Earlier this week, the South Carolina Supreme Court unanimously ruled that Regina McKnight, a woman convicted in 2001 of homicide after suffering a stillbirth and admitting to cocaine usage, did not have a fair trial. In so doing, the court recognized that McKnight’s counsel failed to make use of existing evidence that could have shown that factors other than McKnight’s drug use could have caused the stillbirth.
The court’s ruling has significant import for the dozens of pregnant women in the United States each year that, like McKnight, are criminally charged for continuing their pregnancies to term despite their struggles with drug addition. (A recent New York Times article profiles several such women and their prosecutions in Alabama.)
While courts in other states have routinely rejected prosecutions of pregnant, drug-using women, they have not addressed the question of whether pre-natal exposure to substances causes harm to the fetus.
Notably, this week’s decision discusses the critical importance of hearing evidence regarding what is and is not known about the topic. As the court noted, adequate expert medical testimony would include “recent studies showing that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor.”
The local prosecutor hasn’t decided whether to retry McKnight. Local papers reported that C. Rauch Wise of Greenwood, who directly represented McKnight on behalf of the American Civil Liberties Union of South Carolina Foundation, in partnership with Matthew Hersh and Julie Carpenter of the law firm Jenner & Block, would seek to have McKnight released on bail pending a new trial.
National Advocates for Pregnant Women (NAPW) has been working on McKnight’s behalf for nearly a decade. During this most recent round of litigation, NAPW, along with the Drug Policy Alliance and local South Carolina counsel Susan K. Dunn, filed a friend of the court brief on behalf of medical and public health groups and experts. In addition to challenging the validity of the state’s claim that cocaine use caused the stillbirth, signatories argued that threatening pregnant women with jail time deters them from seeking prenatal care and other vital services.