Whitner v. South Carolina, Amicus brief from the Lindesmith Center

Amici seek to shed light upon the confusion, dangers and conflicts that all medical and social service professionals who serve pregnant women in South Carolina face in the wake of Whitner v. South Carolina, 492 S.E. 2d 777 (S.C. 1997).(1) The unprecedented expansion of the state’s child neglect and abuse laws subjects health care and social service professionals to criminal sanctions for failing to divulge the identities and medical histories of some of their most medically vulnerable and needy clients to state authorities for possible prosecution. At the same time, persons bound by the state’s reporting statute lack any guidance as to which pregnant clients they must report. Because of the intolerable legal risks and ethical dilemmas created by Whitner, this Court should grant certiorari in this case.

Amicus Curiae National Association of Alcoholism and Drug Abuse Counselors (“NAADAC”) is the nation’s largest organization of alcohol and drug counselors, with 17,000 members. NAADAC's members have special expertise in the substance abuse treatment needs of pregnant women. NAADAC joins this brief because it is deeply concerned that the decision below, if permitted to stand, will undermine the quality of care that South Carolina substance abuse professionals can provide pregnant patients, and will deter pregnant women from seeking these essential services.

Amicus Curiae South Carolina Association of Alcoholism and Drug Abuse Counselors (“SCAADAC”) is the South Carolina state affiliate of NAADAC. Its 495 members work as alcohol and drug counselors throughout the state in both the public and private sectors. Like NAADAC, SCAADAC is troubled by the serious legal and ethical dilemmas facing its membership in the wake of Whitner. SCAADAC is also in a position to document some of the consequences of the Whitner decision. After the highly publicized prosecution of Cornelia Whitner and the South Carolina Supreme Court’s decision upholding her conviction and sentence, on July 15, 1996, at least two programs in the Columbia, South Carolina, area that give priority to pregnant women have already reported precipitous drops in admissions for pregnant women. The records of the Women’s Community Residence, a halfway house for women substance abusers, 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. At the Women’s Intensive Outpatient program, an intensive day program which provides child care, admissions of pregnant women declined 54% (from 13% to 6% of the total number of women treated at the facility) during roughly the same period. 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.

Amici CuriaeAmerican College of Obstetricians and Gynecologists, American Nurses Association, South Carolina Nurses Association, and American Medical Women’s Association are associations of medical professionals knowledgeable about the health care needs of pregnant and parenting women. They join this brief out of their concern that the health and well-being of women and their children will be grievously harmed by the decision below.(2)

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In declaring a viable fetus to be a “child” within the meaning of the state Children’s Code, the South Carolina Supreme Court’s decision below imposes upon physicians, substance abuse treatment providers, and social service professionals a heretofore unimaginable duty: to divulge to state authorities, for possible prosecution, the identities and medical information of pregnant women who engage in conduct or activities that may “adversely affect[]” the health or welfare of the fetus. S.C. Code § 20-7-510. Professionals who fail to disclose such information now themselves face criminal fines and imprisonment under state law. See S.C. Code § 20-7-560. Yet the ruling below imposes a duty of unknowable dimensions and sweeping breadth on all health and social services providers who serve pregnant women. The unprecedented, sweeping and altogether vague nature of the Whitner decision is causing significant confusion and fear among medical and social services professionals who must now divine what actions or omissions of pregnant women might trigger the statutory reporting requirement.

The Whitner decision further creates an intolerable dilemma for physicians and health care providers: either risk jail by upholding the confidentiality that is an essential part of medical care and is particularly critical for effective treatment, or disclose clients’ identities in compliance with state reporting requirements, possibly imperiling the health and well-being of pregnant women and their fetuses.

The Whitner decision also has produced real and devastating consequences for pregnant women, many of whom are now avoiding prenatal care and drug and alcohol treatment for fear that confiding their health problems to their physicians or counselors could lead to their arrest and imprisonment. If let stand, the decision below will seriously compromise the ethical practice of medicine, cause irreparable harm to patients, and severely impair the provision of vital health and social services.

Lastly, the criminal penalties that Whitner foists upon treatment providers and their pregnant patients fly in the face of the longstanding recognition, in this Court as well as in the medical community, that addiction is a disease, not a crime. See Linder v. United States, 268 U.S. 5, 18 (1925) (Addicted persons “are diseased and proper subjects for [medical] treatment.”). Cf. Robinson v. California, 370 U.S. 660 (1962) (holding unconstitutional a state law making narcotic addiction a crime). For all of these reasons, the Court should grant the petition for certiorari in this case.

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In expanding the state’s child neglect law to reach the conduct of pregnant women, the South Carolina Supreme Court in Whitner imposes a vague and sweeping mandatory reporting requirement upon health care and social services providers. The reporting statute provides in relevant part:

A physician, nurse, dentist, optometrist, medical examiner or . . . any other medical, emergency medical services, mental health, or allied health professional or . . . school teacher, counselor, principal, assistant principal, social or public assistance worker, substance abuse treatment staff, or child care worker in any day care center or foster care facility, police or law enforcement officer . . . or persons responsible for processing of films or any judge shall report in accordance with this section when in the person's professional capacity the person has received information which gives the person reason to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect.

S.C. Code § 20-7-510 (A) (emphases added); see Whitner, 492 S.E. 2d at 782 (upholding defendant’s child abuse conviction upon finding that the use of cocaine during pregnancy “can cause serious harm to the viable unborn child”). A health care professional’s knowing failure to report a case of child abuse or neglect constitutes a misdemeanor punishable by fine and/or imprisonment of up to six months. S.C. Code § 20-7-560.

The Whitner decision radically expands the concept of child abuse, requiring health and social services professionals to report an ill-defined yet vast array of conduct that might damage a fetus. This standardless extension of child abuse law has caused substantial confusion and fear within the medical community. South Carolina practitioners must now divine, upon threat of imprisonment, what conduct by a pregnant woman may adversely affect her fetus’s “physical or mental health or welfare,” S.C. Code § 20-7-510 (A), and must report all women with viable pregnancies engaging in such conduct who seek their professional services to state authorities for possible prosecution. No proof of harm to the child is required under § 20-7-510. The reporting requirement apparently applies wherever a child (or, under Whitner, a fetus) “is likely to be endangered.” The state supreme court determined that a woman’s ingestion of cocaine during the third trimester of pregnancy is likely to have fetotoxic effects. That determination is the subject of scientific dispute, yet in South Carolina it is “true” as a matter of law. See infra, notes 3-7, and accompanying text. Indeed, the record contains no evidence that the children of both petitioners, Cornelia Whitner and Malissa Ann Crawley, are unhealthy in any way. Nonetheless, health care providers and social services professionals are now obligated to report a pregnant woman where there is merely “reason to believe” the woman engaged in any conduct that may adversely affect the health of the viable fetus. To be sure, under Whitner, the statute’s reporting requirements are by no means limited to the use of illicit substances such as cocaine. As the court made clear, § 20-7-510 covers any action "likely to endanger the child without regard to whether the action is illegal in itself." Whitner, 492 S.E.2d at 781-82.

As the dissenting justices of the South Carolina Supreme Court and the rulings of every state court to have addressed this issue have observed, the enlargement of child abuse statutes to reach maternal conduct that may endanger a fetus leads to absurd, unintended, and dangerous results: health and social services professionals, among others, must guess whether, for example, a pregnant woman’s failure to obtain prenatal care, to quit smoking or drinking, to stop taking over-the-counter medicine, or to refrain from playing rigorous sports constitutes unlawful behavior. See id. at 788 (Moore, J., dissenting); Nevada v. Encoe, 885 P.2d 596, 598 (Nev. 1994) (per curiam); Commonwealth v. Welch, 864 S.W.2d 280, 283 (Ky. 1993); Reinesto v. Arizona, 894 P.2d 733, 736-37 (Ariz. Ct. App. 1995).

For the medical community, these scenarios are not mere idle speculation. Indeed, from the perspective of health professionals who are guided by science and hard data, the Whitner decision portends an infinite variety of circumstances that could be interpreted as triggering the state’s reporting requirement. The South Carolina Supreme Court establishes as an irrebutable fact that a pregnant woman’s ingestion of any measurable amount of cocaine constitutes child abuse. By necessary implication, fetal exposure to any other substance for which scientific data shows an equivalent or greater degree of risk must likewise be deemed child abuse. This is troubling for the simple reason that, notwithstanding the South Carolina Supreme Court’s statement to the contrary, “[k]nowledge concerning the biological effects of cocaine exposure on the newborn is inconclusive at present.”(3) In contrast to the evidence relied upon in Whitner, a number of studies have found no detectable increase in the rate or severity of birth defects associated with cocaine use during pregnancy.(4) Although the popular press of the late 1980s fueled what one scientist called a “mythology of severe risk” of fetal harm from cocaine use during pregnancy, these press accounts rested upon a handful of early studies (now more than a decade old).(5) Some of those studies did not show what the media claimed, and others were methodologically unsound and have subsequently been discredited.(6) As of the present time, there remains genuine scientific dispute as to whether a causal link exists between cocaine use and serious fetal harm.(7)

If the controversial evidence in Whitner is sufficient to find that prenatal cocaine exposure is a ground for child abuse, then a host of other activities and substances would also appear to trigger the child abuse reporting requirement. There is longstanding scientific consensus that various licit substances, including alcohol (8) and tobacco,(9) can cause serious, irreversible harm to the developing fetus. The same is also true of a wide range of commonly prescribed medications. These include psychiatric medications, such as anticonvulsants,(10) Lithium and other mood-stabilizers,(11) antipsychotics, and benzodiazepines (the class of medications which includes Valium, Librium and Xanax),(12) as well as some antibacterials (especially Tetracyclines),(13) anticoagulants,(14) thyroid medications,(15) and antihypertensive drugs.(16) Even “[l]arge doses of aspirin may result in delayed onset of labor, premature closure of the fetal ductus arteriosus . . . or neonatal bleeding.”(17) Additionally, prenatal exposure to adverse environmental factors such as poor nutrition, substandard housing and a lack of social supports and services (all of which are associated with poverty) can also profoundly affect infant health,(18) as can a childhood spent in the care of adults who suffer from depression or other serious mental illness.(19)

As these examples illustrate, the reporting obligations of South Carolina professionals vis-a-vis pregnant women are potentially limitless and are frought with uncertainty. At the very least, there now appears to be a strong presumption that health care and social service professionals must report pregnant women who smoke tobacco or drink alcohol. It also is entirely plausible that Whitner obligates South Carolina health and social services professionals to report for prosecution all pregnant patients who engage in any conduct that may adversely affect the health of the fetus, even where the evidence linking the conduct with harmful consequences is uncertain or contradictory. The confusion wrought by the vagueness of the Whitner decision is enormously troubling for a wide variety of health care and social services professionals. This confusion becomes intolerable when compounded by the criminal sanctions, including imprisonment, that befall those professionals who fail first to divine and then to comply with the state’s reporting requirement.(20)

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B. The petition should be granted to avert widespread and serious harm to pregnant women

By expanding South Carolina’s child abuse reporting requirement to include cocaine use by pregnant women, the Whitner opinion compels medical providers to breach patient confidentiality in a particularly critical context. Adequate prenatal care requires patients to provide accurate information to their health care professionals — especially about use of a substance that might pose a risk to the fetus. Yet, under Whitner, patients in South Carolina have every incentive to hide critical information since any admission of drug use or other potentially risky activity must be reported to state authorities. By casting treatment providers as law enforcement agents, with interests adverse to the patients they are sworn to care for, the Whitner decision makes doctors, nurses, substance abuse counselors and other treatment providers accessories to a public health tragedy that is both predictable and preventable.

An environment of communication and trust is crucial for preventing or reducing harm to drug-exposed infants. Maintaining the confidentiality of the identities and communications of pregnant patients can decrease the harm to women and their children in several ways. First, drug use is one of the most commonly missed diagnoses in obstetric and pediatric medicine:(21) in most cases, a patient’s drug use is not apparent if the patient does not disclose it. Thus, important medical benefits can accrue when a treatment provider can permit the patient to feel sufficiently comfortable to divulge highly personal, often stigmatizing, sometimes incriminating information.(22) Even if the pregnant patient does not discontinue her drug use, the negative health effects associated with prenatal drug exposure can be significantly reduced through adequate prenatal care and counseling if the patient embraces the therapeutic relationship.(23) Second, open communication with physicians regarding drug use is necessary to insure safe deliveries.(24) Third, adequate parenting skills and a supportive environment may compensate for prenatal risk factors created by prenatal drug exposure.(25) These skills and this environment, in turn, can be cultivated through a positive alliance with health care providers. In short, a climate of confidentiality is essential if patients are to disclose drug use and/or seek continued care and counseling from health professionals in order to reduce the potential harms caused by substance use during pregnancy.

For competent care of any patient, it is undisputed that patient confidentiality must be jealously guarded:

To make diagnoses and treat patients effectively, the physician must obtain sensitive information about a patient. A patient must be willing to tell a physician, who is often a total stranger, about such matters as drug usage . . . and to allow the physician to examine intimate parts of his or her anatomy. The promise of confidentiality encourages patients to disclose sensitive subjects to a physician without fear that an embarrassing condition will be revealed to unauthorized people. Violation of confidentiality also shows disrespect to the patient as a human being . . . .(26)

It is quite clear that part of treating [a chemically dependent person] as a patient includes embracing all of the appropriate ethical constraints of health care delivery . . . . Possibly at the top of the list of ethical issues that are of very special and fundamental importance to this group of patients is the appropriate maintenance of confidentiality.(27)

One of the most effective weapons against infant mortality is early, high-quality, comprehensive prenatal care.(29) Prenatal care improves pregnancy outcomes even among women with addictions: pregnant women who use cocaine but who have at least four prenatal care visits significantly reduce their chances of delivering low birth weight babies.(30) For this reason, public health organizations at the national, regional and state levels counsel against imposing criminal sanctions on pregnant women with addictions. The Board of Trustees of the American Medical Association addressing this very issue concluded that if the criminal justice system is used to deal with drug-abusing mothers,

[p]regnant women will be likely to avoid seeking prenatal or other medical care for fear that their physicians’ knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.”(31)

It is clear from these findings that fear of losing children is a major reason women delay or avoid seeking treatment. If pregnant women . . . feel that they will be “turned in” by health care providers or substance abuse treatment centers, they will avoid getting care. If women are able to discuss their addiction with providers without fear of retribution . . . they are more likely to enter treatment. Attempts to impose criminal penalties for alcohol or drug use during pregnancy exacerbate women’s fears and make it less likely they will seek or receive the care they need for either their pregnancies or their addiction.(32)

[t]he imposition of criminal penalties solely because a person suffers from an illness is inappropriate and counterproductive. Criminal prosecution of chemically dependent women will have the overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increasing, rather than preventing, harm to children and to society as a whole.(32)

criminalization of prenatal drug use . . . will deter women who use drugs during pregnancy from seeking the prenatal care which is important for the delivery of a healthy baby.
* * *
The prospect of criminal prosecutions . . . also places health care practitioners in a conflict position, forcing them to choose between maintaining their patient’s [sic] confidentiality or reporting them, ultimately to the police, a position many doctors and nurses find intolerable.
* * *
[These women] do not want or intend to hurt their unborn children by using drugs. But, they need help, not threats, to overcome their problems.
* * *
The key to intervention will be access to health care for high risk women, not the threat of criminal prosecution.(34)

It appears that the fears of these organizations are being borne out. Drug treatment providers in South Carolina already have reported a marked decrease in the number of pregnant women with substance use problems seeking treatment and prenatal care in the wake of Whitner. See Part I, supra.

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Whitner saddles health professionals with an ethical dilemma. It also poses a very real threat to the health and well-being of untold numbers of women and their families by driving pregnant women with health problems away from urgently needed medical, substance abuse, counseling, prenatal, and other necessary care. In short, Whitner threatens the integrity of medical practice and endangers the lives of women.

For the foregoing reasons, amici curiae respectfully request this Honorable Court to grant the petition for certiorari.

*Daniel N. Abrahamson
Graham Boyd
Michael T. Risher
The Lindesmith Center
San Francisco, California 94103
Telephone: (415) 554-1900

Attorneys for Amici Curiae
*(Counsel of Record)

1. Counsel for a party did not author this brief in whole or in part. No person or entity, other than the Amici Curiae, their members, or their counsel made a monetary contribution to the preparation and submission of this brief.

2. Further statements of interest are set forth in the Appendix to this brief.

3. E. Hutchins, Drug Use During Pregnancy, 27 J. of Drug Issues 463, 465 (1997).

4. See A.J. Tuboku-Metzger et al., Cardiovascular Effects of Cocaine in Neonates Exposed Prenatally, 13 American J. of Perinatology 1 (1996) (study of chronic cocaine use among pregnant subjects finding no direct effects on the health or development of newborns); B.B. Little et al., Is There a Cocaine Syndrome? Dysmorphic and Anthropometric Assessment of Infants Exposed to Cocaine, 54 Teratology 145 (1996) (finding no recognizable constellation of dysmorphic features to distinguish between cocaine-exposed and non-exposed infants); N.S. Woods et al., Cocaine Use During Pregnancy: Maternal Depressive Symptoms and Infant Neurobehavior over the First Month, 16 Infant Behavior and Dev. 83, 92 (1993) (finding no differences in neurobehavioral performance of cocaine-exposed infants when compared to non-exposed infants); C.D. Coles et al., Effects of Cocaine and Alcohol Use in Pregnancy on Neonatal Growth and Neurobehavioral Status, 14 Neurotoxicology and Teratology 23, 31-32 (1992) (finding prenatal cocaine exposure effects fetal growth but that cocaine-exposed infants do not appear otherwise impaired physically or behaviorally in the neonatal period). See also L. E. Gomez, Misconceiving Mothers: Legislators, Prosecutors, and the Politics of Prenatal Drug Exposure 23-25 (1997) (discussing the failure of longitudinal studies to find statistically significant differences between cocaine-exposed children and non-exposed children).

5. See generally J. Morgan & L. Zimmer, The Social Pharmacology of Smokeable Cocaine: Not All It’s Cracked Up to Be, in Crack in America: Demon Drugs and Social Justice 149-54 (C. Reinarman & H. G. Levine eds. 1997) (virtually all adverse outcomes found in fetal studies involving cocaine were reported in the mass media as evidence that crack causes damage in babies even though no study has convincingly shown that to be so); Gomez, supra note 4, at 11-26 (same).

6. The studies examining the effects of prenatal cocaine exposure on newborns and infants — particularly the early studies that gave rise to the “crack baby” scare — suffer from methodological problems that markedly limit or vitiate their significance. These problems include small sample sizes; failure to control for the effects of confounding variables such as maternal malnutrition, lack of prenatal care, the use of other drugs such as nicotine, alcohol, and prescription medications; and the assignment of women to a study or control group based on either maternal self-reporting of cocaine use or a single urinalysis test. See B.M. Lester et al., Data Base of Studies of Prenatal Cocaine Exposure and Child Outcome, 27 J. of Drug Issues 487 (1997) (computerized assessment of scientific literature concluding that knowledge about the existence or extent of effects of prenatal cocaine exposure on child outcome is limited, scattered, and compromised by methodological shortcomings); E. Hutchins, Drug Use During Pregnancy, 27 J. of Drug Issues 463, 466 (1997).

7. See note 4, supra; see also C.D. Coles, Saying “Goodbye” to the “Crack Baby”, 15 Neurotoxicology and Teratology 290 (1993) (“The hysteria and poorly considered reactions of . . . the public have made the ‘crack baby’ for years an embarrassing episode.”); D.R. Neuspiel, Cocaine and the Fetus: Mythology of Severe Risk, 15 Neurotoxicology and Teratology 305 (1993) (“mythology of severe risk” of gestational cocaine exposure persists despite contrary scientific evidence). It should be noted that some researchers have found an increase in genitourinary tract malformations and decreases in birth weights, body length and head circumferences of cocaine-exposed neonates. However, researchers note that the pregnant cocaine users in such studies have clustering of other serious reproductive risk factors — notably, elevated tobacco and alcohol use — and a lack of prenatal care that “confound” conclusions about cocaine’s toxicity. Researchers also observe that these findings do not appear predictive of longer-term physiological, behavioral or cognitive deficits. See, e.g., H. Hurt et al., Children with In Utero Cocaine Exposure Do Not Differ from Control Subjects on Intelligence Testing, 151 Arch. Pediatric & Adolescent Med. 1237 (1997); H. Hurt et al., Play Behavior in Toddlers with In Utero Cocaine Exposure: A Prospective, Masked, Controlled Study, 17 J. Developmental and Behavioral Pediatrics 373 (1996); D.E. Hutchings, The Puzzle of Cocaine’s Effects Following Maternal Use During Pregnancy: Are There Reconcilable Differences?, 15 Neurotoxicology and Teratology 281 (1993); G. Koren, Cocaine and the Human Fetus: The Concept of Teratophilia, 15 Neurotoxicology and Teratology 301 (1993).

8. Fetal Alcohol Syndrome is the leading cause of mental retardation in the United States. L. P. Finnegan & S. R. Kandall, Maternal and Neonatal Effects of Alcohol and Drugs in Substance Abuse, A Comprehensive Textbook 513, 529 (J.H. Lowinson et al. eds., 1997) [hereinafter “Comprehensive Textbook”].

9. Low birth weight, sudden infant death syndrome, spontaneous abortion, premature rupture of the membranes, and abnormal placentation are associated with maternal tobacco use. See, e.g., L.C. Castro et al., Maternal Tobacco Use and Substance Abuse: Reported Prevalence Rates and Associations with the Delivery of Small for Gestational Age Neonates, 81 Obstetrics and Gynecology 396 (1993); Office on Smoking and Health, The Health Consequences of Smoking: Nicotine Addiction 602 (1988). The teratogenic effects of tobacco and alcohol are particularly relevant because women who ingest cocaine during pregnancy are more likely to use tobacco and alcohol than are non cocaine-users. M. Bendersky et al., Characteristics of Pregnant Substance Abusers in Two Cities in the Northeast, 22 Am. J. Drug & Alcohol Abuse 349, 353 (1996).

10. A leading scientific text notes that the teratogenic affects of anticonvulsants were identified in the 1960's, especially those caused by the drug Dilantin, commonly prescribed for epileptics and that “[n]o dose response curve has been demonstrated, nor has a “safe” dose been found below which there is no increased teratogenic risk.” K.L. Jones, Smith’s Recognizable Patterns of Human Malformation 495 (5th ed. 1997) [hereafter “Smith’s Recognizable Patterns of Human Malformation.”]. Other anticonvulsants associated with facial malformations, mental deficiencies, speech disorders, and cardiovascular defects include trimethadione, paramethadione, valproic acid, and warfarin. Id. at 495-505. With respect to trimethadione in particular, it warns that “the frequency and severity of defects associated with maternal use of these drugs during pregnancy are high enough to warrant consideration of early elective termination of pregnancy.” Id. at 500 (citing G.L. Feldman et al., The Fetal Trimethadione Syndrome, 131 Am. J. Dis. Child 1389 (1977)). Another standard medical text notes: “An association of fetal abnormalities with anticonvulsants is strengthened by increasing reports of cleft palate, cardiac abnormalities, craniofacial anomolies, nail and digit hypoplasia, visceral defects, and mental subnormality in children of epileptic mothers taking anticonvulsant drugs.” The Merck Manual of Diagnosis and Therapy 1859 (R. Berkow ed., 16th ed. 1992) [hereafter “Merck Manual.”].

11. “Among psychotropic drugs, lithium has been more strongly associated with congenital anomolies than have other agents . . . . [N]umerous publications indicate an increased incidence of cardiovascular abnormalities, particularly an increase in Ebstein’s anomoly in infants born of lithium-treated mothers.” J.G. Berstein, Handbook of Drug Therapy in Psychiatry 415 (2d ed. 1988) (citing G.E. Robinson et al., The Rational Use of Psychotropic Drugs in Pregnancy and Postpartum 31 Can J. Psychiatry 183 (1986)).

12. Id. at 407 (“Lithium presents a significant risk to fetal development if taken during the first trimester . . . . Benzodiazepines and meprobomate have a significant risk of teratogenic effects. . . .”). The specific birth defects (or “anomalies”) associated with these and other psychiatric medications taken during pregnancy include: growth retardation and oral clefts (barbiturates); cleft palates, neurologic depression and low Apgar scores (benzodiazepines); “severe anomalies in 12% of newborns” (meprobomate); respiratory distress (antidepressants); chromosomal gaps and breaks, congenital heart anomalies; reduced thyroid function; and external ear malformations (lithium carbonate and the other mood-stabilizing drugs). Id. at 407-421 (citing W.S. Barry and S.M. St. Clair, Exposure to Benzodiazepines in Utero 1 Lancet 1436 (1987)); M.J. Whittle and K.P. Hanretty, Prescribing in Pregnancy: Identifying Abnormalities, 293 Br. Med. J. 1485 (1986).

13. Tetracycline has been associated with permanent discoloration of the teeth, enamel hypoplasia, and a lowered resistance to caries, as well as retarded bone growth, especially when taken during the latter part of the pregnancy. Merck Manual at 41.

14. Certain anticoagulants can cause nasal abnormalities, bone stipling, bilateral optic atrophy, varying degrees of mental retardation, microcephaly, and occasionally fetal and maternal hemorrhage. Smith’s Recognizable Patterns of Human Malformation at 504.

15. Some thyroid medications taken during pregnancy can cause severe hypothyroidism, fetal goiter, or scalp defects. Merck Manual at 1859.

16. These drugs may cause fetal respiratory depression, hypotension, paralytic ileus, bradycardia, hypoglycemia, and varying degrees of intrauterine growth retardation. Id. at 1861.

17. Id. at 1859; see also L.J. Van Marter et al., Persistent Pulmonary Hypertension of the Newborn and Smoking and Aspirin and Nonsteroidal Antiinflammatory Drug Consumption During Pregnancy, 97 Pediatrics 658 (1996) (maternal consumption of aspirin during pregnancy found to be consistently associated with pulmonary hypertension of the newborn, an important cause of respiratory failure in neonates).

18. N.S. Gustavsson & A.E. MacEachron, Criminalizing Women’s Behavior, 27 J. of Drug Issues 673, 675-76 (1997).

19. See e.g., J.A. Doane, Family Interaction and Communication Deviance in Disturbed and Normal Families: A Review of Research, in Advances in Family Psychiatry - Vol. II 113 (J.G. Howells ed., 1980).

20. As the discussion of confidentiality in the next section underscores, the Whitner decision also places treatment providers in a double bind by pitting fetal health against maternal well-being, forcing providers to choose which patient to treat. In light of Whitner, South Carolina physicians might feel legally constrained from recommending or prescribing therapies to their pregnant patients that could, but might not, result in fetal harm -- be it chemotherapy or radiation treatment for cancer, or even the administration of drugs commonly used during labor and delivery which can themselves cause fetal central nervous system depression, anoxia, hypothermia, low Apgar scores, impaired metabolic responses, and neurological depression. Merck Manual at 1861.

21. I. Chasnoff, Drug Use in Pregnancy: Parameters of Risk, 35 The Pediatric Clinics of North Am. 1043, 1410 (1988).

22. See R. Arnold, et al., Medical Ethics and Doctor/Patient Communication, in The Medical Interview: Clinical Care, Education and Research 345 (M. Lipkin, Jr., et al. eds., 1995); A. Lazare, Shame, Humiliation, and Stigma in the Medical Interview, in id. at 333.

23. See, e.g., A. Racine et al, The Ass’n Between Prenatal Care and Birth Weight Among Women Exposed to Cocaine in New York City, 270 JAMA 1581, 1585-86 (1993).

24. Patients using cocaine “may have untoward responses to anesthesia,” yet identification of such patients prior to the initiation of anesthesia “has proven difficult,” as many of these patients deny illicit drug use. D. J. Birnbach et al., Cocaine Screening of Parturients Without Prenatal Care: An Evaluation of a Rapid Screening Assay, 84 Anesthesia Analg. 76 (1997). See also D. Campbell et al., Unrecognized “Crack” Cocaine Abuse in Pregnancy, 77 British J. Anaesthesiology 553, 555 (1996) (Eliciting information from obstetric patients about cocaine use is important because the “interaction of cocaine with other local anaesthetics makes the calculation of a safe maximum dose difficult.”).

25. See, e.g., Finnegan & Kandall, supra note 8, at 523.

26. Arnold, et al., supra note 22, at 365 (citation omitted).

27. M.J. Kreek & M. Reisinger, The Addict as a Patient, in Comprehensive Textbook 822, 830; see also R. Elk et al., Behavioral Interventions: Effective and Adaptable for the Treatment of Pregnant Cocaine-Dependent Women, 27 J. of Drug Issues 625, 630, 632 (1997) (“[C]onfidentiality must be rigidly adhered to and a trust in the staff established” to attract to and retain in treatment pregnant drug-dependent women.); National Council on Alcoholism and Drug Dep., Policy Statement, Women, Alcohol, Other Drugs and Pregnancy 5 (1990) (“States should resist efforts to weaken confidentiality protections for pregnant alcoholic and other drug-dependent women seeking prenatal care or alcoholism and/or drug treatment services.”).

28. The decision below may also require some providers to act in conflict with federal law. Title 42 U.S.C. § 290dd-2 (also known as the Federal Drug Treatment Confidentiality Statute) prohibits federally assisted drug-abuse treatment programs from divulging patient identities and records. Although this confidentiality provision “do[es] not apply to the reporting under State law of incidents of suspected child abuse and neglect, ” id. 290dd-2(e)(2), it is not at all clear whether the South Carolina Supreme Court’s expansion of the term “child abuse” to cover maternal prenatal actions falls within the narrow exception envisioned and intended by Congress. This legal uncertainty, and the demands of seemingly conflicting legal mandates, further exacerbates the confusion, fear and frustration faced by South Carolina’s physicians and other health care professionals.

29. Southern Regional Project on Infant Mortality, A Step Toward Recovery: Improving Access to Substance Abuse Treatment for Pregnant and Parenting Women 6 (1993).

30. Racine, supra note 23, at 1585, 1586.

31. American Medical Ass’n, Legal Intervention During Pregnancy, 264 JAMA 2663, 2667 (1990). The AMA accordingly resolved that “[c]riminal sanctions or civil liability for harmful behavior by the pregnant woman toward her fetus are inappropriate.” Id. at 2670. It is not mere speculation that the threat of criminal prosecution deters pregnant drug users from seeking both drug treatment and prenatal care: multiple studies have shown as much. See, e.g., S.R. Kandall, Substance and Shadow: Women and Addiction in the United States 278-79 (1996); see also GAO, ADMS Block Grant: Women’s Set Aside Does Not Assure Drug Treatment for Pregnant Women 5, 20 (1991).

32. Southern Regional Project on Infant Mortality, A Step Toward Recovery: Improving Access to Substance Abuse Treatment for Pregnant and Parenting Women 21 (1993); accord Southern Legis. Summit on Healthy Infants and Families, High Risk Pregnancies/Substance Abuse (Oct. 4-7, 1990) (“[S]tates should adopt, as preferred methods, prevention, intervention, and treatment alternatives rather than punitive actions to ameliorate the problems related to perinatal exposure to drugs and alcohol.”); Georgia General Assembly’s Joint Conference on Children of Cocaine and Substance Abuse (Nov. 1, 1990) (recommending that the state treat cocaine-using pregnant women and declare a moratorium on legislation seeking to prosecute drug-dependent pregnant women).

33. American Soc’y of Addiction Med., Bd. of Directors, Public Policy Statement on Chemically Dependent Women and Pregnancy (Sept. 25, 1989).

34. National Ass’n for Perinatal Addiction Research and Educ., Policy Statement No. 1, Criminalization of Prenatal Drug Use: Punitive Measures Will Be Counter-Productive (1990).

35. GAO, supra note 31, at 20.

36. See, e.g., National Council on Alcoholism and Drug Dependence, Women, Alcohol, Other Drugs and Pregnancy (1990) (A “punitive approach is fundamentally unfair to women suffering from addictive diseases and serves to drive them away from seeking both prenatal care and treatment for their alcoholism and other drug addictions. It thus works against the best interests of infants and children . . . .”); American College of Obstetricians and Gynecologists (“ACOG”) Committee Opinion 55 (Oct. 1987) (resort to the courts “is almost never justified” in treating pregnant women); ACOG Technical Bulletin 195, Substance Abuse in Pregnancy 1 (1994) (“In some states, the legal requirements regarding reporting substance abuse threaten to interfere with patient confidentiality and the entire physician-patient relationship.”); American Academy of Pediatrics, Comm. on Substance Abuse, Drug- Exposed Infants, 86 Pediatrics 639, 642 (1990) (“The public must be assured of nonpunitive access to comprehensive care which will meet the needs of the substance-abusing pregnant woman and her infant.”); American Nurses Ass’n, Position Statement (Apr. 5, 1992) (“ANA . . . opposes any legislation that focuses on the criminal punishment of the mothers of drug-exposed infants . . . . The threat of criminal prosecution is counterproductive in that it prevents many women from seeking prenatal care and treatment for their alcohol and other drug problems.”); California Medical Ass’n, Policy Position (“[T]o bring criminal charges against a pregnant woman for activities which may be harmful to her fetus is inappropriate. Such prosecution is counterproductive to the public interest as it may discourage a woman from seeking prenatal care or dissuade her from providing accurate information to health care providers out of fear of self-incrimination.”) quoted in American health organizations opposing the prosecution of w omen for cocaine use during pregnancy); M.L. Poland et al., Punishing Pregnant Drug Users: Enhancing the Flight From Care, 31 Drug and Alcohol Dependence 199 (1993).

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