After suffering a stillbirth in South Carolina, 21-year-old Regina McKnight was arrested and charged with her fetus’ homicide because she used cocaine while pregnant. McKnight served eight years in prison for a loss that, as it turned out, she did not even cause. In 2008, with four years of her sentence left to serve, the South Carolina Supreme Court said the state used “outdated” research to make its case and overturned McNight’s conviction.
While prosecutors had claimed McKnight’s cocaine use caused her stillbirth, the Court said McKnight’s attorneys failed to secure testimony from experts who would have explained how “recent studies show 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.”
McKnight’s case is not unusual. A recent study examining the outcome of pro-life policies since Roe v. Wade through 2005 identified more than 400 pregnant women who were arrested, incarcerated or forced into health “treatment” they did not want or need. As the data make clear, drug war stigma and racism were central to such prosecutions: 84 percent of these cases alleged that the woman, “in addition to continuing her pregnancy, had used an illegal drug,” particularly cocaine. Fifty-two percent of the women targeted are black.
Legal Rights for Fetuses
The cases do not necessarily include the death of a fetus, as in McKnight’s case. Drug-using women can be punished for the assumption that they harmed their fetuses, even if there is no evidence other than drug use itself. In states where feticide or “personhood” measures define an egg, embryo or fetus as a child, "child abuse" can occur in the womb.