SC Women Speak Truth about SC bill that threatens pregnant women

April 19, 2006

Today, South Carolina's leading newspaper ran a commentary by two members of the South Carolina Women's Health Coalition, a coalition NAPW has been helping to support. KATHRYN LUCHOK AND SARAH GAREAU explain how the state's latest fetal rights bill purports to protect pregnant women, but actually undermines them.

The State, Posted on Wed, Apr. 19, 2006

Protecting pregnant women not bill’s true goal

Guest columnists
A bill purporting to protect pregnant women against violence, the Unborn Victims of Violence Act of 2006 (S1084), has passed the S.C. Senate and is being considered in the House. The bill establishes the unborn as independent “victims,” with legal rights distinct from the women who have been attacked. The bill’s supporters claim that it protects pregnant women against violence, yet this law treats the pregnant woman herself as little more than collateral damage.

One Senate Judiciary Committee member who supports the bill expressed the view that the focus must be on the unborn rather than on protecting pregnant women. In his opinion, women could be guilty of angering men and provoking an attack, while the unborn are completely innocent and deserve special protection.

Sadly, there is no indication that this law or any of the similar feticide laws passed in 30 other states and by the federal government have done anything to protect pregnant women or their children. Rather, pregnant women in states with such laws are more likely to be punished if they are believed to have risked harm to a fetus.

In Utah, prosecutors publicly declared that their state’s version of the law provided the basis for arresting a woman who decided to wait to have a Caesarean section. They argued that she could be prosecuted for murder, because by exercising her right of informed medical decision-making, they claimed she caused one of her twins to be stillborn.

As a result of judicial activism, South Carolina already has a feticide law that applies after viability. In 1984, South Carolina’s Supreme Court created a state feticide law in a case where a man viciously stabbed his pregnant girlfriend, causing her, among other things, to lose her pregnancy.

In 1997, South Carolina used this law against a pregnant woman, Cornelia Whitner, who was charged with failing “to provide proper medical care for her unborn child.” Whitner had given birth to a healthy baby who tested positive for an illegal drug. Based on extrapolation of the feticide case law, Ms. Whitner was convicted of criminal child abuse. At sentencing, Ms. Whitner begged for drug treatment. The judge responded, “I think I’ll just let her go to jail.”

This case law has also been used to punish a woman for experiencing a stillbirth. Regina McKnight, despite a drug problem, had every hope of carrying her pregnancy to term. Her pregnancy ended in stillbirth. The hospital reacted not by offering her counseling or drug treatment, but rather by helping build a criminal case against her. Eventually she was convicted of murder, despite the fact that the South Carolina Medical Association and other leading health groups concluded there was no evidence that McKnight’s drug use caused the stillbirth.

While South Carolina ranks in the top three states in murders of women by men and last in the number of state dollars spent on drug treatment, the primary targets of fetal protection laws are pregnant women and new mothers who need drug treatment or mental health services.

So what is the real purpose of this bill? Members of the Senate Republican Caucus and other supporters have publicly noted the real intent of this bill is to grant personhood to the unborn, as a way of creating a legal foundation that could ultimately be used to overturn Roe v Wade. One senator wrote that this bill will “further secure the rights of unborn children in this state.”

Perhaps this is why some legislators are refusing to consider alternative legislation that would protect both women and their future children. Statutes in other states such as Maine, New Mexico and North Carolina make it an offense to inflict an injury on a pregnant woman in the commission of a felony that causes miscarriage or stillbirth. These statutes value both maternal and fetal life, without making pregnant women vulnerable to arrest.

If you believe all women, especially pregnant ones, deserve greater protection under the law, this bill is not the answer. We can best support healthy children by protecting the health and well-being of mothers and mothers-to-be. Let’s concentrate our efforts on crafting bills that can truly value women, protect them from violence and appropriately punish those who perpetrate violence against them.

Dr. Luchok is a maternal and child health specialist. Ms. Gareau is a doctoral student focusing on public health policy. Both are members of the S.C. Women’s Health Coalition.