Extending Child Abuse Protection to the Viable Fetus: Whitner V. State of South Carolina

Article excerpt

INTRODUCTION Systems of law serve to protect individual rights from unlawful intrusions by the state. Arguably, the most fundamental aspect of such legal regimes is the protection from physical harm. As the most vulnerable members of society, children are guaranteed protection from child abuse inflicted upon them by all adults, including their own parents. The only entity more vulnerable than a child is a fetus. Although an entirely separate being, the fetus is completely dependent upon the woman who conceived it.1 The fetus' inability to protect itself from any type of harm raises the issue of whether those fundamental protections afforded to a child under existing laws should originate before birth. Recently, in Whitner v. State of South Carolina,2 the South Carolina Supreme Court held that a viable fetus was a "person" within the meaning of the Children's Code and could be the victim of criminal child neglect just as any child could after birth.3 It is the scope of such child abuse protection that is presently in dispute.

Cornelia Whitner was a 28-year old woman from Pickens County, South Carolina with a minimal education and a serious drug addiction.4 In 1992, Whitner continued abusing crack cocaine during her third trimester of pregnancy and subsequently gave birth to a child with cocaine residue in his system.5 Whitner, who had prior convictions for theft and cocaine possession,6 was charged with criminal child neglect for using an illicit drug during the later stages of her pregnancy.7 Whitner was sentenced to eight years in prison after her guilty plea, but gained release just nineteen months later when the ACLU learned of her case.8 At that time, a state court judge ruled that the child neglect law did not apply to prenatal drug use and issued an order for Post Conviction Relief for Whitner.9 The South Carolina Supreme Court, however, reinstated Whitner's conviction for criminal child neglect in July of 1996, reversing the prior decision for Post Conviction Relief.10


The Whitner court held, in a 3-2 decision, that Cornelia Whitner's prenatal drug use constituted criminal child neglect.11 Facing the issue of when a fetus is entitled to protection, the court held that a viable fetus was a "person" for purposes of the Children's Code.12 It is submitted that the Supreme Court of South Carolina correctly decided that a viable fetus was a "person" entitled to protection from criminal child neglect.

The South Carolina Supreme Court rested its position, in large part, upon existing medical information regarding fetal development.13 It is well documented that maternal cocaine use during pregnancy can cause serious harm to the viable fetus.14 The causal connection between Cornelia Whitner's drug use and the injury to her child was not in dispute. The court reasoned that injuries sustained while a fetus is in its mother's womb can often be far more serious than those sustained after birth.15 The Supreme Court of South Carolina interpreted the statute very broadly to encompass all those children, born and unborn, in need of protection.16

Originally, fetal rights were interpreted as merely protecting unborn children from third parties; the legislatures and the courts did not initially imagine the mother as a potential offender.17 The Whitner court boldly defied this antiquated notion, however, to achieve justice for the woman's neglected newborn. Accordingly, the court concluded that Cornelia Whitner was guilty of criminal child neglect.l8

While the use of certain drugs by any person has been criminally actionable throughout the twentieth century,19 accountability for such illicit substances' effects on one's child treads a historically less traveled path but elevates the status of the child inside the womb to that of a child outside the womb. Whitner was a "landmark decision for protecting children,"20 in which the South Carolina Supreme Court became the first state high court in the nation to uphold a conviction of a mother for endangering the life of her fetus through her prenatal conduct. …