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    Legal Application of Healthcare Statutes Surrounding a Fetus

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    Whitner Vs. South Carolina
    This case concerns the scope of the child abuse and endangerment statute in the South Carolina Childrenâ??s Code. We hold the work â??childâ? as used in that statute includes viable fetuses.

    On April 20, 1992, Cornelia Whitner pled guilty to criminal child neglect, S.C. Code Ann. §20-7-20 (1985), for causing her baby to be born with cocaine metabolites in its system by reason of Whitnerâ??s ingestion of crack cocaine during the third trimester of her pregnancy. The circuit court judge sentenced Whitner to eight years in prison. Whitner did not appeal her conviction.

    Thereafter, Whitner filed a petition for Post Conviction Relief (PCR), pleading the circuit courtâ??s lack of subject matter jurisdiction to accept her guilty plea as well as ineffective assistance of counsel. Her claim of ineffective assistance of counsel was based upon her lawyerâ??s failure to advise her the statute under which she was being prosecuted might not apply to prenatal drug use. The petition was granted on both grounds. The State Appeals.

    The question:
    Should a pregnant woman be punished for exposing her fetus to risk?

    Jean Toal states that yes she should! Women should be punished. He said the Majority Opinion in a case involving a pregnant womanâ??s use of crack cocaine; the Supreme Court of South Carolina ruled that a state legislature may impose additional criminal penalties on pregnant drug-using women without violating their constitutional right of privacy.

    Attorney Lynn M. Paltrow said no she shouldnâ??t! He argues that treating drug-using pregnant women as criminals targets poor, African American women while ignoring other drug usage and fails to provide the resources to assist them in recovery.

    At first glance, Cornelia Whitner and Bobbi McCaughey have absolutely nothing in common. Cornelia Whitner gave birth to a baby after using crack cocaine in the last trimester of pregnancy. She was arrested and convicted of child neglect. Bobbi McCaughey gave birth to seven babies in November 1997 to public acclaim and an avalanche of gifts and community support. Yet she too placed her babies at risk, simply by the use of fertility drugs and her decision to continue the multiple pregnancy. Through laws and public attitudes, society views the risks taken by Whitner and McCaughey very differently and punishes or rewards women accordingly.

    The courtâ??s majority decision, written by Justice Jean Toal, found that the stateâ??s statute includes a fetus within its definition of â??childâ? and ruled that the state was not violating Whitnerâ??s Constitutional right of privacy by punishing her for endangering her child through an already illegal activity. This ruling was appealed to the U.S. Supreme court. Lynn Paltrow believes that criminalization of drug use is a punitive response that denies the humanity of the women who are denied treatment and support for recovery from their addiction.

    Should a Pregnant Woman Be Punished for Exposing Her Fetus to Risk? Assume that you are a health care administrator and have to provide a summary of the relevant issues to your Board of Directors.

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    Solution Summary

    The solution presents arguments and possible procedures for handling cases of potential harm to a fetus, brought about by the actions of a mother. Two different situations are discussed. One involves a mother using Crack Cocaine during the third trimester of pregnancy. The other involves a mother taking fertility drugs, which results in the conception of seven fetuses.