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The Supreme Court next week will likely consider whether to take up the controversial case of a South Carolina woman who was convicted of murder after her stillborn baby tested positive for cocaine. Regina McKnight’s appeal of her conviction is one of dozens of cases the Court may discuss at its private conference on Sept. 29 to decide whether to grant review. The case, McKnight v. South Carolina, No. 02-1741, could bring the Supreme Court into the national debate over fetal rights. McKnight, a 26-year-old native of Horry County, S.C., lived with her mother until her mother was killed in an auto accident in 1998. McKnight then became homeless and developed a cocaine addiction. She got pregnant. After delivering a stillborn baby girl in 1999, an autopsy revealed the presence of cocaine in the child’s blood. McKnight was arrested, charged with homicide by child abuse, and sentenced to 12 years in prison in May 2001. Last January, a divided South Carolina Supreme Court affirmed McKnight’s conviction and sentence. According to her lawyers, McKnight was the first woman ever convicted of murder for having a stillborn child while being addicted to drugs. “The consequences of the decision ramify beyond the pregnant women and families most directly affected,” New York solo practitioner David Goldberg, McKnight’s attorney, wrote in a cert petition to the Supreme Court. “Doctors, nurses, and substance abuse treatment providers are now subject to mandates, themselves backed by criminal penalties, which require . . . that they violate patient confidentiality.” Also on the brief is Lynn Paltrow, founder of National Advocates for Pregnant Women. The South Carolina court based its initial ruling on a 1992 state law that made it a felony to cause the death of a child under the age of 11 through abuse, neglect, or “extreme indifference” to the child’s life. The same court in the 1997 case State v. Whitner determined that, under state law, a fetus is a child, and a mother can be held criminally responsible for harming the unborn child by using crack cocaine. McKnight, who says she had intended to carry her pregnancy to term, claims that applying the law to her case violated her right to due process because it applied the abuse law in a way that was not contemplated by the Legislature or by any prior judicial decision. Also before the Supreme Court will be the question of whether the 12-year prison sentence for an unprecedented crime constitutes cruel and unusual punishment. The state court rejected McKnight’s arguments that numerous other factors are associated with stillbirth — including syphilis, which McKnight had contracted. The majority concluded that McKnight had “ample notice” that using cocaine while pregnant could harm the child and could subject her to criminal prosecution. In a dissenting opinion, Justice James Moore asserted that the homicide statute “could not have been intended” to prosecute a woman for causing injury or death to a fetus. In his brief to the U.S. Supreme Court, Goldberg claimed that the South Carolina statute has “blurred the line separating stillbirth as a personal and family tragedy from homicide,” and that it should be invalidated under “void-for-vagueness” case law. In a brief filed with the Court, the state defends the prosecution and the law as a valid effort by the state to deter drug use by pregnant women. The Drug Policy Alliance, joined by 27 national health groups including the American Public Health Association, filed a brief supporting McKnight’s request for Supreme Court review. Daniel Abrahamson, an attorney with the Drug Policy Alliance, said in the brief that the case could have lasting impact. “After McKnight, any pregnant South Carolinian who smokes cigarettes, is over 35, uses certain over-the-counter or prescription medications, or works in a factory where there is a danger of exposure to hazardous wastes, and suffers a miscarriage or stillbirth can face prosecution for homicide,” Abrahamson wrote.

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