State Of South Carolina V. Cornelia Whitner


STATE OF SOUTH CAROLINA IN THE SUPREME COURT Appeal from Pickens County Honorable Larry R. Patterson, Judge STATE OF SOUTH CAROLINA, Petitioner, v. CORNELIA WHITNER, Respondent. BRIEF OF RESPONDENT LYNN M. PALTROW C. RAUCH WISE SUSAN J. WEILER American Civil Liberties Center for Reproductive Union of South Carolina Law & Policy Foundation, Inc. 120 Wall St., 18th Fl. 408 Main Street New York, NY 10005 Greenwood, SC 29646 (212) 514-5534 (803) 229-5010 ATTORNEYS FOR RESPONDENT TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION STATEMENT OF FACTS SUMMARY OF ARGUMENT ARGUMENT [GO] THE LOWER COURT PROPERLY GRANTED POST-CONVICTION RELIEF BECAUSE MS. WHITNER PLED GUILTY TO A NON-EXISTENT CRIME [GO] The Plain Language And Ordinary Meaning Of § 20-7-50 Support The PCR Court's Decision [GO] Petitioner's Application Of The Child Abuse Statute To Fetuses And Prenatal Conduct Is Contrary To Clear Legislative Intent [GO] The PCR court's construction of § 20-7-50is consistent with the statutory scheme established in South Carolina's Children's Code [GO] The legislative history of § 20-7-50 and the South Carolina Children's Code make clear that the child neglect statute was not intended to be applied to fetuses or prenatal conduct [GO] The legislature has considered and explicitly rejected the interpretation of§ 20-7-50 urged by the Petitioner in this case [GO] The Petitioner's interpretation would lead to absurd results obviously not intended by the legislature [GO] Petitioner's Application Of The Child Abuse Statute To Fetuses And Prenatal Conduct Is Inconsistent With The Interpretation Given The Statute By The Agency Charged With Its Implementation [GO] The PCR Court Properly Relied On The Decisions Of Sister States' Courts [GO] The Decisions In State v. Horne, Fowler v. Woodward And Hall v. Murphy Do Not Require This Court To Ignore § 20-7-50's Plain Meaning And Obvious Intent [GO] EVEN IF THIS COURT FINDS THAT A FETUS IS A CHILD FOR PURPOSES OF § 20-7-50, APPLICATION OF THE LAW TO MS. WHITNER WOULD VIOLATE HER CONSTITUTIONALLY PROTECTED RIGHTS OF PRIVACY AND DUE PROCESS [GO] Even If This Court Reverses The PCR Court's Decision And Finds That A Fetus Is A Child For Purposes Of § 20-7-50, This New Definition Cannot Be Applied Retroactively [GO] Petitioner's Interpretation Of § 20-7-50 Would Violate Ms. Whitner's Constitutional Right To Privacy And Would Undermine Both Maternal And Fetal Health [GO] THE LOWER COURT PROPERLY GRANTED MS. WHITNER'S APPLICATION FOR POST-CONVICTION RELIEF BECAUSE SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL CONCLUSION FOOTNOTES TABLE OF AUTHORITIES CASES PAGE NO. Arnold v. Board of Education of Escambia County Ala. 880 F.2d 305 (11th Cir. 1989) 35 Belk v. Nationwide Mutual Insurance Co., 271 S.C. 24, 244 S.E.2d 744 (1978) 22 Bell Finance Co., Inc. v. Dep't of Consumer of Affairs, 297 S.C. 111, 374 S.E.2d 918 (S.C. Ct. App. 1988) 17 Braten Apparel Corp. v. Bankers Trust Co., 273 S.C. 663, 259 S.E.2d 110 (1979) 26 Burns v. State Farm Mutual Auto Ins. Co., 297 S.C. 520, 377 S.E.2d 569 (1989) 15 Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 312 S.E.2d 716 (Ct. App. 1984) 17 Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (S.C. 1985) 47 Carey v. Population Services Int'l, 431 U.S. 678 (1977) 35 City of Beaufort v. Baker, 432 S.E.2d 470 (S.C.1993) 32 Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) 35 Cobbs v. State, 305 S.C. 299, 408 S.E.2d 223 (1991) 11 Commonwealth v. Kemp, 75 Westmoreland L.J. 5 (Pa.Ct. C.P. 1992), aff'd 643 A.2d 705 (Pa. Super. Ct. 1994) 7, 27 Commonwealth v. Pellegrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990) passim Commonwealth v. Smith, No. CR-91-05-4381, slip op. (Va. Cir. Ct. Sept. 16, 1991) 8 Commonwealth v. Turner, No. 91-054382, slip op.(Va. Cir. Ct. Sept. 16, 1991) 8 Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993) 7, 27 Commonwealth v. Wilcox, No. A-44116-01, slip op. (Va. Dist. Ct. Oct. 9, 1991) 8 Department of Social Service v. Father & Mother, 294 S.C. 518, 316 S.E.2d 40 (Ct. App. 1988) 13 Doe v. Doe, 632 N.E.2d 326 (Ill. Ct. App. 1994) 37 Dunton v. South Carolina Bd. of Examiners in Optometry, 291 S.C. 221, 353 S.E.2d 132 (1987) 25 Eisenstadt v. Baird, 405 U.S. 438 (1972) 35 Faile v. South Carolina Employment Security Commission, 267 S.C. 536; 230 S.E.2d 219 (1976) 25 Florence County DSS v. Ward, 425 S.E.2d 61 (S.C. Ct. App. 1992) 13 Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964) 26, 27, 28, 29, 30 Grayned v. City of Rockford, 408 U.S. 104 (1972) 33 Grier v. State, 299 S.C. 321, 384 S.E.2d 722 (1989) 11 Hair v. State, 305 S.C. 77, 406 S.E.2d 332 (1991) 21 Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966) 26 Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960) 26, 27, 29, 30 Hamm v. South Carolina Public Service Commissioner, 336 S.E.2d 470 (1985) 22 Hill v. Lockhart, 474 U.S. 52 (1985) 47 Hinson v. State, 297 S.C. 456, 377 S.E.2d 338 (1989) 29, 47 Horn v. Davis Electrical Constructors, Inc., 307 S.C. 559, 416 S.E.2d 634 (1992) 15 In re A.C., 573 A.2d 1235, 1244 (D.C. en banc 1990) 37 In re Kenneth Lamont G., 304 S.C. 456, 405 S.E.2d 404 (1991) 17 In re Valerie D., 613 A.2d 748 (Conn. 1992) 8 Johnson v. State, 602 So. 2d 1288 (Fla. 1992) 7, 34, 39, 44, 46 Jolley v. State, 298 S.C. 296, 379 S.E.2d 900 (1989) 11 Laird v. Nationwide Insurance Co., 243 S.C. 388 S.E.2d 206 (1964) 22 Lester v. State, 93-CP-23-2984 (S.C. Greenville, Nov. 22, 1993) 13, 32 Murdock v. State, 426 S.E.2d 740 (S.C. Dec. 21, 1992) 47 Olmstead v. United States, 277 U.S. 438 (1928) 37 Paul v. Davis, 424 U.S. 693 (1976) 35 People v. Bremer, No. 90-3227-FH, slip op. (Mich. Cir. Ct. Jan. 31, 1992), appeal dismissed, No. 137619 (Mich. App. July 14, 1992) 9, 32, 34, 45, 46 People v. Cox, No. 90-53454 FH, slip op. (Mich. Cir. Ct. July 9, 1990), aff'd, No. 131999 (Mich. Ct. App. Feb. 28, 1992) 9 People v. Hardy, 469 N.W.2d 50 (Mich. App. 1991), appeal denied, 471 N.W.2d 619 (Mich. 1991) 8, 22 People v. Jaurigue, No. 18988, slip op. (Cal. Super. Ct. Aug. 21, 1992), writ denied (Cal. App. 1992) 8 People v. Morabito, 580 N.Y.S.2d 843 (Geneva City Ct. 1992), aff'd, (N.Y. Ontario County Sept. 24, 1992) 7, 32, 34 People v. Stewart, No. M508197 (Cal. Mun. Ct. Feb. 26, 1987) 9, 37 Planned Parenthood v. Casey, 112 S. Ct. 2791(1992) 35 Reid v. Life Ins. Co. of North America, Inc., 718 F.2d 677 (4th Cir. 1983) 26 Reyes v. Superior Court, 75 Cal. App. 3d 214 (1977) 8 Rickman v. Evatt, 94-CP-04-138, slip op. (S.C. Anderson, Sept. 9, 1994) 13 Roe v. Wade, 410 U.S. 113 (1973) 35 Shepherd v. United States Fidelity & Guar. Co., 233 S.C. 536, 106 S.E.2d 381 (1958) 26 Skinner v. Oklahoma, 316 U.S. 535 (1942) 35 Slack v. State, 429 S.E.2d 801 (S.C. 1993) 11 Smalls v. Weed, 293 S.C. 364, 360 S.E. 2d 531 (S.C. Ct. App. 1987) 17 Stallman v. Youngquist, 531 N.E.2d 355 (Ill 1988) 31, 37 State v. Albert, 257 S.C. 131, 184 S.E.2d 605 (1971) 32 State v. Allen, 431 S.E.2d 563 (S.C. 1993) 22 State v. Alexander, No. CF-92-2047 slip op. (Okla. Dist. Ct. Aug. 31, 1992) 8, 26 State v. Andrews, No. JU68459, slip op. (Ohio C.P. June 19, 1989) 9, 22 State v. Arandus, No. 93072 slip op. (Neb. Dist. Ct. June 17, 1993) 8 State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991) 11, 15, 18, 21, 22 State v. Brown, 326 S.E.2d 410 (S.C. 1985) 35 State v. Burton, 301 S.C. 305, 391 S.E.2d583 (1990) 15 State v. Carter, 602 So.2d 995 (Fla. App. 1992) 7, 15 State v. Crawley, 93-GS-04-756, slip op.(S.C., Anderson Nov. 29, 1993) 13, 29 State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980) 32 State v. Cutler, 274 S.C. 376, 264 S.E.2d 420 (1980) 12 State v. Dunn, 93-1-00043-2, Transcript of Record (Wash. Super. Ct. April 1, 1994) 8 State v. Gethers, 585 So. 2d 1140 (Fla. App. 1991) 7, 34, 44 State v. Gray, 584 N.E.2d 710 (Ohio 1992) 7, 26 State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984) passim State v. Inzar, Nos. 90CRS6960, 90CRS6961, slip op., (N.C. Super. Ct. Apr. 9, 1991), appeal dismissed, 9116 S.C.778 (N.C. App. Aug. 1991) 8 State v. Jenkins, 278 S.C. 219, 294 S.E.2d 44 (1982) 13 State v. Jones, No. 93-5, Transcript of Record (Cal. J. Ct. Siskiyou County July 28, 1993) 8 State v. Luster, 419 S.E.2d 32 (Ga. App. 1992), cert. denied, S92C1020 (June 4, 1992) 7, 10 State v. Mims, 286 S.C. 583, 335 S.E.2d 237 (1985) 34 State v. Osmus, 276 P.2d 469 (Wyo. 1954) 8 State v. Patterson, 66 S.E.2d 875 (S.C. 1951) 15 State v. Pfannenstiel, No. 1-90-8CR (County Ct. of Laramie, Wy., complaint filed Jan. 5, 1990) 37 State v. Smith, 275 S.C. 164, 268 S.E.2d 276 (1980) 32 Stone v. State, 443 S.E.2d 544 (S.C. 1994) 22, 48 Strickland v. Washington, 466 U.S. 668 (1984) 47 Tolliver v. State, No. 90-CP-23-5178 (S.C. Ct. C.P., Greenville County, Aug. 10, 1992), cert. denied (S.C. Mar. 10 1993) 13, 23, 29, 47 Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) Upchurch v. New York Times Co., 431 S.E.2d 558 (S.C. 1993) 26 United States v. Eide, 875 F.2d 1429 (9th Cir. 1989) 49 United States v. 12 200-Foot Reels, 413 U.S.123 (1973) 35 Williams v. State, 306 S.C. 89, 410 S.E.2d 63 (1991) 11, 12 Wright v. Georgia, 373 U.S. 284 (1963) 12 STATUTES AND CONSTITUTIONAL PROVISIONS U.S. Const., 4th Amdt. 49 U.S. Const., 6th Amdt. 49 U.S. Const., 14th Amdt. 36, 49 42 U.S.C. § 290dd-2 49 Pub.L. 93-247, § 3, Jan. 31, 1974, 88 Stat. 5 19 S.C. Code Ann. § 1-13-30(l) 14 S.C. Code Ann. § 16-3-10(1976) 18 S.C. Code Ann. § 17-27-20 1 S.C. Code Ann. § 20-7-10 12, 19 S.C. Code Ann. § 20-7-20 16 S.C. Code Ann. § 20-7-30(1) 12 S.C. Code Ann. § 20-7-50 passim S.C. Code Ann. § 20-7-340 16 S.C. Code Ann. § 20-7-350 16 S.C. Code Ann. § 20-7-400(A)(1)(a) 21 S.C. Code Ann. § 20-70-490 12, 21 S.C. Code Ann. § 20-7-640(c) 23 S.C. Code Ann. § 20-7-640(D) 23 S.C. Code Ann. § 20-7-640(E) 23 S.C. Code Ann. § 20-7-784 16 S.C. Code Ann. § 20-7-1790 16 S.C. Code Ann. § 44-23-10(18) 14 S.C. Code Ann. § 44-41-10(a) 14 S.C. Code Ann. § 44-41-10(f) 14 S.C. Code Ann. § 44-41-10(1) 14 S.C. Code Ann. § 44-43-320 14 S.C. Crim. Code 1922 § 21 18 Law of March 17, 1874, (15) 704, "An Act to Punish Persons for Ill-Treating Children, Apprentices, Idiots, Servants and Helpless Persons" 18, 30 SOUTH CAROLINA HOUSE LEGISLATIVE MATERIALS A Bill Dealing With Child Abuse and Neglect, March 1977: Hearings on H. 2069 Before the Subcommitteeon Social Services, Courts and Corrections Affairs and the Committee on Medical, Military, Public and Municipal Affairs (statement of George R. Sharwell, representing the South Carolina State Chapter of the National Association of Social Workers) 19, 20 H. 3858 (1990-1991) 21 H. 4486 (1994) 21, 22 S. 75 (1990-1991) 21 S. 79 (1991) 21 S. 150 (1992-1993) 21 S. 155 (1992-1994) 21 S. 986 (1991) 21 S. 1256 (1992) 21 S. 1470 (1989-1990) 21 S. 1495 (1989-1990) 21 S. 4032 (1993) 21 ARTICLES AND REPORTS American Academy of Pediatrics, Committee on Substance Abuse, Drug-Exposed Infants, 86 Pediatrics 639 (1990) 38, 39, 41 American College of Obstetricians and Gynecologists Committee Opinion No. 55 Patient Choice: Maternal-Fetal Conflict (1987) 41 American Medical Association, Board of Trustees Report, Legal Interventions During Pregnancy, 264 JAMA American Medical Association, Treatment Versus Criminalization: Physician Role in Drug AddictionDuring Pregnancy, Resolution 131 (1990) 41 American Public Health Association Policy Statement No. 9020, Illicit Drug Use by Pregnant Women, 8 Am. J. Pub. Health 240 (1990) 41 American Society of Addiction Medicine, Policy Statement on Chemically Dependent Womenand Preg-nancy, A.S.A.M., Sept. 1989 42 Association of Family and Conciliation Courts, Maternal Substance Abuse Policy Recommendations (1992) 43 Association of Maternal and Child Health Programs Law and Policy Committee, Statement Submitted to the Senate Finance Committee Concerning Victims of Drug Abuse: Resolution on Prosecution (1990) 43 Center for the Future of Children, 1 The Future of Children at 16 (1991) 43 Chavkin, Wendy, Help, Don't Jail Addicted Mothers, N.Y. Times (July 18, 1989) 45 Chavkin, Wendy, Mandatory Treatment For Drug Use During Pregnancy, 266 JAMA 1556 (1991) 46 Coalition on Alcohol and Drug Dependent Women and Their Children, Statement Opposing Prosecution (1990) 43 Curry, Nonfinancial Barriers to Prenatal Care, 15 Women & Health 85 (1989) 44 DeFrancis, Vincent, Child Abuse Legislation in the Seventies, American Humane Society (1974) 20 Elliott, John D., Child Protection Act of 1977 with Commentary, (prepared for the South Carolina Bar Young Lawyers' Section Child Abuse Seminars) (March 1980) 19, 20 C. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L. Rev. 563 (1987) 29 Gail Stewart Hand, Women or Children First?, Grand Forks Herald, July 12, 1992, at 1 34 Levandosky, Turning Women into 2-Legged Petri Dishes, Casper [Wyo.] Star-Tribune, Jan. 21, 1990 at A8 37 March of Dimes, Statement on Maternal Drug Abuse 1 (1990) 42 Mayes, Linda C., et al., The Problem of Prenatal Cocaine Exposure, 267 JAMA 406 (1992) 38 Missing Links: Coordinated Federal Drug Policy for Women, Infants and Children : Hearing before Senate Committee on Governmental Affairs, 101st. Cong., 1st Sess. (1989) (Opening Statement of Senator Herb Kohl) 40 National Association for Perinatal Addiction Research and Education, Criminalization of Prenatal Drug Use: Punitive Measures Will Be Counterproductive (1990) 42 National Association of Public Child Welfare Administrators, Guiding Principles for Working With Substance-Abusing Families and Drug-Exposed Children: The Child Welfare Response 3 (1991) 43-44 National Council on Alcoholism and Drug Dependence Policy Statement, Women, Alcohol, Other Drugs and Pregnancy (1990) 42 Paulsen, Monrad, The Legal Framework for Child Protection, 66 Columbia L. Rev. 675 (1966) 20 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 1 Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship (1982) 44 Roberts, Dorothy E. Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419 (1991) 35 Schacter, Help is Hard to Find for Addict Mothers, L. A. Times, Dec. 12, 1986, § II, at 20 37 Southern Legislative Summit on Healthy Infants and Families, Policy Statement 8 (Oct. 1990) 42 Spitzer, Brian, A Re-sponse To "Cocaine Babies", 15 Fla. S.U. L. Rev. 865 (1987) 44 State Council on Maternal, Infant and Child Health, 1991 South Carolina Study of Drug Use Among Women Giving Birth, Vols. I-III (Feb. 1992) passim Sussman, Alan & Cohen, Stephan J.,Reporting Child Abuse and Neglect: Guidelines for Legislation (1975) 20 The State, "Cradle to Grave Was a Short Trip," August 8, 1976 at 14-A 20 The State, "Five Children . . . They're All Dead," August 8, 1976 at 9-A 20 U.S. Department of Health and Human Services, Center for Substance Abuse Treatment, Pregnant, Substance-Using Women, Treatment Improvement Protocol, Series No. 2 (1993) 39 United States General Accounting Office Report to the Chairman, Subcommittee on Health and the Environment, Committee on Energy and Commerce, House of Representatives ADMS Block Grant, Women's Set-Aside Does Not Assure Drug Treatment for Pregnant Women, GAO/HRO-91-80, (May 1991) 39-40, 45-46 United States General Accounting Office, Report to the Chairman, Committee on Finance, U.S. Senate, Drug-Exposed Infants: A Generation at Risk, GAO/HRO-90-130 (June 1990) 40 Wald, Michael, State Intervention on Behalf of Neglected Children: A Search for Realistic Standards, 27 Stan. L. Rev. 985 (1975) 20 Wald, Michael, State Intervention on Behalf of Neglected Children: Standards for Removal of Children from their Homes, Monitoring the State of Children in Foster Care, and Termination of Parental Rights, 28 Stan. L. Rev. 623 (1976) 20 Zuckerman, Drug-Ex-posed Infants: Understanding the Medical Risk, The Future of Children (Spring 1991) 38 INTRODUCTION In 1992, Respondent Cornelia Whitner was charged with criminal child neglect because she had a drug addiction problem while she was pregnant. Ms. Whitner was charged under S.C. Code Ann. § 20-7-50 -- "unlawful neglect of child or helpless person by a legal custodian" -- and upon the advice of counsel pled guilty. After serving almost two years in jail, Ms. Whitner was granted post-conviction relief ("PCR") pursuant to S.C. Code Ann. § 17-27-20. The PCR court, held that because § 20-7-50 does not apply to a pregnant woman's conduct in relation to the fetus she carries, Ms. Whitner had been convicted of a non-existent crime. The PCR court's decision was required by the statute's plain meaning, the legislature's clear intent, the directive to construe penal statutes strictly, and the Constitutional guarantees of due process and privacy. In addition, there is ample evidence to support the PCR court's finding that Ms. Whitner received ineffective assistance of counsel. STATEMENT OF FACTS On April 7, 1992, Cornelia Whitner was indicted for violating S.C. Code § 20-7-50, Indictment number 92-GS-39-670. According to the Affidavit in support of the arrest warrant, Ms. Whitner failed "to provide proper medical care for her unborn child by using crack cocaine while pregnant, thereby endangering the life of her unborn child." Affidavit in support of the Arrest Warrant D-038088 (Feb. 5, 1992). Ms. Whitner was assigned court appointed counsel, Cheryl Aaron. Ms. Aaron was not appointed as counsel and did not meet with her client until the day of Ms. Whitner's scheduled hearing. Record Appendix at 29, 30, 34-35, 39. (Hereinafter "App. ___"). Ms. Aaron had previously worked as a prosecutor in Pickens County and had prosecuted pregnant addicted women under the Child Neglect Statute. App. 41, 44, 53. As a public defender representing Ms. Whitner, Ms. Aaron did not review the child abuse statute or the pertinent case law. App. 41. As she testified at the PCR hearing, "I don't think I ever pulled the book out." App. 41. Rather, she relied on her "recollection" of what the elements were. App. 41. In fact, Ms. Aaron did not do any independent research on the subject when she was a prosecutor nor after she became a public defender. App. 41, 49, 53. Indeed, even as a prosecutor, she never saw or was shown any research supporting the application of § 20-7-50 to fetuses or prenatal conduct. App. 55. In preparation for Ms. Whitner's case, Ms. Aaron had only reviewed the solicitor's file. App. 43. She did not seek to obtain nor did she review Ms. Whitner's hospital records. App. 43. Ms. Aaron stated: "I don't know that I ever saw a drug report or an analysis". App. 43. When asked about how the evidence was obtained and whether it might have been obtained illegally, Ms. Aaron admitted: "[m]aybe I was prejudiced a little bit by my experience in prosecution . . . ." App. 46. As a result, Ms. Aaron did not advise Ms. Whitner that she had been indicted under a statute that on its face applied only to children and not fetuses, and that application to Ms. Whitner might violate such constitutional rights as the right to privacy. See App. 40-45. She did not advise Ms. Whitner that no circuit court in the state had applied the Child Neglect Statute to prenatal conduct. App. 79. Nor did Ms. Aaron inform Ms. Whitner that if the case went to trial there were grounds upon which evidence essential to the State's case could be suppressed. See App. 30, 31. Notwithstanding the substantial basis for challenges to the indictment, Ms. Aaron explained to Ms. Whitner only that she had a right to a jury trial and that "they could prove that the child had crack or cocaine in its system, and she admitted having it in hers." App. 43-44. ¹ Ms. Aaron told her client that she "would do everything that [she] could to help [Ms. Whitner] try and get into a treatment facility so that she could at one point be reunited with her children." App. 42, 47. Ms. Aaron, however, knew of no recommendation for treatment from the solicitor, App. 46, and when asked whether she had informed Ms. Whitner that the solicitor was "unwilling to negotiate anything," she said: "I don't know if I went that far. I told her that zero to 10 was her possible sentence." App. 47. Ms. Aaron also admitted that she knew of no drug treatment programs for pregnant women with substance abuse problems. App. 50-51. The only program she knew of for non-pregnant women was a program run by the department of corrections for women who had already been convicted of a crime. App. 50. Ms. Whitner testified that her attorney asked her if she "wanted to plead guilty to doing drugs while I was pregnant, and I pled guilty." App. 29, 39. The only thing Ms. Whitner understood about the crime she was charged with was that it carried a sentence of up to ten years in prison. App. 29, 30, 47. See also App. 4. ² On April 20, 1992, based on the advice given her by court-appointed counsel, Ms. Whitner entered a guilty plea before Honorable Frank Eppes, Judge. State v. Whitner, 92-GS-39-670 Transcript of Record (S.C. Ct. Gen. Sess. Pickens County Apr. 20, 1992) (hereinafter "Trans"). App. 31. The Judge explained that Ms. Whitner had a right to trial by jury, that she did not have to testify, and that the State would be required to prove her guilty beyond a reasonable doubt. Trans. at 2, 4. Judge Eppes asked Ms. Whitner if she wanted to give up her constitutional rights and plead guilty. Id. Each time, however, before the judge asked whether she wanted to plead guilty, he indicated that giving birth to babies who test positive for crack is a crime in South Carolina, punishable by 10 years on jail. Id. at 2, 4. At the hearing, Ms. Whitner said, "I need some help, your honor." Id. at 2. Her attorney, Ms. Aaron, explained that the defendant had "an addiction problem," that she has been receiving drug counseling, that she had been off drugs since February, and that her child was currently in good health. Id. at 4-5. Both Ms. Aaron and Ms. Whitner reiterated that Ms. Whitner needed and wanted in-patient treatment. Id. Judge Eppes responded, "I think I'll just let her go to jail." Id. at 5. Ms. Whitner was sentenced to the State Board of Corrections for a period of eight years. Id. Following her guilty plea and sentence, Ms. Whitner was not informed by her attorney that she had a right to appeal from a plea of guilty. Ms. Whitner served approximately nineteen months in jail before Ms. Aaron received a letter from the American Civil Liberties Union, and contacted Ms. Whitner to inform her that she may have pleaded guilty to a non-existent crime. App. 31, 42, 49. On May 13, 1993, Ms. Whitner filed in the court of Common Pleas an Application for Post-Conviction Relief. On November 22, 1993, the Honorable Larry C. Patterson issued an order granting Ms. Whitner's Application for Post-Conviction Relief, and vacating her sentence for unlawful neglect of a child. Whitner v. State, 93-CP-39-347, slip op. (S.C. Ct. C.P. Nov. 22, 1993) (Hereinafter "PCR Order.") On November 22, 1993, the State³ filed a Notice of Intent to Appeal and on March 15, 1994 filed a Petition for Writ of Certiorari. On April 12, 1994, Ms. Whitner filed her return. On June 30, 1994, this Court granted the Petition for Writ of Certiorari. SUMMARY OF ARGUMENT Respondent Whitner's application for post-conviction relief was properly granted because Ms. Whitner pled guilty to a nonexistent crime. South Carolina Code Ann. § 20-7-50 (hereinafter "§ 20-7-50") was designed to deter the abuse and neglect of children once they are born, not to punish drug-dependent women who become pregnant and carry those pregnancies to term. Neither the plain meaning of § 20-7-50 nor the intent of the statute support its application to fetuses or prenatal conduct. Indeed, both the South Carolina Department of Social Services (hereinafter "DSS"), the agency charged with administering the Children's Code⁴, and the State Council on Maternal, Infant and Child Health ("MICH Council")⁵ have concluded that the provisions of the Children's Code were not intended to be applied to fetuses. Since the 1989-1990 legislative session, the South Carolina legislature has repeatedly considered and rejected proposals to expand the scope of § 20-7-50 and other provisions of the South Carolina Code to include fetuses and a pregnant woman's drug use. Neither the Petitioner nor the courts may usurp the legislative function by giving § 20-7-50 an interpretation neither adopted nor intended by the legislature. As the PCR Court correctly noted "[n]o appellate court in our nation has interpreted its child abuse laws to apply to a woman who takes illegal drugs during pregnancy." PCR Order, App. 78. Indeed, every appellate court and numerous trial courts in the country that have ruled on the validity of using existing criminal statutes to punish women who use drugs while pregnant has held that such prosecutions are without legal basis, unconstitutional or both. See Respondent's Supplemental Appendix.⁶ While the PCR court decided this case on grounds of statutory construction and legislative intent, the state and federal constitutional rights of due process and privacy also required Ms. Whitner's conviction to be overturned. A basic principle of due process is that before a person can be convicted of a crime by plea or trial, a crime must have been committed. Ms. Whitner not only was convicted of a non-existent crime but, based on the statute's past construction, she had no notice that § 20-7-50 would criminalize her pregnancy. In addition, the Petitioner's interpretation of § 20-7-50 violates the constitutionally protected right to procreate because the unprecedented interpretation of § 20-7-50 urged by the Petitioner has the effect of punishing drug-using women for having babies and of coercing abortions. In addition, because Petitioner's interpretation of § 20-7-50 opens the door to prosecutions for any behavior that could endanger the fetus, it violates the more general right to privacy from unjustified state intrusion. The Petitioner's interpretation, moreover, cannot be justified by any state interest. Its interpretation endangers both fetal and maternal health by frightening pregnant women with substance abuse problems out of the health care system. There is no reason why this Court should reverse the PCR court's decision and give an interpretation to the child neglect law that every appellate court has rejected, and every leading public health group opposes. See, e.g., State v. Luster, supra note 6, 419 S.E.2d at 35 (viewing addiction during pregnancy as a disease and addressing the problem through treatment rather than prosecution is the approach "overwhelmingly in accord with the opinions of local and national medical experts"). See also discussion infra at 40-43. Finally, the standard of review in Post-Conviction Relief cases is limited to determining only whether there is any evidence to support the PCR judge's findings of fact. The record in the case below established that there was evidence of probative value that Ms. Whitner was convicted of a non-existent crime and received ineffective assistance of counsel. ARGUMENT I THE LOWER COURT PROPERLY GRANTED POST-CONVICTION RELIEF BECAUSE MS. WHITNER PLED GUILTY TO A NON-EXISTENT CRIME. "If any evidence of probative value exists on the record, this evidence is sufficient to uphold the PCR judge's findings on appeal." Cobbs v. State, 305 S.C. 299, 301, 408 S.E. 2d 223, 225 (1991); Grier v. State, 299 S.C. 321, 384 S.E.2d 722, 724 (1989) ("In reviewing a PCR grant, we are concerned only with whether there is 'any evidence' to support the PCR judge's decision."); Jolley v. State, 298 S.C. 296, 379 S.E.2d 900 (1989). A PCR application may be granted on the grounds that a trial court lacked subject matter jurisdiction to accept a guilty plea where the plea was premised upon an offense that does not exist. Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991).⁷ A The Plain Language And Ordinary Meaning Of § 20-7-50 Support The PCR Court's Decision. A basic tenet of statutory construction is that words should be given their plain and ordinary meaning. As the PCR court explained: It is well established that in interpreting a statute, the court's primary function is to ascertain the intention of the Legislature. When the terms of the statute are clear and unambiguous, the court must apply them according to their literal meaning. Furthermore, in construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation. PCR Order, App. 77 (quoting State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991) (citations omitted)). In addition, a statute that is penal in nature must be construed strictly against the State and in favor of the defendant. Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991). See also State v. Cutler, 274 S.C. 376, 264 S.E.2d 420 (1980); Wright v. Georgia, 373 U.S. 284 (1963). In this case, the Petitioner asks this Court to ignore these basic principles of statutory construction by giving § 20-7-50 a new and unintended meaning, and to apply it retroactively to Ms. Whitner. Section 20-7-50, provides that: Any person having the legal custody of a child or helpless person, who shall, without lawful excuse, refuse or neglect to provide the proper care and attention, as defined in Section 20-7-490, for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court. S.C. § 20-7-50 (1985). Under South Carolina's Children's Code a child is defined as "a person under the age of eighteen." S.C. Code Ann. §§ 20-7-30(1); 20-7-490(A). In granting post-conviction relief to Ms. Whitner, the court below correctly held that "[t]he plain meaning of `a person under the age of eighteen' does not include a fetus." PCR Order, App. 78. As discussed below, the PCR Court's decision regarding the plain meaning of the words "child" and "person under the age of eighteen" is also the only one consistent with the use of those words throughout the Children's Code. See infra at 15-17. Consistent with the plain and ordinary meaning of § 20-7-50, this Court and lower courts have applied the statute only in cases involving physical or emotional abuse of a born child. For example, courts have found § 20-7-50 to proscribe beating a child so severely that she was black and blue and her ears rang for several days, Dept. of Social Serv. v. Father & Mother, 294 S.C. 518, 316 S.E.2d 40 (Ct. App. 1988); or leaving two children, ages eight and five, sleeping alone in a home which subsequently caught fire and burned the children to death, State v. Jenkins, 278 S.C. 219, 294 S.E.2d 44 (1982); but not necessarily a single incident of splashing cool or cold water on a child as a disciplinary measure, Florence County DSS v. Ward, 425 S.E.2d 61 (S.C. Ct. App. 1992). In at least four other cases, courts in South Carolina have explicitly rejected the application of § 20-7-50 to fetuses and pregnant women. See Rickman v. Evatt, 94-CP-04-138, slip op. (S.C. Anderson, Sept. 9, 1994) (granting habeas corpus relief to reverse conviction under § 20-7-50 because "[a]s the legislature choose [sic] to use the word 'child' in the current statute, this court must interpret the statute to exclude its application to a fetus"), State v. Crawley, 93-GS-04-756, slip op. (S.C., Anderson Nov. 29, 1993) (quashing indictment under § 20-7-50 of woman who allegedly used drugs while pregnant, finding that the plain and ordinary meaning generally given to the word "child" does not include "fetus"); Lester v. State, 93-CP-23-2984 (S.C. Greenville, Nov. 22, 1993) (granting post-conviction relief on same grounds as the instant case); Tolliver v. State, No. 90-CP-23-5178, slip op (S.C. Greenville Aug. 10, 1992) cert. denied (S.C. Mar. 10, 1993) (granting post-conviction relief for a woman who pled guilty to child neglect under § 20-7-50, finding that application of statute to a woman who used drugs while pregnant violated statute's plain meaning and legislative intent.) Moreover, the "plain and ordinary meaning" of other language in the statute reinforces the conclusion that § 20-7-50 was not designed or intended to reach fetuses on prenatal conduct. The statute applies to those persons having "legal custody" of the child. S.C. Code Ann. § 20-7-50. The concept of "legal custody" "presupposes the existence of a separate individual susceptible to custody." MICH Report Vol. III at 28 (footnotes omitted). ⁸ When the South Carolina legislature intends a statute to apply to fetuses, it states so explicitly. See, S.C. Code Ann. § 44-43-320 (reference to "infant or fetus"); see also S.C. Code Ann. §§ 1-13-30(l); 44-41-10(f) (pregnancy is defined as "condition of a woman carrying a fetus or embryo within her body as the result of conception"); §§ 44-41-10(a) and (l). Because the plain and ordinary meaning of § 20-7-50 does not apply to fetuses or prenatal conduct, the PCR's decision to overturn Ms. Whitner's conviction should be affirmed. B Petitioner's Application Of The Child Abuse Statute To Fetuses And Prenatal Conduct Is Contrary To Clear Legislative Intent. "The elementary and cardinal rule of statutory construction is that the Court ascertain and effectuate the actual intent of the legislature." Horn v. Davis Electrical Constructors, Inc., 307 S.C. 559, 563, 416 S.E.2d 634, 636 (1992). See also Blackmon, 303 S.C. at 403, S.E.2d at 662; State v. Burton, 301 S.C. 305, 391 S.E.2d 583 (1990); State v. Carter, 298 S.C. 304, 379 S.E.2d 905 (1989); Burns v. State Farm Mutual Auto Ins. Co., 297 S.C. 520, 377 S.E.2d 569 (1989). In addition to looking at the plain language of the statute to determine its meaning, the court may also look at the "entire legislative enactment" of which the specific provision is part, State v. Patterson, 66 S.E.2d 875, 876 (S.C. 1951), as well as the legislative history, including legislative action or inaction on the subject. Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662 n.2. An examination of § 20-7-50's history and intent make clear that the legislature never intended the statute to apply to fetuses or a pregnant woman's conduct in relation to the fetus. 1 The PCR court's construction of § 20-7-50 is consistent with the statutory scheme established in South Carolina's Children's Code. Section 20-7-50 is part of the South Carolina Children's Code which repeatedly uses the terms "child" or "person under eighteen." The use of these terms throughout the Children's Code contradict the Petitioner's contention that the legislature intended to include fetuses within its purview. ⁹ For example, S.C. Code § 20-7-20 refers to placement of children "in care away from their homes" and "remov[al] from their homes." S.C. Code § 20-7-20. "Removal" of a child from its parents clearly cannot take place if the "child" is a fetus. Similarly, the adoption and child custody procedures outlined in Articles 9 and 11 make no sense at all with reference to fetuses, since it is unintelligible to speak of "deter[ring] abduction" of a fetus, S.C. Code § 20-7-784 (purpose of child custody statute is to "deter abductions and other unilateral removals of children"), and it is impossible to provide with any certainty a fetus' date or place of birth, S.C. Code § 20-7-1790 (providing for the issuance of amended birth certificates for adopted children). The phrase "person under eighteen" is also used several times in the Children's Code, all in contexts that plainly do not apply to fetuses or unborn children. S.C. Code Ann. § 20-7-350 makes it unlawful for any person under eighteen to loiter in a billiard room; and S.C. Code Ann. § 20-7-340 makes it unlawful for a "person under eighteen to play a pinball machine." It is simply absurd to assume that in any of these statutes the legislature intended to reach fetuses. Petitioner, nevertheless, argues in effect that even though the legislature clearly intended "child" to mean a born child in every other provision of South Carolina's Children Code, for purposes of § 20-7-50 alone, "child" means a born child or a fetus. See Pet. Brf. at 7. This argument is contrary to the most basic principles of statutory construction. As lower courts have said, "[w]here the same word is used more than once in a statute it is presumed to have the same meaning throughout unless a different meaning is necessary to avoid an absurd result." Bell Finance Co., Inc. v. Dep't of Consumer of Affairs, 297 S.C. 111, 374 S.E.2d 918 (S.C. Ct. App. 1988); Smalls v. Weed, 293 S.C. 364, 360 S.E. 2d 531 (S.C. Ct. App. 1987); Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 312 S.E.2d 716 (Ct. App. 1984). Indeed, this Court has held that "[s]ections which are part of the same general statutory law of the state must be construed together" and has applied this principle specifically to the provisions of the Children's Code. In re Kenneth Lamont G., 304 S.C. 456, 460, 405 S.E.2d 404 (1991). These rules of statutory construction require this Court to affirm the PCR court's decision and reject the State's unprecedented and unsupported interpretation of § 20-7-50. 2 The legislative history of § 20-7-50 and the South Carolina Children's Code make clear that the child neglect statute was not intended to be applied to fetuses or prenatal conduct. Where the language of a statute is ambiguous, courts may look to the legislative history of the statute to determine its meaning. See Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662. Although it should be clear that the language of § 20-7-50 does not apply to fetuses, the legislative history of § 20-7-50 makes it unmistakable that the legislature never intended it to apply to a pregnant woman in relationship to the fetus. Section 20-7-50 was originally enacted in 1874 as "An Act to Punish Persons for Ill-Treating Children, Apprentices, Idiots, Servants and Helpless Persons" and provided that: any person legally liable to provide for a child necessary food, clothing, or lodging, who refused or neglected to do the same, or who maliciously caused bodily harm, so that the child's life was endangered, or the health or comfort of such child was or was likely to be permanently injured, was guilty of a misdemeanor and could be imprisoned up to two years at the discretion of the court. Law of March 17, 1874, (15) 704. The law was amended in 1927 to include the failure to provide medical treatment. S.C. Crim. Code 1922 § 21. (amended by Acts No. 62 & 149 of 1927). In 1962, this statute was shortened and recodified as § 16-96 S.C. Code of Laws 1962.¹⁰ In 1981, this provision was consolidated with other statutes pertaining to children into the Children's Code and recodified as § 20-7-50 (1981). In none of its incarnations did South Carolina's child neglect statute refer or apply to fetuses. Under the consolidated Children's Code, § 20-7-50 expressly shares the definitions of child neglect enacted under the South Carolina Child Protection Act of 1977.¹¹ See S.C. Code Ann. § 20-7-490. The history of the 1977 Child Protection Act and the Federal statute and model laws it was based on supports the PCR court's conclusion that § 20-7-50 was never intended to apply to fetuses. The Child Protection Act of 1977 was designed to bring South Carolina into compliance with the Federal Child Abuse Prevention and Treatment Act of 1974 so that South Carolina could qualify for federal assistance.¹² See A Bill Dealing With Child Abuse and Neglect, March 1977: Hearings on H. 2069 Before the Subcommittee on Social Services, Courts and Corrections Affairs and the Committee on Medical, Military, Public and Municipal Affairs (statement of George R. Sharwell, representing the South Carolina State Chapter of the National Association of Social Workers) (hereinafter "Hearings on H. 2069"); John D. Elliott, Child Protection Act of 1977 with Commentary, (prepared for the South Carolina Bar Young Lawyers' Section Child Abuse Seminars) (March 1980). The Federal Child Abuse and Prevention Act did not refer to fetuses or address conduct by a pregnant woman toward her fetus. While this Federal Act provided the broad parameters for South Carolina's Child Protection Act, the details of the statute including its definition were largely drawn from the Model Child Protection Act drafted by the then United States Department of Health Education and Welfare's Children's Bureau in 1976. Elliott, Child Protection Act of 1977 with Commentary at 3. This Model Act did not refer to or define neglect to include prenatal conduct. ¹³ The Child Protection Act was also influenced by the public pressure to strengthen South Carolina's child neglect laws that followed extensive media coverage of several horrifying incidents of children who were beaten by adults.¹⁴ Nowhere in the public hearings that ensued was there any discussion of extending protection to fetuses or addressing conduct of pregnant woman in relation to their future children. See supra Hearings on H. 2069. Thus, the legislative history of the Child Protection Act supports the PCR court's conclusion that § 20-7-50 does not apply to fetuses. 3 The legislature has considered and explicitly rejected the interpretation of § 20-7-50 urged by the Petitioner in this case. This Court may take judicial notice of legislative action or inaction on a subject. See Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662 n.2. See also, Hair v. State, 305 S.C. 77, 406 S.E.2d 332 (1991). At least as early as the 1989-1990 legislative session and consistently in each legislative session since, South Carolina lawmakers have introduced bills specifically addressing the subject of substance abuse and pregnancy. Many bills would have mandated reporting of a woman's drug use during pregnancy to the Department of Social Services and redefined an abused child to include newborns exposed prenatally to drugs.¹⁵ One bill, S. 4032 (1993), would have made it a crime for a pregnant woman to ingest a controlled substance and House Bill 4486 (1994) would have amended § 20-7-50 to include "a woman who is pregnant" and "fetus[es]." None of these bills, however, passed. Given the degree of legislative activity on this subject and the legislature's rejection of exactly the use of § 20-7-50 urged here, the PCR Court was correct to conclude that "it is just the type of question the legislature must decide." PCR Order, App. 79. ¹⁶ This Court, as the court below did, must "leave to the legislature the resolution of the matter." Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662. "The responsibility for the justice or wisdom of legislation rests with the Legislature, and it is the province of the courts to construe, not to make, laws." Laird v. Nationwide Ins. Co., 243 S.C. 388, 395, 134 S.E.2d 206, 209 (1964). See also Belk v. Nationwide Mutual Ins. Co., 271 S.C. 24, 27, 244 S.E.2d 744, 746 (1978). 4 The Petitioner's interpretation would lead to absurd results obviously not intended by the legislature. Finally, courts must avoid construing a statute so as to lead to an absurd result "not possibly intended by the legislature." Hamm v. South Carolina Public Service Commissioner, 336 S.E.2d 470, 471 (1985)¹⁷ If Petitioner's interpretation of § 20-7-50 were correct, every action by a pregnant woman that "endanger[s] or is likely to [] endanger[]" a fetus, whether otherwise legal or illegal, would be unlawful neglect under the statute. As the court in Tolliver, supra n. 6, at 6, concluded: If the position of the State were to be sustained, then any pregnant woman who drinks alcohol could be charged for harming the fetus she is carrying due to Fetal Alcohol Syndrome. A pregnant woman could be arrested for smoking cigarettes and harming the fetus she is carrying. In fact, warnings on cigarette packages warn of this specific danger. A pregnant woman could be arrested for failing to take proper medication or follow her doctors instruction and thus harm the fetus. Because the PCR court was correct to reject an interpretation not only unsupported by the language of the statute and the legislative history, but one that would also lead to absurd results obviously unintended by the legislature, its decision should be affirmed. C Petitioner's Application Of The Child Abuse Statute to Fetuses And Prenatal Conduct Is Inconsistent With The Interpretation Given the Statute By the Agency Charged With Its Implementation. The Department of Social Services ("DSS") has firmly rejected the argument that the term "child" in the Children's Code includes fetuses.¹⁸ In a memorandum dated February 7, 1990, the Assistant General Counsel, Office of General Counsel, Department of Social Services, referred to this interpretation as "novel" and refused to accept it. (Reproduced in Respondent's Supplemental Appendix). The memorandum canvassed various provisions of the Children's Code. With respect to protective services provisions, DSS concluded that "[t]he legislature's concern about whether a child remains in the home or is placed elsewhere indicates that the law was not intended to reach the unborn." Id. at 3. The agency declared that portions of the provision for removal of custody "detailing visitation and placement requirements of the placement plan also indicate no legislative intent to apply child abuse and neglect procedures to the unborn." Id. Consequently, DSS concluded that: The definition of "child" in § 20-7-490 could arguably be amended judicially to include a viable fetus based on judicial interpretations of "person" in other areas. However, this would be contrary to legislative intent expressed throughout [the Children's Code]. This agency should decline to adopt an interpretation which is not clearly intended by the legislature. It should also decline to ask the Family Court to adopt an interpretation which conflicts with legislative intent. Id. at 3-4. In October of 1990, DSS, consistent with its interpretation of the Children's Code, issued Operational Guidelines For Child Protective Services Involving Drug Exposed Infants ("Operational Guidelines") (reproduced in Respondent's Supplemental Appendix). In these Guidelines DSS concluded again that the South Carolina Children's Code "as it relates to the provision of [Child Protective Services] does not extend to unborn children or to fetal deaths attributed to the mother's prenatal activities." Id., § I Part 2. ¹⁹ South Carolina courts accord DSS's construction of the Children Code "the most respectful consideration and [should] not overrule[] [it] absent compelling reasons." Dunton v. South Carolina Bd. of Examiners in Optometry, 291 S.C. 221, 353 S.E.2d 132, 133 (1987) ²⁰ D The PCR Court Properly Relied On The Decisions of Sister States Courts. Petitioner suggests that the PCR court relied in error on the holdings of other states' courts in determining that a fetus is not a "child" for purposes of S.C. Code § 20-7-50. Pet. Brf. at 7-8. In fact, in deciding cases of first impression such as the instant case, this Court has often looked to and followed the precedent of its sister states. See, e.g., Upchurch v. New York Times Co., 431 S.E.2d 558 (S.C. 1993) (following North Carolina precedent); State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991) (adopting Missouri and Arizona precedent); Braten Apparel Corp. v. Bankers Trust Co., 273 S.C. 663, 259 S.E.2d 110 (1979) (citing precedents from thirty-three states and the District of Columbia); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966) (citing precedents in at least ten states). "[I]n deciding a case of first impression, the decisions of courts of other jurisdictions are persuasive authority in South Carolina." Reid v. Life Ins. Co. of North America, Inc., 718 F.2d 677, 680 (4th Cir. 1983) (citing Shepherd v. United States Fidelity & Guar. Co., 233 S.C. 536, 106 S.E.2d 381, 383 (1958)). Thus, the PCR Court properly considered the holdings of sister state courts which have unanimously rejected the interpretation urged by the Petitioner in this case. PCR Order, App. 78. The Petitioner simply provides no persuasive reason why this Court should ignore these highly relevant and well-reasoned decisions.²¹ E The Decisions In State v. Horne, Fowler v. Woodward And Hall v. Murphy Do Not Require This Court To Ignore § 20-7-50's Plain Meaning And Obvious Intent. Unable to find support for its interpretation in the statute itself, its legislative history, its statutory context, or in any authoritative interpretation of the statute, the Petitioner resorts to the argument that three of this Court's earlier cases, State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960); and Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964) require that the word "child" in § 20-7-50 be expanded to include viable fetuses. Pet. Brf. at 4-7. None of these cases, however, construed § 20-7-50, the statute at issue in this case; none even rested on an interpretation of a criminal statute; and none involved the issue of potential harm or injury to the fetus caused by the pregnant woman herself. Furthermore, none of these carefully drawn decisions in any way suggests, as Petitioner asserts, that this Court has broadly and in all legal contexts "recognized the right of a fetus to life." Pet. Brf. at 4. In Hall v. Murphy, parents sought to recover under the state's wrongful death statute for the loss of a child who sustained injuries before birth as a result of an automobile accident. This Court held that a cause of action could be maintained on behalf of a child who had suffered prenatal injury through the fault of a person other than the child's mother. In Fowler v. Woodward, this Court extended this principle to sustain a wrongful death action brought on behalf of a never-born fetus whose prenatal death resulted from injuries sustained in an automobile collision caused by a third party. Both of these cases involved the interpretation of civil statutes (that do not require strict statutory construction) and the development of common law tort principles, an area of law in which courts have traditionally been the primary engines of change. Consequently, this Court quite properly followed a national trend to expand the scope of wrongful death actions to include the loss to parents of children they expected to have. See id²². In State v. Horne, a pregnant woman was stabbed repeatedly in an attack by her husband. While the woman survived the attack, the fetus did not, and the husband was indicted on charges of homicide. This Court was called upon to determine whether the killing of a viable fetus constituted homicide, and decided that it was. Although State v. Horne nominally involved the interpretation of this State's murder statute, § S.C. 16-3-10 (1976), this Court relied on its "right and [its] duty to develop the common law of South Carolina" in concluding that "an action for murder may be maintained in the future when the state can prove beyond a reasonable doubt the fetus . . . was viable . . ." Id. 319 S.E.2d at 704. ²³ (Emphasis added) ²⁴ In South Carolina, "[t]here is no distinction between statutory and common-law murder: the statute is merely declaratory of the common law." Hinson v. State, 297 S.C. 456, 377 S.E.2d 338, 339 (1989). This Court's refusal to apply its new, more expansive definition of homicide to the facts of the case before it, Horne, 319 S.E.2d at 704, makes clear that it was not merely articulating a meaning of the word "person" already inherent in the homicide statute, but rather was forging new law under its plenary authority to expound the common law. ²⁵ Moreover, nothing in Horne suggests that its interpretation of "person" was to be applied to anything except the state's homicide law. These cases are easily distinguishable from the one now before this Court. Fowler and Hall involved the interpretation of civil statutes and the development of common law tort principles and therefore simply do not control the interpretation of § 20-7-50, a criminal statute that must be strictly construed. Similarly, Horne involved this Court's authority as a matter of common law to interpret the State's murder law. This Court, however, does not have the same authority to interpret broadly § 20-7-50 because child neglect was not a crime at common law. ²⁶ Thus, in this case, unlike Horne, Fowler and Hall, this Court is asked to construe a criminal statute, and both due process as well as the rules of statutory interpretation of criminal statutes require a strict construction limited to ascertaining and giving effect to the intention of the legislature. The expansion of the scope of a term in a criminal statute urged by the Petitioner is not within the province of this Court's authority. Additionally, all three of these decisions involved harm caused to the fetus by someone other than the pregnant woman herself. In State v. Horne, this Court, referring to its earlier decisions in Hall v. Murphy and Fowler v. Woodward, observed that "[i]t would be grossly inconsistent for [the Court] to construe a viable fetus as a `person' for the purpose of imposing civil liability while refusing to give it a similar classification in the criminal context." The inconsistency this Court's opinion referred to, however, was not the treatment of the word "person" in all of South Carolina's code and common law, see Pet. Brf. at 6, but rather, an inconsistency in the criminal and civil law's response to third parties whose intentional or negligent acts cause parents to lose the children they expected to have. Extending such liability to the pregnant woman herself would constitute a radical and dangerous expansion of the existing law. As the Supreme Court of Illinois in Stallman v. Youngquist, 531 N.E.2d 355, 359, 360 (Ill. 1988) held in refusing to recognize a cause of action for maternal prenatal negligence: [s]ince anything which a pregnant woman does or does not do may have an impact, either positive or negative, on her developing fetus, any act or omission on her part could render her liable to her subsequently born child . . . Mother and child would be legal adversaries from the moment of conception until birth . . . Holding a third person liable for prenatal injuries furthers the interests of both the mother and the subsequently born child and does not interfere with the defendant's right to control his or her own life. Holding a mother liable for the unintentional infliction of prenatal injuries subjects to State scrutiny all the decisions a woman must make in attempting to carry a pregnancy to term, and infringes on her right to privacy and bodily autonomy . . . Logic does not demand that a pregnant woman be treated in a court of law as a stranger to her developing fetus . . . As opposed to the third-party defendant, it is the mother's every waking and sleeping moment which, for better or worse, shapes the prenatal environment which forms the world for the developing fetus. Like the court in Stallman, this Court should refuse the invitation to usurp the legislative function and create a legally enforceable duty on the part of pregnant women to guarantee the health of their future children. II EVEN IF THIS COURT FINDS THAT A FETUS IS A CHILD FOR PURPOSES OF § 20-7-50, APPLICATION OF THE LAW TO MS. WHITNER WOULD VIOLATE HER CONSTITUTIONALLY PROTECTED RIGHTS OF PRIVACY AND DUE PROCESS. A Even If This Court Reverses The PCR Court's Decision And Finds That A Fetus Is A Child For Purposes Of § 20-7-50, This New Definition Cannot Be Applied Retroactively. The principle that statutes must be strictly construed ultimately rests on the due process requirement that criminal statutes must give fair notice of the conduct proscribed. State v. Smith, 275 S.C. 164, 268 S.E.2d 276, 277 (1980); State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). "If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional." City of Beaufort v. Baker, 432 S.E.2d 470 (S.C. 1993) (citing State v. Albert, 257 S.C. 131, 134, 184 S.E.2d 605, 606 (1971)) (emphasis added). Based on the plain language of §§ 20-7-50 and 20-7-490, a woman of common intelligence could not have known that that act of ingesting cocaine while pregnant or engaging in behavior that might endanger herself and the pregnancy would be penalized under these laws. As the court in People v. Morabito, supra n. 6, slip op. at 4, concluded [the endangering the welfare of a child] statute's application to pregnant mothers is not sufficiently definitive and explicit to inform them that their taking drugs will render them subject to penalties. To the extent that a pregnant woman would be required, at peril of her life, liberty or property to speculate concerning the applicability of the statue to her conduct it is clear that due process also proscribes the interpretation advocated by the people.²⁷ Significantly, when this Court established the common law crime of feticide in State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), upon which Petitioner places such weight, it held that it could not apply the new crime to the defendant in that case. This Court observed, "[t]he criminal law whether declared by the courts or enacted by the legislature cannot be applied retroactively." Horne, 319 S.E.2d at 704. Furthermore, if this Court accepted the Petitioner's interpretation of § 20-7-50, it would be forced to find this statute void for vagueness. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) ("It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined."). This is so because the language in the statute, as applied to prenatal conduct, is too vague to put women of ordinary intelligence on notice of which of the myriad prenatal acts or omissions that can threaten fetuses and future children would make them subject to criminal prosecution. See discussion infra at 22-23. Because Ms. Whitner could not have known from the language or previous application of the state's child neglect statute that she would be subject to criminal prosecution for her conduct during pregnancy, the PCR court's decision was required by the constitutional guarantees of due process. B Petitioner's Interpretation Of § 20-7-50 Would Violate Ms. Whitner's Constitutional Right To Privacy And Would Undermine Both Maternal And Fetal Health. The constitutional right to privacy required the PCR court's decision that § 20-7-50 did not apply to drug addicted women who became pregnant and gave birth. Under the Petitioner's interpretation of § 20-5-70, new mothers with substance abuse problems become subject to incarceration for up to ten years. ²⁸ Had Ms. Whitner chosen not to carry her pregnancy to term, she would not have been charged with or convicted of child neglect. Because the Petitioner's interpretation of § 20-7-50 prevents chemically-dependent women from making an independent choice free from government coercion about whether or not to carry their pregnancies to term, it violates the right to privacy as guaran-teed by the United States Constitution. ²⁹ See also MICH Report Vol. III at 10; Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419, 1445 (1991) ("[i]t is the choice of carrying a pregnancy to term that is being penalized") (emphasis in original). The United States Supreme Court has specifically recognized the right to procreate as a fundamental civil liberty. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also, Paul v. Davis, 424 U.S. 693, 713 (1976); Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977); United States v. 12 200-Foot Reels, 413 U.S. 123, 127 n.4 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). ³⁰ The constitution not only protects women from being forced to terminate wanted pregnancies, it also protects them from measures penalizing them for carrying such pregnancies to term. In Arnold v. Board of Education of Escambia County Ala., 880 F.2d 305, 311 (11th Cir. 1989), the court held that "[t]here sim-ply can be no question that the individual must be free to decide to carry a child to term." Most recently in Planned Parenthood v. Casey, 112 S. Ct. 2791, 2806 (1992), the U.S. Supreme Court held that: It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, as well as bodily integrity (citations omitted). The Court also noted that its decision in Roe v. Wade, 410 U.S. 113 (1973), "had been sensibly relied upon to counter" attempts to interfere with a woman's decision to become pregnant or to carry to term. Id. at 2811. In Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974), the Court found unconstitutional a rule that required pregnant school teachers to take unpaid maternity leave at an arbitrary time prior to an expected childbirth. Noting that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment," the Court struck down the rules because "[b]y acting to penalize the pregnant teacher for decid-ing to bear a child, overly restrictive maternity leave regula-tions can constitute a heavy burden on the exercise of these protected freedoms." Id. at 639-40. Certainly the threat of imprisonment for ten years is an even greater burden on the exercise of pro-tected reproductive freedoms than is an overly restrictive maternity leave policy. ³¹ See MICH Report Vol. III at 10. Because of the intrusion into pregnant women's lives that the Petitioner's interpretation of § 20-5-70 requires -- namely to reach and deter behavior during pregnancy -- it also implicates a woman's right to bodily integrity and her "fundamental and wide-ranging `right to be let alone.'" Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).³² Because the fetus is physically part of a woman's body, her every action during pregnancy could become a matter of criminal investigation. ³³ See Stallman v. Youngquist, 531 N.E.2d 355 (Ill. 1988). See discussion supra at 31. Because privacy rights are implicated, the burden shifts to the Petitioner to prove that the application of § 20-7-50 to fetuses and pregnant women furthers some state interest. As the MICH report explained: "A program that includes . . . criminal prosecution of the woman has a major impact on a variety of fundamental interests, and hence could be justified only by the strongest state interest." Vol. III at 14. Petitioner, however, cannot establish that its interpretation of § 20-5-70 serves any legitimate state interest because it is both ineffective and counterproductive. As the American Academy of Pediatrics has concluded, "[p]uni-tive measures taken toward pregnant women, such as crim-inal prose-cution and incarceration, have no proven benefits for infant health." ³⁴ American Academy of Pediatrics, Committee on Substance Abuse, Drug-Exposed Infants, 86 Pediatrics 639, 641 (1990). See also U.S. Department of Health and Human Services, Center for Substance Abuse Treatment, Pregnant, Sub-stance-Using Women, Treatment Improvement Protocol, Series No. 2 (1993) ("TIP") ("there is no evidence that punitive approaches work"). The Florida Supreme Court has similarly noted that "[p]unishment is simply not an effective way of curing a de-pendency or preventing future substance abuse." Johnson v. State, 602 So. 2d 1288, 1295 n. 6 (Fla. 1992) (citing American Medical Association Board of Trustees, Legal Interventions During Pregnancy, 264 JAMA 2663, 2667 (1990). State, federal and private researchers have all concluded that punitive approaches frighten women away from needed treat-ment. For example, two reports from the Federal General Ac-counting Office have concluded that women are deterred from drug treatment and prenatal care by threats of prosecution: "The threat of prose-cution poses yet another barrier to treatment for pregnant women and mothers with young children. These women are reluctant to seek treatment if there is the possibility of punishment, which may include incarceration." United States General Accounting Office Report to the Chairman, Subcommittee on Health and the Environ-ment, Committee on Energy and Commerce, House of Repre-sentatives ADMS Block Grant, Women's Set-Aside Does Not Assure Drug Treatment for Pregnant Women, GAO/HRO-91-80, at 20 (May 1991) [herein-after "GAO II"]. See also United State General Accounting Office Report to the Chairman, Committee on Finance, U.S. Senate, Drug-Exposed Infants, A Generation at Risk, GAO/HRO-90-138 (June 1990) at 39 [hereinafter "GAO I"] ("some women are now delivering their in-fants at home in order to prevent the state from discovering their drug use."). ³⁵ The MICH Report similarly observed that "for pregnant women in particu-lar, the fear of criminal prosecution may prevent them from seeking appropriate treatment and health care services." MICH Report Vol. II at 10. Fearing the effects of such policies on the public health, virtually every leading public health organization has published a policy or recommendation opposing the prosecution of pregnant women who use drugs, including the American Medical Association,³⁶ the American Academy of Pediatrics,³⁷ the American College of Obstetricians and Gynecologists,³⁸ the American Public Health Association, ³⁹ the Southern Regional Project on Infant Mortality (an initiative of the Southern Governors' Association and the Southern Legislative Conference), ⁴⁰ the American Society on Addiction Medicine, ⁴¹ the March of Dimes⁴² the National Association for Perinatal Addiction Research and Education, ⁴³ the National Council on Alcoholism and Drug Dependence,⁴⁴ the Association of Maternal and Child Health Programs,⁴⁵ Coalition on Alcohol and Drug Dependent Women and Their Children,⁴⁶ and the staff of the Center for the Future of Children. ⁴⁷ (Policy statements reproduced in Respondent's Supplemental Appendix.)⁴⁸ Courts across the country have also recognized that approaches that incorporate prosecution are counterproductive. For example, in its unanimous decision in Johnson v. State, supra, the Supreme Court of Florida observed that: Rather than face the possibility of prosecution, pregnant women who are substance abusers may simply avoid prenatal or medical care for fear of being detected. 602 So. 2d at 1295-96. Similarly, in State v. Gethers, 585 So. 2d 1140, 1143 (Fla. App. 1991), the court pointed out that: to avoid being reported by medical personnel, who would have a statutory duty to do so, a pregnant addict might refrain from obtaining proper prenatal and postnatal care. She might even deliver without medical assist-ance, thereby risking injury and death to both herself and the child. Finally, fear of prosecution could deter pregnant drug abusers from seeking treatment for drug problems. 585 So. 2d at 1143 (quoting with approval, Brian Spitzer, A Response To "Cocaine Babies", 15 Fla. S.U. L. Rev. 865, 881 (1987)). ⁴⁹ Moreover, fear of being reported to the police and prosecuted will discourage women from communicating honestly about their drug addiction problems to health care professionals who need that information to provide appropriate health care to both the woman and fetus or newborn. ⁵⁰ Not only does the Petitioner's interpretation of § 20-7-50 threaten both the pregnant woman and future child's health, no state interest is served by imposing criminal sanctions as a means to motivate women to seek non-existent or inappropriate treatment for their drug-related problems. Women, especially poor pregnant women, find it virtually impossible to get appropriate drug treatment in South Carolina. ⁵¹ The MICH Report concluded that "specific resources designed to meet the needs of women of childbearing age, especially pregnant women, are not widely available." Vol. II at 2. In fact, the 1991 Federal General Accounting Office Report found the State of South Carolina, "did not have any specific or unique treatment services for pregnant women and mothers with young children. ⁵² GAO II at 12, 15. (Emphasis added).⁵³ In light of the lack of treatment and the likelihood that women will be deterred from what treatment exists, prosecution for child neglect clearly does not constitute the least intrusive means for accomplishing a state interest in unborn or future children. As the Johnson court noted: "prosecuting [pregnant] women for using drugs. . . appears to be the least effective response to this crisis." Johnson, 602 So.2d at 1295. The least intrusive means would be to make voluntary, welcoming drug treatment services available to women who want them. See Wendy Chavkin, Mandatory Treatment For Drug Use During Pregnancy, 266 JAMA 1556, 1560 ("At this time, the children of drug-using mothers may be most effectively served by the development of available, efficacious and welcoming services for women."). Because the Petitioner's interpretation of § 20-7-50 cannot survive the strict scrutiny required under the privacy analysis, the PCR judge's ruling should be affirmed. See Pellegrini, supra n. 6; Bremer, supra n. 6 slip op. at 11-14. (finding that even if criminal statutes were intended to apply to women who use drugs and have babies, that application would violate the constitutional right to privacy). III THE LOWER COURT PROPERLY GRANTED MS. WHITNER'S APPLICATION FOR POST-CONVICTION RELIEF BECAUSE SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL. To establish a claim of ineffective assistance of counsel a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense. See Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985); Strickland v. Washington, 466 U.S. 668 (1984). See also, Hill v. Lockhart, 474 U.S. 52 (1985) (applying two prong test set forth in Strickland to ineffective assistance claims in the context of guilty pleas). Where the defendant entered a guilty plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, she would not have pled guilty but would have insisted on a trial. Hinson v. State, 297 S.C. 456, 377 S.E.2d 338 (1989). It is clear that where a defendant's trial counsel fails to advise defendant that his or her acts do not constitute a crime under South Carolina law, counsel's assistance is per se deficient and prejudicial, thereby satisfying the two prong test set out in Strickland and providing sufficient basis for granting post- conviction relief. See Murdock v. State, 426 S.E.2d 740 (S.C. 1992) (counsel's performance held deficient for purposes of granting post-conviction relief where, upon counsel's advice, petitioner pled guilty to possession of a "counterfeit" substance with intent to distribute and petitioner did not commit any offense because he was only in possession of "imitation" drugs and it is not criminal to possess "imitation" drugs with the intent to distribute).⁵⁴ Petitioner contends that Ms. Whitner's counsel could not be expected to anticipate new developments in the law. Pet. Brf. at 14. But Ms. Whitner's claim of ineffective assistance of counsel rests not only her trial attorney's failure to advise her that she had been charged with a non-existent crime but also her attorney's failure to do even the most minimal research. Ms. Whitner's counsel, by her own admission, did not even bother to look up the crime with which her client was charged, let alone investigate its prior application. App. at 41 ("I don't think I ever pulled the book out."). See also Statement of Facts, supra. Trial counsel's failure to perform even the most basic research or consider the question of the statute's applicability constitutes ineffective assistance of counsel. In Stone v. State, 294 S.C. 286, 363 S.E.2d 903, 904 (1988), this Court found that where an attorney never deliberated about requesting a particular jury instruction, such failure to consider various options in and of itself constituted ineffective assistance of counsel. The Court found that "[t]he attorney made no decision at all, he stated he never considered requesting the charge." Id. Similarly here, by her own testimony, trial counsel never even considered challenging the novel application of the child abuse statute to prenatal conduct. As this Court in Stone concluded, "[t]he trial attorney's testimony itself precludes a finding that his failure to request the instruction was an informed tactical decision." Id. Counsel was ineffective not only because she failed to advise Ms. Whitner that even if she lost on a motion to dismiss, there were numerous other motions by which she could have suppressed key evidence at trial in her case.⁵⁵ Clearly, but for counsel's ineffective assistance, Ms. Whitner would not have pled guilty. Instead, she would have insisted upon making a motion to dismiss the indictment. There can be no doubt that counsel's errors were so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Because the record provides ample support for the PCR court's conclusion regarding Ms. Whitner's counsel, its decision should be affirmed. CONCLUSION For all the foregoing reasons, and because there is ample evidence supporting the lower court's ruling on Ms. Whitner's application for post-conviction relief, we respectfully request that this Court affirm the decision below, vacating Ms. Whitner's sentence. Respectfully submitted, Lynn M. Paltrow* C. Rauch Wise Susan J. Weiler** American Civil Liberties Center for Reproductive Union of South Carolina Law & Policy Foundation, Inc. 120 Wall Street 408 Main Street New York, NY 10005 Greenwood, SC 29646 (212) 514-5534 (803) 229-5010 Diane Curtis, on the brief S. C. Bar No. 006188 Admitted Pro Hac Vice by Order of this Court (April 19, 1994) *Admitted to the Bar of the State of New York Dated: September 27, 1994 FOOTNOTES Although the preferred practice where a defendant chooses to plead guilty despite the existence of significant defenses is to obtain a written waiver, Ms. Aaron did not get such a waiver from her client. Although there was evidence that the newborn tested positive for cocaine at birth, App. 34, 43, 44, there was no evidence that the infant was harmed in any way as suggested by the State. See Brief of Petitioner at 10 (Hereinafter "Pet. Brf. at __.") Ms. Whitner's son was born in good health and is a healthy child who is developing normally. App. 5, 38. The State of South Carolina as Petitioner in this case will be referred to in this brief as "Petitioner." Chapter Seven of Title Twenty of the South Carolina Code of Laws, of which § 20-7-50 is a part, is known as the "Children's Code." S.C. Code Ann. § 20-7-10. “The MICH Council was created in 1986 by the South Carolina General Assembly to improve the planning and coordination of maternal, infant and child health services. The MICH Council, as a collaborative effort of the public and private sectors, includes the commissioners for state health, human services, and education agencies; representatives of medical schools; schools of public health; health care providers; voluntary organizations; and gubernatorial appointees. The MICH Council is staffed by and housed in the Governor's Office.„ State Council on Maternal, Infant and Child Health Office of the Governor, 1991 South Carolina Study of Drug Use Among Women Giving Birth, Volume II, Prevention and Treatment Services (Feb. 1992) at 1 (Hereinafter "MICH Report"). Volumes II and III of the MICH Report are attached for this Court's convenience to Respondent's Appendix of Supplemental Material (hereinafter "Respondent's Supplemental Appendix"). Commonwealth v. Kemp, 75 Westmoreland L.J. 5 (Pa. Ct. C.P. 1992), aff'd 643 A.2d 705 (Pa. Super. Ct. 1994) (affirming dismissal of charg-es of recklessly endanger-ing another person or endangering the welfare of a child against a pregnant woman who allegedly ingested cocaine while preg-nant; finding that neither "child" nor "person" include an unborn "fetus"); Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993)(affirming reversal of child abuse conviction, finding that to construe the child abuse statute to apply to a woman's prenatal conduct would make the statute impermissibly vague and violate legislative intent); Johnson v. State, 602 So. 2d 1288, 1297 (Fla. 1992) (revers-ing a woman's convictions for "delivering drugs to a minor" via the umbilical cord because "[t]he Court declines the State's invitation to walk down a path that the law, public policy, reason and common sense forbid it to tread"); State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992) (mother cannot be convicted of child en-dangerment based solely on prenatal substance abuse, finding that the plain meaning of statute does not extend to fetuses or pre-natal conduct); People v. Morabito, 580 N.Y.S.2d 843, 845-46 (Geneva City Ct. 1992) aff'd slip op. (Ontario County Ct. 1992) (dismissing child endangerment charges against woman who allegedly smoked cocaine during her pregnancy, because the court may not extend the reach of the statute to allow a fetus to be included within the definition of "child," and because public policy and due process considerations militate against such prosecutions); State v. Carter, 602 So. 2d 995, 996 (Fla. App. 1992) (affirming the trial court's decision to dismiss charges of child abuse against woman who allegedly used illegal drugs while pregnant); State v. Luster, 419 S.E.2d 32, 35 (Ga. App. 1992), cert. denied, S92C1020 (June 4, 1992) (statute proscribing delivery/distribution of cocaine did not encompass prenatal transmission); State v. Gethers, 585 So. 2d 1140, 1143 (Fla. App. 1991) (dismissing child abuse charges on ground that such application misconstrues the effect of the law and violates public policy of preserving family life); People v. Hardy, 469 N.W.2d 50, 52-53 (Mich. App. 1991), appeal denied, 471 N.W.2d 619 (Mich. 1991) (statute prohibiting delivery of cocaine to children was not intended to apply to pregnant drug users); Reyes v. Superior Court, 75 Cal. App. 3d 214, 219 (1977) (child endangering statute does not refer to an unborn child or include a woman's alleged drug use during pregnancy). See also State v. Osmus, 276 P.2d 469 (Wyo. 1954) (criminal neglect statute cannot be applied to the woman's prenatal conduct). Cf. In re Valerie D., 613 A.2d 748, 765 (Conn. 1992) (holding that legisla-tive history does not support application of civil child abuse statute where child was born with positive toxicology and other symptoms after mother had injected cocaine several hours prior to giving birth). See also trial court opinions: State v. Dunn, 93-1-00043-2, Transcript of Record (Wash. Super. Ct. April 1, 1994) (dismissing child mistreatment charges, finding that the legislature never intended the child mistreatment statute to apply to a woman's prenatal conduct); State v. Jones, No. 93-5, Transcript of Record (Cal. J. Ct. Siskiyou County July 28, 1993)(dismissing homicide charges against woman whose newborn died allegedly as a result of prenatal drug use, finding that the legislative history did not support application of murder statute to death of woman's fetus); State v. Arandus, No. 93072, slip op. (Neb. Dist. Ct. June 17, 1993) (quashing indictment on child abuse because application of the statute to unborn children is not supported by legislative intent); People v. Jaurigue, No. 18988, slip op. (Cal. Super. Ct. Aug. 21, 1992), writ denied, (Cal. App. 1992) (dismissing fetal homicide charges against a woman who suffered a stillbirth allegedly as a result of her prenatal drug use, finding that neither legislative history nor the statute's language suggested that a mother could be prose-cuted for murder for the death of her fetus); State v. Alexander, No. CF-92-2047, slip op. (Okla. Dist. Ct. Aug. 31, 1992) (dismissing charges of unlawful possession of a controlled substance and unlawful delivery of a controlled substance to a minor brought against a woman who ingested illegal drugs while preg-nant, finding that the pre-sence of drug in defendant's system does not constitute posses-sion and transfer of the drug through the umbilical cord is not "volitional"); Commonwealth v. Wilcox, No. A-44116-01, slip op. (Va. Dist. Ct. Oct. 9, 1991) (dismissing child abuse charges against a woman who allegedly used cocaine during pregnancy, finding that application of the statute to these facts would extend it by means of creative construction to acts not intended by the legislature); Commonwealth v. Smith, No. CR-91-05-4381, slip op. (Va. Cir. Ct. Sept. 16, 1991) (dismissing child abuse charges against a woman who allegedly used drugs during pregnancy, finding that child abuse statute is not in-tend-ed to apply to fetuses or to prenatal conduct); Commonwealth v. Turner, No. 91-054382, slip op. (Va. Cir. Ct. Sept. 16, 1991); State v. Inzar, Nos. 90CRS6960, 90CRS6961, slip op. (N.C. Super. Ct. Apr. 9, 1991), appeal dismissed, No. 9116SC778 (N.C. App. Aug. 30, 1991) (dismissing charges against a woman who allegedly used crack during her pregnancy under statute prohibiting assault with a deadly weapon and delivery of a controlled substance,find-ing that a fetus is not a person within the meaning of the statutes); People v. Bremer, No. 90-32227-FH, slip op. (Mich. Cir. Ct. Jan. 31, 1991), appeal dismissed, No. 137619 (Mich. App. July 14, 1992) (dismissing drug delivery charges on principles of statutory construction, due process, and privacy, holding that the inter-pretation of the drug delivery law to cover ingestion of cocaine by a pregnant woman would be a radical departure from existing law); Commonwealth v. Pellegrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990) (right to privacy and principles of statutory construction, due process, and separation of powers do not permit extension of drug delivery statute to women who give birth to substance-exposed newborns); People v. Cox, No. 90-53454 FH, slip op. (Mich. Cir. Ct. July 9, 1990), aff'd, No. 131999 (Mich. App. Feb. 28, 1992) (granting motion to dismiss, finding that drug delivery statute is not intended to regulate pre-natal conduct and that prosecution would not be in the best in-terest of public health, safety, and welfare); State v. Andrews, No. JU 68459, slip op. (Ohio C.P. June 19, 1989) (child endanger-ment statute is not intended to apply to any situation other than that of a living child placed at risk by actions that occurred after its birth); People v. Stewart, No. M508197, slip op. (Cal. Mun. Ct. Feb. 26, 1987) (criminal child support statute that explicitly covered "a child conceived but not yet born" is not intended to impose additional legal duties on pregnant women). See also Slack v. State, 429 S.E.2d 801 (1993) (Court lacked jurisdiction to accept petitioner's plea to grand larceny because the value of the property stolen was more than $50 and the crime required a value of more than $200.) Indeed, no South Carolina statute defines a person with "legal custody" as a pregnant woman in relationship to the fetus she carries. See, e.g., S.C. Code Ann. § 44-23-10(18) ("`Parent' means natural parent, adoptive parent, stepparent, or person with legal custody.") See also MICH Report Vol. III at 20 ("[t]here is substantial evidence that the use of the terms `person' and `child' in the Children's Code was not intended to include fetuses . . . Most forms of intervention provided for in the child protective system are inconsistent with construction of the term to include fetuses. Protective custody of the fetus would require control of the woman as well as the fetus, a measure which is not provided for in the statutory scheme. Removal of the fetus from the parent is not an option. Termination of parental rights in regard to a fetus seems to be a meaningless exercise."). Later, § 16-96 was codified as § 16-3-1030 S.C. Code of Laws 1976. The South Carolina Child Protection Act of 1977 with some amendments, remains in force today as the law governing child abuse and neglect identification and proceedings in this state. The current law is codified as part of the Children's Code, §§ 20-7-10 et seq. Pub.L. 93-247, § 3, Jan. 31, 1974, 88 Stat. 5. Additional influences included: Alan Sussman & Stephan J. Cohen's Reporting Child Abuse and Neglect: Guidelines for Legislation (1975); DeFrancis, Vincent, Child Abuse Legislation in the Seventies; (American Humane Association (1974)), Paulsen, Monrad, The Legal Framework for Child Protection, 66 Columbia L. Rev. 675 (1966), Wald, Michael, State Intervention on Behalf of Neglected Children: A Search for Realistic Standards, 27 Stan. L. Rev. 985 (1975), and Wald, Michael, State Intervention on Behalf of Neglected Children: Standards for Removal of Children from their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan. L. Rev. 623 (1976). See Elliott, John, D., Child Protection Act of 1977 with commentary (1980). None of these sources referred to or even addressed the question of "fetal" abuse. See e.g., "Cradle to Grave Was a Short Trip," The State Aug. 8, 1976, at 14-A (reporting case of child hospitalized with multiple wounds noting that at least nine children had died of injuries from abuse in South Carolina in the past two- and-one-half years); "Five Children . . . They're All Dead," The State, Aug. 8, 1976, at 9-A (noting five children who died from multiple injuries allegedly inflected by their parents, including burns, a broken neck and poisoning). See S. 1495 (1989-1990), reintroduced as S.75 (1990-1991) (to among other things require drug testing of newborns and to include within § 20-7-400(A)(1)(a)'s definition of neglect any infant who tests positive for a controlled substance); S. 1470 (1989-1990), reintroduced as S.79 (1991), (mandating reporting to DSS a pregnant woman believed to have used a controlled substance); H. 3858 (1990-1991) (to amend sections of the Children's Code to require reporting of a pregnant woman believed to be using a controlled substance and expanding the definition of an abused child, § 20-7-490, to include a newborn who tests positive for illegal drugs); S. 986 (1991) (mandating drug testing on newborn infants, requiring reporting of such infants as abused pursuant to § 20-7-490 and requiring reversible sterilization or implantation of birth control until the mother completes a certified drug treatment program); S. 155 (1992-1994) (to among other things permit testing of newborns for controlled substances, to mandate reporting to DSS of a positive drug test on a newborn prohibiting release of information for proceedings against the mother except for judicial proceedings initiated by DSS or for the purpose of bringing about the commitment of a person for alcohol or drug treatment); S. 1256 (1992) reintroduced as S. 150 (1992-1993) (to, among other things, permit referral to the State Department of Health and Environmental Control of families with children prenatally exposed to drugs for services and giving pregnant women priority for treatment in substance abuse programs). These Bills as well as S. 4032 and H 4486 (discussed below) are reproduced in Respondent's Supplemental Appendix. See also People v. Hardy, supra n. 6, at 53; Andrews, supra n. 6 at 9-10. See also Stone v. State, 443 S.E.2d 544 (S.C. 1994); State v. Allen, 431 S.E.2d 563, 564 (S.C. 1993). The Children's Code clearly contemplates that DSS is primarily responsible for interpreting and implementing the child abuse and neglect reporting laws. For example, DSS may adopt all necessary rules and regulations and formulate policies to carry out child protective services and responsibilities. § 20-7-640(E). DSS assigns and monitors initial child protection responsibility; assists in the diagnosis of child abuse and neglect by the local agency; and evaluates child protection programs. § 20-7-640(c). Local Department of Social Services in each county are the designated local child protective services agency. § 20-7-640(D). These guidelines clarify that "[t]he use or acknowledgement of drugs/alcohol during pregnancy and/or involvement of a caretaker in criminal activity involving controlled substances are not in and of themselves sufficient reason for accepting a report for CPS investigation" Id. (Emphasis added). Accordingly, "[t]he removal of children [is] based upon an assessment of risk, rather than a single indicator/behavior [such as prenatal drug use] on the part of the parent." Id. Part 3. If prenatal drug exposure alone is insufficient grounds for DSS removal of a child from its parents in a civil proceeding, then certainly it should be insufficient for a criminal conviction under § 20-7-50. Moreover, by imprisoning the woman, the state has effectively removed the child from the mother's custody on grounds that would not even satisfy DSS. See also Faile v. South Carolina Employment Security Commission, 267 S.C. 536; 230 S.E.2d 219, 222 (1976) ("The construction of a statute by the agency charged with executing it is entitled to the most respectful consideration and should not be overruled without cogent reasons.") Petitioner suggests that no other state's cases are relevant because no other state has case law similar to State v. Horne, Fowler v. Woodward, and Hall v. Murphy. See Pet. Brf. at 8-9. Although as discussed below, these South Carolina decisions do not require application of § 20-7-50 to fetuses, it is worth noting that in fact, many of the sister state court decisions were made in legal contexts similar to South Carolina's. See e.g. State v. Gray, 584 N.E.2d 710 (Ohio 1992) (declining to extend the common law definition of "person," as used for the common law crime of murder, to criminal child abuse statutes in the context of drug use during pregnancy, despite its use for purposes of vehicular homicide statutes); Commonwealth v. Pellegrini, supra n. 6 slip op. at 10 (dismissing drug delivery charges against a pregnant addict and distinguishing state cases recognizing that a viable fetus is a "person" for purposes of wrongful death statute, for purposes of the common law crime of murder); Commonwealth v. Kemp, supra n. 6 slip op. at 5 (dismissing child abuse and other charges against pregnant addicts and distinguishing state cases "which recognize the validity in the Commonwealth for purposes of maintenance of wrongful death and survival acts suits the claims on behalf of a fully developed but stillborn fetus and live birth, but no otherwise viable, children"); Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993) (also refusing to apply the common law definition of "person" to criminal child abuse statutes). The national trend in cases like the one at issue here has been to reject extensions of the criminal law to pregnant women with substance abuse problems. See supra n. 6. This Court also noted that "[t]he fact this particular issue has not been raised or ruled on before does not mean we are prevented from declaring the common law as it should be." Id. at 319 S.E.2d at 704. (Emphasis added). Indeed, DSS and lower courts have all consistently read this Court's decision in State v. Horne to be an interpretation of the common law. See DSS Mem. Feb. 1990 at 2; State v. Tolliver, supra n. 6, slip op. at 5; State v. Crawley, supra n. 6 slip op. at 2-3. Furthermore, while historically, a basis may exist under the common law for treating the fetus as a person in relation to a third party who injures a pregnant woman, the common law did not treat the fetus as a separate person in relation to the pregnant woman herself. See, e.g., C. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L. Rev. 563, 618, 622-23 (1987). The State's child neglect law was created by statute. "An Act to Punish Persons for Ill-Treating Children, Apprentices, Idiots, Servants and Helpless Persons," Law of March 17, 1874, (15) 704. See supra at 18-19. See also Bremer, supra n. 6, slip op. at 10-11; Pellegrini, supra n. 6 slip op. at 15-16; Luster v. State, supra n. 6, 419 S.E.2d at 34 (". . . because the common, ordinary meaning of the plain and unambiguous language of the statute shows it does not apply to the facts sub judice, [the defendant] could not reasonably have known that she would be prosecuted [under the drug distribution statute] . . . if she ingested cocaine while pregnant, and thus she did not receive the `fair warning' mandated by [law].") Under South Carolina common law, the maximum punishment of a misdemeanor such as § 20-7-50 is ten years. See e.g. State v. Mims, 286 S.C. 583, 335 S.E.2d 237, 238 (1985). Numerous courts dismissing prosecutions against women who gave birth despite an addiction problem have recognized the possibility of coerced abortions. See, e.g., Johnson v. State, 602 So. 2d at 1296 ("Prosecution of pregnant women for engaging in activities harmful to their fetuses or newborns may also unwittingly increase the incidence of abortion."). See also State v. Gethers, 585 So.2d at 1143 ("[p]otential criminal liability would also encourage addicted women to terminate or conceal their pregnancies"); People v. Morabito, supra n. 6, slip op. at 4; People v. Bremer, supra n. 6 slip op. at 9, 14; Commonwealth v. Pellegrini, supra n. 6 slip op. at 9. Indeed, a policy of prosecution may have resulted in at least one coerced abortion. In February of 1992, Martina Greywind was charged with reckless endangerment because she was allegedly sniffing paint fumes while she was pregnant. Gail Stewart Hand, Women or Children First?, Grand Forks Herald, July 12, 1992, at 1. Twelve days after her arrest she obtained an abortion. Id. Shortly after the abortion, the charges were dropped. s. See also State v. Brown, 326 S.E.2d 410 (S.C. 1985) (suspended sentence conditioned on defendant's castration violates prohibition against cruel and unusual punishment.) LaFleur also makes clear that a statute that has the effect of impinging on the independence of reproductive choice will not be upheld merely because it does not have that intent. See 414 U.S. at 632. The Cleveland Board of Education certainly did not intend to coerce their employ-ees not to become pregnant or to abort their pregnancies; rather the Board sought to minimize the risk of physical incapacity and sudden absences from the classroom that might result if teachers remained on duty late into their pregnancies. Thus, even if punishing childbirth and encouraging abortions is not the primary, or even a significant purpose of the Petitioner's interpretation of § 20-7-50, the interpretation is unconstitutional because it has that effect. The right to privacy belongs to the woman throughout her pregnancy even after the fetus is viable. See e.g., In re A.C., 573 A.2d 1235, 1244 (D.C. en banc 1990) (rejecting argument that because a woman "`has chosen to lend her body to bring [a] child into the world' [she] has an enhanced duty to assure the welfare of the fetus...."); Doe v. Doe, 632 N.E.2d 326 (Ill. Ct. App. 1994) (rejecting claim that pregnant woman's right to refuse medical advice to obtain a cesarean section should be balanced against whatever rights a viable fetus may have). The Petitioner's suggestion that the United States Supreme Court decisions somehow support their argument that it is "no stretch to threat an unborn viable fetus as a `child,'" Pet. Brf. at 9, for purposes of child neglect law is without support. The unborn have never been recognized in the law as "persons." Roe v. Wade, 410 U.S. 113, 158 (1973); see also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 799 n. 8 (1986)(Stevens, J., concurring)("[n]o member of this Court has ever suggested that a fetus is a `person' within the meaning of the Fourteenth Amendment.") That similar prosecutions might occur because of a woman's legal behavior during pregnancy is not mere speculation. For example, in 1986, Pamela Rae Stewart was arrested under a criminal child support statute and charged with "failing to follow her doctor's advice to stay off her feet, to refrain from sexual intercourse, refrain from taking street drugs, and seek immediate medical attention, if she experienced difficulties with the pregnancy." Stewart, supra note 2 at 4 (San Diego Mun. Ct. Feb. 23, 1987). Prosecutors later admitted that drugs had little to do with the case. Schacter, Help is Hard to Find for Addict Mothers, Los Angeles Times, Dec. 12, 1986, §II, at 20. In Albany County, Wyoming, a pregnant woman who entered a hospital for treatment for injuries inflicted by her husband was tested for alcohol, arrested, jailed, and charged with criminal child abuse because the state argued that by drinking alcohol she had endangered her fetus. State v. Pfannenstiel, No. 1-90-8CR, slip op. (County Ct. of Laramie, Wy., complaint filed Jan. 5, 1990). See Levandosky, Turning Women into 2-Legged Petri Dishes, Casper [Wyo.] Star-Tribune, Jan. 21, 1990 at A8. The charges, however, were dismissed in both cases. It is wrong to assume that an infant will necessarily be harmed or injured by prenatal exposure to cocaine. As a commentary in the Journal of the American Medical Association explained, "[p]redictions of an adverse developmental outcome for these chil-dren are being made despite lack of supportive scientific evidence." Mayes, Linda C. et al., The Problem of Prenatal Cocaine Exposure, 267 JAMA 406 (1992). Moreover, as the MICH Report found: Evaluating the extent of risk posed by pre-natal alcohol or other drug exposure in-volves multiple, complex factors. Not all exposed children experience severe health or develop-mental problems, and insufficient research has been performed to establish the frequency of serious harm among drug-exposed infants or to predict which infants will be harmed. Further, those infants that do experience harm are often subject to other influences that could contribute to or cause the problems, including poor maternal health, malnutrition, lack of prenatal care, and exposure to nicotine or other substances. Some researchers suggest that the combined effects of cigarettes, drugs, poor nutrition, and other risk factors, rather than drug-exposure alone, cause the adverse outcome making the risk posed by a single factor such as drugs difficult to determine. Vol. III at 13-14 (emphasis added) (citing Zuckerman, Drug-Exposed Infants: Understanding the Medical Risk, The Future of Children, Spring 1991, at 26). See also Missing Links: Coordinated Federal Drug Policy for Women, Infants and Children : Hearing before Senate Committee on Governmental Affairs, 101st. Cong., 1st Sess. (1989) (Opening Statement of Senator Herb Kohl) ("[m]others -- afraid of criminal prosecution -- fail to seek the very prenatal care that could help their babies and them"). "Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician's knowledge of substance abuse or other potentially harmful behavior could re-sult in a jail sentence rather than proper medical treatment." American Medical Association Board of Trustees Report, American Medical Association Board of Trustees, Legal Inter-ventions During Pregnancy, 264 JAMA 2663, 267 (1990). See also American Medical Association, Treatment Versus Criminalization: Physician Role in Drug Addiction During Pregnancy, Resolution 131 (1990) ("therefore be it . . . resolved that the AMA oppose legislation which criminalizes maternal drug addiction"). "The [Academy] is concerned that [arresting drug addicted women who become pregnant] may discourage mothers and their in-fants from receiving the very medical care and social support systems that are crucial to their treatment." American Academy of Pediatrics, Committee on Substance Abuse, Drug Exposed Infants, 86 Pediatrics 639, 641 (1990). "Actions of coercion to obtain consent or force a course of action limit maternal freedom of choice, threaten the doc-tor/patient relationships, and violate the principles underlying the informed consent process." American College of Obstetricians and Gynecologists Committee Opinion No. 55, Patient Choice: Maternal-Fetal Conflict (1987). "Recognizing that pregnant drug-dependent women have been the object of criminal prosecution in several states, and that women who might want medical care for themselves and their babies may not feel free to seek treatment because of fear of criminal prosecution related to illicit drug use . . . [the Association] recommends that no punitive measures be taken against pregnant women who are users of illicit drugs when no other illegal acts, including drug-related offenses, have been committed." American Public Health Association Policy Statement No. 9020, Illicit Drug Use by Pregnant Women, 8 Am. J. Pub. Health 240 (1990). "[S]tates should adopt, as preferred methods, prevention, intervention, and treatment alternatives rather than punitive actions to ameliorate the problems related to perinatal exposure to drugs and alcohol." Southern Legislative Summit on Healthy Infants and Families, Policy Statement 8 (Oct. 1990). "Criminal prosecution of chemically dependent women will have the overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increas-ing, rather than preventing harm to children and to society as a whole." American Society of Addiction Medicine, Policy Statement on Chemically Dependent Women and Pregnancy, A.S.A.M., Sept. 1989 at 49. "Punitive approaches to drug addiction may be harmful to pregnant women because they interfere with access to appropriate health care. Fear of punishment may cause women most in need of prenatal services to avoid health care professionals." March of Dimes, Statement on Maternal Drug Abuse 1 (1990). "From a health-care perspective, it appears likely that criminalization of prenatal drug use will be counterproductive. It will deter women who use drugs during pregnancy from seeking the prenatal care which is important for the delivery of a healthy baby . . . . The threat of criminal prosecution alone will not deter women in most instances from using drugs during pregnancy. These women are addicts who become pregnant, not pregnant women who decide to use drugs and become addicts." National Association for Perinatal Addiction Research and Educa-tion. Criminalization of Prenatal Drug Use: Punitive Measures Will Be Counterproductive (1990). "[A] punitive approach is fundamentally unfair to women suffering from addictive diseases and serves to drive them away from seeking both prenatal care and treatment for their alcohol-ism and other drug addictions. It thus works against the best interests of infants and children by involving the sanctions of the criminal law in the case of a health and medical problem." National Council on Alcoholism and Drug Dependence Policy State-ment, Women, Alcohol, Other Drugs and Pregnancy (1990). "The threat of criminal prosecution prevents many women from seeking prenatal care and early intervention for their alcohol or drug dependence, undermines the relationship between health and social service workers and their clients, and dissuades women from providing accurate and essential information to health care providers. The consequence is increased risk to the health and development of their children and themselves." Association of Maternal and Child Health Programs Law and Policy Committee, Statement Submitted to the Senate Finance Committee Concerning Victims of Drug Abuse: Resolution on Prosecution (1990). "The criminal prosecution of addicted women solely because they are pregnant is both inappropriate and counterproductive. There is no evidence that a policy of criminal prosecution will either prevent prenatal drug exposure or improve children's health. Rather, prosecution of alcoholic and drug dependent women will very likely deter them from seeking both prenatal care and treatment for their addiction, resulting in increased risks to the health and well-being of women and their children." Coalition on Alcohol and Drug Dependent Women and their Children, Statement Opposing Prosecution (1990). "A woman who uses illegal drugs during pregnancy should not be subject to special criminal prosecution on the basis of alle-gations that her illegal drug use harms the fetus." Center for the Future of Children, 1 The Future of Children at 16 (1991) ("[w]e believe that requiring health providers to report pregnant women to law enforcement for prosecution will reduce the likelihood that these women will seek medical care during pregnancy"). See also Recommendations 8-9 (1991). Organizations concerned with family law and public health issues have also concluded that criminal prosecutions of addicted women who give birth are counterproductive. See, e.g., Association of Family and Conciliation Courts, Maternal Substance Abuse Policy Recommendations (1992) ("criminalization of maternal substance abuse is not in the best interests of the child"). The National Association of Public Child Welfare Administrators has stated that "laws, regulations, or policies that respond to addiction in a primarily punitive nature, requiring human service workers and physicians to function as law enforcement agents are inappropriate." National Association of Public Child Welfare Administrators, Guiding Principles for Working With Substance-Abusing Families and Drug-Exposed Children: The Child Welfare Response 3 (1991). See also Commonwealth v. Pellegrini, supra n. 6 at 9; People v. Bremer, supra n. 6, slip op. at 9, 14. See Curry, Nonfinancial Barriers to Prenatal Care, 15 Women & Health 85 (1989); President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 1 Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship 69-70 (1982). Neither an "Alcohol Treatment Unit" in prison nor the "drug-counseling" that Ms. Whitner obtained constitute drug treatment, outpatient or residential designed to meet the needs of pregnant and post-partum women. According to the MICH Report, "[b]arriers to treatment for women include the use of male-oriented therapies in most programs, lack of adequate child care, inadequate financial resources and limited transportation" MICH Report Vol.II at 2. These barriers prevent women from obtaining appropriate treatment. Id. at Appendix, "Alcohol and Drug Treatment Services Available for Pregnant Women." For example, failure to provide child care services "effectively precludes the participation of women in drug treatment." Chavkin, Wendy, Help, Don't Jail Addicted Mothers, N.Y. Times, July 18, 1989, at A21. Similarly, although research on appropriate treatment programs for pregnant women indicates "that long-term (12 to 18 months) residential care is the most effective," MICH Report Vol. II at 9, no such treatment existed in South Carolina at the time of Ms. Whitner's arrest. Moreover, state officials reported that Federal funds to encourage states to use a 10% women's set-aside for substance abuse treatment of pregnant women and women with dependent children were not used for this purpose but rather for treating women in general. Id. See also Tolliver v. State, supra n. 6 slip op. at 4. (when the state fails to prove that the act petitioner was accused of doing is a crime in South Carolina, petitioner's guilty plea and resulting conviction must be overturned and the indictment underlying the conviction must be dismissed). It is apparent from the Arrest Affidavit in this case that the criminal charges brought against Petitioner were based on disclosure of Ms. Whitner's confidential medical information maintained by the Easely Baptist Medical Center. See Arrest Affidavit (Feb. 5, 1992) ("probable cause for arrest is based on the following facts: ...(3) Hospital Records. (4) Report from the Hospital Social Services." Arrest Warrant D-038088 (Feb. 5, 1992). Counsel should have been aware of well known and long standing federal law prohibiting disclosure of medical information maintained by hospitals treating patients with substance abuse problems for use in criminal proceedings against such patients. See 42 U.S.C. § 290dd-2 (guaranteeing confidentiality of medical information pertaining to treatment of patients with substance abuse problems). Indeed, counsel would likely have succeeded in suppressing urinalysis results on Ms. Whitner and her baby and other medical information Ms. Whitner provided to the hospital based on this federal statute.) See United States v. Eide, 875 F.2d 1429 (9th Cir. 1989) Counsel could have further moved to suppress the evidence obtained by the police and Solicitor's Office from Ms. Whitner and the medical center based on a violation of Ms. Whitner's right to privacy as guaranteed by the Fourth Amendment and Fourteenth Amendment to the United States Constitution. Counsel, however, failed to consider Petitioner's constitutional rights under either state or federal law.

STATE OF SOUTH CAROLINA
IN THE SUPREME COURT

Appeal from Pickens County
Honorable Larry R. Patterson, Judge

STATE OF SOUTH CAROLINA,
Petitioner,

v.

CORNELIA WHITNER,
Respondent.

BRIEF OF RESPONDENT

LYNN M. PALTROW   C. RAUCH WISE
SUSAN J. WEILER   American Civil Liberties

Center for Reproductive      Union of South Carolina
Law & Policy      Foundation, Inc.
120 Wall St., 18th Fl.   408 Main Street
New York, NY 10005   Greenwood, SC 29646   (212) 514-5534 (803) 229-5010

ATTORNEYS FOR RESPONDENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION

STATEMENT OF FACTS

SUMMARY OF ARGUMENT

ARGUMENT

[GO] THE LOWER COURT PROPERLY GRANTED POST-CONVICTION RELIEF BECAUSE MS. WHITNER PLED GUILTY TO A NON-EXISTENT CRIME

[GO] The Plain Language And Ordinary Meaning Of § 20-7-50 Support The PCR Court's Decision
[GO] Petitioner's Application Of The Child Abuse Statute To Fetuses And Prenatal Conduct Is Contrary To Clear Legislative Intent

[GO] The PCR court's construction of § 20-7-50is consistent with the statutory scheme established in South Carolina's Children's Code
[GO] The legislative history of § 20-7-50 and the South Carolina Children's Code make clear that the child neglect statute was not intended to be applied to fetuses or prenatal conduct
[GO] The legislature has considered and explicitly rejected the interpretation of§ 20-7-50 urged by the Petitioner in this case
[GO] The Petitioner's interpretation would lead to absurd results obviously not intended by the legislature

[GO] Petitioner's Application Of The Child Abuse Statute To Fetuses And Prenatal Conduct Is Inconsistent With The Interpretation Given The Statute By The Agency Charged With Its Implementation
[GO] The PCR Court Properly Relied On The Decisions Of Sister States' Courts
[GO] The Decisions In State v. Horne, Fowler v. Woodward And Hall v. Murphy Do Not Require This Court To Ignore § 20-7-50's Plain Meaning And Obvious Intent

[GO] EVEN IF THIS COURT FINDS THAT A FETUS IS A CHILD FOR PURPOSES OF § 20-7-50, APPLICATION OF THE LAW TO MS. WHITNER WOULD VIOLATE HER CONSTITUTIONALLY PROTECTED RIGHTS OF PRIVACY AND DUE PROCESS
1. [GO] Even If This Court Reverses The PCR Court's Decision And Finds That A Fetus Is A Child For Purposes Of § 20-7-50, This New Definition Cannot Be Applied Retroactively
2. [GO] Petitioner's Interpretation Of § 20-7-50 Would Violate Ms. Whitner's Constitutional Right To Privacy And Would Undermine Both Maternal And Fetal Health
[GO] THE LOWER COURT PROPERLY GRANTED MS. WHITNER'S APPLICATION FOR POST-CONVICTION RELIEF BECAUSE SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

CONCLUSION

FOOTNOTES

TABLE OF AUTHORITIES

CASES PAGE NO.

Arnold v. Board of Education of Escambia County Ala. 880 F.2d 305 (11th Cir. 1989) 35
Belk v. Nationwide Mutual Insurance Co., 271 S.C. 24, 244 S.E.2d 744 (1978) 22
Bell Finance Co., Inc. v. Dep't of Consumer of Affairs, 297 S.C. 111, 374 S.E.2d 918 (S.C. Ct. App. 1988) 17
Braten Apparel Corp. v. Bankers Trust Co., 273 S.C. 663, 259 S.E.2d 110 (1979) 26
Burns v. State Farm Mutual Auto Ins. Co., 297 S.C. 520, 377 S.E.2d 569 (1989) 15
Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 312 S.E.2d 716 (Ct. App. 1984) 17
Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (S.C. 1985) 47
Carey v. Population Services Int'l, 431 U.S. 678 (1977) 35
City of Beaufort v. Baker, 432 S.E.2d 470 (S.C.1993) 32
Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) 35
Cobbs v. State, 305 S.C. 299, 408 S.E.2d 223 (1991) 11
Commonwealth v. Kemp, 75 Westmoreland L.J. 5 (Pa.Ct. C.P. 1992), aff'd 643 A.2d 705 (Pa. Super. Ct. 1994) 7, 27
Commonwealth v. Pellegrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990) passim
Commonwealth v. Smith, No. CR-91-05-4381, slip op. (Va. Cir. Ct. Sept. 16, 1991) 8
Commonwealth v. Turner, No. 91-054382, slip op.(Va. Cir. Ct. Sept. 16, 1991) 8
Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993) 7, 27
Commonwealth v. Wilcox, No. A-44116-01, slip op. (Va. Dist. Ct. Oct. 9, 1991) 8
Department of Social Service v. Father & Mother, 294 S.C. 518, 316 S.E.2d 40 (Ct. App. 1988) 13
Doe v. Doe, 632 N.E.2d 326 (Ill. Ct. App. 1994) 37
Dunton v. South Carolina Bd. of Examiners in Optometry, 291 S.C. 221, 353 S.E.2d 132 (1987) 25
Eisenstadt v. Baird, 405 U.S. 438 (1972) 35
Faile v. South Carolina Employment Security Commission, 267 S.C. 536; 230 S.E.2d 219 (1976) 25
Florence County DSS v. Ward, 425 S.E.2d 61 (S.C. Ct. App. 1992) 13
Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964) 26, 27, 28, 29, 30
Grayned v. City of Rockford, 408 U.S. 104 (1972) 33
Grier v. State, 299 S.C. 321, 384 S.E.2d 722 (1989) 11
Hair v. State, 305 S.C. 77, 406 S.E.2d 332 (1991) 21
Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966) 26
Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960) 26, 27, 29, 30
Hamm v. South Carolina Public Service Commissioner, 336 S.E.2d 470 (1985) 22
Hill v. Lockhart, 474 U.S. 52 (1985) 47
Hinson v. State, 297 S.C. 456, 377 S.E.2d 338 (1989) 29, 47
Horn v. Davis Electrical Constructors, Inc., 307 S.C. 559, 416 S.E.2d 634 (1992) 15
In re A.C., 573 A.2d 1235, 1244 (D.C. en banc 1990) 37
In re Kenneth Lamont G., 304 S.C. 456, 405 S.E.2d 404 (1991) 17
In re Valerie D., 613 A.2d 748 (Conn. 1992) 8
Johnson v. State, 602 So. 2d 1288 (Fla. 1992) 7, 34, 39, 44, 46
Jolley v. State, 298 S.C. 296, 379 S.E.2d 900 (1989) 11
Laird v. Nationwide Insurance Co., 243 S.C. 388 S.E.2d 206 (1964) 22
Lester v. State, 93-CP-23-2984 (S.C. Greenville, Nov. 22, 1993) 13, 32
Murdock v. State, 426 S.E.2d 740 (S.C. Dec. 21, 1992) 47
Olmstead v. United States, 277 U.S. 438 (1928) 37
Paul v. Davis, 424 U.S. 693 (1976) 35
People v. Bremer, No. 90-3227-FH, slip op. (Mich. Cir. Ct. Jan. 31, 1992), appeal dismissed, No. 137619 (Mich. App. July 14, 1992) 9, 32, 34, 45, 46
People v. Cox, No. 90-53454 FH, slip op. (Mich. Cir. Ct. July 9, 1990), aff'd, No. 131999 (Mich. Ct. App. Feb. 28, 1992) 9
People v. Hardy, 469 N.W.2d 50 (Mich. App. 1991), appeal denied, 471 N.W.2d 619 (Mich. 1991) 8, 22
People v. Jaurigue, No. 18988, slip op. (Cal. Super. Ct. Aug. 21, 1992), writ denied (Cal. App. 1992) 8
People v. Morabito, 580 N.Y.S.2d 843 (Geneva City Ct. 1992), aff'd, (N.Y. Ontario County Sept. 24, 1992) 7, 32, 34
People v. Stewart, No. M508197 (Cal. Mun. Ct. Feb. 26, 1987) 9, 37
Planned Parenthood v. Casey, 112 S. Ct. 2791(1992) 35
Reid v. Life Ins. Co. of North America, Inc., 718 F.2d 677 (4th Cir. 1983) 26
Reyes v. Superior Court, 75 Cal. App. 3d 214 (1977) 8
Rickman v. Evatt, 94-CP-04-138, slip op. (S.C. Anderson, Sept. 9, 1994) 13
Roe v. Wade, 410 U.S. 113 (1973) 35 Shepherd v. United States Fidelity & Guar. Co., 233 S.C. 536, 106 S.E.2d 381 (1958) 26
Skinner v. Oklahoma, 316 U.S. 535 (1942) 35
Slack v. State, 429 S.E.2d 801 (S.C. 1993) 11
Smalls v. Weed, 293 S.C. 364, 360 S.E. 2d 531 (S.C. Ct. App. 1987) 17
Stallman v. Youngquist, 531 N.E.2d 355 (Ill 1988) 31, 37
State v. Albert, 257 S.C. 131, 184 S.E.2d 605 (1971) 32
State v. Allen, 431 S.E.2d 563 (S.C. 1993) 22
State v. Alexander, No. CF-92-2047 slip op. (Okla. Dist. Ct. Aug. 31, 1992) 8, 26
State v. Andrews, No. JU68459, slip op. (Ohio C.P. June 19, 1989) 9, 22
State v. Arandus, No. 93072 slip op. (Neb. Dist. Ct. June 17, 1993) 8
State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991) 11, 15, 18, 21, 22
State v. Brown, 326 S.E.2d 410 (S.C. 1985) 35
State v. Burton, 301 S.C. 305, 391 S.E.2d583 (1990) 15
State v. Carter, 602 So.2d 995 (Fla. App. 1992) 7, 15
State v. Crawley, 93-GS-04-756, slip op.(S.C., Anderson Nov. 29, 1993) 13, 29
State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980) 32
State v. Cutler, 274 S.C. 376, 264 S.E.2d 420 (1980) 12
State v. Dunn, 93-1-00043-2, Transcript of Record (Wash. Super. Ct. April 1, 1994) 8
State v. Gethers, 585 So. 2d 1140 (Fla. App. 1991) 7, 34, 44
State v. Gray, 584 N.E.2d 710 (Ohio 1992) 7, 26
State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984) passim
State v. Inzar, Nos. 90CRS6960, 90CRS6961, slip op., (N.C. Super. Ct. Apr. 9, 1991), appeal dismissed, 9116 S.C.778 (N.C. App. Aug. 1991) 8
State v. Jenkins, 278 S.C. 219, 294 S.E.2d 44 (1982) 13
State v. Jones, No. 93-5, Transcript of Record (Cal. J. Ct. Siskiyou County July 28, 1993) 8
State v. Luster, 419 S.E.2d 32 (Ga. App. 1992), cert. denied, S92C1020 (June 4, 1992) 7, 10
State v. Mims, 286 S.C. 583, 335 S.E.2d 237 (1985) 34
State v. Osmus, 276 P.2d 469 (Wyo. 1954) 8
State v. Patterson, 66 S.E.2d 875 (S.C. 1951) 15
State v. Pfannenstiel, No. 1-90-8CR (County Ct. of Laramie, Wy., complaint filed Jan. 5, 1990) 37
State v. Smith, 275 S.C. 164, 268 S.E.2d 276 (1980) 32
Stone v. State, 443 S.E.2d 544 (S.C. 1994) 22, 48
Strickland v. Washington, 466 U.S. 668 (1984) 47
Tolliver v. State, No. 90-CP-23-5178 (S.C. Ct. C.P., Greenville County, Aug. 10, 1992), cert. denied (S.C. Mar. 10 1993) 13, 23, 29, 47
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986)
Upchurch v. New York Times Co., 431 S.E.2d 558 (S.C. 1993) 26
United States v. Eide, 875 F.2d 1429 (9th Cir. 1989) 49
United States v. 12 200-Foot Reels, 413 U.S.123 (1973) 35
Williams v. State, 306 S.C. 89, 410 S.E.2d 63 (1991) 11, 12
Wright v. Georgia, 373 U.S. 284 (1963) 12

STATUTES AND CONSTITUTIONAL PROVISIONS

U.S. Const., 4th Amdt. 49
U.S. Const., 6th Amdt. 49
U.S. Const., 14th Amdt. 36, 49
42 U.S.C. § 290dd-2 49
Pub.L. 93-247, § 3, Jan. 31, 1974, 88 Stat. 5 19
S.C. Code Ann. § 1-13-30(l) 14
S.C. Code Ann. § 16-3-10(1976) 18
S.C. Code Ann. § 17-27-20 1
S.C. Code Ann. § 20-7-10 12, 19
S.C. Code Ann. § 20-7-20 16
S.C. Code Ann. § 20-7-30(1) 12
S.C. Code Ann. § 20-7-50 passim
S.C. Code Ann. § 20-7-340 16
S.C. Code Ann. § 20-7-350 16
S.C. Code Ann. § 20-7-400(A)(1)(a) 21
S.C. Code Ann. § 20-70-490 12, 21
S.C. Code Ann. § 20-7-640(c) 23
S.C. Code Ann. § 20-7-640(D) 23
S.C. Code Ann. § 20-7-640(E) 23
S.C. Code Ann. § 20-7-784 16
S.C. Code Ann. § 20-7-1790 16
S.C. Code Ann. § 44-23-10(18) 14
S.C. Code Ann. § 44-41-10(a) 14
S.C. Code Ann. § 44-41-10(f) 14
S.C. Code Ann. § 44-41-10(1) 14
S.C. Code Ann. § 44-43-320 14
S.C. Crim. Code 1922 § 21 18
Law of March 17, 1874, (15) 704, "An Act to Punish
Persons for Ill-Treating Children, Apprentices,
Idiots, Servants and Helpless Persons" 18, 30

SOUTH CAROLINA HOUSE LEGISLATIVE MATERIALS

A Bill Dealing With Child Abuse and Neglect, March 1977: Hearings on H. 2069 Before the Subcommitteeon Social Services, Courts and Corrections Affairs and the Committee on Medical, Military, Public and Municipal Affairs (statement of George R. Sharwell, representing the South Carolina State Chapter of the National Association of Social Workers) 19, 20
H. 3858 (1990-1991) 21
H. 4486 (1994) 21, 22
S. 75 (1990-1991) 21
S. 79 (1991) 21
S. 150 (1992-1993) 21
S. 155 (1992-1994) 21
S. 986 (1991) 21
S. 1256 (1992) 21
S. 1470 (1989-1990) 21
S. 1495 (1989-1990) 21
S. 4032 (1993) 21

ARTICLES AND REPORTS

American Academy of Pediatrics, Committee on Substance Abuse, Drug-Exposed Infants, 86
Pediatrics 639 (1990) 38, 39, 41
American College of Obstetricians and Gynecologists Committee Opinion No. 55 Patient Choice: Maternal-Fetal Conflict (1987) 41
American Medical Association, Board of Trustees Report, Legal Interventions During Pregnancy, 264 JAMA
American Medical Association, Treatment Versus Criminalization: Physician Role in Drug AddictionDuring Pregnancy, Resolution 131 (1990) 41
American Public Health Association Policy Statement No. 9020, Illicit Drug Use by Pregnant Women, 8 Am. J. Pub. Health 240 (1990) 41
American Society of Addiction Medicine, Policy Statement on Chemically Dependent Womenand Preg-nancy, A.S.A.M., Sept. 1989 42
Association of Family and Conciliation Courts, Maternal Substance Abuse Policy Recommendations (1992) 43
Association of Maternal and Child Health Programs Law and Policy Committee, Statement Submitted to the Senate Finance Committee Concerning Victims of Drug Abuse: Resolution on Prosecution (1990) 43
Center for the Future of Children, 1 The Future of Children at 16 (1991) 43
Chavkin, Wendy, Help, Don't Jail Addicted Mothers, N.Y. Times (July 18, 1989) 45
Chavkin, Wendy, Mandatory Treatment For Drug Use During Pregnancy, 266 JAMA 1556 (1991) 46
Coalition on Alcohol and Drug Dependent Women and Their Children, Statement Opposing Prosecution (1990) 43
Curry, Nonfinancial Barriers to Prenatal Care, 15 Women & Health 85 (1989) 44
DeFrancis, Vincent, Child Abuse Legislation in the Seventies, American Humane Society (1974) 20
Elliott, John D., Child Protection Act of 1977 with Commentary, (prepared for the South Carolina Bar Young Lawyers' Section Child Abuse Seminars) (March 1980) 19, 20
C. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L. Rev. 563 (1987) 29 Gail Stewart Hand, Women or Children First?, Grand Forks Herald, July 12, 1992, at 1 34
Levandosky, Turning Women into 2-Legged Petri Dishes, Casper [Wyo.] Star-Tribune, Jan. 21, 1990 at A8 37
March of Dimes, Statement on Maternal Drug Abuse 1 (1990) 42
Mayes, Linda C., et al., The Problem of Prenatal Cocaine Exposure, 267 JAMA 406 (1992) 38
Missing Links: Coordinated Federal Drug Policy for Women, Infants and Children : Hearing before Senate Committee on Governmental Affairs, 101st. Cong., 1st Sess. (1989) (Opening Statement of Senator Herb Kohl) 40
National Association for Perinatal Addiction Research and Education, Criminalization of Prenatal Drug Use: Punitive Measures Will Be Counterproductive (1990) 42
National Association of Public Child Welfare Administrators, Guiding Principles for Working With Substance-Abusing Families and Drug-Exposed Children: The Child Welfare Response 3 (1991) 43-44
National Council on Alcoholism and Drug Dependence Policy Statement, Women, Alcohol, Other Drugs and Pregnancy (1990) 42
Paulsen, Monrad, The Legal Framework for Child Protection, 66 Columbia L. Rev. 675 (1966) 20
President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 1 Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship (1982) 44
Roberts, Dorothy E. Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419 (1991) 35
Schacter, Help is Hard to Find for Addict Mothers, L. A. Times, Dec. 12, 1986, § II, at 20 37 Southern Legislative Summit on Healthy Infants and Families, Policy Statement 8 (Oct. 1990) 42
Spitzer, Brian, A Re-sponse To "Cocaine Babies", 15
Fla. S.U. L. Rev. 865 (1987) 44
State Council on Maternal, Infant and Child Health, 1991 South Carolina Study of Drug Use Among Women Giving Birth, Vols. I-III (Feb. 1992) passim
Sussman, Alan & Cohen, Stephan J.,Reporting Child Abuse and Neglect: Guidelines for Legislation (1975) 20
The State, "Cradle to Grave Was a Short Trip," August 8, 1976 at 14-A 20
The State, "Five Children . . . They're All Dead," August 8, 1976 at 9-A 20
U.S. Department of Health and Human Services, Center for Substance Abuse Treatment, Pregnant, Substance-Using Women, Treatment Improvement Protocol, Series No. 2 (1993) 39
United States General Accounting Office Report to the Chairman, Subcommittee on Health and the Environment, Committee on Energy and Commerce, House of Representatives ADMS Block Grant, Women's Set-Aside Does Not Assure Drug Treatment for Pregnant Women, GAO/HRO-91-80, (May 1991) 39-40, 45-46
United States General Accounting Office, Report to the Chairman, Committee on Finance, U.S. Senate, Drug-Exposed Infants: A Generation at Risk, GAO/HRO-90-130 (June 1990) 40
Wald, Michael, State Intervention on Behalf of Neglected Children: A Search for Realistic Standards, 27 Stan. L. Rev. 985 (1975) 20
Wald, Michael, State Intervention on Behalf of Neglected Children: Standards for Removal of Children from their Homes, Monitoring the State of Children in Foster Care, and Termination of Parental Rights, 28 Stan. L. Rev. 623 (1976) 20
Zuckerman, Drug-Ex-posed Infants: Understanding the Medical Risk, The Future of Children (Spring 1991) 38

INTRODUCTION

In 1992, Respondent Cornelia Whitner was charged with criminal child neglect because she had a drug addiction problem while she was pregnant. Ms. Whitner was charged under S.C. Code Ann. § 20-7-50 -- "unlawful neglect of child or helpless person by a legal custodian" -- and upon the advice of counsel pled guilty. After serving almost two years in jail, Ms. Whitner was granted post-conviction relief ("PCR") pursuant to S.C. Code Ann. § 17-27-20. The PCR court, held that because § 20-7-50 does not apply to a pregnant woman's conduct in relation to the fetus she carries, Ms. Whitner had been convicted of a non-existent crime. The PCR court's decision was required by the statute's plain meaning, the legislature's clear intent, the directive to construe penal statutes strictly, and the Constitutional guarantees of due process and privacy. In addition, there is ample evidence to support the PCR court's finding that Ms. Whitner received ineffective assistance of counsel.

STATEMENT OF FACTS

On April 7, 1992, Cornelia Whitner was indicted for violating S.C. Code § 20-7-50, Indictment number 92-GS-39-670. According to the Affidavit in support of the arrest warrant, Ms. Whitner failed "to provide proper medical care for her unborn child by using crack cocaine while pregnant, thereby endangering the life of her unborn child." Affidavit in support of the Arrest Warrant D-038088 (Feb. 5, 1992).

Ms. Whitner was assigned court appointed counsel, Cheryl Aaron. Ms. Aaron was not appointed as counsel and did not meet with her client until the day of Ms. Whitner's scheduled hearing. Record Appendix at 29, 30, 34-35, 39. (Hereinafter "App. ___"). Ms. Aaron had previously worked as a prosecutor in Pickens County and had prosecuted pregnant addicted women under the Child Neglect Statute. App. 41, 44, 53. As a public defender representing Ms. Whitner, Ms. Aaron did not review the child abuse statute or the pertinent case law. App. 41. As she testified at the PCR hearing, "I don't think I ever pulled the book out." App. 41. Rather, she relied on her "recollection" of what the elements were. App. 41. In fact, Ms. Aaron did not do any independent research on the subject when she was a prosecutor nor after she became a public defender. App. 41, 49, 53. Indeed, even as a prosecutor, she never saw or was shown any research supporting the application of § 20-7-50 to fetuses or prenatal conduct. App. 55. In preparation for Ms. Whitner's case, Ms. Aaron had only reviewed the solicitor's file. App. 43. She did not seek to obtain nor did she review Ms. Whitner's hospital records. App. 43. Ms. Aaron stated: "I don't know that I ever saw a drug report or an analysis". App. 43. When asked about how the evidence was obtained and whether it might have been obtained illegally, Ms. Aaron admitted: "[m]aybe I was prejudiced a little bit by my experience in prosecution . . . ." App. 46.

As a result, Ms. Aaron did not advise Ms. Whitner that she had been indicted under a statute that on its face applied only to children and not fetuses, and that application to Ms. Whitner might violate such constitutional rights as the right to privacy. See App. 40-45. She did not advise Ms. Whitner that no circuit court in the state had applied the Child Neglect Statute to prenatal conduct. App. 79. Nor did Ms. Aaron inform Ms. Whitner that if the case went to trial there were grounds upon which evidence essential to the State's case could be suppressed. See App. 30, 31.

Notwithstanding the substantial basis for challenges to the indictment, Ms. Aaron explained to Ms. Whitner only that she had a right to a jury trial and that "they could prove that the child had crack or cocaine in its system, and she admitted having it in hers." App. 43-44. ¹ Ms. Aaron told her client that she "would do everything that [she] could to help [Ms. Whitner] try and get into a treatment facility so that she could at one point be reunited with her children." App. 42, 47. Ms. Aaron, however, knew of no recommendation for treatment from the solicitor, App. 46, and when asked whether she had informed Ms. Whitner that the solicitor was "unwilling to negotiate anything," she said: "I don't know if I went that far. I told her that zero to 10 was her possible sentence." App. 47. Ms. Aaron also admitted that she knew of no drug treatment programs for pregnant women with substance abuse problems. App. 50-51. The only program she knew of for non-pregnant women was a program run by the department of corrections for women who had already been convicted of a crime. App. 50.

Ms. Whitner testified that her attorney asked her if she "wanted to plead guilty to doing drugs while I was pregnant, and I pled guilty." App. 29, 39. The only thing Ms. Whitner understood about the crime she was charged with was that it carried a sentence of up to ten years in prison. App. 29, 30, 47. See also App. 4. ²

On April 20, 1992, based on the advice given her by court-appointed counsel, Ms. Whitner entered a guilty plea before Honorable Frank Eppes, Judge. State v. Whitner, 92-GS-39-670 Transcript of Record (S.C. Ct. Gen. Sess. Pickens County Apr. 20, 1992) (hereinafter "Trans"). App. 31. The Judge explained that Ms. Whitner had a right to trial by jury, that she did not have to testify, and that the State would be required to prove her guilty beyond a reasonable doubt. Trans. at 2, 4. Judge Eppes asked Ms. Whitner if she wanted to give up her constitutional rights and plead guilty. Id. Each time, however, before the judge asked whether she wanted to plead guilty, he indicated that giving birth to babies who test positive for crack is a crime in South Carolina, punishable by 10 years on jail. Id. at 2, 4.

At the hearing, Ms. Whitner said, "I need some help, your honor." Id. at 2. Her attorney, Ms. Aaron, explained that the defendant had "an addiction problem," that she has been receiving drug counseling, that she had been off drugs since February, and that her child was currently in good health. Id. at 4-5. Both Ms. Aaron and Ms. Whitner reiterated that Ms. Whitner needed and wanted in-patient treatment. Id. Judge Eppes responded, "I think I'll just let her go to jail." Id. at 5. Ms. Whitner was sentenced to the State Board of Corrections for a period of eight years. Id.

Following her guilty plea and sentence, Ms. Whitner was not informed by her attorney that she had a right to appeal from a plea of guilty. Ms. Whitner served approximately nineteen months in jail before Ms. Aaron received a letter from the American Civil Liberties Union, and contacted Ms. Whitner to inform her that she may have pleaded guilty to a non-existent crime. App. 31, 42, 49.

On May 13, 1993, Ms. Whitner filed in the court of Common Pleas an Application for Post-Conviction Relief. On November 22, 1993, the Honorable Larry C. Patterson issued an order granting Ms. Whitner's Application for Post-Conviction Relief, and vacating her sentence for unlawful neglect of a child. Whitner v. State, 93-CP-39-347, slip op. (S.C. Ct. C.P. Nov. 22, 1993) (Hereinafter "PCR Order.") On November 22, 1993, the State³ filed a Notice of Intent to Appeal and on March 15, 1994 filed a Petition for Writ of Certiorari. On April 12, 1994, Ms. Whitner filed her return. On June 30, 1994, this Court granted the Petition for Writ of Certiorari.

SUMMARY OF ARGUMENT

Respondent Whitner's application for post-conviction relief was properly granted because Ms. Whitner pled guilty to a nonexistent crime. South Carolina Code Ann. § 20-7-50 (hereinafter "§ 20-7-50") was designed to deter the abuse and neglect of children once they are born, not to punish drug-dependent women who become pregnant and carry those pregnancies to term. Neither the plain meaning of § 20-7-50 nor the intent of the statute support its application to fetuses or prenatal conduct. Indeed, both the South Carolina Department of Social Services (hereinafter "DSS"), the agency charged with administering the Children's Code⁴, and the State Council on Maternal, Infant and Child Health ("MICH Council")⁵ have concluded that the provisions of the Children's Code were not intended to be applied to fetuses. Since the 1989-1990 legislative session, the South Carolina legislature has repeatedly considered and rejected proposals to expand the scope of § 20-7-50 and other provisions of the South Carolina Code to include fetuses and a pregnant woman's drug use. Neither the Petitioner nor the courts may usurp the legislative function by giving § 20-7-50 an interpretation neither adopted nor intended by the legislature. As the PCR Court correctly noted "[n]o appellate court in our nation has interpreted its child abuse laws to apply to a woman who takes illegal drugs during pregnancy." PCR Order, App. 78. Indeed, every appellate court and numerous trial courts in the country that have ruled on the validity of using existing criminal statutes to punish women who use drugs while pregnant has held that such prosecutions are without legal basis, unconstitutional or both. See Respondent's Supplemental Appendix.⁶

While the PCR court decided this case on grounds of statutory construction and legislative intent, the state and federal constitutional rights of due process and privacy also required Ms. Whitner's conviction to be overturned. A basic principle of due process is that before a person can be convicted of a crime by plea or trial, a crime must have been committed. Ms. Whitner not only was convicted of a non-existent crime but, based on the statute's past construction, she had no notice that § 20-7-50 would criminalize her pregnancy. In addition, the Petitioner's interpretation of § 20-7-50 violates the constitutionally protected right to procreate because the unprecedented interpretation of § 20-7-50 urged by the Petitioner has the effect of punishing drug-using women for having babies and of coercing abortions. In addition, because Petitioner's interpretation of § 20-7-50 opens the door to prosecutions for any behavior that could endanger the fetus, it violates the more general right to privacy from unjustified state intrusion. The Petitioner's interpretation, moreover, cannot be justified by any state interest. Its interpretation endangers both fetal and maternal health by frightening pregnant women with substance abuse problems out of the health care system.

There is no reason why this Court should reverse the PCR court's decision and give an interpretation to the child neglect law that every appellate court has rejected, and every leading public health group opposes. See, e.g., State v. Luster, supra note 6, 419 S.E.2d at 35 (viewing addiction during pregnancy as a disease and addressing the problem through treatment rather than prosecution is the approach "overwhelmingly in accord with the opinions of local and national medical experts"). See also discussion infra at 40-43.

Finally, the standard of review in Post-Conviction Relief cases is limited to determining only whether there is any evidence to support the PCR judge's findings of fact. The record in the case below established that there was evidence of probative value that Ms. Whitner was convicted of a non-existent crime and received ineffective assistance of counsel.

ARGUMENT

I THE LOWER COURT PROPERLY GRANTED POST-CONVICTION RELIEF BECAUSE MS. WHITNER PLED GUILTY TO A NON-EXISTENT CRIME.

"If any evidence of probative value exists on the record, this evidence is sufficient to uphold the PCR judge's findings on appeal." Cobbs v. State, 305 S.C. 299, 301, 408 S.E. 2d 223, 225 (1991); Grier v. State, 299 S.C. 321, 384 S.E.2d 722, 724 (1989) ("In reviewing a PCR grant, we are concerned only with whether there is 'any evidence' to support the PCR judge's decision."); Jolley v. State, 298 S.C. 296, 379 S.E.2d 900 (1989). A PCR application may be granted on the grounds that a trial court lacked subject matter jurisdiction to accept a guilty plea where the plea was premised upon an offense that does not exist. Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991).⁷

A The Plain Language And Ordinary Meaning Of § 20-7-50 Support The PCR Court's Decision.

A basic tenet of statutory construction is that words should be given their plain and ordinary meaning. As the PCR court explained:

It is well established that in interpreting a statute, the court's primary function is to ascertain the intention of the Legislature. When the terms of the statute are clear and unambiguous, the court must apply them according to their literal meaning. Furthermore, in construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation.

PCR Order, App. 77 (quoting State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991) (citations omitted)). In addition, a statute that is penal in nature must be construed strictly against the State and in favor of the defendant. Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991). See also State v. Cutler, 274 S.C. 376, 264 S.E.2d 420 (1980); Wright v. Georgia, 373 U.S. 284 (1963).

In this case, the Petitioner asks this Court to ignore these basic principles of statutory construction by giving § 20-7-50 a new and unintended meaning, and to apply it retroactively to Ms. Whitner.

Section 20-7-50, provides that:

Any person having the legal custody of a child or helpless person, who shall, without lawful excuse, refuse or neglect to provide the proper care and attention, as defined in Section 20-7-490, for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court.

S.C. § 20-7-50 (1985). Under South Carolina's Children's Code a child is defined as "a person under the age of eighteen." S.C. Code Ann. §§ 20-7-30(1); 20-7-490(A). In granting post-conviction relief to Ms. Whitner, the court below correctly held that "[t]he plain meaning of `a person under the age of eighteen' does not include a fetus." PCR Order, App. 78. As discussed below, the PCR Court's decision regarding the plain meaning of the words "child" and "person under the age of eighteen" is also the only one consistent with the use of those words throughout the Children's Code. See infra at 15-17.

Consistent with the plain and ordinary meaning of § 20-7-50, this Court and lower courts have applied the statute only in cases involving physical or emotional abuse of a born child. For example, courts have found § 20-7-50 to proscribe beating a child so severely that she was black and blue and her ears rang for several days, Dept. of Social Serv. v. Father & Mother, 294 S.C. 518, 316 S.E.2d 40 (Ct. App. 1988); or leaving two children, ages eight and five, sleeping alone in a home which subsequently caught fire and burned the children to death, State v. Jenkins, 278 S.C. 219, 294 S.E.2d 44 (1982); but not necessarily a single incident of splashing cool or cold water on a child as a disciplinary measure, Florence County DSS v. Ward, 425 S.E.2d 61 (S.C. Ct. App. 1992).

In at least four other cases, courts in South Carolina have explicitly rejected the application of § 20-7-50 to fetuses and pregnant women. See Rickman v. Evatt, 94-CP-04-138, slip op. (S.C. Anderson, Sept. 9, 1994) (granting habeas corpus relief to reverse conviction under § 20-7-50 because "[a]s the legislature choose [sic] to use the word 'child' in the current statute, this court must interpret the statute to exclude its application to a fetus"), State v. Crawley, 93-GS-04-756, slip op. (S.C., Anderson Nov. 29, 1993) (quashing indictment under § 20-7-50 of woman who allegedly used drugs while pregnant, finding that the plain and ordinary meaning generally given to the word "child" does not include "fetus"); Lester v. State, 93-CP-23-2984 (S.C. Greenville, Nov. 22, 1993) (granting post-conviction relief on same grounds as the instant case); Tolliver v. State, No. 90-CP-23-5178, slip op (S.C. Greenville Aug. 10, 1992) cert. denied (S.C. Mar. 10, 1993) (granting post-conviction relief for a woman who pled guilty to child neglect under § 20-7-50, finding that application of statute to a woman who used drugs while pregnant violated statute's plain meaning and legislative intent.)

Moreover, the "plain and ordinary meaning" of other language in the statute reinforces the conclusion that § 20-7-50 was not designed or intended to reach fetuses on prenatal conduct. The statute applies to those persons having "legal custody" of the child. S.C. Code Ann. § 20-7-50. The concept of "legal custody" "presupposes the existence of a separate individual susceptible to custody." MICH Report Vol. III at 28 (footnotes omitted). ⁸

When the South Carolina legislature intends a statute to apply to fetuses, it states so explicitly. See, S.C. Code Ann. § 44-43-320 (reference to "infant or fetus"); see also S.C. Code Ann. §§ 1-13-30(l); 44-41-10(f) (pregnancy is defined as "condition of a woman carrying a fetus or embryo within her body as the result of conception"); §§ 44-41-10(a) and (l).

Because the plain and ordinary meaning of § 20-7-50 does not apply to fetuses or prenatal conduct, the PCR's decision to overturn Ms. Whitner's conviction should be affirmed.

B Petitioner's Application Of The Child Abuse Statute To Fetuses And Prenatal Conduct Is Contrary To Clear Legislative Intent.

"The elementary and cardinal rule of statutory construction is that the Court ascertain and effectuate the actual intent of the legislature." Horn v. Davis Electrical Constructors, Inc., 307 S.C. 559, 563, 416 S.E.2d 634, 636 (1992). See also Blackmon, 303 S.C. at 403, S.E.2d at 662; State v. Burton, 301 S.C. 305, 391 S.E.2d 583 (1990); State v. Carter, 298 S.C. 304, 379 S.E.2d 905 (1989); Burns v. State Farm Mutual Auto Ins. Co., 297 S.C. 520, 377 S.E.2d 569 (1989). In addition to looking at the plain language of the statute to determine its meaning, the court may also look at the "entire legislative enactment" of which the specific provision is part, State v. Patterson, 66 S.E.2d 875, 876 (S.C. 1951), as well as the legislative history, including legislative action or inaction on the subject. Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662 n.2. An examination of § 20-7-50's history and intent make clear that the legislature never intended the statute to apply to fetuses or a pregnant woman's conduct in relation to the fetus.

1 The PCR court's construction of § 20-7-50 is consistent with the statutory scheme established in South Carolina's Children's Code.

Section 20-7-50 is part of the South Carolina Children's Code which repeatedly uses the terms "child" or "person under eighteen." The use of these terms throughout the Children's Code contradict the Petitioner's contention that the legislature intended to include fetuses within its purview. ⁹ For example, S.C. Code § 20-7-20 refers to placement of children "in care away from their homes" and "remov[al] from their homes." S.C. Code § 20-7-20. "Removal" of a child from its parents clearly cannot take place if the "child" is a fetus. Similarly, the adoption and child custody procedures outlined in Articles 9 and 11 make no sense at all with reference to fetuses, since it is unintelligible to speak of "deter[ring] abduction" of a fetus, S.C. Code § 20-7-784 (purpose of child custody statute is to "deter abductions and other unilateral removals of children"), and it is impossible to provide with any certainty a fetus' date or place of birth, S.C. Code § 20-7-1790 (providing for the issuance of amended birth certificates for adopted children).

The phrase "person under eighteen" is also used several times in the Children's Code, all in contexts that plainly do not apply to fetuses or unborn children. S.C. Code Ann. § 20-7-350 makes it unlawful for any person under eighteen to loiter in a billiard room; and S.C. Code Ann. § 20-7-340 makes it unlawful for a "person under eighteen to play a pinball machine." It is simply absurd to assume that in any of these statutes the legislature intended to reach fetuses.

Petitioner, nevertheless, argues in effect that even though the legislature clearly intended "child" to mean a born child in every other provision of South Carolina's Children Code, for purposes of § 20-7-50 alone, "child" means a born child or a fetus. See Pet. Brf. at 7. This argument is contrary to the most basic principles of statutory construction. As lower courts have said, "[w]here the same word is used more than once in a statute it is presumed to have the same meaning throughout unless a different meaning is necessary to avoid an absurd result." Bell Finance Co., Inc. v. Dep't of Consumer of Affairs, 297 S.C. 111, 374 S.E.2d 918 (S.C. Ct. App. 1988); Smalls v. Weed, 293 S.C. 364, 360 S.E. 2d 531 (S.C. Ct. App. 1987); Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 312 S.E.2d 716 (Ct. App. 1984). Indeed, this Court has held that "[s]ections which are part of the same general statutory law of the state must be construed together" and has applied this principle specifically to the provisions of the Children's Code. In re Kenneth Lamont G., 304 S.C. 456, 460, 405 S.E.2d 404 (1991). These rules of statutory construction require this Court to affirm the PCR court's decision and reject the State's unprecedented and unsupported interpretation of § 20-7-50.

2 The legislative history of § 20-7-50 and the South Carolina Children's Code make clear that the child neglect statute was not intended to be applied to fetuses or prenatal conduct.

Where the language of a statute is ambiguous, courts may look to the legislative history of the statute to determine its meaning. See Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662. Although it should be clear that the language of § 20-7-50 does not apply to fetuses, the legislative history of § 20-7-50 makes it unmistakable that the legislature never intended it to apply to a pregnant woman in relationship to the fetus.

Section 20-7-50 was originally enacted in 1874 as "An Act to Punish Persons for Ill-Treating Children, Apprentices, Idiots, Servants and Helpless Persons" and provided that:

any person legally liable to provide for a child necessary food, clothing, or lodging, who refused or neglected to do the same, or who maliciously caused bodily harm, so that the child's life was endangered, or the health or comfort of such child was or was likely to be permanently injured, was guilty of a misdemeanor and could be imprisoned up to two years at the discretion of the court.

Law of March 17, 1874, (15) 704. The law was amended in 1927 to include the failure to provide medical treatment. S.C. Crim. Code 1922 § 21. (amended by Acts No. 62 & 149 of 1927). In 1962, this statute was shortened and recodified as § 16-96 S.C. Code of Laws 1962.¹⁰   In 1981, this provision was consolidated with other statutes pertaining to children into the Children's Code and recodified as § 20-7-50 (1981). In none of its incarnations did South Carolina's child neglect statute refer or apply to fetuses.

Under the consolidated Children's Code, § 20-7-50 expressly shares the definitions of child neglect enacted under the South Carolina Child Protection Act of 1977.¹¹   See S.C. Code Ann.

§ 20-7-490. The history of the 1977 Child Protection Act and the Federal statute and model laws it was based on supports the PCR court's conclusion that § 20-7-50 was never intended to apply to fetuses.

The Child Protection Act of 1977 was designed to bring South Carolina into compliance with the Federal Child Abuse Prevention and Treatment Act of 1974 so that South Carolina could qualify for federal assistance.¹²   See A Bill Dealing With Child Abuse and Neglect, March 1977: Hearings on H. 2069 Before the Subcommittee on Social Services, Courts and Corrections Affairs and the Committee on Medical, Military, Public and Municipal Affairs (statement of George R. Sharwell, representing the South Carolina State Chapter of the National Association of Social Workers) (hereinafter "Hearings on H. 2069"); John D. Elliott, Child Protection Act of 1977 with Commentary, (prepared for the South Carolina Bar Young Lawyers' Section Child Abuse Seminars) (March 1980). The Federal Child Abuse and Prevention Act did not refer to fetuses or address conduct by a pregnant woman toward her fetus.

While this Federal Act provided the broad parameters for South Carolina's Child Protection Act, the details of the statute including its definition were largely drawn from the Model Child Protection Act drafted by the then United States Department of Health Education and Welfare's Children's Bureau in 1976. Elliott, Child Protection Act of 1977 with Commentary at 3. This Model Act did not refer to or define neglect to include prenatal conduct. ¹³   The Child Protection Act was also influenced by the public pressure to strengthen South Carolina's child neglect laws that followed extensive media coverage of several horrifying incidents of children who were beaten by adults.¹⁴   Nowhere in the public hearings that ensued was there any discussion of extending protection to fetuses or addressing conduct of pregnant woman in relation to their future children. See supra Hearings on H. 2069.

Thus, the legislative history of the Child Protection Act supports the PCR court's conclusion that § 20-7-50 does not apply to fetuses.

3 The legislature has considered and explicitly rejected the interpretation of § 20-7-50 urged by the Petitioner in this case.

This Court may take judicial notice of legislative action or inaction on a subject. See Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662 n.2. See also, Hair v. State, 305 S.C. 77, 406 S.E.2d 332 (1991). At least as early as the 1989-1990 legislative session and consistently in each legislative session since, South Carolina lawmakers have introduced bills specifically addressing the subject of substance abuse and pregnancy. Many bills would have mandated reporting of a woman's drug use during pregnancy to the Department of Social Services and redefined an abused child to include newborns exposed prenatally to drugs.¹⁵ One bill, S. 4032 (1993), would have made it a crime for a pregnant woman to ingest a controlled substance and House Bill 4486 (1994) would have amended § 20-7-50 to include "a woman who is pregnant" and "fetus[es]." None of these bills, however, passed.

Given the degree of legislative activity on this subject and the legislature's rejection of exactly the use of § 20-7-50 urged here, the PCR Court was correct to conclude that "it is just the type of question the legislature must decide." PCR Order, App. 79. ¹⁶

This Court, as the court below did, must "leave to the legislature the resolution of the matter." Blackmon, 303 S.C. at 273-74, 403 S.E.2d at 662. "The responsibility for the justice or wisdom of legislation rests with the Legislature, and it is the province of the courts to construe, not to make, laws." Laird v. Nationwide Ins. Co., 243 S.C. 388, 395, 134 S.E.2d 206, 209 (1964). See also Belk v. Nationwide Mutual Ins. Co., 271 S.C. 24, 27, 244 S.E.2d 744, 746 (1978).

4 The Petitioner's interpretation would lead to absurd results obviously not intended by the legislature.

Finally, courts must avoid construing a statute so as to lead to an absurd result "not possibly intended by the legislature." Hamm v. South Carolina Public Service Commissioner, 336 S.E.2d 470, 471 (1985)¹⁷ If Petitioner's interpretation of § 20-7-50 were correct, every action by a pregnant woman that "endanger[s] or is likely to [] endanger[]" a fetus, whether otherwise legal or illegal, would be unlawful neglect under the statute. As the court in Tolliver, supra n. 6, at 6, concluded:

If the position of the State were to be sustained, then any pregnant woman who drinks alcohol could be charged for harming the fetus she is carrying due to Fetal Alcohol Syndrome. A pregnant woman could be arrested for smoking cigarettes and harming the fetus she is carrying. In fact, warnings on cigarette packages warn of this specific danger. A pregnant woman could be arrested for failing to take proper medication or follow her doctors instruction and thus harm the fetus.

Because the PCR court was correct to reject an interpretation not only unsupported by the language of the statute and the legislative history, but one that would also lead to absurd results obviously unintended by the legislature, its decision should be affirmed.

C Petitioner's Application Of The Child Abuse Statute to Fetuses And Prenatal Conduct Is Inconsistent With The Interpretation Given the Statute By the Agency Charged With Its Implementation.

The Department of Social Services ("DSS") has firmly rejected the argument that the term "child" in the Children's Code includes fetuses.¹⁸ In a memorandum dated February 7, 1990, the Assistant General Counsel, Office of General Counsel, Department of Social Services, referred to this interpretation as "novel" and refused to accept it. (Reproduced in Respondent's Supplemental Appendix). The memorandum canvassed various provisions of the Children's Code. With respect to protective services provisions, DSS concluded that "[t]he legislature's concern about whether a child remains in the home or is placed elsewhere indicates that the law was not intended to reach the unborn." Id. at 3. The agency declared that portions of the provision for removal of custody "detailing visitation and placement requirements of the placement plan also indicate no legislative intent to apply child abuse and neglect procedures to the unborn." Id. Consequently, DSS concluded that:

The definition of "child" in § 20-7-490 could arguably be amended judicially to include a viable fetus based on judicial interpretations of "person" in other areas. However, this would be contrary to legislative intent expressed throughout [the Children's Code]. This agency should decline to adopt an interpretation which is not clearly intended by the legislature. It should also decline to ask the Family Court to adopt an interpretation which conflicts with legislative intent.

Id. at 3-4.

In October of 1990, DSS, consistent with its interpretation of the Children's Code, issued Operational Guidelines For Child Protective Services Involving Drug Exposed Infants ("Operational Guidelines") (reproduced in Respondent's Supplemental Appendix). In these Guidelines DSS concluded again that the South Carolina Children's Code "as it relates to the provision of [Child Protective Services] does not extend to unborn children or to fetal deaths attributed to the mother's prenatal activities." Id., § I Part 2. ¹⁹

South Carolina courts accord DSS's construction of the Children Code "the most respectful consideration and [should] not overrule[] [it] absent compelling reasons." Dunton v. South Carolina Bd. of Examiners in Optometry, 291 S.C. 221, 353 S.E.2d 132, 133 (1987) ²⁰

D The PCR Court Properly Relied On The Decisions of Sister States Courts.

Petitioner suggests that the PCR court relied in error on the holdings of other states' courts in determining that a fetus is not a "child" for purposes of S.C. Code § 20-7-50. Pet. Brf. at 7-8. In fact, in deciding cases of first impression such as the instant case, this Court has often looked to and followed the precedent of its sister states. See, e.g., Upchurch v. New York Times Co., 431 S.E.2d 558 (S.C. 1993) (following North Carolina precedent); State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991) (adopting Missouri and Arizona precedent); Braten Apparel Corp. v. Bankers Trust Co., 273 S.C. 663, 259 S.E.2d 110 (1979) (citing precedents from thirty-three states and the District of Columbia); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966) (citing precedents in at least ten states). "[I]n deciding a case of first impression, the decisions of courts of other jurisdictions are persuasive authority in South Carolina." Reid v. Life Ins. Co. of North America, Inc., 718 F.2d 677, 680 (4th Cir. 1983) (citing Shepherd v. United States Fidelity & Guar. Co., 233 S.C. 536, 106 S.E.2d 381, 383 (1958)). Thus, the PCR Court properly considered the holdings of sister state courts which have unanimously rejected the interpretation urged by the Petitioner in this case. PCR Order, App. 78. The Petitioner simply provides no persuasive reason why this Court should ignore these highly relevant and well-reasoned decisions.²¹

E The Decisions In State v. Horne, Fowler v. Woodward And Hall v. Murphy Do Not Require This Court To Ignore

§ 20-7-50's Plain Meaning And Obvious Intent.

Unable to find support for its interpretation in the statute itself, its legislative history, its statutory context, or in any authoritative interpretation of the statute, the Petitioner resorts to the argument that three of this Court's earlier cases, State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960); and Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964) require that the word "child" in § 20-7-50 be expanded to include viable fetuses. Pet. Brf. at 4-7. None of these cases, however, construed § 20-7-50, the statute at issue in this case; none even rested on an interpretation of a criminal statute; and none involved the issue of potential harm or injury to the fetus caused by the pregnant woman herself. Furthermore, none of these carefully drawn decisions in any way suggests, as Petitioner asserts, that this Court has broadly and in all legal contexts "recognized the right of a fetus to life." Pet. Brf. at 4.

In Hall v. Murphy, parents sought to recover under the state's wrongful death statute for the loss of a child who sustained injuries before birth as a result of an automobile accident. This Court held that a cause of action could be maintained on behalf of a child who had suffered prenatal injury through the fault of a person other than the child's mother. In Fowler v. Woodward, this Court extended this principle to sustain a wrongful death action brought on behalf of a never-born fetus whose prenatal death resulted from injuries sustained in an automobile collision caused by a third party. Both of these cases involved the interpretation of civil statutes (that do not require strict statutory construction) and the development of common law tort principles, an area of law in which courts have traditionally been the primary engines of change. Consequently, this Court quite properly followed a national trend to expand the scope of wrongful death actions to include the loss to parents of children they expected to have. See id²².

In State v. Horne, a pregnant woman was stabbed repeatedly in an attack by her husband. While the woman survived the attack, the fetus did not, and the husband was indicted on charges of homicide. This Court was called upon to determine whether the killing of a viable fetus constituted homicide, and decided that it was. Although State v. Horne nominally involved the interpretation of this State's murder statute, § S.C. 16-3-10 (1976), this Court relied on its "right and [its] duty to develop the common law of South Carolina" in concluding that "an action for murder may be maintained in the future when the state can prove beyond a reasonable doubt the fetus . . . was viable . . ." Id. 319 S.E.2d at 704. ²³ (Emphasis added) ²⁴ In South Carolina, "[t]here is no distinction between statutory and common-law murder: the statute is merely declaratory of the common law." Hinson v. State, 297 S.C. 456, 377 S.E.2d 338, 339 (1989). This Court's refusal to apply its new, more expansive definition of homicide to the facts of the case before it, Horne, 319 S.E.2d at 704, makes clear that it was not merely articulating a meaning of the word "person" already inherent in the homicide statute, but rather was forging new law under its plenary authority to expound the common law. ²⁵ Moreover, nothing in Horne suggests that its interpretation of "person" was to be applied to anything except the state's homicide law.

These cases are easily distinguishable from the one now before this Court. Fowler and Hall involved the interpretation of civil statutes and the development of common law tort principles and therefore simply do not control the interpretation of § 20-7-50, a criminal statute that must be strictly construed. Similarly, Horne involved this Court's authority as a matter of common law to interpret the State's murder law. This Court, however, does not have the same authority to interpret broadly § 20-7-50 because child neglect was not a crime at common law. ²⁶ Thus, in this case, unlike Horne, Fowler and Hall, this Court is asked to construe a criminal statute, and both due process as well as the rules of statutory interpretation of criminal statutes require a strict construction limited to ascertaining and giving effect to the intention of the legislature. The expansion of the scope of a term in a criminal statute urged by the Petitioner is not within the province of this Court's authority.

Additionally, all three of these decisions involved harm caused to the fetus by someone other than the pregnant woman herself. In State v. Horne, this Court, referring to its earlier decisions in Hall v. Murphy and Fowler v. Woodward, observed that "[i]t would be grossly inconsistent for [the Court] to construe a viable fetus as a `person' for the purpose of imposing civil liability while refusing to give it a similar classification in the criminal context." The inconsistency this Court's opinion referred to, however, was not the treatment of the word "person" in all of South Carolina's code and common law, see Pet. Brf. at 6, but rather, an inconsistency in the criminal and civil law's response to third parties whose intentional or negligent acts cause parents to lose the children they expected to have.

Extending such liability to the pregnant woman herself would constitute a radical and dangerous expansion of the existing law. As the Supreme Court of Illinois in Stallman v. Youngquist, 531 N.E.2d 355, 359, 360 (Ill. 1988) held in refusing to recognize a cause of action for maternal prenatal negligence:

[s]ince anything which a pregnant woman does or does not do may have an impact, either positive or negative, on her developing fetus, any act or omission on her part could render her liable to her subsequently born child . . . Mother and child would be legal adversaries from the moment of conception until birth . . . Holding a third person liable for prenatal injuries furthers the interests of both the mother and the subsequently born child and does not interfere with the defendant's right to control his or her own life. Holding a mother liable for the unintentional infliction of prenatal injuries subjects to State scrutiny all the decisions a woman must make in attempting to carry a pregnancy to term, and infringes on her right to privacy and bodily autonomy . . . Logic does not demand that a pregnant woman be treated in a court of law as a stranger to her developing fetus . . . As opposed to the third-party defendant, it is the mother's every waking and sleeping moment which, for better or worse, shapes the prenatal environment which forms the world for the developing fetus.

Like the court in Stallman, this Court should refuse the invitation to usurp the legislative function and create a legally enforceable duty on the part of pregnant women to guarantee the health of their future children.

II EVEN IF THIS COURT FINDS THAT A FETUS IS A CHILD FOR PURPOSES OF § 20-7-50, APPLICATION OF THE LAW TO MS. WHITNER WOULD VIOLATE HER CONSTITUTIONALLY PROTECTED RIGHTS OF PRIVACY AND DUE PROCESS.

A Even If This Court Reverses The PCR Court's Decision And Finds That A Fetus Is A Child For Purposes Of § 20-7-50, This New Definition Cannot Be Applied Retroactively.

The principle that statutes must be strictly construed ultimately rests on the due process requirement that criminal statutes must give fair notice of the conduct proscribed. State v. Smith, 275 S.C. 164, 268 S.E.2d 276, 277 (1980); State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). "If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional." City of Beaufort v. Baker, 432 S.E.2d 470 (S.C. 1993) (citing State v. Albert, 257 S.C. 131, 134, 184 S.E.2d 605, 606 (1971)) (emphasis added).

Based on the plain language of §§ 20-7-50 and 20-7-490, a woman of common intelligence could not have known that that act of ingesting cocaine while pregnant or engaging in behavior that might endanger herself and the pregnancy would be penalized under these laws. As the court in People v. Morabito, supra n. 6, slip op. at 4, concluded

[the endangering the welfare of a child] statute's application to pregnant mothers is not sufficiently definitive and explicit to inform them that their taking drugs will render them subject to penalties. To the extent that a pregnant woman would be required, at peril of her life, liberty or property to speculate concerning the applicability of the statue to her conduct it is clear that due process also proscribes the interpretation advocated by the people.²⁷

Significantly, when this Court established the common law crime of feticide in State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), upon which Petitioner places such weight, it held that it could not apply the new crime to the defendant in that case. This Court observed, "[t]he criminal law whether declared by the courts or enacted by the legislature cannot be applied retroactively." Horne, 319 S.E.2d at 704.

Furthermore, if this Court accepted the Petitioner's interpretation of § 20-7-50, it would be forced to find this statute void for vagueness. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) ("It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined."). This is so because the language in the statute, as applied to prenatal conduct, is too vague to put women of ordinary intelligence on notice of which of the myriad prenatal acts or omissions that can threaten fetuses and future children would make them subject to criminal prosecution. See discussion infra at 22-23.

Because Ms. Whitner could not have known from the language or previous application of the state's child neglect statute that she would be subject to criminal prosecution for her conduct during pregnancy, the PCR court's decision was required by the constitutional guarantees of due process.

B Petitioner's Interpretation Of § 20-7-50 Would Violate Ms. Whitner's Constitutional Right To Privacy And Would Undermine Both Maternal And Fetal Health.

The constitutional right to privacy required the PCR court's decision that § 20-7-50 did not apply to drug addicted women who became pregnant and gave birth. Under the Petitioner's interpretation of § 20-5-70, new mothers with substance abuse problems become subject to incarceration for up to ten years. ²⁸ Had Ms. Whitner chosen not to carry her pregnancy to term, she would not have been charged with or convicted of child neglect. Because the Petitioner's interpretation of § 20-7-50 prevents chemically-dependent women from making an independent choice free from government coercion about whether or not to carry their pregnancies to term, it violates the right to privacy as guaran-teed by the United States Constitution. ²⁹ See also MICH Report Vol. III at 10; Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419, 1445 (1991) ("[i]t is the choice of carrying a pregnancy to term that is being penalized") (emphasis in original).

The United States Supreme Court has specifically recognized the right to procreate as a fundamental civil liberty. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also, Paul v. Davis, 424 U.S. 693, 713 (1976); Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977); United States v. 12 200-Foot Reels, 413 U.S. 123, 127 n.4 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). ³⁰

The constitution not only protects women from being forced to terminate wanted pregnancies, it also protects them from measures penalizing them for carrying such pregnancies to term. In Arnold v. Board of Education of Escambia County Ala., 880 F.2d 305, 311 (11th Cir. 1989), the court held that "[t]here sim-ply can be no question that the individual must be free to decide to carry a child to term." Most recently in Planned Parenthood v. Casey, 112 S. Ct. 2791, 2806 (1992), the U.S. Supreme Court held that:

It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, as well as bodily integrity

(citations omitted). The Court also noted that its decision in Roe v. Wade, 410 U.S. 113 (1973), "had been sensibly relied upon to counter" attempts to interfere with a woman's decision to become pregnant or to carry to term. Id. at 2811.

   In Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974), the Court found unconstitutional a rule that required pregnant school teachers to take unpaid maternity leave at an arbitrary time prior to an expected childbirth. Noting that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment," the Court struck down the rules because "[b]y acting to penalize the pregnant teacher for decid-ing to bear a child, overly restrictive maternity leave regula-tions can constitute a heavy burden on the exercise of these protected freedoms." Id. at 639-40. Certainly the threat of imprisonment for ten years is an even greater burden on the exercise of pro-tected reproductive freedoms than is an overly restrictive maternity leave policy. ³¹ See MICH Report Vol. III at 10.

Because of the intrusion into pregnant women's lives that the Petitioner's interpretation of § 20-5-70 requires -- namely to reach and deter behavior during pregnancy -- it also implicates a woman's right to bodily integrity and her "fundamental and wide-ranging `right to be let alone.'" Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).³²   Because the fetus is physically part of a woman's body, her every action during pregnancy could become a matter of criminal investigation. ³³ See Stallman v. Youngquist, 531 N.E.2d 355 (Ill. 1988). See discussion supra at 31.

    Because privacy rights are implicated, the burden shifts to the Petitioner to prove that the application of § 20-7-50 to fetuses and pregnant women furthers some state interest. As the MICH report explained: "A program that includes . . . criminal prosecution of the woman has a major impact on a variety of fundamental interests, and hence could be justified only by the strongest state interest." Vol. III at 14. Petitioner, however, cannot establish that its interpretation of § 20-5-70 serves any legitimate state interest because it is both ineffective and counterproductive. As the American Academy of Pediatrics has concluded, "[p]uni-tive measures taken toward pregnant women, such as crim-inal prose-cution and incarceration, have no proven benefits for infant health." ³⁴ American Academy of Pediatrics, Committee on Substance Abuse, Drug-Exposed Infants, 86 Pediatrics 639, 641 (1990). See also U.S. Department of Health and Human Services, Center for Substance Abuse Treatment, Pregnant, Sub-stance-Using Women, Treatment Improvement Protocol, Series No. 2 (1993) ("TIP") ("there is no evidence that punitive approaches work"). The Florida Supreme Court has similarly noted that "[p]unishment is simply not an effective way of curing a de-pendency or preventing future substance abuse." Johnson v. State, 602 So. 2d 1288, 1295 n. 6 (Fla. 1992) (citing American Medical Association Board of Trustees, Legal Interventions During Pregnancy, 264 JAMA 2663, 2667 (1990).

State, federal and private researchers have all concluded that punitive approaches frighten women away from needed treat-ment. For example, two reports from the Federal General Ac-counting Office have concluded that women are deterred from drug treatment and prenatal care by threats of prosecution: "The threat of prose-cution poses yet another barrier to treatment for pregnant women and mothers with young children. These women are reluctant to seek treatment if there is the possibility of punishment, which may include incarceration." United States General Accounting Office Report to the Chairman, Subcommittee on Health and the Environ-ment, Committee on Energy and Commerce, House of Repre-sentatives ADMS Block Grant, Women's Set-Aside Does Not Assure Drug Treatment for Pregnant Women, GAO/HRO-91-80, at 20 (May 1991) [herein-after "GAO II"]. See also United State General Accounting Office Report to the Chairman, Committee on Finance, U.S. Senate, Drug-Exposed Infants, A Generation at Risk, GAO/HRO-90-138 (June 1990) at 39 [hereinafter "GAO I"] ("some women are now delivering their in-fants at home in order to prevent the state from discovering their drug use."). ³⁵ The MICH Report similarly observed that "for pregnant women in particu-lar, the fear of criminal prosecution may prevent them from seeking appropriate treatment and health care services." MICH Report Vol. II at 10.

Fearing the effects of such policies on the public health, virtually every leading public health organization has published a policy or recommendation opposing the prosecution of pregnant women who use drugs, including the American Medical Association,³⁶ the American Academy of Pediatrics,³⁷ the American College of Obstetricians and Gynecologists,³⁸ the American Public Health Association, ³⁹ the Southern Regional Project on Infant Mortality (an initiative of the Southern Governors' Association and the Southern Legislative Conference), ⁴⁰ the American Society on Addiction Medicine, ⁴¹ the March of Dimes⁴² the National Association for Perinatal Addiction Research and Education, ⁴³ the National Council on Alcoholism and Drug Dependence,⁴⁴ the Association of Maternal and Child Health Programs,⁴⁵ Coalition on Alcohol and Drug Dependent Women and Their Children,⁴⁶ and the staff of the Center for the Future of Children. ⁴⁷ (Policy statements reproduced in Respondent's Supplemental Appendix.)⁴⁸    Courts across the country have also recognized that approaches that incorporate prosecution are counterproductive. For example, in its unanimous decision in Johnson v. State, supra, the Supreme Court of Florida observed that:

Rather than face the possibility of prosecution, pregnant women who are substance abusers may simply avoid prenatal or medical care for fear of being detected.

602 So. 2d at 1295-96. Similarly, in State v. Gethers, 585 So. 2d 1140, 1143 (Fla. App. 1991), the court pointed out that:

to avoid being reported by medical personnel, who would have a statutory duty to do so, a pregnant addict might refrain from obtaining proper prenatal and postnatal care. She might even deliver without medical assist-ance, thereby risking injury and death to both herself and the child. Finally, fear of prosecution could deter pregnant drug abusers from seeking treatment for drug problems.

585 So. 2d at 1143 (quoting with approval, Brian Spitzer, A Response To "Cocaine Babies", 15 Fla. S.U. L. Rev. 865, 881 (1987)). ⁴⁹ Moreover, fear of being reported to the police and prosecuted will discourage women from communicating honestly about their drug addiction problems to health care professionals who need that information to provide appropriate health care to both the woman and fetus or newborn. ⁵⁰

Not only does the Petitioner's interpretation of § 20-7-50 threaten both the pregnant woman and future child's health, no state interest is served by imposing criminal sanctions as a means to motivate women to seek non-existent or inappropriate treatment for their drug-related problems.

Women, especially poor pregnant women, find it virtually impossible to get appropriate drug treatment in South Carolina. ⁵¹ The MICH Report concluded that "specific resources designed to meet the needs of women of childbearing age, especially pregnant women, are not widely available." Vol. II at 2. In fact, the 1991 Federal General Accounting Office Report found the State of South Carolina, "did not have any specific or unique treatment services for pregnant women and mothers with young children. ⁵² GAO II at 12, 15. (Emphasis added).⁵³
In light of the lack of treatment and the likelihood that women will be deterred from what treatment exists, prosecution for child neglect clearly does not constitute the least intrusive means for accomplishing a state interest in unborn or future children. As the Johnson court noted: "prosecuting [pregnant] women for using drugs. . . appears to be the least effective response to this crisis." Johnson, 602 So.2d at 1295. The least intrusive means would be to make voluntary, welcoming drug treatment services available to women who want them. See Wendy Chavkin, Mandatory Treatment For Drug Use During Pregnancy, 266 JAMA 1556, 1560 ("At this time, the children of drug-using mothers may be most effectively served by the development of available, efficacious and welcoming services for women.").

Because the Petitioner's interpretation of § 20-7-50 cannot survive the strict scrutiny required under the privacy analysis, the PCR judge's ruling should be affirmed. See Pellegrini, supra n. 6; Bremer, supra n. 6 slip op. at 11-14. (finding that even if criminal statutes were intended to apply to women who use drugs and have babies, that application would violate the constitutional right to privacy).

III THE LOWER COURT PROPERLY GRANTED MS. WHITNER'S APPLICATION FOR POST-CONVICTION RELIEF BECAUSE SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

To establish a claim of ineffective assistance of counsel a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense. See Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985); Strickland v. Washington, 466 U.S. 668 (1984). See also, Hill v. Lockhart, 474 U.S. 52 (1985) (applying two prong test set forth in Strickland to ineffective assistance claims in the context of guilty pleas). Where the defendant entered a guilty plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, she would not have pled guilty but would have insisted on a trial. Hinson v. State, 297 S.C. 456, 377 S.E.2d 338 (1989). It is clear that where a defendant's trial counsel fails to advise defendant that his or her acts do not constitute a crime under South Carolina law, counsel's assistance is per se deficient and prejudicial, thereby satisfying the two prong test set out in Strickland and providing sufficient basis for granting post- conviction relief. See Murdock v. State, 426 S.E.2d 740 (S.C. 1992) (counsel's performance held deficient for purposes of granting post-conviction relief where, upon counsel's advice, petitioner pled guilty to possession of a "counterfeit" substance with intent to distribute and petitioner did not commit any offense because he was only in possession of "imitation" drugs and it is not criminal to possess "imitation" drugs with the intent to distribute).⁵⁴

Petitioner contends that Ms. Whitner's counsel could not be expected to anticipate new developments in the law. Pet. Brf. at 14. But Ms. Whitner's claim of ineffective assistance of counsel rests not only her trial attorney's failure to advise her that she had been charged with a non-existent crime but also her attorney's failure to do even the most minimal research. Ms. Whitner's counsel, by her own admission, did not even bother to look up the crime with which her client was charged, let alone investigate its prior application. App. at 41 ("I don't think I ever pulled the book out."). See also Statement of Facts, supra. Trial counsel's failure to perform even the most basic research or consider the question of the statute's applicability constitutes ineffective assistance of counsel.

In Stone v. State, 294 S.C. 286, 363 S.E.2d 903, 904 (1988), this Court found that where an attorney never deliberated about requesting a particular jury instruction, such failure to consider various options in and of itself constituted ineffective assistance of counsel. The Court found that "[t]he attorney made no decision at all, he stated he never considered requesting the charge." Id. Similarly here, by her own testimony, trial counsel never even considered challenging the novel application of the child abuse statute to prenatal conduct. As this Court in Stone concluded, "[t]he trial attorney's testimony itself precludes a finding that his failure to request the instruction was an informed tactical decision." Id.

Counsel was ineffective not only because she failed to advise Ms. Whitner that even if she lost on a motion to dismiss, there were numerous other motions by which she could have suppressed key evidence at trial in her case.⁵⁵

Clearly, but for counsel's ineffective assistance, Ms. Whitner would not have pled guilty. Instead, she would have insisted upon making a motion to dismiss the indictment. There can be no doubt that counsel's errors were so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Because the record provides ample support for the PCR court's conclusion regarding Ms. Whitner's counsel, its decision should be affirmed.

CONCLUSION

For all the foregoing reasons, and because there is ample evidence supporting the lower court's ruling on Ms. Whitner's application for post-conviction relief, we respectfully request that this Court affirm the decision below, vacating Ms. Whitner's sentence.

Respectfully submitted,

Lynn M. Paltrow*   C. Rauch Wise
Susan J. Weiler**   American Civil Liberties
Center for Reproductive   Union of South Carolina
Law & Policy   Foundation, Inc.
120 Wall Street   408 Main Street
New York, NY 10005   Greenwood, SC 29646
(212) 514-5534   (803) 229-5010

Diane Curtis, on the brief
S. C. Bar No. 006188
*Admitted Pro Hac Vice by
Order of this Court
(April 19, 1994)

**Admitted to the Bar of the State of New York

Dated: September 27, 1994

FOOTNOTES

Although the preferred practice where a defendant chooses to plead guilty despite the existence of significant defenses is to obtain a written waiver, Ms. Aaron did not get such a waiver from her client.
Although there was evidence that the newborn tested positive for cocaine at birth, App. 34, 43, 44, there was no evidence that the infant was harmed in any way as suggested by the State. See Brief of Petitioner at 10 (Hereinafter "Pet. Brf. at __.") Ms. Whitner's son was born in good health and is a healthy child who is developing normally. App. 5, 38.
The State of South Carolina as Petitioner in this case will be referred to in this brief as "Petitioner."
Chapter Seven of Title Twenty of the South Carolina Code of Laws, of which § 20-7-50 is a part, is known as the "Children's Code." S.C. Code Ann. § 20-7-10.
“The MICH Council was created in 1986 by the South Carolina General Assembly to improve the planning and coordination of maternal, infant and child health services. The MICH Council, as a collaborative effort of the public and private sectors, includes the commissioners for state health, human services, and education agencies; representatives of medical schools; schools of public health; health care providers; voluntary organizations; and gubernatorial appointees. The MICH Council is staffed by and housed in the Governor's Office.„ State Council on Maternal, Infant and Child Health Office of the Governor, 1991 South Carolina Study of Drug Use Among Women Giving Birth, Volume II, Prevention and Treatment Services (Feb. 1992) at 1 (Hereinafter "MICH Report"). Volumes II and III of the MICH Report are attached for this Court's convenience to Respondent's Appendix of Supplemental Material (hereinafter "Respondent's Supplemental Appendix").
Commonwealth v. Kemp, 75 Westmoreland L.J. 5 (Pa. Ct. C.P. 1992), aff'd 643 A.2d 705 (Pa. Super. Ct. 1994) (affirming dismissal of charg-es of recklessly endanger-ing another person or endangering the welfare of a child against a pregnant woman who allegedly ingested cocaine while preg-nant; finding that neither "child" nor "person" include an unborn "fetus"); Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993)(affirming reversal of child abuse conviction, finding that to construe the child abuse statute to apply to a woman's prenatal conduct would make the statute impermissibly vague and violate legislative intent); Johnson v. State, 602 So. 2d 1288, 1297 (Fla. 1992) (revers-ing a woman's convictions for "delivering drugs to a minor" via the umbilical cord because "[t]he Court declines the State's invitation to walk down a path that the law, public policy, reason and common sense forbid it to tread"); State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992) (mother cannot be convicted of child en-dangerment based solely on prenatal substance abuse, finding that the plain meaning of statute does not extend to fetuses or pre-natal conduct); People v. Morabito, 580 N.Y.S.2d 843, 845-46 (Geneva City Ct. 1992) aff'd slip op. (Ontario County Ct. 1992) (dismissing child endangerment charges against woman who allegedly smoked cocaine during her pregnancy, because the court may not extend the reach of the statute to allow a fetus to be included within the definition of "child," and because public policy and due process considerations militate against such prosecutions); State v. Carter, 602 So. 2d 995, 996 (Fla. App. 1992) (affirming the trial court's decision to dismiss charges of child abuse against woman who allegedly used illegal drugs while pregnant); State v. Luster, 419 S.E.2d 32, 35 (Ga. App. 1992), cert. denied, S92C1020 (June 4, 1992) (statute proscribing delivery/distribution of cocaine did not encompass prenatal transmission); State v. Gethers, 585 So. 2d 1140, 1143 (Fla. App. 1991) (dismissing child abuse charges on ground that such application misconstrues the effect of the law and violates public policy of preserving family life); People v. Hardy, 469 N.W.2d 50, 52-53 (Mich. App. 1991), appeal denied, 471 N.W.2d 619 (Mich. 1991) (statute prohibiting delivery of cocaine to children was not intended to apply to pregnant drug users); Reyes v. Superior Court, 75 Cal. App. 3d 214, 219 (1977) (child endangering statute does not refer to an unborn child or include a woman's alleged drug use during pregnancy). See also State v. Osmus, 276 P.2d 469 (Wyo. 1954) (criminal neglect statute cannot be applied to the woman's prenatal conduct). Cf. In re Valerie D., 613 A.2d 748, 765 (Conn. 1992) (holding that legisla-tive history does not support application of civil child abuse statute where child was born with positive toxicology and other symptoms after mother had injected cocaine several hours prior to giving birth). See also trial court opinions: State v. Dunn, 93-1-00043-2, Transcript of Record (Wash. Super. Ct. April 1, 1994) (dismissing child mistreatment charges, finding that the legislature never intended the child mistreatment statute to apply to a woman's prenatal conduct); State v. Jones, No. 93-5, Transcript of Record (Cal. J. Ct. Siskiyou County July 28, 1993)(dismissing homicide charges against woman whose newborn died allegedly as a result of prenatal drug use, finding that the legislative history did not support application of murder statute to death of woman's fetus); State v. Arandus, No. 93072, slip op. (Neb. Dist. Ct. June 17, 1993) (quashing indictment on child abuse because application of the statute to unborn children is not supported by legislative intent); People v. Jaurigue, No. 18988, slip op. (Cal. Super. Ct. Aug. 21, 1992), writ denied, (Cal. App. 1992) (dismissing fetal homicide charges against a woman who suffered a stillbirth allegedly as a result of her prenatal drug use, finding that neither legislative history nor the statute's language suggested that a mother could be prose-cuted for murder for the death of her fetus); State v. Alexander, No. CF-92-2047, slip op. (Okla. Dist. Ct. Aug. 31, 1992) (dismissing charges of unlawful possession of a controlled substance and unlawful delivery of a controlled substance to a minor brought against a woman who ingested illegal drugs while preg-nant, finding that the pre-sence of drug in defendant's system does not constitute posses-sion and transfer of the drug through the umbilical cord is not "volitional"); Commonwealth v. Wilcox, No. A-44116-01, slip op. (Va. Dist. Ct. Oct. 9, 1991) (dismissing child abuse charges against a woman who allegedly used cocaine during pregnancy, finding that application of the statute to these facts would extend it by means of creative construction to acts not intended by the legislature); Commonwealth v. Smith, No. CR-91-05-4381, slip op. (Va. Cir. Ct. Sept. 16, 1991) (dismissing child abuse charges against a woman who allegedly used drugs during pregnancy, finding that child abuse statute is not in-tend-ed to apply to fetuses or to prenatal conduct); Commonwealth v. Turner, No. 91-054382, slip op. (Va. Cir. Ct. Sept. 16, 1991); State v. Inzar, Nos. 90CRS6960, 90CRS6961, slip op. (N.C. Super. Ct. Apr. 9, 1991), appeal dismissed, No. 9116SC778 (N.C. App. Aug. 30, 1991) (dismissing charges against a woman who allegedly used crack during her pregnancy under statute prohibiting assault with a deadly weapon and delivery of a controlled substance,find-ing that a fetus is not a person within the meaning of the statutes); People v. Bremer, No. 90-32227-FH, slip op. (Mich. Cir. Ct. Jan. 31, 1991), appeal dismissed, No. 137619 (Mich. App. July 14, 1992) (dismissing drug delivery charges on principles of statutory construction, due process, and privacy, holding that the inter-pretation of the drug delivery law to cover ingestion of cocaine by a pregnant woman would be a radical departure from existing law); Commonwealth v. Pellegrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990) (right to privacy and principles of statutory construction, due process, and separation of powers do not permit extension of drug delivery statute to women who give birth to substance-exposed newborns); People v. Cox, No. 90-53454 FH, slip op. (Mich. Cir. Ct. July 9, 1990), aff'd, No. 131999 (Mich. App. Feb. 28, 1992) (granting motion to dismiss, finding that drug delivery statute is not intended to regulate pre-natal conduct and that prosecution would not be in the best in-terest of public health, safety, and welfare); State v. Andrews, No. JU 68459, slip op. (Ohio C.P. June 19, 1989) (child endanger-ment statute is not intended to apply to any situation other than that of a living child placed at risk by actions that occurred after its birth); People v. Stewart, No. M508197, slip op. (Cal. Mun. Ct. Feb. 26, 1987) (criminal child support statute that explicitly covered "a child conceived but not yet born" is not intended to impose additional legal duties on pregnant women).
See also Slack v. State, 429 S.E.2d 801 (1993) (Court lacked jurisdiction to accept petitioner's plea to grand larceny because the value of the property stolen was more than $50 and the crime required a value of more than $200.)
Indeed, no South Carolina statute defines a person with "legal custody" as a pregnant woman in relationship to the fetus she carries. See, e.g., S.C. Code Ann. § 44-23-10(18) ("`Parent' means natural parent, adoptive parent, stepparent, or person with legal custody.")
See also MICH Report Vol. III at 20 ("[t]here is substantial evidence that the use of the terms `person' and `child' in the Children's Code was not intended to include fetuses . . . Most forms of intervention provided for in the child protective system are inconsistent with construction of the term to include fetuses. Protective custody of the fetus would require control of the woman as well as the fetus, a measure which is not provided for in the statutory scheme. Removal of the fetus from the parent is not an option. Termination of parental rights in regard to a fetus seems to be a meaningless exercise.").
Later, § 16-96 was codified as § 16-3-1030 S.C. Code of Laws 1976.
The South Carolina Child Protection Act of 1977 with some amendments, remains in force today as the law governing child abuse and neglect identification and proceedings in this state. The current law is codified as part of the Children's Code, §§ 20-7-10 et seq.
Pub.L. 93-247, § 3, Jan. 31, 1974, 88 Stat. 5.
Additional influences included: Alan Sussman & Stephan J. Cohen's Reporting Child Abuse and Neglect: Guidelines for Legislation (1975); DeFrancis, Vincent, Child Abuse Legislation in the Seventies; (American Humane Association (1974)), Paulsen, Monrad, The Legal Framework for Child Protection, 66 Columbia L. Rev. 675 (1966), Wald, Michael, State Intervention on Behalf of Neglected Children: A Search for Realistic Standards, 27 Stan. L. Rev. 985 (1975), and Wald, Michael, State Intervention on Behalf of Neglected Children: Standards for Removal of Children from their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan. L. Rev. 623 (1976). See Elliott, John, D., Child Protection Act of 1977 with commentary (1980). None of these sources referred to or even addressed the question of "fetal" abuse.
See e.g., "Cradle to Grave Was a Short Trip," The State Aug. 8, 1976, at 14-A (reporting case of child hospitalized with multiple wounds noting that at least nine children had died of injuries from abuse in South Carolina in the past two- and-one-half years); "Five Children . . . They're All Dead," The State, Aug. 8, 1976, at 9-A (noting five children who died from multiple injuries allegedly inflected by their parents, including burns, a broken neck and poisoning).
See S. 1495 (1989-1990), reintroduced as S.75 (1990-1991) (to among other things require drug testing of newborns and to include within § 20-7-400(A)(1)(a)'s definition of neglect any infant who tests positive for a controlled substance); S. 1470 (1989-1990), reintroduced as S.79 (1991), (mandating reporting to DSS a pregnant woman believed to have used a controlled substance); H. 3858 (1990-1991) (to amend sections of the Children's Code to require reporting of a pregnant woman believed to be using a controlled substance and expanding the definition of an abused child, § 20-7-490, to include a newborn who tests positive for illegal drugs); S. 986 (1991) (mandating drug testing on newborn infants, requiring reporting of such infants as abused pursuant to § 20-7-490 and requiring reversible sterilization or implantation of birth control until the mother completes a certified drug treatment program); S. 155 (1992-1994) (to among other things permit testing of newborns for controlled substances, to mandate reporting to DSS of a positive drug test on a newborn prohibiting release of information for proceedings against the mother except for judicial proceedings initiated by DSS or for the purpose of bringing about the commitment of a person for alcohol or drug treatment); S. 1256 (1992) reintroduced as S. 150 (1992-1993) (to, among other things, permit referral to the State Department of Health and Environmental Control of families with children prenatally exposed to drugs for services and giving pregnant women priority for treatment in substance abuse programs). These Bills as well as S. 4032 and H 4486 (discussed below) are reproduced in Respondent's Supplemental Appendix.
See also People v. Hardy, supra n. 6, at 53; Andrews, supra n. 6 at 9-10.
See also Stone v. State, 443 S.E.2d 544 (S.C. 1994); State v. Allen, 431 S.E.2d 563, 564 (S.C. 1993).
The Children's Code clearly contemplates that DSS is primarily responsible for interpreting and implementing the child abuse and neglect reporting laws. For example, DSS may adopt all necessary rules and regulations and formulate policies to carry out child protective services and responsibilities. § 20-7-640(E). DSS assigns and monitors initial child protection responsibility; assists in the diagnosis of child abuse and neglect by the local agency; and evaluates child protection programs. § 20-7-640(c). Local Department of Social Services in each county are the designated local child protective services agency. § 20-7-640(D).
These guidelines clarify that "[t]he use or acknowledgement of drugs/alcohol during pregnancy and/or involvement of a caretaker in criminal activity involving controlled substances are not in and of themselves sufficient reason for accepting a report for CPS investigation" Id. (Emphasis added). Accordingly, "[t]he removal of children [is] based upon an assessment of risk, rather than a single indicator/behavior [such as prenatal drug use] on the part of the parent." Id. Part 3.

If prenatal drug exposure alone is insufficient grounds for DSS removal of a child from its parents in a civil proceeding, then certainly it should be insufficient for a criminal conviction under § 20-7-50. Moreover, by imprisoning the woman, the state has effectively removed the child from the mother's custody on grounds that would not even satisfy DSS.
See also Faile v. South Carolina Employment Security Commission, 267 S.C. 536; 230 S.E.2d 219, 222 (1976) ("The construction of a statute by the agency charged with executing it is entitled to the most respectful consideration and should not be overruled without cogent reasons.")
Petitioner suggests that no other state's cases are relevant because no other state has case law similar to State v. Horne, Fowler v. Woodward, and Hall v. Murphy. See Pet. Brf. at 8-9. Although as discussed below, these South Carolina decisions do not require application of § 20-7-50 to fetuses, it is worth noting that in fact, many of the sister state court decisions were made in legal contexts similar to South Carolina's. See e.g. State v. Gray, 584 N.E.2d 710 (Ohio 1992) (declining to extend the common law definition of "person," as used for the common law crime of murder, to criminal child abuse statutes in the context of drug use during pregnancy, despite its use for purposes of vehicular homicide statutes); Commonwealth v. Pellegrini, supra n. 6 slip op. at 10 (dismissing drug delivery charges against a pregnant addict and distinguishing state cases recognizing that a viable fetus is a "person" for purposes of wrongful death statute, for purposes of the common law crime of murder); Commonwealth v. Kemp, supra n. 6 slip op. at 5 (dismissing child abuse and other charges against pregnant addicts and distinguishing state cases "which recognize the validity in the Commonwealth for purposes of maintenance of wrongful death and survival acts suits the claims on behalf of a fully developed but stillborn fetus and live birth, but no otherwise viable, children"); Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993) (also refusing to apply the common law definition of "person" to criminal child abuse statutes).
The national trend in cases like the one at issue here has been to reject extensions of the criminal law to pregnant women with substance abuse problems. See supra n. 6.
This Court also noted that "[t]he fact this particular issue has not been raised or ruled on before does not mean we are prevented from declaring the common law as it should be." Id. at 319 S.E.2d at 704. (Emphasis added).
Indeed, DSS and lower courts have all consistently read this Court's decision in State v. Horne to be an interpretation of the common law. See DSS Mem. Feb. 1990 at 2; State v. Tolliver, supra n. 6, slip op. at 5; State v. Crawley, supra n. 6 slip op. at 2-3.
Furthermore, while historically, a basis may exist under the common law for treating the fetus as a person in relation to a third party who injures a pregnant woman, the common law did not treat the fetus as a separate person in relation to the pregnant woman herself. See, e.g., C. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L. Rev. 563, 618, 622-23 (1987).
The State's child neglect law was created by statute. "An Act to Punish Persons for Ill-Treating Children, Apprentices, Idiots, Servants and Helpless Persons," Law of March 17, 1874, (15) 704. See supra at 18-19.
See also Bremer, supra n. 6, slip op. at 10-11; Pellegrini, supra n. 6 slip op. at 15-16; Luster v. State, supra n. 6, 419 S.E.2d at 34 (". . . because the common, ordinary meaning of the plain and unambiguous language of the statute shows it does not apply to the facts sub judice, [the defendant] could not reasonably have known that she would be prosecuted [under the drug distribution statute] . . . if she ingested cocaine while pregnant, and thus she did not receive the `fair warning' mandated by [law].")
Under South Carolina common law, the maximum punishment of a misdemeanor such as § 20-7-50 is ten years. See e.g. State v. Mims, 286 S.C. 583, 335 S.E.2d 237, 238 (1985).
Numerous courts dismissing prosecutions against women who gave birth despite an addiction problem have recognized the possibility of coerced abortions. See, e.g., Johnson v. State, 602 So. 2d at 1296 ("Prosecution of pregnant women for engaging in activities harmful to their fetuses or newborns may also unwittingly increase the incidence of abortion."). See also State v. Gethers, 585 So.2d at 1143 ("[p]otential criminal liability would also encourage addicted women to terminate or conceal their pregnancies"); People v. Morabito, supra n. 6, slip op. at 4; People v. Bremer, supra n. 6 slip op. at 9, 14; Commonwealth v. Pellegrini, supra n. 6 slip op. at 9. Indeed, a policy of prosecution may have resulted in at least one coerced abortion. In February of 1992, Martina Greywind was charged with reckless endangerment because she was allegedly sniffing paint fumes while she was pregnant. Gail Stewart Hand, Women or Children First?, Grand Forks Herald, July 12, 1992, at 1. Twelve days after her arrest she obtained an abortion. Id. Shortly after the abortion, the charges were dropped. s.
See also State v. Brown, 326 S.E.2d 410 (S.C. 1985) (suspended sentence conditioned on defendant's castration violates prohibition against cruel and unusual punishment.)
LaFleur also makes clear that a statute that has the effect of impinging on the independence of reproductive choice will not be upheld merely because it does not have that intent. See 414 U.S. at 632. The Cleveland Board of Education certainly did not intend to coerce their employ-ees not to become pregnant or to abort their pregnancies; rather the Board sought to minimize the risk of physical incapacity and sudden absences from the classroom that might result if teachers remained on duty late into their pregnancies. Thus, even if punishing childbirth and encouraging abortions is not the primary, or even a significant purpose of the Petitioner's interpretation of § 20-7-50, the interpretation is unconstitutional because it has that effect.
The right to privacy belongs to the woman throughout her pregnancy even after the fetus is viable. See e.g., In re A.C., 573 A.2d 1235, 1244 (D.C. en banc 1990) (rejecting argument that because a woman "`has chosen to lend her body to bring [a] child into the world' [she] has an enhanced duty to assure the welfare of the fetus...."); Doe v. Doe, 632 N.E.2d 326 (Ill. Ct. App. 1994) (rejecting claim that pregnant woman's right to refuse medical advice to obtain a cesarean section should be balanced against whatever rights a viable fetus may have). The Petitioner's suggestion that the United States Supreme Court decisions somehow support their argument that it is "no stretch to threat an unborn viable fetus as a `child,'" Pet. Brf. at 9, for purposes of child neglect law is without support. The unborn have never been recognized in the law as "persons." Roe v. Wade, 410 U.S. 113, 158 (1973); see also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 799 n. 8 (1986)(Stevens, J., concurring)("[n]o member of this Court has ever suggested that a fetus is a `person' within the meaning of the Fourteenth Amendment.")
That similar prosecutions might occur because of a woman's legal behavior during pregnancy is not mere speculation. For example, in 1986, Pamela Rae Stewart was arrested under a criminal child support statute and charged with "failing to follow her doctor's advice to stay off her feet, to refrain from sexual intercourse, refrain from taking street drugs, and seek immediate medical attention, if she experienced difficulties with the pregnancy." Stewart, supra note 2 at 4 (San Diego Mun. Ct. Feb. 23, 1987). Prosecutors later admitted that drugs had little to do with the case. Schacter, Help is Hard to Find for Addict Mothers, Los Angeles Times, Dec. 12, 1986, §II, at 20. In Albany County, Wyoming, a pregnant woman who entered a hospital for treatment for injuries inflicted by her husband was tested for alcohol, arrested, jailed, and charged with criminal child abuse because the state argued that by drinking alcohol she had endangered her fetus. State v. Pfannenstiel, No. 1-90-8CR, slip op. (County Ct. of Laramie, Wy., complaint filed Jan. 5, 1990). See Levandosky, Turning Women into 2-Legged Petri Dishes, Casper [Wyo.] Star-Tribune, Jan. 21, 1990 at A8. The charges, however, were dismissed in both cases.
It is wrong to assume that an infant will necessarily be harmed or injured by prenatal exposure to cocaine. As a commentary in the Journal of the American Medical Association explained, "[p]redictions of an adverse developmental outcome for these chil-dren are being made despite lack of supportive scientific evidence." Mayes, Linda C. et al., The Problem of Prenatal Cocaine Exposure, 267 JAMA 406 (1992). Moreover, as the MICH Report found:
Evaluating the extent of risk posed by pre-natal alcohol or other drug exposure in-volves multiple, complex factors. Not all exposed children experience severe health or develop-mental problems, and insufficient research has been performed to establish the frequency of serious harm among drug-exposed infants or to predict which infants will be harmed. Further, those infants that do experience harm are often subject to other influences that could contribute to or cause the problems, including poor maternal health, malnutrition, lack of prenatal care, and exposure to nicotine or other substances. Some researchers suggest that the combined effects of cigarettes, drugs, poor nutrition, and other risk factors, rather than drug-exposure alone, cause the adverse outcome making the risk posed by a single factor such as drugs difficult to determine.

Vol. III at 13-14 (emphasis added) (citing Zuckerman, Drug-Exposed Infants: Understanding the Medical Risk, The Future of Children, Spring 1991, at 26).
See also Missing Links: Coordinated Federal Drug Policy for Women, Infants and Children : Hearing before Senate Committee on Governmental Affairs, 101st. Cong., 1st Sess. (1989) (Opening Statement of Senator Herb Kohl) ("[m]others -- afraid of criminal prosecution -- fail to seek the very prenatal care that could help their babies and them").
"Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician's knowledge of substance abuse or other potentially harmful behavior could re-sult in a jail sentence rather than proper medical treatment." American Medical Association Board of Trustees Report, American Medical Association Board of Trustees, Legal Inter-ventions During Pregnancy, 264 JAMA 2663, 267 (1990). See also American Medical Association, Treatment Versus Criminalization: Physician Role in Drug Addiction During Pregnancy, Resolution 131 (1990) ("therefore be it . . . resolved that the AMA oppose legislation which criminalizes maternal drug addiction").
"The [Academy] is concerned that [arresting drug addicted women who become pregnant] may discourage mothers and their in-fants from receiving the very medical care and social support systems that are crucial to their treatment." American Academy of Pediatrics, Committee on Substance Abuse, Drug Exposed Infants, 86 Pediatrics 639, 641 (1990).
"Actions of coercion to obtain consent or force a course of action limit maternal freedom of choice, threaten the doc-tor/patient relationships, and violate the principles underlying the informed consent process." American College of Obstetricians and Gynecologists Committee Opinion No. 55, Patient Choice: Maternal-Fetal Conflict (1987).
"Recognizing that pregnant drug-dependent women have been the object of criminal prosecution in several states, and that women who might want medical care for themselves and their babies may not feel free to seek treatment because of fear of criminal prosecution related to illicit drug use . . . [the Association] recommends that no punitive measures be taken against pregnant women who are users of illicit drugs when no other illegal acts, including drug-related offenses, have been committed." American Public Health Association Policy Statement No. 9020, Illicit Drug Use by Pregnant Women, 8 Am. J. Pub. Health 240 (1990).
"[S]tates should adopt, as preferred methods, prevention, intervention, and treatment alternatives rather than punitive actions to ameliorate the problems related to perinatal exposure to drugs and alcohol." Southern Legislative Summit on Healthy Infants and Families, Policy Statement 8 (Oct. 1990).
"Criminal prosecution of chemically dependent women will have the overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increas-ing, rather than preventing harm to children and to society as a whole." American Society of Addiction Medicine, Policy Statement on Chemically Dependent Women and Pregnancy, A.S.A.M., Sept. 1989 at 49.
"Punitive approaches to drug addiction may be harmful to pregnant women because they interfere with access to appropriate health care. Fear of punishment may cause women most in need of prenatal services to avoid health care professionals." March of Dimes, Statement on Maternal Drug Abuse 1 (1990).
"From a health-care perspective, it appears likely that criminalization of prenatal drug use will be counterproductive. It will deter women who use drugs during pregnancy from seeking the prenatal care which is important for the delivery of a healthy baby . . . . The threat of criminal prosecution alone will not deter women in most instances from using drugs during pregnancy. These women are addicts who become pregnant, not pregnant women who decide to use drugs and become addicts." National Association for Perinatal Addiction Research and Educa-tion. Criminalization of Prenatal Drug Use: Punitive Measures Will Be Counterproductive (1990).
"[A] punitive approach is fundamentally unfair to women suffering from addictive diseases and serves to drive them away from seeking both prenatal care and treatment for their alcohol-ism and other drug addictions. It thus works against the best interests of infants and children by involving the sanctions of the criminal law in the case of a health and medical problem." National Council on Alcoholism and Drug Dependence Policy State-ment, Women, Alcohol, Other Drugs and Pregnancy (1990).
"The threat of criminal prosecution prevents many women from seeking prenatal care and early intervention for their alcohol or drug dependence, undermines the relationship between health and social service workers and their clients, and dissuades women from providing accurate and essential information to health care providers. The consequence is increased risk to the health and development of their children and themselves." Association of Maternal and Child Health Programs Law and Policy Committee, Statement Submitted to the Senate Finance Committee Concerning Victims of Drug Abuse: Resolution on Prosecution (1990).
"The criminal prosecution of addicted women solely because they are pregnant is both inappropriate and counterproductive. There is no evidence that a policy of criminal prosecution will either prevent prenatal drug exposure or improve children's health. Rather, prosecution of alcoholic and drug dependent women will very likely deter them from seeking both prenatal care and treatment for their addiction, resulting in increased risks to the health and well-being of women and their children." Coalition on Alcohol and Drug Dependent Women and their Children, Statement Opposing Prosecution (1990).
"A woman who uses illegal drugs during pregnancy should not be subject to special criminal prosecution on the basis of alle-gations that her illegal drug use harms the fetus." Center for the Future of Children, 1 The Future of Children at 16 (1991) ("[w]e believe that requiring health providers to report pregnant women to law enforcement for prosecution will reduce the likelihood that these women will seek medical care during pregnancy"). See also Recommendations 8-9 (1991).
Organizations concerned with family law and public health issues have also concluded that criminal prosecutions of addicted women who give birth are counterproductive. See, e.g., Association of Family and Conciliation Courts, Maternal Substance Abuse Policy Recommendations (1992) ("criminalization of maternal substance abuse is not in the best interests of the child"). The National Association of Public Child Welfare Administrators has stated that "laws, regulations, or policies that respond to addiction in a primarily punitive nature, requiring human service workers and physicians to function as law enforcement agents are inappropriate." National Association of Public Child Welfare Administrators, Guiding Principles for Working With Substance-Abusing Families and Drug-Exposed Children: The Child Welfare Response 3 (1991).
See also Commonwealth v. Pellegrini, supra n. 6 at 9; People v. Bremer, supra n. 6, slip op. at 9, 14.
See Curry, Nonfinancial Barriers to Prenatal Care, 15 Women & Health 85 (1989); President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 1 Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship 69-70 (1982).
Neither an "Alcohol Treatment Unit" in prison nor the "drug-counseling" that Ms. Whitner obtained constitute drug treatment, outpatient or residential designed to meet the needs of pregnant and post-partum women.
According to the MICH Report, "[b]arriers to treatment for women include the use of male-oriented therapies in most programs, lack of adequate child care, inadequate financial resources and limited transportation" MICH Report Vol.II at 2. These barriers prevent women from obtaining appropriate treatment. Id. at Appendix, "Alcohol and Drug Treatment Services Available for Pregnant Women." For example, failure to provide child care services "effectively precludes the participation of women in drug treatment." Chavkin, Wendy, Help, Don't Jail Addicted Mothers, N.Y. Times, July 18, 1989, at A21. Similarly, although research on appropriate treatment programs for pregnant women indicates "that long-term (12 to 18 months) residential care is the most effective," MICH Report Vol. II at 9, no such treatment existed in South Carolina at the time of Ms. Whitner's arrest.
Moreover, state officials reported that Federal funds to encourage states to use a 10% women's set-aside for substance abuse treatment of pregnant women and women with dependent children were not used for this purpose but rather for treating women in general. Id.
See also Tolliver v. State, supra n. 6 slip op. at 4. (when the state fails to prove that the act petitioner was accused of doing is a crime in South Carolina, petitioner's guilty plea and resulting conviction must be overturned and the indictment underlying the conviction must be dismissed).
It is apparent from the Arrest Affidavit in this case that the criminal charges brought against Petitioner were based on disclosure of Ms. Whitner's confidential medical information maintained by the Easely Baptist Medical Center. See Arrest Affidavit (Feb. 5, 1992) ("probable cause for arrest is based on the following facts: ...(3) Hospital Records. (4) Report from the Hospital Social Services." Arrest Warrant D-038088 (Feb. 5, 1992). Counsel should have been aware of well known and long standing federal law prohibiting disclosure of medical information maintained by hospitals treating patients with substance abuse problems for use in criminal proceedings against such patients. See 42 U.S.C. § 290dd-2 (guaranteeing confidentiality of medical information pertaining to treatment of patients with substance abuse problems). Indeed, counsel would likely have succeeded in suppressing urinalysis results on Ms. Whitner and her baby and other medical information Ms. Whitner provided to the hospital based on this federal statute.) See United States v. Eide, 875 F.2d 1429 (9th Cir. 1989)

Counsel could have further moved to suppress the evidence obtained by the police and Solicitor's Office from Ms. Whitner and the medical center based on a violation of Ms. Whitner's right to privacy as guaranteed by the Fourth Amendment and Fourteenth Amendment to the United States Constitution. Counsel, however, failed to consider Petitioner's constitutional rights under either state or federal law.