This Comment argues that the criminal sanctions imposed by the South Carolina Supreme Court in Whitner v. State do not really protect the potential life of the fetus from damage caused by its mother’s drug abuse. First, this Comment discusses the harm caused to the fetus when a pregnant woman ingests an illegal substance. Second, it sets forth the background regarding the rights that the common law has afforded the unborn with respect to harm to the fetus by someone other than the mother. Third, it provides an overview of the key cases from various jurisdictions that have decided whether or not to impose criminal sanctions on women for prenatal substance abuse. Fourth, an analysis of the reasoning in Whitner is provided. The first two sections of analysis focus on the method of statutory interpretation employed by the Whitner court with respect to possible violations of the doctrine of separation of powers and the right to due process. The third section of analysis addresses the implications of a woman’s right to privacy. This Comment concludes that, even if constitutional, imposing criminal sanctions in these cases is not the best policy option.
Tony A. Kordus,
Did South Carolina Really Protect the Fetus by Imposing Criminal Sanctions on a Woman for Ingesting Cocaine During Her Pregnancy in Whitner v. State, No. 24468, 1996 WL 393164 (S.C. July 15, 1996)?,
76 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol76/iss2/5