Whitner v. State
70 A.L.R. 5th 723, 492 S.E.2d 777, 328 S.C. 1 (1997)
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Rule of Law:
A viable fetus is a 'person' and therefore a 'child' within the meaning of the South Carolina child abuse and endangerment statute. A mother can be criminally prosecuted for child neglect if her illegal drug use during the third trimester of pregnancy harms the viable fetus.
Facts:
- Cornelia Whitner was pregnant with a viable fetus.
- During the third trimester of her pregnancy, Whitner ingested crack cocaine.
- Whitner's baby was subsequently born.
- The newborn baby had cocaine metabolites in its system as a direct result of Whitner's prenatal drug use.
Procedural Posture:
- Cornelia Whitner pled guilty to criminal child neglect in a South Carolina circuit court, a court of first instance.
- The circuit court judge sentenced Whitner to eight years in prison.
- Whitner filed a petition for Post-Conviction Relief (PCR), arguing that the circuit court lacked subject matter jurisdiction and that she had received ineffective assistance of counsel.
- The PCR court granted Whitner's petition on both grounds.
- The State, as appellant, appealed the PCR court's decision to the Supreme Court of South Carolina.
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Issue:
Does the term 'child' in South Carolina's criminal child neglect statute, S.C. Code Ann. § 20-7-50, include a viable fetus, thereby permitting the prosecution of a mother for conduct during pregnancy that harms the fetus?
Opinions:
Majority - Toal, Justice.
Yes, the term 'child' in the child neglect statute includes a viable fetus. The court reasoned that South Carolina law has long recognized a viable fetus as a 'person' for other legal purposes, such as in wrongful death actions (Hall v. Murphy) and homicide prosecutions (State v. Horne). It would be 'absurd' and 'grossly inconsistent' to define a viable fetus as a person for civil liability and homicide but not for child abuse. The court also found that the Children's Code's stated policy of preventing children's problems supports this interpretation, as prenatal abuse can have devastating consequences. The court rejected arguments that this interpretation infringes on a mother's right to privacy, stating that illegal drug use is not a protected right and the state has a compelling interest in the life of a viable fetus.
Dissenting - Finney, Chief Justice.
No, the term 'child' does not include a fetus under the statute. The dissent argued that penal statutes must be strictly construed in favor of the defendant. The statute's language, requiring the defendant to have 'legal custody' of the child, is inapplicable to a fetus. Furthermore, many of the acts defined as neglect under the associated statute, § 20-7-490, can only be directed against a child already born. Citing precedent from other parts of the Children's Code (Doe v. Clark), the dissent maintained that 'child' means a child in being, and any ambiguity should be resolved in Whitner's favor.
Dissenting - Moore, Justice.
No, the statute was not intended to apply to prenatal conduct. This dissent argued that the legislature's repeated failure to pass specific bills addressing drug use during pregnancy indicates that the existing child neglect statute was not meant to cover this situation. The majority's decision constitutes judicial activism that invades the province of the legislature. This broad interpretation renders the statute vague, potentially criminalizing a wide range of a pregnant woman's conduct, such as smoking or drinking. The dissent noted the inequity that a woman could now face a longer prison sentence for using drugs while pregnant than for having an illegal abortion.
Analysis:
This decision was highly significant as it was one of the first state supreme court rulings to interpret a general child abuse statute as applying to a mother's prenatal conduct. It expanded the legal personality of a viable fetus into the realm of child protection statutes, departing from the approach of most other jurisdictions, which required explicit legislative action. The ruling established a precedent that allows for the criminal prosecution of mothers for behavior during pregnancy that harms a viable fetus, raising complex legal and ethical questions about maternal autonomy, the state's interest in potential life, and the criminalization of addiction during pregnancy.
