Rights of Unborn at Issue After S.C. Verdict By Sue Anne Pressley Washington Post Staff Writer Sunday, May 27, 2001; Page A1
Throughout her recent three-day trial on charges she had killed her stillborn child by smoking crack cocaine, Regina McKnight was in disbelief that she had even been charged.
"I didn't kill my baby," she kept repeating to those around her.
A jury in Horry County, S.C., disagreed. After just 15 minutes of deliberations, jurors returned May 15 with a guilty verdict that has stirred a debate about fetal rights and given McKnight a distinction she still has trouble grasping.
McKnight, 24, the mother of three, became the first woman in the nation to be convicted of homicide for killing an unborn child through drug abuse, according to women's rights groups. She will serve 12 years without the chance for parole unless she wins her appeal.
"She didn't understand how she could go to prison. She kept wanting to talk about that," said Wyndi Anderson of South Carolina Advocates for Pregnant Women, who sat with McKnight through the trial. "She knew it was bad, she knew she had a problem, but she didn't understand."
To critics of the verdict, the murder prosecution of a woman who had no prior criminal record and has never been in a drug treatment program opens the door to future prosecutions of women for smoking, alcohol use or other behaviors that could harm a fetus.
They also contend that McKnight's race and economic status - she is black and has been homeless for much of the past few years - also made her an easy target for prosecutors and politicians who wanted to make an example of someone.
Greg Hembree, solicitor for the 15th Judicial District of South Carolina, whose office prosecuted the case, disagrees. He stands by the verdict and sentence, saying that critics are failing to see the case for what it is.
"If that baby had been born and two weeks later she smothered that child with a pillow, or she gets so high on crack, she throws the baby in the back seat of the car, in a bassinet, and doesn't strap it in, and has a car wreck while she's high and kills the baby, nobody's going to object [to prosecution]," Hembree said.
"It was her recklessness, her disregard for the safety of the child," he added. "People kind of get their fur up about this case. It has become much more of a pro-life, pro-choice issue, and it's not that at all."
Hembree also denied that McKnight's poverty affected the decision to prosecute. "When you don't have anything else to argue about, you argue about race and poverty. It didn't matter to me. It could've been a doctor's wife."
There have been several other cases in South Carolina and across the country that resulted in addicted mothers of stillborn children pleading guilty to involuntary manslaughter and serving some prison time. But McKnight is the first to be convicted by a jury for homicide, said Lynn Paltrow of National Advocates for Pregnant Women. McKnight's sentence, 20 years reduced to 12, also is the stiffest by far, Paltrow said.
South Carolina has taken the lead among states in prosecuting mothers who take drugs. "Since the mid-'80s, more than half the state legislatures have considered punitive laws," Paltrow said, "and repeatedly, no state, including South Carolina, has actually passed such a law - in part because there is such unanimity in the medical community . . . that punitive approaches to health problems during pregnancy are always counterproductive.
"Nevertheless, individual prosecutors have brought cases under statutes intended for other purposes," she said.
"When we get to South Carolina," she added, "lo and behold, unlike every other state court in the country that has ruled on this, the South Carolina Supreme Court upheld that . . . a viable fetus is a child covered by child abuse laws."
That controversial 1997 ruling involved the case of another black woman, Cornelia Whitner, who tested positive for cocaine after her child was born healthy in 1992. Whitner pleaded guilty to violating the state's child abuse laws, expecting to be sent to a drug treatment facility.
Instead the judge sentenced her to prison. The case is still on appeal, but McKnight's attorney, Horry County Public Defender Orrie West, said McKnight's prosecution was inevitable after the Whitner verdict.
Other states have begun to move in a similar direction. Last year, the Ohio Supreme Court ruled that a baby born addicted to cocaine because of his mother's addiction is legally an abused child.
South Carolina Attorney General Charles Condon, a Republican candidate for governor, applauded the McKnight decision, calling it "a landmark case" and declaring that South Carolina is "on the cutting edge of protecting the innocent life of the unborn as well as the born."
"That child had no say whatsoever in his or her mother using drugs," Condon said in a statement released after McKnight's conviction. "Today, South Carolina's unborn children have a much better chance at a long, happy life than they did yesterday."
When he was Charleston County prosecutor, Condon helped formulate a policy that allowed the local public hospital to administer drug tests to pregnant women without their consent and forward the results to police. The U.S. Supreme Court struck down the practice in March, ruling that it amounted to an unconstitutional search by police.
McKnight told Anderson that she had never smoked crack cocaine until her mother - the woman who took care of everything in her life - was struck by a car and killed in 1998. Described as a 10th-grade dropout with an IQ of 72, McKnight "had no coping skills," Anderson said.
In May 1999, when she was 8½ months pregnant, McKnight went to a county hospital suspecting a problem with her pregnancy. It was the first time she had sought prenatal care.
After the daughter McKnight named Mercedes was stillborn, doctors performing an autopsy on the infant found evidence of a cocaine derivative. McKnight herself tested positive for cocaine and was soon arrested on charges of homicide by child abuse and released on bond.
At her trial, the only defense witness, a Charleston pathologist, testified that in 40 percent of stillbirths, it is nearly impossible to determine a cause. Two pathologists presented by the prosecution said the mother's cocaine use caused the death.
"I don't think the jury considered the expert testimony," West said. "They just saw her as a drug addict. The image that my client used drugs while she was pregnant - that's what hurt more than anything else."
Bert Von Hermann, an assistant solicitor who prosecuted the case, said he saw McKnight as "callous.
"It ought to be telling that the only time she cried like she did was when she was sentenced," he said. "She slept through a lot of the trial. I don't think she showed that she really cared."
Paltrow noted that South Carolina, which ranks near the bottom in money spent on drug treatment programs, will spend an estimated $300,000 to imprison McKnight for a dozen years.
For Von Hermann, however, the news that McKnight is again pregnant makes what happened in the courtroom all the more significant.
"At the end of the day, when all is said and done, if we've done any good, we've saved one child's life," he said.