Posted at 11:18 p.m. EST Friday, December 12, 1997

How wide is S.C. law governing pregnancy

Staff Writer

ROCK HILL -- New Yorker Salina Griffin was driving through Rock Hill on her way home in March when the labor pains began. Little did she know she was in the only state where pregnant drug users can go to prison for child neglect.

After giving birth in a Rock Hill hospital -- just 15 miles from the N.C. line -- to a 3-pound baby high on crack cocaine, Griffin spent three months in the York County jail awaiting a hearing. She pleaded guilty to child neglect and was put on probation.

Police across South Carolina have been arresting pregnant drug addicts ever since the S.C. Supreme Court ruled last year that a viable fetus -- one that can live outside the womb -- is a person. Supporters say the law has forced crack-addicted women to seek care they otherwise would shun, making for healthier mothers and children.

But several national women's, civil rights and medical organizations say the law, reaffirmed by the court six weeks ago, has more far-reaching implications.

They fear that women could go to jail for doing anything that potentially harms a fetus, such as drinking or smoking. Indeed, York County prosecutors said this week they may pursue charges against mothers of babies born with fetal alcohol syndrome.

And some critics even say the law -- intended to protect unborn children from cocaine's gruesome effects -- may mean women who abort viable fetuses for medical reasons could be charged with murder.

In fact, S.C. Attorney General Charlie Condon said Friday, ``if somebody said we need to kill a child, a viable fetus, in order to protect a woman's health ... it would be under review by my office, I can assure you.''

That's what upsets women's and civil rights advocates. ``The bottom line here is that a woman is now criminally liable for the outcome of her pregnancy,'' said Steven Bates, S.C. director of the American Civil Liberties Union.

Underlying the dispute is a fundamental question: When does life begin? The issue may soon reach the national spotlight, since lawyers in the original case plan to appeal to the U.S. Supreme Court. They'll meet Monday with women's rights groups and ACLU representatives in New York to discuss the appeal.

If the U.S. Supreme Court hears the case, all sides agree it could not only open the door for other states to prosecute pregnant drug users, but also curtail abortion rights nationwide.

Legal scholars say the S.C. decision contradicts the landmark 1973 Roe vs. Wade decision, in which the U.S. Supreme Court ruled that even viable fetuses, usually 25 weeks or older, can be aborted to protect a woman's health or life. They say Roe vs. Wade means no fetus, not even a viable one, can be considered a ``person'' under the Constitution.

Condon disagrees with the scholars' interpretation of Roe vs. Wade and hopes for the chance to argue that the S.C. law is constitutional before the U.S. Supreme Court.

The S.C. decision also contradicts supreme courts in five states, which have thrown out criminal charges against pregnant women whose behavior harmed their fetuses.

``Almost any decision (the U.S. Supreme Court) makes could have sweeping implications indeed for the rights of pregnant women in every state, not only in contexts involving substance abuse . . . but in contexts involving deliberate decisions to terminate pregnancy,'' said Harvard Law School Professor Laurence Tribe, a constitutional law expert.

That concerns women's-rights advocates. ``The eyes of the nation are going to be on South Carolina,'' said Carol Tracy, the executive director of the Philadelphia-based Women's Law Center. ``(The S.C. law) creates an attack on the autonomy of women. It sets in motion the pregnancy police.''

Prosecuting pregnant women for drug use started in South Carolina because solicitors wanted to protect unborn children from the deadly effects of drugs, particularly crack cocaine. Children who don't die can end up severely disabled, such as the daughter of Mildred Crow of Fort Mill, who was born last year paralyzed from the waist down and high on crack, authorities said.

But critics say the law, while well-intentioned, is poor public health policy. The nation's major medical organizations, including the American Medical Association and the American Nurses Association, oppose criminal sanctions against drug-addicted pregnant women. They favor rehabilitation instead.

Condon and others who fought for the S.C. decision say they aim to help women, not put them in jail.

``If you can't protect babies, who can you protect?'' Condon said. `` . . . A viable fetus is a citizen and a fellow South Carolinian.''

Some worry the fear of jail will keep pregnant addicts away from doctors and counselors. S.C. law requires all medical professionals and drug counselors to report child neglect to police or face prosecution. Doctors have already started reporting women, but drug counselors vehemently refuse to do so.

``Are you kidding?'' said an enraged Brenda Dawkins, who runs the Keystone women's drug clinic in Rock Hill. ``If we turn them over to police when they come in here, then our whole effectiveness is gone. I don't. I can't. And I won't.''

A half-dozen former crack addicts interviewed at Keystone last week, on condition their full names not be used, all said the fear of going to jail had initially kept them from seeking help. One 28-year-old Rock Hill woman, Deanna, said she moved to Charlotte when she got pregnant last year so she could keep using crack without getting arrested.

``I was afraid of going to doctors, of going to jail,'' said Deanna, who entered Keystone after having a healthy 8-pound boy in April. ``I couldn't choose my baby over crack.''

Condon hopes to ease women's fears with an amnesty program that keeps them from going to jail as long as they're in treatment. He has asked local solicitors not to prosecute pregnant drug users until the legislature approves the amnesty program, possibly next year.

Some counties have gone forward anyway, arresting dozens of women. York County, among the most aggressive, has already charged 11 women with using crack or marijuana while pregnant. Five have pleaded guilty to child neglect. One received three years in prison, but the others, including Griffin and Crow, got only probation.

Their sentences were lighter because they had already begun intensive drug rehabilitation -- evidence, prosecutors say, that the law is already working. When Nezzie Drewitt, 36, pleaded guilty Thursday, she got five years' probation because she's been at Keystone nine months.

Such results may, in time, reduce the fear pregnant crack addicts have of seeking help, all sides agree. But for now, addicts say, the continual news reports of women getting arrested keeps them nervous.

Sharles, for example, had been using crack for nine years when she got pregnant last year. The 21-year-old Rock Hill woman feared for her baby's health -- but didn't seek help because she feared jail even more. The boy, born May 15, turned out healthy.

Wednesday, Sharles walked into the Keystone clinic three months pregnant and intent on staying clean. The birth of her boy, she said, was an awakening: She doesn't want to leave her next child's health to luck.

``I'm scared that I'm going to go to jail,'' Sharles said. ``But I'm going to do what I have to do.''

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