When Mothers Become Criminals

January 02, 2004

By: Rina Jimenez-David, Philippine Daily Inquirer, January 2, 2004

"CRIMINALIZING Motherhood" is how Silja J.A. Talvi, writing for The Nation, titled her piece on the case of a woman in South Carolina who is serving 12 years in prison for the "crime" of giving birth to a stillborn child.

Writes Talvi: "As Regina McKnight grieved and held her third daughter Mercedes' lifeless body, she could never have imagined that she was about to become the first woman in America convicted for murder by using cocaine while pregnant."

McKnight's plight is instructive not just to American women, but to women all over the world, especially here in the Philippines where incumbent officials-and other aspirants for public office-seem all too willing to barter women's rights for the electoral support of the Catholic hierarchy and other conservative elements.

What will happen when motherhood becomes, as a matter of law, and policy, not a right and a choice but a duty and obligation? Here's McKnight's story, and what could be in store for all women under a rigid, punitive "pro-life" regime.

As Talvi recounts, McKnight was a seasonal tobacco farm worker with a tenth-grade (third year high school) education who was homeless, drug-addicted and "trying to cope with the recent loss of her mother, who was run over by a truck." She never received any help for her drug problems, not surprising considering, as Talvi points out, that South Carolina ranks lowest in the US for spending on drug and alcohol treatment programs.

INTO THIS dismal picture steps former Republican Attorney General Charlie Condon, now running for the US Senate, who was determined to apply a child abuse law, the only one in the US, that covers "viable fetuses." At least 100 women in the state have subsequently faced criminal charges for using drugs while pregnant, reports Talvi. South Carolina was also the first and only state to test pregnant women for drug use and report the findings to police without the woman's consent-or a warrant-until the US Supreme Court put a stop to it.

McKnight, now 26, is the first to be imprisoned on a murder conviction under the "viable fetuses" law. In October, McKnight lost what Talvi calls her "best shot" at release when the Supreme Court declined to review her case, "allowing the conviction to stand by default."

"What South Carolina has done, in effect, is (to make) pregnancy a crime waiting to happen," Talvi quotes Lynn Paltrow, a lawyer and the executive director of the National Advocates for Pregnant Women in New York.

This, despite what Talvi says is the "absence of any scientific research linking cocaine use to stillbirth." Nor did it matter that the state "couldn't conclusively prove that McKnight's cocaine use actually caused Mercedes' stillbirth. What mattered in the end, says Talvi, is that "South Carolina prosecutors were hell bent on using McKnight as an example."

Paltrow was one of the lawyers who took McKnight's appeal to the high tribunal, joining 27 other medical and drug-policy groups that sought to overturn the conviction, including the American Public Health Association, the American Nurses Association and the American Society of Addiction Medicine. These organizations, says Talvi, saw McKnight's case as "an extreme manifestation of an increasingly successful anti-choice agenda wrapped in the cloak of the War on Drugs."

ALL over the United States, approximately 275 women have already faced charges relating to drug use during their pregnancies, says Paltrow. "In a country where a pregnant woman has no legal right to safe housing, daycare, nutritious food, medical care or mental health services, it's horrifying to witness the development of a law that allows for women's bodies to be treated as if they were mere vessels," writes Talvi.

Talvi notes that the mothers have poor chances of winning public sympathy, and that prosecutors "knew exactly how to demonize a 'drug mom.'" Judy Appel of the Drug Policy Alliance, also points out that "women who are in serious need of prenatal health care-and at most risk of having medical problems-are even more reluctant to turn to a system that might press charges if something goes wrong with their pregnancies."

The legal precedent set in the McKnight case is far graver than it might seem at first, Talvi says. "As the laws have been written in South Carolina, child abuse charges could as easily be applied to pregnant women who smoke, drink even a moderate amount of alcohol, work around certain kinds of chemicals or even change cat litter-in essence, any activity that is 'within the realm of public knowledge' of causing potential harm to a fetus."

MCKNIGHT'S case has since emboldened South Carolina to go after other women, even retroactively. Prosecutors are going after their second murder conviction under the "viable fetus" law, a woman by the name of Angelia Kennedy who, like McKnight, is African-American, and who allegedly smoked cocaine while pregnant, allegedly resulting in a stillbirth five years ago.
Right after the Supreme Court decision, Honolulu city prosecutors went after Tayshea Aiwohi, 31, for the death of her two-day old son. She has been charged with manslaughter for using crystal methamphetamine or "meth" during her pregnancy. The Honolulu prosecutors deny any links to McKnight's case, but declare that would now consider prosecutions of "meth moms" and alcohol abusers, even when their babies survive.

Says Talvi: "Women like McKnight and Aiwohi are the victims of prosecutors who have decided that they have the right to judge and punish women for what happens to their bodies. It is a definitive step toward a government that would have the power to tell us what constitutes acceptable pregnancy and motherhood."