BY DELACEY SKINNER
South Carolina is the first state ever to prosecute pregnant drug users under state child abuse laws. While the policy has stirred little reaction locally, groups at the national level warn that the legal precedent carries serious implications, jeopardizing both women's health and reproductive rights.
Ellen Knight and her son, Brandon, stand in the kitchen of their small cinder-block house, engaged in a typical mother-son skirmish. Her voice is calm and firm as she reprimands him. The boy squirms, protesting occasionally with a slight whine. Finally, he averts his eyes and falls into a sullen, nine-year-old silence.
He sulks for a few minutes, but is soon lured out of his funk by his mother's unabashed bragging about his good grades and perfect attendance at school. A shy grin passes over his face when she explains that he used the restaurant gift certificate he received for his performance in school to take her out to dinner.
Nothing in the scene betrays the fact that 10 years ago, when she was pregnant with Brandon, Knight was addicted to cocaine. She was one of 41 women arrested at the Medical University of South Carolina (MUSC) between 1989 and 1994.
The wave of arrests was the first strike in Attorney General Charlie Condon's war on pregnant drug addicts. With the help of an Interagency Policy that used existing drug and child abuse statutes, Condon prosecuted women found using drugs while pregnant under a variety of charges, ranging from distribution of illegal drugs to a minor to unlawful neglect of a child.
At the time, Condon was Ninth Circuit Court Solicitor, and the policy was an agreement primarily between the Office of the Solicitor and MUSC, and executed with the support of the police department, the Substance Abuse Commission and the Department of Social Services. The original policy pertained to the City of Charleston alone, although many districts quickly followed suit, trying women on similar charges.
Today, as state attorney general, Condon has expanded the policy statewide. Women in South Carolina who use illegal drugs while pregnant can be charged with abusing their unborn fetuses under the state's child abuse law. As such, all state agents and medical personnel are required to report any violations they encounter.
Over the past 10 years, a number of legal challenges have been made to these policies by the Amercican Civil Liberties Union, the Center for Constitutional Rights, the Center for Reproductive Law and Policy, and the National Advocates for Pregnant Women, which formed to fight this and similar policies on a national level. Despite their legal clout, these groups have suffered some heavy blows in court.
In 1996, the South Carolina Supreme Court upheld a decision extending the state's child abuse laws to allow for the prosecution of pregnant women for conduct that may affect their fetuses, in Whitner v. State of South Carolina. Last year, the U.S. Supreme Court refused to hear the Whitner case.
"The U.S. Supreme Court chose not to hear the case, as it challenged the S.C. Supreme Court's interpretation of state consitutional law," said ACLU-SC executive director Steve Bates. "We filed last November in U.S. District Court to argue that the policy of incarcerating pregnant drug addicts vilates U.S. constitutional law. Every state and federal court that has heard this issue has come to the opposite conclusion of the S.C. Supreme Court."
In July, the Fourth U.S. Circuit Court of Appeals upheld an earlier rejection of the claim brought by 10 women against MUSC in association with their arrests under the original Charleston City policy. The class-action suit included charges of racial discrimination and unconstitutional search and seizure. Knight was one of the 10 appellants named in the case.
Like many of MUSC's obstetrics patients, Knight is African-American and poor. When she had her first two sons, now ages 21 and 23, she was married to a man in Virginia. After they divorced, she returned to South Carolina, where she had grown up.
While struggling to support her sons, Knight met Brandon's father, who introduced her to cocaine. As is often the case with cocaine addicts, Knight didn't know she was pregnant for several months. Typically, cocaine causes a woman's menstrual cycle to become irregular or even cease completely for up to three or four months. Many pregnant cocaine users are at the end of the first trimester before they suspect they are pregnant.
When Knight went into labor, she didn't have any cocaine in her system. But her fetus did. After informing Knight that her son had tested positive, the medical staff at MUSC told Knight that they needed to run some tests and asked her to sign a release. She signed the papers without reading them.
The staff never brought Knight her son. Instead, they told her she was being released. Knight, who had arrived at the hospital in her nightgown, called her older two sons to bring her some clothes to change into so she could leave.
But Knight didn't leave the hospital with her sons. After they arrived, nurse Shirley Brown entered Knight's room, which put her on alert. Knight was already wary of the nurse becasue, during her labor, Brown had noticed the Cesarean-section scar across Knight's abdomen, and asked why her children had been delivered that way. When Knight couldn't remember the medical reason, Brown began to threaten her. "She told me if I couldn't tell her why [the doctor] gave me an emergency C-section, that I was `going to have that goddamn baby by myself.' Those were her exact words," Knight said.
Now the nurse led her to another room, where she was read her rights and arrested. "They didn't let me change clothes. They didn't give me a chance to make any arrangements for Brandon, to send him to my family or whatever. They just took him. I didn't even know where he was for a couple of weeks."
Knight was wheeled out of the hospital, handcuffed and in her hospital gown, which she slept in that night in jail. "I got sick in the jail that night," Knight said. "I ran a high fever. I was bleeding to death. And I called for some help and somebody came. She heard me screaming, you know, crying. They told me that they were going to transport me because I did, indeed, have a fever."
But when Knight found out that they were going to transport her to the county hospital, and that she would have to be shackled, hand and foot, for the transport, she refused treatment.
"I grew up with all these girls that worked [at that hospital]," Knight explained. "I didn't want to go that way. It wasn't as if I had killed somebody or I was a murderer or anything like that."
After she was released, Knight followed stories in the media about women in situations like her own. As the news that pregnant women testing positive for drugs would be arrested began to spread, Knight heard frightening accounts from her friends. "I knew a couple of girls that decided not to go to [MUSC]," Knight said. "They decided to have these babies by themselves. Some of them went to Georgia and had late abortions. I know this one girl that told me she had her baby and she put him in a golf bag and threw him behind the subdivision where she lived because she was not going to go through that."
Unfortunately, Knight's story is not unique. Many of the women arrested at MUSC during the early '90s had similar experiences. Despite Condon's assertion that women have multiple chances for amnesty and treatment before being arrested, this was not always the case.
The Charleston Police operational guidelines accompanying the original policy state that if a woman "delivers a child that tests positive for illegal drugs a criminal report will be made and the arrest warrant served on the patient immediately after her medical release."
Proponents of this sort of punitive approach to drug abuse argue that women like Knight have brought all their misery upon themselves. Common sentiment is that drug addicts are weak people who inflict the consequences of their bad behavior on their children. But recent research on the effects of cocaine, in particular crack, on infants and research on the nature of addiction suggests public perception may be a product of media hype and misinformation.
In 1985, Dr. Ira Chasnoff, president of the National Association for Families and Addiction Research and Education, and his associates published a study on the effects of cocaine use during pregnancy. Chasnoff's report and a number of similar studies that followed listed numerous horrifying problems associated with cocaine use by pregnant women, including low birth weight, nutritional deficits and several very rare birth deformities.
Even more frightening were the predictions many of these studies made about expected developmental problems: "crack babies" were not responsive to outside stimuli; they couldn't make eye contact; they would grow up with extreme behavioral and mental problems. These predictions, combined with pictures of tiny babies on hospital wards, made compelling stories for the media.
After the overwhelming public response, the legislative solutions to the "crack epidemic" began. But much of the information that spawned political interest was incorrect. More recent studies have exposed serious flaws in the early research. According to a report on cocaine and pregnancy produced by the Lindesmith Center, these methodological flaws included "lack of control groups" and "failure to distinguish cocaine use from the use of other drugs and other environmental risks." In essence, there was no way for these early studies to separate the effects of cocaine use from the effects of alcohol and tobacco use, or to separate them from the effects of poverty, malnutrition and/or lack of prenatal care.
Recent analysis of these early studies also challenges the original assertions about "fetal cocaine withdrawal syndrome," a phenomenon cited often by politicians such as Condon. Further, as the children who were exposed to cocaine in the womb in the '80s and early '90s grow up, researchers are finding that they do not have the serious developmental problems that were first expected. In fact, many experts have suggested that these children have suffered far more damage from being separated from their mothers and labeled "crack babies" than from their mothers' cocaine use.
Unfortunately, the media has not reported on these new findings the way they did when the original scare occurred in the '80s. ABC produced a news special in August 1997 on "Junk Science," which included a report exposing the faulty research methods applied in these early studies, but the new information has hardly inspired a frenzy. Thus, politicians such as Condon continue to refer to the older, outdated studies in defense of their punitive policies.
Misinformation about the effects of drugs on fetuses is not the only contributing factor to the public's unforgiving attitude toward pregnant addicts. There is generally a lack of public awareness about the nature of drug addiction itself. While many people view drug addiction as a behavior problem, medical experts assert that drug addiction is a disease.
A group of doctors recently formed the Physician Leadership on National Drug Policy (PLDNP) to educate the public. PLDNP claims that addiction to illegal drugs is a "chronic illness" and is addressed most effectively through "enhanced medical and public health approaches." And "the current emphasis on use of the criminal justice system and interdiction to reduce illegal drug use and the harmful effects of illegal drugs is not adequate to address these problems."
Many other medical associations, including the American Medical Association and the National Association of Alcoholism and Drug Abuse Counselors, have taken public stands on addiction that concur with PLDNP.
Using the criminal justice system to combat drug addiction isn't just ineffective; it's also costly. Estimates range, but most experts agree that for every dollar invested in drug treatment, four to seven dollars can be saved in prison and societal crime costs.
Condon's protocol is setting the stage for trouble down the road, and may already be doing more harm than good, according to Wyndi Anderson, program organizer for the South Carolina Advocates for Pregnant Women (SCAPW). "This protocol isn't an effective way to lower the number of so-called crack babies born in South Carolina," she said.
"If anything, it's an effective way to deter pregnant women from seeking prenatal care and to send a message to people suffering from the disease of addiction that they will be treated as criminals, and not as people who need medical assistance."
SCAPW was formed in January to educate around the Whitner decision and issue a warning about its implications, not just for the women who have been prosecuted, but for all women in South Carolina.
One of the most obvious negative consequences of the protocol is its deterring effect on drug-addicted pregnant women in need of prenatal care. "The requirement [for doctors and nurses] to report patients, knowing that they will be prosecuted, has driven a wedge between health-care practitioners and their patients," Anderson explained.
"Without prenatal care, not only are the health risks to the fetus increased, but there is no opportunity for intervention and treatment [by the medical professional] concerning the addiction," she said.
There are further concerns. Of the 41 women arrested at MUSC, all but one were African American. Similarly, of the 109 women arrested in Greenville, 86 were African American.
One of the deepest concerns for reproductive rights advocates are the effects the Whitner decision could eventually have on abortion rights. If a South Carolina court can declare a fetus a child with the right not to be abused through drug use, proponents of reproductive rights fear that reasoning that a fetus has the right not to be aborted isn't far behind.
In fact, many opponents of the protocol fear that the long-reaching effects of criminalizing pregnant women's behavior could eventually lead to extensive regulations that would essentially turn a woman's body over to the state at conception. In California, a pregnant woman was ordered by her doctor to stop working and adhere to a strict regimen of bed rest. After ignoring the doctors orders, and continuing to attend work, the woman had a miscarriage.
She was subsequently charged with manslaughter. And while the case was later dismissed, the implication that Whitner could eventually be used as a precedent for similar legal actions in the future is frightening to many women.
For Knight and her son, though, the most painful result of their ordeal are the social consequences Brandon has faced from the labels used in the media. After a picture of Knight and Brandon opposite a picture of a "crack baby" ran in Source magazine last year, Brandon was teased at school. Kids started calling him a "crack baby."
Knight has been clean for over a year now, following a relapse after being clean for five years. She feels responsible for Brandon's pain. "I still got this thing staring me in the face where he's being teased," she said. "And that's the worst part of it. It's hard as hell. It makes me feel really, really little."
Delacey Skinner is program manager of the Environmental Studies Graduate Program at the University of Charleston.