Monitoring motherhood.

Author:Dubler, Ariela R.
Position:South Carolina

[A pregnant woman's] suffering is too intimate and personal for the state to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.(1)

In Whitner v. State,(2) the South Carolina Supreme Court upheld the conviction of Cornelia Whitner for criminal child neglect for taking cocaine during her pregnancy. The court explained that "the word child, as used in [the state's child abuse] statute includes viable fetuses."(3) The first state court of last appeal to uphold such a conviction, the South Carolina court declined to engage the policy implications of its decision(4) and refused to address the constitutional repercussions on rights ranging from liberty to due process to the right to procreate to sex and race equality.(5) This Case Note argues that by failing to recognize the unique relationship that exists between a pregnant woman and her fetus, the Whitner court forged a policy that will redound to the detriment of women.

Cornelia Whitner's son was born with cocaine metabolites in his system; at trial, Whitner admitted that she took cocaine during the third trimester of her pregnancy.(6) Writing for a majority of the court, Associate Justice Jean Toal found that it was consistent with the intent of the South Carolina legislature and with the purpose of the state child abuse statute to include viable fetuses within the meaning of the word "person: and, therefore, within the purview of the statute.(7) "South Carolina law," the court wrote, "has long recognized that viable fetuses are persons holding certain legal rights and privileges."(8)

Many state courts have previously considered whether women can be convicted for taking cocaine while pregnant.(9) As the Whitner court itself recognized, however, no other state court of last appeal has upheld such a conviction.(10) In support of its holding, the Whitner court cited state precedents upholding wrongful death claims involving viable fetuses(11) as well as criminal prosecutions for feticide against parties other than the mother.(12) The court argued that it would be "absurd" in light of these cases not to recognize a viable fetus as a person for purposes of the child abuse statute.(13) The court also appealed to the United States Supreme Court's abortion jurisprudence to support its argument that the state has a compelling interest in the life of a viable fetus.(14) Finally, the court rejected Whitner's contention that South Carolina precedent supported recognizing fetal rights only when such recognition would protect a parent's interest in the fetus, rather than a state interest.(15) The court refused to "insulate[] the mother from all culpability for harm to her viable child.... [T]he rationale underlying our body of law [is the] protection of the viable fetus."(16)

Far from protecting fetuses, however, prosecutions such as Whitner's may actually be harmful to fetal health. Faced with the prospect of criminal liability, for example, many drug-using women will simply avoid prenatal care for fear of detection.(17) Others might choose to abort rather than risk imprisonment.(18) This problem is compounded by the fact that the threat of liability after Whitner is not limited to cocaine use. As the dissent pointed out, the court's opinion "render[sl a pregnant woman potentially criminally liable for myriad acts which the legislature has not seen fit to criminalize."(19)

Furthermore, the child abuse statute, as construed by the Whitner court, does not even require that the woman's actions actually harm her fetus for her to be liable.(20) It merely requires that her actions are "likely to endanger" the fetus.(21) Given the diversity of views on the panoply of activities that have the potential to harm a woman's fetus, from smoking(22) to eating the wrong foods,(23) pregnant women are constantly vulnerable to prosecution under the Whitner court's theory.(24) The court also ignored the racial implications of this increased vulnerability. Black women have been and are likely to be the primary targets of such prosecutions.(25)

The Whitner holding thus represents a substantial incursion into the liberty interests of pregnant women, and therefore of all potentially pregnant women,(26) in South Carolina. As such, Whitner evokes a history of judicial attempts to control the behavior of pregnant women and the practice of motherhood.(27) Courts have long sought to regulate motherhood, invoking the language of fetal protection to impose a duty on a woman to curtail her choices in the name of protecting her fetus.(28) As Reva Siegel points out, "[i]mposing this duty on the pregnant woman seems reasonable because we assume that mothers should live' for' their children, the argument acquires its persuasive force from unarticulated assumptions about the maternal role."(29)

These unarticulated assumptions draw upon a...

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