What Rights Do Unborn Children Have?

June 25, 2001 -- 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.

While prenatal illegal drug use by women does have negative effects on infants, such effects are no more severe than if the woman smoked or drank alcohol during pregnancy, says Deborah Frank, an associate professor of pediatrics at Boston University whose study on the matter was published in the Journal of the American Medical Association last spring.

Punishing pregnant drug users can only risk scaring women away from seeking the care they need, she added. "You need to help them by addressing their addictions," Frank said. "You can't punish or terrify people out of an addiction."

The State's 'Compelling Interest'

Those assessments of the South Carolina law and its effects are inaccurate, says the spokesman for the state's Attorney General Charles Condon. In reality, only a handful of women have been prosecuted for abusing drugs while pregnant in the five years since the law took effect, says spokesman Robb McBurney.

For those pregnant women in need of drug rehabilitation, the state's system offers help at every step of the process, McBurney says, and only turns to prosecution when the woman resists treatment.

"The state has a compelling interest in making sure that parent gets treatment and I think those kids will be better off if the state takes some action," he said. "These are not responsible people we're talking about."

Further, McBurney rejects the notion that women are afraid to come forward for treatment out of fear that their children will be taken away.

"This has not been our experience, the horror stories that the other side draws up on these things just don't happen," he said.

Condon was also instrumental in creating a policy in 1989 that involved testing pregnant women for drugs at hospitals without their consent and turning the results over to police. The program began at a time when emergency room workers were reporting repeated cases of crack-addicted women giving birth.

Last March, the U.S. Supreme Court struck down the policy, saying it violated the women's Fourth Amendment right against unreasonable search and seizure.