Criminal Sanctions

• Publication year: 2021

76 Nebraska L. Rev. 319. Criminal Sanctions

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Did South Carolina Really Protect the Fetus by Imposing Criminal Sanctions on a Woman for Ingesting Cocaine During Her Pregnancy in Whitner v. State, No. 24468, 1996 WL 393164 (S.C. July 15, 1996)?

TABLE OF CONTENTS

I. Introduction 319
II. Effects of Drug Abuse on a Fetus 321
III. Fetal Rights Concerning Acts Committed by Third
Parties 322
IV. Cases Discussing Whether to Criminalize Maternal
Substance Abuse 325
V. The Facts and Holding of Whitner 331
VI. Analysis 333
A. Violations of Legislative Intent and the Doctrine of
Separation of Powers 333
B. Possible Violations of Due Process Rights 336
C. Right of Privacy Issues Not Addressed in Whitner . . 341
1. Should Strict Scrutiny Apply? 342
2. If Strict Scrutiny Is Applied? 344
D. Policy Considerations 347
VII. Conclusion 351

I. INTRODUCTION

There is no doubt that America's increasing drug problem now affects the unborn.(fn1) An estimated 750,000 fetuses are exposed to a vari

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ety of illegal substances each year.(fn2) This represents an enormous increase from 5,000 in 1977.(fn3) Some individual cities have experienced almost a three thousand percent increase in the number of infants exposed to drugs over the past several years.(fn4) Overall, between ten and fifteen percent of all newborns in the United States have some type of illegal substance in their bodies at birth.(fn5)

As a result of these staggering numbers, authorities across the country are struggling to find ways to deal with this problem. Many jurisdictions have attempted to use child endangerment statutes to impose criminal sanctions on women for ingesting illegal substances while they are pregnant.(fn6) In fact, prosecutors have brought hundreds of criminal proceedings against women under these statutes since the early 1990s.(fn7) These prosecutions have spawned a number of emotionally charged debates concerning complex issues.(fn8) These issues include whether existing statutes give proper notice to a pregnant woman that she can be prosecuted for harming her fetus; whether prosecuting a pregnant woman violates her right to privacy; and whether criminal sanctions actually promote the interests of the unborn or in fact create more harm. To date, Whitner v. State(fn9) is the only case in which a court has upheld the imposition of criminal sanc

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tions on a woman under child endangerment statutes for the damage caused to her fetus as a result of ingesting an illegal drug during her pregnancy.

This Comment argues that the criminal sanctions imposed by the South Carolina Supreme Court in Whitner do not really protect the potential life of the fetus from damage caused by its mother's drug abuse. First, this Comment discusses the harm caused to the fetus when a pregnant woman ingests an illegal substance.(fn10) Second, it sets forth the background regarding the rights that the common law has afforded the unborn with respect to harm to the fetus by someone other than the mother.(fn11) Third, it provides an overview of the key cases from various jurisdictions that have decided whether or not to impose criminal sanctions on women for prenatal substance abuse.(fn12) Fourth, an analysis of the reasoning in Whitner is provided.(fn13) The first two sections of analysis focus on the method of statutory interpretation employed by the Whitner court with respect to possible violations of the doctrine of separation of powers and the right to due process.(fn14) The third section of analysis addresses the implications of a woman's right to privacy.(fn15) This Comment concludes that, even if constitutional, imposing criminal sanctions in these cases is not the best policy option.(fn16)

II. EFFECTS OF DRUG ABUSE ON A FETUS

The damage caused to the fetus by its mother's illegal substance abuse is truly devastating. When a pregnant woman ingests a drug, it disrupts the flow of blood through the placenta and causes numerous problems.(fn17) Once the drug passes into the fetus's system, the drug remains there and does not recirculate into the mother's system.(fn18) Because the fetus is so small and undeveloped, it cannot discard the drug as quickly as an adult. As a result, the ill effects of the drug are magnified many times over, and the fetus becomes much more addicted than its mother.(fn19) As the drug circulates through the fetus, the

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fetus's blood pressure rises while the fetus's ability to receive oxygen from its mother decreases.(fn20) As a result, the fetus often hemorrhages and is born prematurely.(fn21) At birth, the child may encounter agonizing convulsions, deformities, mental retardation, and neurological problems.(fn22) Further, the frequency of crib death increases dramatically for babies exposed to drugs while in their mother's womb.(fn23)

Fetuses exposed to drugs experience a very difficult time interacting with their parents and other children later in their lives.(fn24) In addition, these children often require specialized attention from teachers trained to instruct the developmentally challenged. Most of the time such attention is too costly and unavailable.(fn25) In short, in a large number of cases, the harmful effects of the mother's drug abuse invades the womb and continues to haunt the child throughout his lifetime.

III. FETAL RIGHTS CONCERNING ACTS COMMITTED BY THIRD PARTIES

Although not identical, the application of tort and criminal laws to third persons committing acts against a fetus are related and are discussed by the courts in prosecutions against the mother who harms her fetus.(fn26) Therefore, a brief background of these areas of law is helpful. The development of fetal rights has been a complex process.(fn27) In tort law cases, courts in the United States traditionally did not allow recovery for prenatal injuries(fn28) because a child en ventre sa mere(fn29) was not a person and had no existence under law.

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The creation of at least two theories of fetal rights, however, modified early tort law. The first theory required that the child be born alive to recover for prenatal injuries,(fn30) while the second theory allowed recovery for any injuries inflicted after the fetus reached viability.(fn31) The "born alive" theory failed to distinguish between viability and nonviability. This theory allowed the fetus to maintain a tort action for injuries sustained while in the womb so long as the fetus subsequently was born alive.(fn32) The "viability" theory, on the other hand, granted the fetus an independent existence at viability, and an action in tort could be maintained for injuries inflicted after viability even if the fetus subsequently was not born alive.(fn33) Currently, "the trend in most states has been to do away with the born alive rule altogether"(fn34) and instead employ the viability theory.

In criminal law, the historical approach to acts committed against the fetus by third parties has been the cause of some controversy. For example, in Keeler v. Superior Court,(fn35) the majority and dissenting opinions disagreed on what the common law actually held with respect to acts committed against a fetus by third parties. Keeler involved a case in which a man intentionally shoved his knee into the abdomen of a woman who he knew was pregnant and thereby terminated the potential life of the fetus.(fn36) The man was charged with murder under a statute that defined murder as "the unlawful killing of a human being."(fn37) The majority in Keeler held that the legislative intent and existing case law did not allow the words "human being" in the statute to include a viable fetus.(fn38) The majority concluded that the statute could not be read to include a fetus without violating the man's due process rights. The dissent disagreed, however, holding that its reading of the common law did provide adequate notice that the term "human being" included a fetus.

It should be noted that after Keeler, the California Legislature amended the homicide statute at issue to state that "[m]urder is the unlawful killing of a human being, or a fetus."(fn39) It can be argued that this subsequent legislative act casts doubt on the majority's analysis concerning the legislature's intent in passing the original murder stat

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ute. That is, by amending the statute to expressly include fetus immediately after Keeler was decided, the legislature had intended a fetus to fall within the scope of the homicide statute prior to Keeler and the legislature simply was reacting to the court's holding. On the other hand, it just as easily can be argued that the legislature agreed with the majority in Keeler in that the common law did not define a "human being" to include a fetus and decided to change the common law by a legislative act. This argument is supported by the actual language of the statute because the legislature did not amend the statute to state that "human being" includes a fetus. Rather, the amended version states that "murder" is "the unlawful killing of a human being, or a fetus." Both the majority and the dissent in Keeler relied upon the well-known commentators Coke and Blackstone. The majority cited these authors in support of its conclusion that the early common law of En-gland and the United States did not hold that a fetus was a human being for criminal purposes.(fn40) "If a woman be quick(fn41) with childe and . . . a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is . . . no murder . . . for in law it is accounted a reasonable creature, in rerum natura, when it is born alive."(fn42) The Keeler majority concluded that "it was thus `well settled' in American case law that the killing of an unborn child was not a homicide."(fn43) The dissent in Keeler, however, opined that the common law did support a current finding that "human being" included a fetus. The dissent based this...