When Does Motherhood Begin?

Cornelia Whitner has admitted to smoking crack cocaine. But she was not charged for taking an illegal narcotic.

Ms. Whitner's crime is that she lit up while pregnant - specifically, more than six months pregnant - and while in South Carolina. For that, she is serving an eight-year prison sentence for child neglect.

While her mother cares for her children, Whitner has become the focus of an unusual legal battle that could hold significance for the abortion debate: Can a woman be punished for how she treats her unborn child?

South Carolina's highest court has twice ruled that Whitner could be sentenced as charged, making it the only state court out of 21 which have heard similar cases to rule that way. Tomorrow, the US Supreme Court will be asked to take up Whitner's case and clarify whether a pregnant woman is responsible for only her own actions or whether she can be held responsible for an act that inflicts harm on her fetus.

The high court has been reluctant to hear any case that might redefine Roe v. Wade, the landmark abortion-rights ruling. Still, the Whitner appeal is drawing renewed attention to the debate over how to handle drug-addicted pregnant women. One result is a new flurry of bills punishing pregnant women for their behavior that have been introduced this year to statehouses across the country.

"This is definitely one of the biggest issues in reproductive law right now," says Priscilla Smith, staff attorney for the Center for Reproductive Law and Policy in New York.

The controversy began roughly a decade ago as a solution was sought for a tragic and costly public health problem: babies born with addictions to crack cocaine and other illegal drugs. Nationwide, there are an estimated 70,000 pregnant woman annually who are also cocaine users, according to a federal survey.

In recent years, drug-addicted mothers have been arrested and tried under a variety of statutes - from child abuse laws to laws preventing the delivery of illegal drugs to a minor.

Almost across the board, the courts and the medical profession have rejected these efforts. But that hasn't kept states from pushing them. In addition to Whitner, cases that punish pregnant women for taking drugs and drinking alcohol (a legal act) are on appeal in New Jersey and Wisconsin. The Wisconsin statehouse also has a bill pending that would detain pregnant women in a hospital, treatment facility, their home, or a jail for ingesting alcohol or drugs.

Punishment or treatment?

The medical community, including more than a dozen professional organizations supporting Whitner's appeal, is strongly opposed to prosecuting addicted pregnant women. It argues that punishment undermines the goal lawmakers are trying to achieve: producing healthier babies. Research shows that if addicted women fear incarceration or having their children taken from them, they lie to health providers or reject prenatal care altogether. Medical studies also show that prenatal care is the most important factor in delivering a healthy baby.

"What people don't understand is that an addiction doesn't go away when a woman becomes pregnant," says Karen Busha, director of the Lexington-Richland Alcohol and Drug Abuse Council in South Carolina. "And a woman cannot separate her body from her baby's body. If you get a DUI, you have the ability to separate yourself from that car. But you can't take your baby out and let somebody else take care of it. It's there."

The relationship between mother and child is also a difficult issue for the courts. While the law often allows a third party to be punished for harming a fetus - such as in a car wreck - few courts have held mothers culpable for harm inflicted upon a child in the womb.

Mother vs. fetus

In a 1994 Florida Supreme Court case, for instance, judges wrote that they refused to "pit woman against fetus." Most state courts have argued that almost anything a pregnant woman does - over-eating, failing to exercise, or drinking alcohol - can affect the fetus she is carrying. Most legal precedents say that to punish a pregnant woman for damage to her fetus is to give too much legal weight to the woman as a "vessel" for a child and not enough to her as a woman.

Another legal mire the Whitner case raises is that of when life begins. In South Carolina, the state supreme court held in 1996 and again last October that a fetus in its third trimester is a "viable" fetus and should be afforded the same protection as a child. It is this issue that the US Supreme Court would have to address if they decide to take up the case - which legal scholars say is unlikely.

In the meantime, South Carolina is hammering out what happens to pregnant women who are arrested. Drug counselors and doctors have been ordered to report women in their third trimester who test positive for drugs. Addicted women will first be given the opportunity to receive treatment, but if they refuse or fail to complete the program, they will be incarcerated. It's a policy that has the medical community in an uproar, partly because of a lack of treatment programs. Still, the policy has a widespread public support.

"We're here to say there's a consequence for your behavior," says Catherine Christophillis, the assistant deputy attorney general in South Carolina in charge of the prosecutions. "There comes a point that the state must intervene ... to solve a problem. We're just using the law to help that process along."