Often the war against public health is conducted under the guise of protecting health. A war against pregnant addicts is being carried on by state governments, particularly South Carolina's, on the pretense of looking out for child welfare. However, leading medical authorities agree that criminalizing the mother harms the child by driving the mother away from needed health care.

On July 15, in a divided 3-2 opinion, the South Carolina Supreme Court ruled that a woman can be held criminally liable for actions taken during pregnancy that might affect her viable fetus, whether the conduct was legal or not. In State v. Whitner, SC prosecutors had appealed a lower court ruling that freed a woman who had been convicted and jailed under the state's child neglect statute for her alleged use of crack cocaine during pregnancy. Cornelia Whitner's eight-year sentence had been vacated in Nov. 1993 by a Court of Common Pleas judge, who found that the law at issue could not apply to a pregnant woman's conduct.

"The South Carolina Supreme Court's decision flies in the face of every other court in this nation and ignores the fact that every leading medical group has concluded that throwing mothers in jail will hurt women, their babies, and their families," said Lynn Paltrow, the Center for Reproductive Law and Policy attorney who represents Ms. Whitner. "There are not enough jail cells in South Carolina to hold the pregnant women who have a drug problem, drink a glass of wine with dinner, smoke cigarettes, fail to take prenatal vitamins, or decide to go to work despite their doctor's advice that they should stay in bed all of whom could be guilty of the crime of child neglect as a result of today's ruling."

Rauch Wise, co-counsel for Ms. Whitner, pointed out that "Under South Carolina law as set out in this opinion, a pregnant woman who uses drugs or engages in any other potentially risky behavior during her third trimester would face a lighter jail sentence for self-inducing an abortion than for giving birth -- for a self-induced abortion, a woman would face two years in prison compared to the decade in jail she could face for carrying to term." Wise added "It's ironic that state officials who claim to be `pro-life' pursued a legal holding that will encourage women to have abortions."

Amicus briefs were filed on Ms. Whitner's behalf in the SC Supreme Court by the Alliance for South Carolina's Children, the American College of Obstetricians and Gynecologists, the American Medical Association, the American Medical Women's Association, the American Public Health Association, the American Nurses Association, the Coalition on Addiction, Pregnancy and Parenting, the Drug Policy Foundation, the National Council on Alcoholism and Drug Dependence, the National Per inatal Association, the National Women's Health Network, the NOW Legal Defense and Education Fund, Operation PAR (Parental Awareness and Responsibility), Planned Parenthood of Central South Carolina, the South Carolina Medical Association, South Carolina NOW, the South Carolina Nurses Association, and the Women's Law Project.

It's important to note that heavy cigarette and alcohol use have known harmful effects on the unborn, while prenatal cocaine use has not been shown to have effects that are separable from the effects of poverty and environmental factors, despite careless media coverage to the contrary. A recent study at SUNY Buffalo by LeAdelle Phelps matched 20 children whose mothers used drugs to 20 unexposed children of the same sex, ethnicity and socioeconomic status and found no differences in social skills, behavior or reasoning abilities. In fact, Ms. Whitner's baby was born healthy despite its testing positive for cocaine. (This should not, however, be taken to mean that cocaine use is advisable, during pregnancy or at any other time.)

More information is available from the Center for Reproductive Law & Policy, (212) 514-5534, including CRLP's report Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines Women's Health and Children's Interests.