What Rights Do Unborn Children Have?

Even during her pregnancy, Brenda Peppers, an addict, smoked crack. Her daughter was eventually stillborn, and Peppers — who also suffered from a condition characterized by a breakdown of red blood cells — spent weeks in a coma.

After that trauma in 1996, Peppers never went back to drugs, but two years later, prosecutors in her home state of South Carolina slapped her with charges of abusing her unborn child by taking the cocaine. Now, after a guilty plea and two years' probation, the 35-year-old is challenging the 1997 state Supreme Court ruling that allowed prosecutors to press charges against her.

Peppers became one of about 200 women in 30 states who have been prosecuted in recent years for "fetal abuse."

In most fetal abuse cases, women have been arrested and charged with various crimes including possession of a controlled substance, delivering drugs to a minor, corruption of a minor, and child abuse and neglect. Others have been charged with assault with a deadly weapon and manslaughter.

Fetal abuse cases don't necessarily involve drug abuse. Last fall, a pregnant Massachusetts woman was imprisoned for refusing to see a doctor on religious grounds.

First Homicide Conviction for Pregnant Drug User

Although fetal abuse cases crop up across the nation, no state Supreme Court but South Carolina's has upheld the conviction of a woman charged with child abuse for using cocaine during pregnancy.

Activists on either side of the abortion debate as well as pregnant women's advocates are closely watching the Peppers case, as it could mark a trend in how fetuses and their mothers are treated under the law.

In hearing the case last week, South Carolina's highest court reconsidered whether a viable fetus — it is "viable" when it can live outside the womb — should be considered a "child" under the state's child abuse laws when its mother takes drugs while pregnant.

The hearing came just weeks after 24-year-old Regina McKnight, also from South Carolina, became the first woman in the nation to be convicted of homicide for killing her unborn child through drug use. She was sentenced to 12 years in prison with no parole.

Picking on a Vulnerable Population?

Advocates for pregnant women say the South Carolina law takes the wrong approach in dealing with the decades-old question of how to handle pregnant women who take drugs. Instead of taking a punitive approach that scares women away from getting help, the state should treat pregnant drug abusers as addicts with medical problems, advocates say.

"The word on the street is that it is much more likely that your kids will be taken away from you if you go for help," said Susan Dunn, counsel for the South Carolina Advocates for Pregnant Women, who said the law has kept many women from seeking drug rehabilitation and prenatal care.

Women's advocates also say the state law targets women who are disproportionately minority and low-income. "They're picking on a vulnerable population," Dunn said, "a population not much inspired to fight."

Other critics of the South Carolina law say the law distorts the effect cocaine has on unborn children.

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