In a disturbing trend of criminalizing pregnancy, South Carolina, alongside Alabama and Oklahoma, has institutionalized the prosecution of women for substance abuse during pregnancy. This punitive approach, rooted in the concept of “fetal personhood,” has its origins in a controversial 1989 policy at the Medical University of South Carolina, which mandated reporting pregnant women who tested positive for illegal substances.
Despite a federal investigation and a lawsuit that ended the program in 1994, the idea persisted. The South Carolina Supreme Court further entrenched this stance in 1996, ruling that child abuse laws apply to viable fetuses, effectively criminalizing certain actions of pregnant women.
The Post and Courier, in collaboration with The Marshall Project and other partners, delved into nearly 200 cases between 2006 and 2021 where women faced charges related to perinatal drug use. This number, likely an undercount, highlights a systemic issue. While proponents argue these measures protect infants, critics, including medical professionals and lawyers, challenge the scientific basis of such prosecutions.
South Carolina’s harsh approach does not differentiate perinatal drug use from other forms of child neglect or abuse, leading to inconsistent and unpredictable enforcement. The state boasts the second-highest arrest rate for alleged perinatal drug use in the U.S., only trailing Alabama.
The analysis by The Post and Courier revealed a complex picture: one-third of these charges were dismissed, and among the resulting sentences, two-thirds led to probation rather than prison. Women rarely served more than a year in prison, with many facing a blend of jail time and probation. However, no cases went to jury trial; the women involved often pleaded guilty.
The consequences of these arrests extend beyond prison walls. Convicted women face additional burdens like placement on child abuse registries, random drug screenings, and significant court fees. Additionally, many positive tests lead to referrals to the South Carolina Department of Social Services. In 2022 alone, nearly 1,600 reports involved substance-affected newborns.
The statewide impact of this policy is widespread, affecting women in nearly every county. From rural Union to densely populated Horry, the shadow of fetal personhood laws looms large over pregnant women, particularly those struggling with substance abuse.
This system not only penalizes women for their health issues but also undermines their autonomy and motherhood. As the nation grapples with the fallout from the Roe v. Wade overturn, South Carolina’s stance serves as a stark example of how fetal personhood laws can lead to punitive measures against pregnant women, often with lasting consequences on their lives and families.