Criminalizing Motherhood

By Silja J.A. Talvi, The Nation. Posted December 4, 2003.

Regina McKnight is doing twelve years in prison for a stillbirth, carving out a dangerous intersection between the drug war and the antichoice movement. In the eyes of the South Carolina Attorney General's office, McKnight committed murder.

Her crime? Giving birth to a five-pound, stillborn baby. As McKnight grieved and held her third daughter Mercedes's lifeless body, she could never have imagined that she was about to become the first woman in America convicted for murder by using cocaine while pregnant.

The absence of any scientific research linking cocaine use to stillbirth didn't matter. Nor did it matter that the state couldn't conclusively prove that McKnight's cocaine use actually caused Mercedes's stillbirth. What mattered was that South Carolina prosecutors were hellbent on using McKnight as an example.

Thanks largely to the efforts of the former Republican Attorney General, Charlie Condon, now running for US Senate, South Carolina is the only state in the nation with a child-abuse law that can be applied to "viable fetuses." At least 100 women have subsequently faced criminal charges in the past fifteen years for using drugs while pregnant in that state, according to the Post and Courier (Charleston). South Carolina was also the first and only state to test pregnant women for drug use and report the findings to police without the woman's consent--or a warrant--until the US Supreme Court struck down this bill as a violation of the Fourth Ammendement.

But McKnight, now 26, was the first to be imprisoned on a murder conviction under the "viable fetuses" law. In October McKnight lost her best shot at release when the Supreme Court decided not to review the case, allowing the conviction to stand by default.

"What South Carolina has done, in effect, is made pregnancy a crime waiting to happen," says Lynn Paltrow, an attorney and the executive director of National Advocates for Pregnant Women in New York.

Paltrow served as one of the attorneys who took the appeal to the nation's highest court. In so doing, she joined twenty-seven other medical and drug policy groups that sought to overturn the conviction, including the American Public Health Association, the American Nurses Association and the American Society of Addiction Medicine. These mainstream health organizations saw the situation exactly for what it was: an extreme manifestation of an increasingly successful antichoice agenda wrapped in the cloak of the War on Drugs.

"The prosecution, conviction, and sentencing of Ms. McKnight for her stillbirth not only distorts the law, but contradicts the clear weight of available medical evidence, violates fundamental notions of public health, and undermines the physician-patient relationship," as the organizations put it in their amicus brief to the Court.

Approximately 275 women nationwide have already faced charges relating to drug use during their pregnancies, says Paltrow. In a country where a pregnant woman has no legal right to safe housing, daycare, nutritious food, medical care or mental health services, it's horrifying to witness the development of a law that allows for women's bodies to be treated as if they were mere vessels.

A pregnant woman who has used drugs doesn't easily win public sympathy, and the prosecutors knew exactly how to demonize a "drug mom." But, as Judy Appel of the Drug Policy Alliance points out, women who are in serious need of prenatal healthcare--and at most risk of having medical problems--are even more reluctanct to turn to a system that might press charges if something goes wrong with their pregnancies.

McKnight was a seasonal tobacco farm worker with a tenth-grade education who was living homeless, drug-addicted and trying to cope with the recent loss of her mother, who was run over by a truck. McKnight never received help for her drug problems. (South Carolina, it's worth noting, ranks lowest in the nation for spending on drug and alcohol treatment programs, according to the Drug Policy Alliance.)

The legal precedent set in the McKnight case is far graver than it might seem at first glance. As the laws have been written in South Carolina, child abuse charges could as easily be applied to pregnant women who smoke, drink even a moderate amount of alcohol, work around certain kinds of chemicals or even change cat litter--in essence, any activity that is "within the realm of public knowledge" of causing potential harm to a fetus.

Appel, who worked extensively on the amicus brief to both the South Carolina and US Supreme Courts, notes that McKnight's case has since emboldened South Carolina to go after other women, even retroactively. In early January South Carolina prosecutors are scheduled to go after their second murder conviction against a mother. In this case, it's another African-American woman, by the name of Angelia Kennedy, who allegedly smoked cocaine during her pregnancy, which resulted in a stillbirth five years ago.

This kind of persecution hasn't stopped at the state line. Right after the Supreme Court decided not to review McKnight's conviction, Honolulu city prosecutors went after a 31-year-old native Hawaiian, Tayshea Aiwohi for the death of her two-day-old son. The prosecutor's office has charged Aiwohi with manslaughter for using crystal methamphetamine during her pregnancy. Although Honolulu prosecutors denied any connection to the McKnight case, they went further to say that they would now consider prosecutions of "meth moms" and alcohol abusers, even when those babies survive.

Women like McKnight and Aiwohi are the victims of prosecutors who have decided that they have the right to judge and punish women for what happens to their bodies. It is a definitive step toward a government that would have the power to tell us what constitutes acceptable pregnancy and motherhood.

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