South Carolina tests the bounds of a fetus's rights

Court will decide if state can file charges of abuse against pregnant women on drugs.

In a South Carolina courtroom, a case is playing out that weighs the rights of a mother and her fetus - with potentially far-reaching ramifications.

Brenda Kay Peppers was arrested for child abuse two years ago after giving birth to a stillborn baby with cocaine in its bloodstream. She was charged under an unusual South Carolina law that allows prosecutors to file abuse, and even murder, charges against drug-addicted women who are pregnant.

Ms. Pepper accepted a plea bargain in 1999 giving her two years probation. But now she is back fighting the law itself before the South Carolina Supreme Court.

In many ways, her case is serving as a litmus test for other states considering fetal rights' laws - which some women's groups say are simply a smokescreen for attempts to eventually legislate around abortion rights.

Ultimately, the Carolina court may have to grapple with the difficult question of how to balance the rights of the mother with the rights the state has assigned to the unborn child.

It's not surprising that the case is surfacing in South Carolina. No other state has gone as far as in allowing criminal prosecution of neglectful moms. Its attorney general, Charlie Condon, has crusaded for 12 years on behalf of unborn babies.

His efforts mirror policies and laws in communities from Wisconsin to Florida. Ten years after the uproar over "crack babies," the movement to protect the unborn through so-called fetal rights laws is gaining momentum.

"What you've got across the country is a movement toward a state apparatus that can control women's lives when they are pregnant," says Barbara Risman, co-chair of the Council for Contemporary Families in Raleigh, N.C.

History of fetal laws

In 1970, California became the first state to address "fetal rights," but excluded mothers from culpability. South Carolina, though, has been the most aggressive in moving on the issue: Last month, a jury there became the first ever to convict a woman - Regina McKnight - for the murder of her cocaine-infused fetus.

Another woman was recently arrested for drinking while pregnant. In a third case, the parents of a 13-year-old who gave birth to a stillborn child were arrested for failing to provide "fetal care."

About one-third of the states are following South Carolina's thinking, if not its tough protocol. Earlier this year, Wisconsin criminalized in utero child abuse, though it didn't force doctors to make the call to police. Some 18 states have added civil laws that extend rights to unborn babies. While they won't send a mom to jail, they will use the laws to take the child from the home after birth.

As a result of this trend, some 200 women in 30 states have been charged for violating some kind of "fetal rights." A study of 178 of those women by the American Civil Liberties Union showed they mostly came from South Carolina and Florida - specifically from two poor, mostly African-American counties where drug abuse is a major problem.

South Carolina officials hail the moves by other states as evidence that America is starting to pay attention to the rights of the child in the womb.

Critics, however, argue that the whole theory of women's reproductive freedom is at stake. They point out that South Carolina officials have said in open court that women who choose to have a late abortion may one day face the death penalty.

The idea is child protection

The idea, however, is not to criminalize women, but to make sure that those who have drug problems seek treatment, says Robb McBurney, a spokesman for Attorney General Condon. "Unfortunately, [critics] don't see it as a child-protection issue," he says. "They see it as some kind of erosion of abortion rights."

Although many pregnant women have been confronted about their drug abuse and ordered to seek treatment, only a "handful" have been actually hauled into court and ended up in jail, Mr. McBurney says. "We give them every chance to straighten up. To end up in jail, you basically have to break into jail."

But not everyone agrees the strong-arm tactic is working the way supporters say it's intended.

In South Carolina, instead of seeking more help, fewer and fewer women are seeking prenatal care - likely caused by a fear of getting busted at the clinic, critics say. At the same time, South Carolina spends less money than any state toward prenatal care for drug-addicted moms.

Two litigants?

Inevitably, the South Carolina approach on fetal rights is reinvigorating the abortion debate. So far, most states still count a pregnant mother as one citizen, not two. But some legal observers say that, in effect, these laws create two litigants within the same body - sometimes with opposing interests.

If fetuses gain any more rights, then anti-abortion prosecutors will effectively have created a loophole around Roe v. Wade, some women's rights advocates fear. "South Carolina is very frightening in that it encourages other states to follow suit through criminal and civil laws that devalue pregnant women's personhood," says Lynn Paltrow, executive director of the National Advocates for Pregnant Women in Washington.

So far, the US Supreme Court has declined to take up the "unborn victims" debate, though experts on both sides say it will likely have to make a distinction at some point.

The high court, however, has had a few words to say about some of South Carolina's methods. In March, the court essentially said that the state can no longer use doctors to act as police agents in search of drug-addicted pregnant moms, a practice that had become common in hospitals from Columbia to Charleston.

The South Carolina Supreme Court, which heard oral arguments in the Pepper case last week, is expected to rule within the next two months.

(c) Copyright 2001. The Christian Science Monitor

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