Can you be arrested for smoking pot while you are pregnant in SC?
Although many people would think this is ridiculous, and others would recognize that criminalizing marijuana use while pregnant is not supported by science, South Carolina is among the few states that will arrest a pregnant woman, charge her with child abuse, and attempt to take a new mother’s child away from her because the child tested positive for marijuana.
In this article, we will look at:
- When a pregnant woman or new mother can be charged with a crime for marijuana use while pregnant,
- SC appellate opinions that define “child” as including a viable fetus,
- Whether smoking pot while pregnant actually harms a fetus, and
- The potential effects of Dobbs v. Jackson Women’s Health Organization on the criminalization of pregnancy in SC.
SC Charges Women with Child Abuse or Neglect for Smoking Pot While Pregnant
SC’s Supreme Court has held that 1) a viable fetus is a child for purposes of SC’s child abuse laws, and 2) a woman can be charged with a crime for use of a controlled substance during pregnancy.
It’s not a hypothetical scenario – SC is one of only three states that include an unborn child in the definitions of “person” or “child” for purposes of criminal child abuse or neglect (the other two states are Alabama and Oklahoma), and SC arrests, charges, and prosecutes women who smoke pot during their pregnancy.
For example, a quick Google search reveals:
- A woman in Myrtle Beach who was charged with unlawful neglect when her newborn child tested positive for marijuana,
- Another example in Myrtle Beach where a woman was charged with unlawful neglect when her newborn tested positive for THC, and
- A woman in Port Royal who was charged with unlawful conduct towards a child when her baby tested positive for marijuana.
How do they know?
It’s not based on negative effects on the child or a child’s health problems that are caused by the mother’s marijuana use – it’s based on the results of drug screens performed on the mother and child, often without the mother’s consent and sometimes resulting in false positive results.
Whitner v. State
South Carolina was the first state Supreme Court to hold that pregnant women can be arrested and prosecuted for child abuse or neglect based on their use of a controlled substance while pregnant.
In Whitner v. State, the Court held that, because “child” is defined in SC law as “a person under the age of eighteen,” the question is whether a viable fetus is a “person.” There are previous court opinions holding that a person can be charged with voluntary manslaughter for the death of a fetus when the mother was stabbed, and the Court held that the same reasoning should apply to child abuse statutes.
McKnight v. State
In McKnight v. State, the SC Supreme Court reaffirmed its position that a fetus is a “person” for purposes of the child abuse statutes and that it is permissible to charge a mother with child abuse or neglect based on drug use while pregnant (although, after spending eight years in jail, the defendant’s conviction was reversed based on her trial attorney’s ineffective assistance at trial).
Does Smoking Pot While Pregnant Hurt the Unborn Child?
There is no consensus in the scientific community as to whether marijuana use negatively impacts a pregnancy.
For example, there is plenty of anecdotal evidence of mothers who found that marijuana use 1) positively impacted their pregnancy (for example, by reducing nausea) and 2) had no negative effects on their children.
The National Institute on Drug Abuse says, “more research is needed on how marijuana use during pregnancy could impact the health and development of infants,” and “very little is known about marijuana use and breastfeeding.”
The NIDA points out that, although there is research suggesting marijuana-exposed babies may have problems with neurological development, “more research is needed, however, to disentangle marijuana-specific effects from those of other environmental factors that could be associated with a mother’s marijuana use, such as an impoverished home environment or the mother’s use of other drugs.”
The NIDA is careful to note that, although there are studies that suggest negative effects from the use of marijuana by pregnant mothers, there are problems with the research. For example, you can’t conclude “causation” based solely on “association,” and you must rule out environmental factors and other potential causes for a child’s developmental issues.
The result is there is no scientific consensus on the impact of marijuana use on pregnancy, although there is some evidence to support a positive effect and some evidence to support a negative effect.
If a prosecutor, police officer, DSS caseworker, hospital worker, judge, or juror believes based on their own experience (which may include watching “Reefer Madness” as a child) that marijuana is harmful, they are going to support prosecuting and convicting the mother. If they believe that marijuana is beneficial, they are going to disagree.
How can you say a woman is guilty of child abuse or child neglect when it has not been scientifically proven that the action the woman took was or was not harmful to the child?
The Effect of Dobbs v. Jackson Women’s Health Organization
If its reasoning remains unchanged in future cases, Dobbs will have a broad effect on pregnant mothers in many areas, including child abuse charges when a woman smokes pot while pregnant.
Dobbs has shifted the pendulum away from a woman’s right to privacy or “freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy’” (a woman no longer has this freedom when she is pregnant) towards giving the states free reign to criminalize a woman’s conduct while pregnant.
If, as the Dobbs Court said, any law regulating abortion must now be “sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests[,]” including “respect for preservation of prenatal life at all stages of development,” the same will almost certainly apply to other issues like smoking marijuana while pregnant, drinking while pregnant, or smoking cigarettes while pregnant.
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC including drug crimes, traffic stops, and motions to suppress evidence. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
