WHITNER V. STATE Whitner v. State, 492 S.E.2d 777 (S.C. 1997), cert. denied, 118 S. Ct. 1857 (1998).
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Note: This is not the official opinion of the Supreme Court of South Carolina. The unofficial version below has been edited by Jose Gomez, J.D., for use by students in the Crime & Punishment course at The Evergreen State College. Editing involved deleting text (* * *) not directly relevant to the substantive issues studied in this course. Of course, no text was added. This was one of the point-counterpoint readings for the students' critical study of the question, "Should Women Who Abuse Drugs or Alcohol While Pregnant Be Prosecuted for Child Abuse or Endangerment?"
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THE STATE OF SOUTH CAROLINA
In the Supreme Court
Cornelia Whitner, Respondent,
V.
State of South Carolina, Petitioner.ON WRIT OF CERTIORARI
Appeal From Pickens County
Frank Eppes, Trial Judge
Larry R. Patterson, Post-Conviction JudgeOpinion No. 24468
Heard May 31, 1995 - Refiled October 27, 1997
REVERSED
* * *
TOAL, A.J.: This case concerns the scope of the child abuse and endangerment
statute in the South Carolina Children's Code (the Code), S.C. Code Ann. § 20-7-50
.(1985).1 We hold the word "child" as used in that statute includes viable fetuses.
FACTS
On April 20, 1992, Cornelia Whitner (Whitner) pled guilty to criminal child neglect,
S.C. Code Ann. § 20-7-50 (1985), for causing her baby to be born with cocaine
metabolites in its system by reason of Whitner's ingestion of crack cocaine during the third
trimester of her pregnancy. The circuit court judge sentenced Whitner to eight years in
prison.
* * *
LAW\ANALYSIS
A. Subject Matter Jurisdiction
* * *
S.C. Code Ann. § 20-7-50 (1985) provides:
Any person having the legal custody of any child or helpless person,
who shall, without lawful excuse, refuse or neglect to provide, as defined in
§ 20-7-490, the proper care and attention for such child or helpless person,
so that the life, health or comfort of such child or helpless person is
endangered or is likely to be endangered, shall be guilty of a misdemeanor and
shall be punished within the discretion of the circuit court (emphasis added).
The State contends this section encompasses maternal acts endangering or likely to endanger
the life, comfort, or health of a viable fetus.
Under the Children's Code, "child" means a "person under the age of eighteen."
S.C. Code Ann. § 20-7-30(l) (1985). The question for this Court, therefore, is whether
a viable fetus is a "person" for purposes of the Children's Code.
In interpreting a statute, this Court's primary function is to ascertain the intent of the
legislature. Eg., State v. Ramsey, 31 1 S.C. 555, 430 S.E.2d 511 (1993). Of course,
where a statute is complete, plain, and unambiguous, legislative intent must be determined
from the language of the statute itself. Eg., State v. Blackmon, 304 S.C. 270, 403
S.E.2d 660 (1991). We should consider, however, not merely the language of the
particular clause being construed, but the word and its meaning in conjunction with the
purpose of the whole statute and the policy of the law. Eg., South Carolina Coastal
Council v. South Carolina State Ethics Comm'n, 306 S.C. 41, 41 0 S.E.2d 245 (199 1).
Finally, there is a basic presumption that the legislature has knowledge of previous legislation
as well as of judicial decisions construing that legislation when later statutes are enacted
* * *
South Carolina law has long recognized that viable fetuses are persons holding certain
legal rights and privileges. In 1960, this Court decided Hall v. Murphy, 236 S.C. 257,
113 S. E.2d 790 (1960). That case concerned the application of South Carolina's wrongful
death statute to an infant who died four hours after her birth as a result of injuries sustained
prenatally during viability. The Appellants argued that a viable fetus was not a person within
the purview of the wrongful death statute, because, inter alia, a fetus is thought to have no
separate being apart from the mother.
We found such a reason for exclusion from recovery "unsound, illogical and unjust,"
and concluded there was "no medical or other basis" for the "assumed identity" of mother
and viable unborn child. Id. at 2621 113 S.E.2d at 793. In light of that conclusion, this
Court unanimously held: "We have no difficulty in concluding that a fetus having reached
that period of prenatal maturity where it is capable of independent life apart from its mother
is a person." Id. at 263, 113 S.E.2d at 793 (emphasis added).
Four years later, in Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964),
we interpreted Hall as supporting a finding that a viable fetus injured while still in the womb
need not be born alive for another to maintain an action for the wrongful death of the fetus.
Since a viable child is a person before separation from the body of
its mother and since prenatal injuries tortiously inflicted on such a child are
actionable, it is apparent that the complaint alleges such an 'act, neglect or
default' by the defendant, to the injury of the child . . . .
* * *
Once the concept of the unborn, viable child as a person is
accepted, we have no difficulty in holding that a cause of action for tortious
injury to such a child arises immediately upon the infliction of the injury.
Id. at 613, 138 S.E.2d at 44 (emphasis added). Fowler makes particularly clear that Hall
rested on the concept of the viable fetus as a person vested with legal rights.
More recently, we held the word "person" as used in a criminal statute includes viable
fetuses. State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), concerned South
Carolina's murder statute, S.C. Code Ann. § 1 6-3-1 0 (1 976). The defendant in that case
stabbed his wife, who was nine months' pregnant, in the neck, arms, and abdomen.
Although doctors performed an emergency Caesarean section to deliver the child, the child
died while still in the womb. The defendant was convicted of voluntary manslaughter and
appealed his conviction on the ground South Carolina did not recognize the crime of feticide.
This Court disagreed. In a unanimous decision, we held it would be "grossly
inconsistent . . .to construe a viable fetus as a 'person' for the purposes of imposing civil
liability while refusing to give it a similar classification in the criminal context." Id. at 447,
319 S.E.2d at 704 (citing Fowler v. Woodward, supra). Accordingly, the Court
recognized the crime of feticide with respect to viable fetuses.
Similarly, we do not see any rational basis for finding a viable fetus is not a "person"
in the present context. Indeed, it would be absurd to recognize the viable fetus as a person
for purposes of homicide laws and wrongful death statutes but not for purposes of statutes
proscribing child abuse. Our holding in Hall that a viable fetus is a person rested primarily
on the plain meaning of the word "person" in light of existing medical knowledge concerning
fetal development. We do not believe that the plain and ordinary meaning of the word
"person" has changed in any way that would now deny viable fetuses status as persons.
The policies enunciated in the Children's Code also support our plain meaning reading
of "person." S.C. Code Ann. § 20-7-20(C) (1985), which describes South Carolina is
policy concerning children, expressly states: "It shall be the policy of this State to
concentrate on the prevention of children's problems as the most important strategy which
can be planned and implemented on behalf of children and their families." (emphasis
added). The abuse or neglect of a child at any time during childhood can exact a profound
toll on the child herself as well as on society as a whole. However, the consequences of
abuse or neglect which takes place after birth often pale in comparison to those resulting
from abuse suffered by the viable fetus before birth. This policy of prevention supports a
reading of the word "person" to include viable fetuses. Furthermore, the scope of the
Children's Code is quite broad. It applies "to all children who have need of services." S.C.
Code Ann. § 20-7-20(B) (I 985)(emphasis added). When coupled with the comprehensive
remedial purposes of the Code, this language supports the inference that the legislature
intended to include viable fetuses within the scope of the Code's protection.
Whitner advances several arguments against an interpretation of "person" as used in
the Children's Code to include viable fetuses. We shall address each of Whitner's major
arguments in turn.
* * *
Whitner also argues an interpretation of the statute that includes viable fetuses would
lead to absurd results obviously not intended by the legislature. Specifically, she claims if we
interpret "child" to include viable fetuses, every action by a pregnant woman that endangers
or is likely to endanger a fetus, whether otherwise legal or illegal, would constitute unlawful
neglect under the statute. For example, a woman might be prosecuted under section
20-7-50 for smoking or drinking during pregnancy. Whitner asserts these "absurd" results
could not have been intended by the legislature and, therefore, the statute should not be
construed to include viable fetuses.
We disagree for a number of reasons. First, the same arguments against the statute
can be made whether or not the child has been born. After the birth of a child, a parent can
be prosecuted under section 20-7-50 for an action that is likely to endanger the child
without regard to whether the action is illegal in itself. For example, a parent who drinks
excessively could, under certain circumstances, be guilty of child neglect or endangerment
even though the underlying act -- consuming alcoholic beverages -- is itself legal. Obviously,
the legislature did not think it "absurd" to allow prosecution of parents for such otherwise
legal acts when the acts actually or potentially endanger the "life, health or comfort" of the
parents' born children. We see no reason such a result should be rendered absurd by the
mere fact the child at issue is a viable fetus.
* * *
Moreover, we need not address this potential parade of horribles advanced by
Whitner. In this case, which is the only case we are called upon to decide here, certain facts
are clear. Whitner admits to having ingested crack cocaine during the third trimester of her
pregnancy, which caused her child to be born with cocaine in its system. Although the
precise effects of maternal crack use during pregnancy are somewhat unclear, it is well
documented and within the realm of public knowledge that such use can cause serious harm
to the viable unborn child. See, e.g., Joseph 1. Volpe, M.D., Effect of Cocaine Use on
the Fetus, 327 New Eng. J. Med. 399 (1992); Ira J. Chasnoff, M.D., et al., Cocaine Use
in Pregnancy, 313 New Eng. J. Med. 666 (1985). There can be no question here
Whitner endangered the life, health, and comfort of her child. We need not decide any cases
other than the one before us.
We are well aware of the many decisions from other states' courts throughout the
country holding maternal conduct before the birth of the child does not give rise to criminal
prosecution under state child abuse/endangerment or drug distribution statutes. See, e.g.,
Johnson v. State, 602 So. 2d 1288 (Fla. 1992); Commonwealth v. Welch, 864
S.W.2d 280 (Ky. 1993); State v. Gray, 584 N.E.2d 710 (Ohio 1992); Reyes v.
Superior Court, 75 Cal. App. 3d 214 (1977); State v. Carter, 602 So. 2d 995 (Fla. Ct.
App. 1992); State v. Gethers, 585 So. 2d I 1 40 (Fla. Ct. App. 1991); State v. Luster,
419 S.E.2d 32 (Ga. Ct. App. 1992), cert. denied (Ga. 1992); Commonwealth v.
Pellegrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990); People v. Hardy, 469
N.W.2d 50 (Mich. Ct. App.), app. denied, 471 N.W.2d 619 (Mich. 1991);
Commonwealth v. Kemp, 643 A.2d 705 (Pa. Super. Ct. 1994). Many of these cases
were prosecuted under statutes forbidding delivery or distribution of illicit substances and
depended on statutory construction of the terms "delivery" and "distribution." See, e.g.,
Johnson v. State, supra; State v. Luster, supra; People v. Hardy, supra. Obviously,
such cases are inapplicable to the present situation. The cases concerning child endangerment
statutes or construing the terms "child" and "person" are also distinguishable, because the
states in which these cases were decided have entirely different bodies of case law from South
Carolina. For example, in Commonwealth v. Welch, the Kentucky Supreme Court
specifically noted Kentucky law has not construed the word "person" in the criminal
homicide statute to include a fetus (viable or not). Welch, 864 S.W.2d at 28 1. In Reyes
v. Superior Court, the California Court of Appeals noted California law did not recognize
a fetus as a "human being" within the purview of the state murder and manslaughter statutes,
and that it was thus improper to find the fetus was a "child" for purposes of the felonious
child endangerment statute. Reyes, 75 Cal. App. 3d at 21 7.
Massachusetts, however, has a body of case law substantially similar to South
Carolina's, yet a Massachusetts trial court has held that a mother pregnant with a viable fetus
is not criminally liable for transmission of cocaine to the fetus. See Commonwealth v.
Pellegrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990).5 Specifically,
Massachusetts law allows wrongful death actions on behalf of viable fetuses injured in utero
--------------------------------
5 We note that Pellegrini was decided by a Massachusetts superior court. To date, no
appellate court in Massachusetts has addressed this issue directly.
-------------------------------who are not subsequently born alive. Mone v. Greyhound Lines, Inc., 331 N.E.2d 916
(Mass. 1975). Similarly, Massachusetts law permits homicide prosecutions of third parties
who kill viable fetuses. See Commonwealth v. Cass, 467 N.E.2d 1324 (Mass.
1984)(ruling a viable fetus is a person for purposes of vehicular homicide statute);
Commonwealth v. Lawrence, 536 N.E.2d 571 (Mass. 1989)(viable fetus is a person for
purposes of common law crime of murder). Because of the similarity of the case law in
Massachusetts to ours, the Pellegrini decision merits examination.
* * *
The Massachusetts trial court found Lawrence and Cass "accord legal rights to theunborn only where the mother's or parents' interest in the potentiality of life, not the state's
interest, are sought to be vindicated." Pellegrini, slip op. at 11. In other words, a viable
fetus should only be accorded the rights of a person for the sake of its mother or both its
parents. Under this rationale, the viable fetus lacks rights of its own that deserve vindication.
Whitner suggests we should interpret our decisions in Hall, Fowler, and Horne to accord
rights to the viable fetus only when doing so protects the special parent-child relationship
rather than any individual rights of the fetus or any State interest in potential life. We do not
think Hall, Fowler, and Horne can be interpreted so narrowly.
If the Pellegrini decision accurately characterizes the rationale underlying Mone,
Lawrence, and Cass, then the reasoning of those cases differs substantially from our
reasoning in Hall, Fowler, and Horne, supra. First, Hall, Fowler, and Horne were decided
primarily on the basis of the meaning of "person" as understood in the light of existing
medical knowledge, rather than based on any policy of protecting the relationship between
mother and child. As a homicide case, Horne also rested on the State's -- not the mother's
-- interest in vindicating the life of the viable fetus. Moreover, the United States Supreme
Court has repeatedly held that the states have a compelling interest in the life of a viable
fetus. See Roe v. Wade, 410 U.S. 113, 165, 93 S. Ct. 705, 732, 35 L. Ed. 2d 147,
183 (1973); see also Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791,
120 L. Ed. 2d 674 (1992); Webster v. Reproductive Health Servs., 492 U.S. 490,
109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989). If, as Whitner suggests we should, we read
Horne only as a vindication of the mother's interest in the life of her unborn child, there
would be no basis for prosecuting a mother who kills her viable fetus by stabbing it, by
shooting it, or by other such means, yet a third party could be prosecuted for the very same
acts. We decline to read Horne in a way that insulates the mother from all culpability for
harm to her viable child. Because the rationale underlying our body of law -- protection of
the viable fetus -- is radically different from that underlying the law of Massachusetts, we
decline to follow the decision of the Massachusetts Superior Court in Pellegrini.
* * *
C. Constitutional Issues
1 . Fair Notice/Vagueness
Whitner argues that section 20-7-50 does not give her fair notice that her behavior
is proscribed.6 We disagree.
The statute forbids any person having legal custody of a child from refusing or
neglecting to provide proper care and attention to the child so that the life, health, or
comfort of the child is endangered or is likely to be endangered. As we have found above,
the plain meaning of "child" as used in this statute includes a viable fetus. Furthermore, it
is common knowledge that use of cocaine during pregnancy can harm the viable unborn
child. Given these facts, we do not see how Whitner can claim she lacked fair notice that
her behavior constituted child endangerment as proscribed in section 20-7-50. Whitner had
all the notice the Constitution requires.
--------------------------------------
6 In a related argument, Whitner suggests section 20-7-50 is void for vagueness. This
argument lacks merit. As we noted in our interpretation of section 20-7-50, supra, the
same argument could be made about the statute as applied to a child who has already been
born.
-------------------------------------2. Right to Privacy
Whitner argues that prosecuting her for using crack cocaine after her fetus attains
viability unconstitutionally burdens her right of privacy, or, more specifically, her right to
carry her pregnancy to term. We disagree.
Whitner argues that section 20-7-50 burdens her right of privacy, a right long
recognized by the United States Supreme Court. See, e.g., Eisenstadt v. Baird, 405 U.S.
438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Skinner v. Oklahoma, 316 U.S. 535,
62 S. Ct. 1101, 86 L. Ed. 1655 (1942). She cites Cleveland Board of Education v.
LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974), as standing for the
proposition that the Constitution protects women from measures penalizing them for
choosing to carry their pregnancies to term.
In LaFleur, two junior high school teachers challenged their school systems' maternity
leave policies. The policies required "every pregnant school teacher to take maternity leave
without pay, beginning [four or] five months before the expected birth of her child." Id. at
634, 94 S. Ct. at 794, 39 L. Ed. 2d at 57. A teacher on maternity leave could not return
to work "until the beginning of the next regular school semester which follows the date when
her child attains the age of three months." Id. at 634-35, 94 S. Ct. at 794, 39 L. Ed. 2d
at 57. The two teachers, both of whom had become pregnant and were required against
their wills to comply with the school systems' policies, argued that the policies were
unconstitutional.
The United States Supreme Court agreed. It found that "[b]y acting to penalize the
pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations
can constitute a heavy burden on the exercise of these protected freedoms." Id. at 640, 94
S. Ct. at 796, 39 L. Ed. 2d at 60. The Court then scrutinized7 the policies to determine
whether "the interests advanced in support of' the policy could " justify the particular
procedures [the School Boards] ha[d] adopted." Id. at 640, 94 S. Ct. at 796, 39 L. Ed.
2d at 60. Although it found that the purported jusdfication for the policy -- continuity of
instruction -- was a "significant and legitimate educational goal," the Court concluded that
the "absolute requirement[] of termination at the end of the fourth or fifth month of
pregnancy" was not a rational means for achieving continuity of instruction and that such a
requirement "may serve to hinder attainment of the very continuity objectives that they are
purportedly designed to promote." Id. at 642-43, 94 S. Ct. at 797-98, 39 L. Ed. 2d at
61-62. Finding no rational relationship between the purpose of the maternity leave policy
and the means crafted to achieve that end, the Court concluded the policy violated the Due
Process Clause of the Fourteenth Amendment.
Whitner argues that the alleged violation here is far more egregious than that in
LaFleur. She first suggests that imprisonment is a far greater burden on her exercise of her
freedom to carry the fetus to term than was the unpaid maternity leave in LaFleur.
---------------------------------------------------
7 The Court applied a rational relationship test, the least rigorous form of scrutiny.
--------------------------------------------------Although she is, of course, correct that imprisonment is more severe than unpaid maternity
leave, Whitner misapprehends the fundamentally different nature of her own interests and
those of the government in this case as compared to those at issue in LaFleur.
First, the State's interest in protecting the life and health of the viable fetus is not
merely legitimate. It is compelling. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S. Ct.
705, 35 L. Ed. 2d 147 (1973); Planned Parenthood v. Casey, 505 U.S. 833, 112 S.
Ct. 2791, 120 L. Ed. 2d 674 (1992). The United States Supreme Court in Casey
recognized that the State possesses a profound interest in the potential life of the fetus, not
only after the fetus is viable, but throughout the expectant mother's pregnancy. See
Casey, 505 U.S. at 877, 112 S. Ct. at 2821, 120 L. Ed. 2d at 716 (plurality opinion).
Even more importantly, however, we do not think any fundamental right of Whitner's
-- or any right at all, for that matter -- is implicated under the present scenario. It strains
belief for Whitner to argue that using crack cocaine during pregnancy is encompassed within
the constitutionally recognized right of privacy. Use of crack cocaine is illegal, period. No
one here argues that laws criminalizing the use of crack cocaine are themselves
unconstitutional. If the State wishes to impose additional criminal penalties on pregnant
women who engage in this already illegal conduct because of the effect the conduct has on
the viable fetus, it may do so. We do not see how the fact of pregnancy elevates the use of
crack cocaine to the lofty status of a fundamental right.
Moreover, as a practical matter, we do not see how our interpretation of section 20-
7-50 imposes a burden on Whitner's right to carry her child to term. In LaFleur, the
Supreme Court found that the mandatory maternity leave policies burdened women's rights
to carry their pregnancies to term because the policies prevented pregnant teachers from
exercising a freedom they would have enjoyed but for their pregnancies. In contrast, during
her pregnancy after the fetus attained viability, Whitner enjoyed the same freedom to use
cocaine that she enjoyed earlier in and predating her pregnancy -- none whatsoever. Simply
put, South Carolina's child abuse and endangerment statute as applied to this case does not
restrict Whitner's freedom in any way that it was not already restricted. The State's
imposition of an additional penalty when a pregnant woman with a viable fetus engages in the
already proscribed behavior does not burden a woman's right to carry her pregnancy to
term; rather, the additional penalty simply recognizes that a third party (the viable fetus or
newborn child) is harmed by the behavior.
Section 20-7-50 does not burden Whitner's right to carry her pregnancy to term or
any other privacy right. Accordingly, we find no violation of the Due Process Clause of the
Fourteenth Amendment.
CONCLUSION
For the foregoing reasons, the decision of the PCR Court is REVERSED.
WALLER and BURNETT, JJ., concur. FINNEY, C.J., and
MOORE, A.J., dissenting in separate opinions.
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NOTE TO STUDENTS: Below are the two dissenting opinions in this case, one of them by the Chief Justice of the South Carolina Supreme Court. These dissenting opinions are optional reading for the "NO" side of the question, "Should Women Who Abuse Drugs or Alcohol While Pregnant Be Prosecuted for Child Abuse or Endangerment?"
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FINNEY, C.J.: I respectfully dissent, and would affirm the grant of post-
conviction relief to respondent Whitner.
The issue before the Court is whether a fetus is a "child"
within the meaning of S.C. Code Ann. § 20-7-50 (1985), a statute which
makes it a misdemeanor1d for a "person having legal custody of any child or
helpless person" to unlawfully neglect that child or helpless person. Since
this is a penal statute, it is strictly construed against the State and in
favor of respondent. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660
(1991).
The term child for purposes of § 20-7-50 is defined as a
"person under the age of eighteen" unless a different meaning is required
by the circumstances. S.C. Code Ann. § 20-7-30 (1) (1985). We have
already held that this same definition found in another part of the
Children's Code means a child in being and not a fetus. Doe v. Clark, 318
S.C. 274, 457 S.E.2d 336 (1995). It would be incongruous at best to hold
the definition of "child" in the civil context of Doe is more restrictive than
it is in the criminal context we consider today.
More importantly, it is apparent from a reading of the entire
statute that the word child in § 20-7-50 means a child in being and not a
fetus. See Jackson v. Charleston County School District, 316 S.C. 177, 447
S.E.2d 859 (1994) (when construing a statute, we do not view its terms in
isolation, but rather in the context of the entire statute and its intended
purpose). A plain reading of the entire child neglect statute demonstrates
the intent to criminalize only acts directed at children, and not those
which may harm fetuses. First, § 20-7-50 does not impose criminal
liability on every person who neglects a child, but only on a person having
legal custody of that child. The statutory requirement of legal custody is
evidence of intent to extend the statute's reach only to children, because
the concept of legal custody is simply inapplicable to a fetus. See Stone v.
State, 313 S.C. 533, 443 S.E.2d 544 (1994)(statutes are construed so as to
-------------------------------
1d After this case arose, the statute was amended to change the
classification from misdemeanor to felony. 1993 Act No. 184, §55 (effective
January 1, 1994).
------------------------------avoid absurd results). Second, § 20-7-50 refers to S. C. Code Ann. § 20-7-
490 (1985 and Supp. 1994) for the definition of neglect. Section 20-7-490
defines a neglected child as one harmed or threatened with harm, and
further defines harm. § 20-7-490(B), (C), and (D). The vast majority of
acts which constitute statutory harm under § 20-7-490 are acts which can
only be directed against a child, and not towards a fetus.2d The reliance
upon § 20-7-490 in § 20-7-50 is further evidence that the term child as
used in the child neglect statute does not encompass a fetus. Read in
context, and in light of the statutory purpose of protecting persons of
tender years3d , it is clear that "child" as used in § 20-7-50 means a child in
being. Jackson v. Charleston Countv School District, supra.
At most, the majority only suggests that the term "child" as
used in § 20-7-50 is ambiguous. This suggestion of ambiguity is created
not by reference to our decisions under the Children's Code or by reference
to the statutory language and applicable rules of statutory construction,
but by reliance on decisions in two different fields of the law, civil
wrongful death and common law feticide. Here, we deal with the
Children's Code, and the meaning of language used in a criminal statute
under that Code. We have already indicated that a child within the
meaning of § 20-7-90(A)(1985), which criminalizes non-support, must be
one already born. State v. Montgomery, 246 S.C. 545, 144 S.E.2d 797
(1965)(indictment for violation of predecessor of § 20-7-90(A) fatally
defective for failing to identify the child by description or date of birth);
see also Doe v. Clark, supra. Even if these wrongful death, common law,
and Children's Code decisions are sufficient to render the term child in §
20-7-50 ambiguous, it is axiomatic that the ambiguity must be resolved in
respondent's favor. State v. Blackmon, supra.
I would affirm.
------------------------------
2d Examples include condoning delinquency, using excessive corporal
punishment, committing sexual offenses against the child, and depriving
her of adequate food, clothing, shelter or education.3d State v. Jenkins, 278 S.C. 219, 294 S.E.2d 44 (1982)(construing § 16-
3-1030, recodified as § 20-7-50).
-------------------------------
MOORE, A. J.: I concur with the dissent in this case but write
separately to express my concerns with today's decision.
In my view, the repeated failure of the legislature to pass proposed bills
addressing the problem of drug use during pregnancy is evidence the child abuse and
neglect statute is not intended to apply in this instance. This Court should not invade
what is clearly the sole province of the legislative branch. At the very least, the
legislature's failed attempts to enact a statute regulating a prep ant woman's conduct
indicate the complexity of this issue. While the majority opinion is perhaps an
argument for what the law should be, it is for the General Assembly, and not this
Court, to make that determination by means of a clearly drawn statute. With today's
decision, the majority not only ignores legislative intent but embarks on a course of
judicial activism rejected by every other court to address the issue.
As discussed in the Chief Justice's dissent, we are bound by the rules of
statutory construction to strictly construe a criminal statute in favor of the defendant
and resolve any ambiguity in her favor. State v. Blackmon, supra. I cannot accept the
majority's assertion that the child abuse and neglect statute unambiguously includes a
"viable fetus." If that is the case, then why is the majority compelled to go to such
great lengths to ascertain that a "viable fetus" is a "child?"
Contrary to the majority's strained analysis in this case, one need look no
further than the language of § 20-7-50 to clearly discern legislative intent that the
statute apply only to children in being. "Legal custody" is not a qualification
applicable to a viable fetus. I simply disagree the legislature intended a statute entitled
"Unlawful neglect of child or helpless person by legal custodian" to render a pregnant
woman criminally liable for any type of conduct potentially harmful to the unborn
fetus.
In construing this statute to include conduct not contemplated by the
legislature, the majoritv has rendered the statute vague and set for itself the task of
determining what conduct is unlawful. Is a pregnant woman's failure to obtain prenatal
care unlawful? Failure to quit smoking or drinking? Although the majority dismisses
this issue as not before it, the impact of today's decision is to render a pregnant woman
potentially criminally liable for myriad acts which the legislature has not seen fit to
criminalize. To ignore this "down-the-road" consequence in a case of this import is
unrealistic. The majority insists that parents may already be held liable for drinking
after a child is born. This is untrue, however, without some further act on the part of
the parent. A parent who drinks and then hits her child or fails to come home may be
guilty of criminal neglect. The mere fact of drinking,, however, does not constitute
neglect of a child in being.
The majority attempts to support an overinclusive construction of the
child abuse and neglect statute by citing other legal protections extended equally to a
viable fetus and a child in being. The only law, however, that specifically regulates
the conduct of a mother toward her unborn child is our abortion statute under which a
viable fetus is in fact treated differently from a child in being.1e
The majority argues for equal treatment of viable fetuses and children,
yet its construction of the statute results in even greater inequities. If the statute
applies only when a fetus is "viable," a pregnant woman can use cocaine for the first
twenty-four weeks2e of her pregnancy, the most dangerous period for the fetus, and be
immune from prosecution under the statute so long as she quits drug use before the
fetus becomes viable. Further, a pregnant woman now faces up to ten years in prison
for ingesting drugs during pregnancy but can have an illegal abortion and receive only
a two-year sentence for killing her viable fetus.3e
Because I disagree with the conclusion § 20-7-50 includes a viable fetus,
I would affirm the grant of post-conviction relief.
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1e A woman may have a legal abortion of a viable fetus if necessary to preserve her
health, S.C. Code Ann. § 44-41-20(c) (1985), while, of course, she may not justify the
death of a child in being on this ground.2e Viability is presumed to occur no sooner than the twenty-fourth week of
pregnancy. S.C. Code Ann. § 44-41-10(l) (1985).3e S.C. Code Ann. § 44-41-80(b) (1985).