Whitner vs South Carolina, Appendix of the Amicus brief from the Lindesmith Center

Amicus Curiae National Association of Alcoholism and Drug Abuse Counselors ("NAADAC") is the largest national organization of alcohol and drug counselors, with 17,000 members. Founded in 1972, NAADAC is committed to increasing general awareness regarding the problems associated with alcoholism and substance abuse and to enhancing the care of individual patients through treatment, public education, and outreach programs aimed at prevention. As an organization that certifies alcoholism and drug abuse counselors, NAADAC promotes and monitors adherence to ethical standards throughout the nation. NAADAC promotes quality treatment services for addicted individuals as the cornerstone of an effective national substance abuse policy. To be effective, however, alcohol and drug treatment requires the trust of the patient, a basic building block of which is the assurance of patient confidentiality. Under the ethical guidelines promulgated by NAADAC for its members, alcohol and drug treatment counselors are required to protect patients' confidences. NAADAC Code of Ethics, Principle 8(a). However, South Carolina alcohol and drug counselors now risk arrest if they fail to report any conduct that may endanger a fetus. The counselors do not know which actions or omissions of their pregnant clients trigger the newly expanded reporting requirements, as the legislature has never enacted a law addressing fetal abuse. The patients also face arrest and prosecution if their treatment provider discloses their identities to authorities. NAADAC is deeply concerned that the confusion and fear that the Whitner decision is causing will undermine the provision and quality of care administered by South Carolina substance abuse professionals to pregnant patients, and the willingness of women to seek these essential services.

Amicus Curiae South Carolina Association of Alcoholism and Drug Abuse Counselors ("SCAADAC") is the South Carolina state affiliate of NAADAC. Founded in 1988, SCAADAC currently has 495 members. Members of SCAADAC are employed as alcohol and drug counselors throughout the state in both the public and private sectors. SCAADAC members have reason to believe that pregnant women who require alcohol and/or drug treatment are being deterred from seeking treatment for fear of prosecution in the wake of the Whitner decision. Since the highly publicized prosecution of Cornelia Whitner and the South Carolina Supreme Court's July 15, 1996, decision upholding her conviction and sentence, at least two treatment programs in the Columbia area that give priority to pregnant women have already experienced precipitous drops in admissions for pregnant women. The Women's Community Residence is a 24-bed halfway house for women substance abusers. The facility accepts applications from an average of 237 women per year, admitting approximately 133 women. The facility's admission records show that admissions of pregnant women fell 80% (from 10% to 2% of the total number of women treated at the facility) between July 1, 1996 and June 30, 1997. The Women's Intensive Outpatient program is an intensive day program which additionally provides child care. It treats an average of 95 women per year. During approximately the same period, admissions of pregnant women to this program declined 54% (from 13% to 6% of the total number of women treated at the facility). In light of these and other observations, SCAADAC is deeply concerned that pregnant women who require alcohol and/or drug treatment are being deterred from seeking treatment for fear of prosecution. SCAADAC also shares the concerns of NAADAC regarding the serious legal and ethical dilemmas facing its membership as a result of the Whitner decision below.

Amicus Curiae American College of Obstetricians and Gynecologists ("ACOG"), founded in 1951, is a private, voluntary, not-for-profit organization of physicians who specialize in obstetric and gynecologic care. The leading group of professionals providing health care to women, ACOG's more than 38,000 members represent over 90 percent of all obstetricians and gynecologists currently practicing in the United States. One of ACOG's many purposes is to educate health care professionals, law and policy makers and the general public about all aspects of women's health care. ACOG undertakes to assure that all women have access to prenatal care and to promote a healthy pregnancy for the benefit of both the fetus and the mother. ACOG is concerned that the threat of prosecution will drive pregnant women away from seeking care at a time when information and treatment could significantly improve maternal health and increase the chances of delivering a healthy baby.

Amicus Curiae National Association of Social Workers, Inc. ("NASW") is the world's largest association of professional social workers with over 155,000 members in fifty-five chapters throughout the United States and abroad. Founded in 1955 from a merger of seven predecessor social work organizations, NASW is devoted to promoting the quality and effectiveness of social work practice, advancing the knowledge base of the social work profession, and improving the quality of life through utilization of social work knowledge and skills. The South Carolina chapter of NASW has over 1,260 members. NASW and its South Carolina chapter believe that criminal prosecution of women who use drugs during their pregnancy is inimical to family stability and counter to the best interests of the child. The needs of society are better served by treatment of addiction, not punishment of the addict.

Amicus Curiae American Nurses Association ("ANA") is a professional organization representing this nation's over 2.2 million registered nurses. ANA is committed to ensuring the availability and accessibility of health care services. It believes that access to maternal-child health services is particularly critical to efforts to prevent disease and to provide early intervention for health care problems. Thus it opposes all barriers to prenatal care. ANA believes that the threat of criminal prosecution is a significant deterrent for substance-using pregnant women in need of prenatal care and treatment. Such a threat serves no one and only endangers the health of both mother and child.

Amicus Curiae South Carolina Nurses Association ("SCNA"), a constituent member of ANA, is a professional organization which represents registered nurses in South Carolina. SCNA's legislative positions speak strongly to support of health care for a number of vulnerable populations and to the reproductive rights of women. One of these rights must be to be able to seek prenatal health care secure in the knowledge that the health care providers are care givers and not threats to the person seeking care. In 1991, SCNA issued a position statement opposing the criminal prosecution of women for drug use while pregnant. SCNA continues to believe that the threat of criminal prosecution serves as a real deterrent to pregnant women who suffer from addictions disease from seeking and obtaining prenatal care.

Amicus Curiae American Medical Women's Association ("AMWA") is a national, non-profit organization of over 10,000 women physicians and physicians-in-training representing every medical specialty. Founded in 1915, AMWA is dedicated to promoting women in medicine and advocating for improved women's health policy. AMWA strongly supports treatment and rehabilitation of women who use alcohol and drugs during pregnancy, and opposes the prosecution of pregnant women as a method for preventing or punishing chemical dependency during pregnancy. AMWA encourages all pregnant women to seek prenatal care and believes that punishment for drug abuse will deter women, especially those that may be at high risk for adverse pregnancy outcomes, from receiving prenatal care. Furthermore, the physicians of AMWA highly value the patient-physician relationship and are concerned that the threat of prosecution will erode this relationship.

Amicus Curiae National Association for Families and Addiction Research and Education ("NAFARE") is a not-for-profit partnership of health care, social science and child advocate professionals, attorneys, judges, educators and administrators that provides education and leadership in the development of multidisciplinary programs for preventing and treating alcohol, tobacco and other drug use in order to enhance the outcome for women, their children, and their families. NAFARE has more that 1,000 members and 8,000 supporting members nationally. NAFARE's mission is to develop, synthesize and disseminate research-based information to professionals working with children and families affected by addiction. A particular focus of NAFARE's research and work addresses the issues faced by pregnant substance-using women and the long-term outlook for children who have been exposed in utero to licit and illicit drugs. Ira J. Chasnoff, M.D., President and Medical Director of NAFARE, is renown for his research into the effects of alcohol, cocaine and other drugs on pregnancy and infant outcome.

Amicus Curiae Association for Medical Education and Research in Substance Abuse ("AMERSA") is a national organization of three hundred health care and social services professionals. AMERSA is committed to educating physicians, nurses, social workers, and other health care and social services professionals on the recognition and treatment of alcohol and drug problems. Many of AMERSA's members are psychiatrists, nurses, and social workers who specialize in substance abuse treatment; others are internists, family physicians, pediatricians, nurses, and social workers who work in general health and social services settings identifying individuals with alcohol and drug problems, providing counseling, and referring them as necessary to treatment specialists; most members are professors at medical schools, nursing schools, or social work programs. To be effective, prenatal care and treatment for pregnant addicts must occur in the context of a confidential, respectful, and trusting relationship between professional and patient. AMERSA believes that a requirement to report pregnant addicts to authorities would produce net harm to the health of mothers and children by deterring such addicts and their families from obtaining prenatal care, addictions treatment, and counseling.

Amicus Curiae American Academy on Physician and Patient ("AAPP") is devoted to improving public health through research and education about the doctor-patient relationship, which lies at the core of effective health care. Since its founding in 1979, AAPP has developed, evaluated, and promulgated the leading model of medical education regarding the physician-patient relationship, and has trained over 3,000 physicians. The AAPP has shown that the therapeutic relationship between physician and patient depends on the assurance of confidentiality and physicians' unfettered ability to counsel and care for their patients. The AAPP, with a membership of more than 550 physicians from 10 countries, is devoted to strengthening the physician-patient relationship, and hence the quality of patient care, by promoting collaborative relationships between doctors and patients. The strength of the therapeutic relationship, in turn, affects the patient's willingness and ability to follow through with the treatment and the patient's response to the treatment. To compromise the doctor-patient relationship is to compromise care, and thereby to damage health, increase suffering, escalate medical costs, and decrease life expectancy. The AAPP believes that the Whitner decision, by re-writing South Carolina's reporting law to include fetal abuse, strikes at the core of the physician-patient bond, undermining the trust and confidence essential to the critical relationship between health care professionals and their pregnant patients.

Amicus Curiae Society of General Internal Medicine ("SGIM") is the professional society of academic physicians who teach and conduct research in the field of general internal medicine. The Society, which has 2700 members in the United States (including South Carolina) and 11 other countries and which publishes the Journal of General Internal Medicine, is a leader in research and education in the care of adults. Many of SGIM's members have national expertise in research and teaching about alcoholism and other substance abuse. SGIM is deeply concerned that the Whitner decision will deprive addicted women in South Carolina of essential medical care -- with grave consequences for the gestation, delivery and health of their offspring -- by virtue of the chilling effect the decision will have on the ability and willingness of physicians to provide unfettered treatment to pregnant patients, and on the willingness of pregnant women to seek prenatal care and substance abuse services.

Amicus Curiae National council on Alcoholism and Drug Dependence, Inc., ("NCADD"), with its nationwide network of affiliates, provides education, information, help and hope in the fight against the chronic diseases of alcoholism and other drug addictions. Founded in 1944, NCADD historically has provided confidential assessment and referral services for alcoholics and other drug addicts seeking treatment. If NCADD affiliates were forced to provide the names of drug-using pregnant women to law enforcement authorities, it would greatly inhibit their ability to serve this population. In 1990, the NCADD Board of Directors adopted a policy statement on "Women, Alcohol, Other Drugs and Pregnancy" that recommended that "[s]tates should avoid measures which would define alcohol and other drug use during pregnancy as prenatal child abuse and should avoid prosecutions, jailing or other punitive measures which would serve to discourage women from seeking health care services. . . ." For these reasons, NCADD opposes the Whitner decision below.

Amicus Curiae National Center for Youth Law ("NCYL"), founded in 1970, is a San Francisco-based non-profit organization that works on legal and policy issues affecting poor children and youth nationwide. NCYL provides technical assistance and training, produces publications, and co-counsels major cases in the areas of health care, child welfare, public benefits, child support, and housing discrimination. NCYL has worked extensively on legal issues affecting drug-exposed infants, and in 1990 and 1995 published special issues of its journal, Youth Law News, on these topics. NCYL believes that the goal of child abuse reporting laws is to identify children who have been abused or neglected so that the state can intervene for their benefit. A system of mandatory child abuse reporting as envisioned by the Whitner decision not only has the potential for driving pregnant women away from prenatal care, but also risks wasting scarce child welfare resources and diverting attention from cases in which children who are at significant risk or have actually suffered abuse or neglect need assistance and protection.

Amicus Curiae Legal Services for Prisoners with Children ("LSPC") is a legal advocacy organization which has represented incarcerated parents, their children and family members for over 20 years. LSPC staff have been lead counsel or co-counsel on four class action lawsuits which have successfully challenged seriously deficient medical care conditions for women prisoners, including pregnant, substance-dependent women incarcerated in California state prisons and county jails. The organization has represented many hundreds of pregnant women prisoners and pregnant, substance-dependent women who have been subjected to inadequate medical care during their pregnancies, leading in many cases to infant deaths, late-term miscarriages and serious pregnancy complications. LSPC staff have spoken nationally and written extensively on issues affecting pregnant women prisoners, urging policy reform which takes into account the actual consequences of subjecting pregnant, substance-dependent women to inadequate medical care while incarcerated.

Amicus Curiae Coalition on Addiction, Pregnancy and Parenting ("CAPP") is a non-profit organization committed to the development of a continuum of comprehensive services for alcohol- and drug-dependent women and their families throughout Massachusetts. CAPP is committed to establishing collaborative models of service delivery and fostering family-centered services. CAPP firmly believes that addiction is an illness requiring treatment, not a crime requiring punishment. CAPP members know firsthand the fears pregnant substance abusing women have regarding prosecution and loss of child custody, causing them to be reluctant to seek prenatal care and substance abuse treatment. Prosecution of pregnant women only serves to keep women out of treatment, thereby endangering the health and well-being of more women and children.

Amicus Curiae NOW Legal Defense and Education Fund (NOW LDEF) is a leading national non-profit civil rights organization that performs a broad range of legal and educational services in support of women's efforts to eliminate sex-based discrimination and to secure equal rights. NOW LDEF was founded as an independent organization in 1970 by leaders of the National Organization for Women. A major focus of NOW LDEF's work is to oppose gender discrimination and promote reproductive health. Prosecuting women who give birth while addicted to alcohol or drugs hurts both women and children, for it will only deter women from seeking treatment for their addictions.

Amicus Curiae Legal Action Center is a non-profit organization with offices in New York City and Washington, D.C. specializing in legal issues of concern to alcohol, drug and AIDS prevention/treatment communities. The Legal Action Center plays a major role in the policy debate and policy formulation on issues affecting women with alcohol and drug problems and their families, working to enact public policies which promote increased access to care for them. The Legal Action Center also provides legal representation to individuals who have faced discrimination because of their alcohol and drug dependencies. This petition raises issues of great importance to the Legal Action Center and the individuals and treatment programs it represents.

Amicus Curiae Women's Law Project is a non-profit legal advocacy organization in Pennsylvania. The Law Project works to advance the legal and economic status of women and their families through public policy development, education, one-on-one counseling, and litigation. Throughout the past twenty four years, the Law Project has played a leading role in the struggle to eliminate discrimination against women based on pregnancy and reproductive capacity. The Women's Law Project has represented amici curiae in a number of recent cases involving the improper application of state criminal child abuse and drug delivery statutes to pregnant women and new mothers who have given birth while suffering from an addiction to drugs or alcohol. The Women's Law Project believes that it is both unjust and counterproductive to impose criminal sanctions on pregnant women with untreated addictions.

Amicus Curiae Drug Policy Foundation is a privately funded, tax-exempt, non-profit organization which provides a forum for the development of effective drug policies. The Foundation was established in 1987 and is made up of thousands of individuals from a variety of professions involved with drug issues throughout the United States and around the world. Among the Foundation's advisory board members are individuals who have been leading officials in federal, state and local drug law enforcement agencies, as well as eminent researchers and physicians in the field of drug use. The Foundation is concerned that the Whitner decision below will do more harm than good by discouraging pregnant women from seeking prenatal care due to fear of prosecution. The resources spent on such counterproductive criminal law efforts could be better spent on increasing access to prenatal care and drug treatment for pregnant addicted women.

Amicus Curiae Alliance for South Carolina's Children ("ASCC") is a private, nonprofit, statewide advocacy group whose mission is to build coalitions, develop programs, bring about community based solutions, and lead citizens to action on behalf of children independent of politics and bureaucratic agendas. Founded in 1992, the Alliance is committed to preventive programs and early interventions which reduce suffering and save tax dollars. ASSC also works for solutions to problems which strengthen the ability of families to respond to their own children's needs. If left to stand, the Whitner [ital] decision below will harm children and their families.