groups Challenge Evidence, Express Fears About Consequences of Policy

COLUMBIA, SC – Today, the South Carolina Supreme Court heard oral arguments in a case that will help determine how stillbirths are handled in the state. McKnight v. State challenges the May 2001 conviction of Regina McKnight on charges of homicide by child abuse for suffering a stillbirth. In convicting McKnight, the Horry County Court extended the application of South Carolina’s 1997 Whitner ruling, which allows for the prosecution of pregnant women, under the state’s child endangerment statute, for conditions or actions that risk harm to a viable fetus.

McKnight was arrested several months after she experienced a stillbirth at Conway Hospital. Ms. McKnight’s conviction was based on the jury’s acceptance of a medically disputed claim that her cocaine use caused the stillbirth. Upon conviction, McKnight who had no prior arrest history, was given a twenty-year sentence, suspended to twelve years in prison with no chance for parole. No amnesty policy existed at Conway Hospital and no offer of drug treatment was made prior to her arrest. The appeal today, argued by Jodie Kelley of the law firm Jenner & Block for the Liberty Project, challenged the constitutionality of using homicide statutes to prosecute women who experience stillbirths.

"Ms. McKnight is one of more than 500 women in South Carolina who experience stillbirths each year, and in many of those cases, medicine just can’t determine the cause" Kelley said. "There was no competent evidence that connected her cocaine problem to the stillbirth. It is unconstitutional to punish someone as a murderer simply because a doctor has evidence that they have a drug problem."

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 National Advocates for Pregnant Women explained, "Despite overwhelming medical evidence that treatment is more effective and less costly than punishment, South Carolina has, thus far, insisted on responding to addiction with arrest. Ms. McKnight went to the hospital, experienced a stillbirth and was arrested. There was no treatment, no amnesty – just an arrest. The state is turning its back on the women who need our help the most."

The medical community also responded strongly to McKnight’s conviction. In an amicus brief filed in support of McKnight’s appeal, groups such as the South Carolina Medical Association, the South Carolina Association of Alcoholism And Drug Abuse Counselors, and the Association of Maternal And Child Health Programs disputed the state’s claim that cocaine use caused McKnight’s stillbirth. (A full list of groups filing the brief is included at the end of this release.) The South Carolina Primary Health Care Association filed a separate brief pointing out how the application of the law undermines the provision of obstetric health care and could result in doctors being arrested as well.

The groups also raised concerns about the consequences of South Carolina’s policy of arresting pregnant women suffering from drug addiction. In their brief, they cited the fact that threatening pregnant women with jail time deters them from seeking prenatal care and other vital services, as has been the case in South Carolina since the Whitner ruling.

In addition to access to health care and the treatment of drug addiction, the McKnight case revisits the same underlying issues about health care for pregnant women in South Carolina raised by related cases such as Ferguson, Whitner, and Peppers. The lawyers in the McKnight case hope that the Court’s willingness to hear their appeal today indicates a desire to change the policy of arresting drug-addicted pregnant women. However, many legal experts and advocates involved in previous cases believe that until the underlying issues are addressed, the state will continue to imprison instead of treat. In the five years since the Whitner decision not a single state has followed South Carolina and adopted a policy of arrest.

"A woman who becomes pregnant is just as important as the fetus," said Rauch Wise, of the American Civil Liberties Union of South Carolina Foundation, Inc, co-counsel in the case. "Though no one disputes that she has moral obligations to the fetus, her rights and health are just as important as those of her unborn child. As a state, we have to start supporting women, so that they, in turn, can be there for their children. Women like Ms. McKnight, who turn to drugs as the result of abusive and traumatic childhoods, need our compassion and access to treatment, not imprisonment at $15-25,000 a year."

Briefs amici curiae in support of appellant, Regina McKnight 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

Contact: Daniel N. Abrahamson 510-812-3127

South Carolina Primary Health Care Association

Contact: William S. Bernstein 212-541-9090

The DKT Liberty Project is a non-profit organization that promotes individual liberty against encroachment by all levels of government. The DKT Liberty Project advocates vigilance over regulation of all kinds, especially restrictions of individual civil liberties that threaten the reservation of power to the citizenry that underlies our constitutional system. Contact Julie Carpenter at 202-639-6029

NAPW is a non-profit organization dedicated to protecting the rights of pregnant and parenting women and their children, working to ensure that women do not lose their constitutional and human rights as a result of pregnancy and that addiction and other health and welfare problems that women face during pregnancy are addressed nonpunitively. Contact Lynn Paltrow at 917-921-7421,