Put to the test: Pregnant women in SC face severe consequences for using drugs

EDITOR’S NOTE: This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system.

GREENVILLE — Megan McKenzie was elated to be a mom.

It was August 2008, and the 24-year-old nurse had just given birth to her first child, a 6-pound girl named Ellie Lynn. McKenzie cried inside the Greenville hospital room as she nestled the small body against her chest. 

It would be the most untainted moment of mother-daughter bonding they’d share for nearly two and a half years.

Hours after she was born, Ellie tested positive for compounds found in cannabis products. Police officers arrested McKenzie two months later — changing her and Ellie’s lives forever.

McKenzie lived in one of three states where high courts have held that women can be charged for substance abuse during pregnancy. Women across the U.S. are arrested for using drugs during the perinatal period, which encompasses the weeks before and after birth. But South Carolina, Alabama and Oklahoma have the formal backing of criminal statutes or court decisions.

South Carolina was an architect of prosecuting pregnant women, an approach that got its start in Charleston. A 1989 policy at the Medical University of South Carolina established a pipeline through which doctors and nurses alerted police each time a pregnant woman or her baby tested positive for an illegal substance.

The program ended in 1994 amid a lawsuit and federal investigation into possible civil rights violations. But the idea took root. The S.C. Supreme Court cited the concept of “fetal personhood” when it ruled two years later that child abuse laws extend to a viable fetus, paving the way for more of these prosecutions.

They’ve continued.

The Post and Courier examined nearly 200 cases in which women were charged between 2006 and 2021 with unlawful neglect of a child or homicide by child abuse for alleged perinatal drug use. The number is almost certainly an undercount.

Proponents argue the practice protects babies from exposure to illegal drugs and holds mothers accountable for harming their children. But some doctors and lawyers contend the crime is based on faulty science. It’s up to individual prosecutors to pursue charges, creating a pattern that’s neither predictable nor uniform.

South Carolina has the second-highest arrest rate in the nation for alleged perinatal drug use, trailing only Alabama, according to a recent report from the legal aid group Pregnancy Justice. The report compiled cases from 2006 to June 2022, when the U.S. Supreme Court overturned Roe v. Wade and left the legality of abortions to state legislators.

The Marshall Project, a nonprofit newsroom, recently examined how prosecutors in Alabama, Mississippi, Oklahoma and South Carolina have wielded laws and court rulings establishing fetal personhood to prosecute pregnant women for using drugs. The Post and Courier’s reporting is published in partnership with The Marshall Project, AL.com, The Frontier, Mississippi Today and The Guardian.

South Carolina doesn’t distinguish perinatal drug use from other child neglect and abuse charges, making these cases hard to track. Nor does every positive drug test end in prosecution or prison time.

The Post and Courier’s analysis shows one-third of charges ended up dismissed. Of the cases that resulted in sentences, the majority — about two-thirds — were suspended to probation.

The newspaper found women rarely spent more than a year in state prison. Even among suspended sentences, which can include both prison and probation time, defendants spent an average of seven months behind bars. They spent an average of two years and eight months on probation.

No cases were tried before a jury. Instead, of the ones that weren’t dismissed, the women pleaded guilty.

Although few defendants served lengthy prison sentences, the arrests still left indelible marks on their lives. Judges sometimes added special conditions: placement on the central child abuse registry, random drug screens, costly court fees.

Many positive tests are forwarded to the state’s child welfare agency. The South Carolina Department of Social Services recorded nearly 1,600 reports of substance-affected newborns in 2022, according to department data. The newspaper filed a Freedom of Information Act request for data from 2017 to the present, but the department had only last year’s numbers.

The Post and Courier’s investigation found prosecutions for perinatal drug use in almost every county, from rural Union to densely populated Horry.

Those included three years in prison for a Marlboro County woman who tested positive in 2010 for cocaine after delivering a stillborn baby. And a year of probation for a Sumter County mom whose newborn tested positive in 2013 for marijuana. And three years’ probation for a York County woman in 2019 whose baby tested positive for cocaine.

Surveilling pregnancies is a group effort. Nurses, who are mandated child abuse reporters, must pass positive drug tests to case managers or law enforcement; case managers can alert police. Loophole-ridden medical privacy laws give criminal investigators access to protected information.

Concerns about child abuse undergird the laws that allow the child welfare, medical and criminal systems to work in tandem. But the women interviewed by The Post and Courier say these concerns are a smokescreen for punishment.

Their stories show how a positive drug test can set in motion a process that lands women behind bars, childless and lacking support in a state without widespread access to best-practice drug treatment.

S.C.’s pioneering role

Two decades before baby Ellie tested positive in Greenville, an MUSC nurse named Shirley Brown noticed a troubling trend.

It was fall 1988 — the middle of the crack-cocaine epidemic in the U.S. — and Brown observed several newborn babies test positive for cocaine, The Post and Courier reported at the time. Her concerns dovetailed with national ones about pregnant drug users and their infants: so-called “crack babies,” a misnomer that came to symbolize widespread anxieties about the powerful drug.

The Los Angeles Times examined the episode years later, reporting that it played out this way:

Brown and her boss created an informal program to test patients for cocaine. Tests were ordered for women exhibiting any of six indicators of drug use: no prenatal care, placental abruption, intrauterine fetal death, preterm labor, intrauterine growth restriction and previously known drug or alcohol abuse. Nearly 120 women tested positive in a year.

Brown tried to funnel them toward treatment but grew frustrated after repeatedly watching them refuse. The nurse knew prosecutors around the country were charging pregnant substance users with crimes like distribution to minors and child neglect. Why couldn’t her city do the same?

She called in reinforcements. Charlie Condon, then the solicitor for Charleston and Berkeley counties, became an enthusiastic participant. Time Magazine once called him the “postpartum prosecutor.”

“A viable fetus,” he repeatedly declared, “is a fellow South Carolinian.”

Condon collaborated with the Charleston Police Department to develop a path to prosecution. If a pregnant patient tested positive and declined treatment, hospital workers would alert police, who consulted with Condon’s office. At least 30 women were arrested, the majority of them Black.

The policy was not without opposition. Mary Faith Marshall, who directed the bioethics program at MUSC for much of the 1990s, said the practice made a mockery of informed consent. It also treated addiction as a crime and turned nurses into evidence collectors.

Hospital workers wanted women to get treatment. But in Charleston, a robust landscape hardly existed. At the time, the city had no residential facility for women and their children, which experts tout as best practice.

MUSC agreed to end the policy in 1994 amid a federal investigation and after the government threatened to cut funding. Some hospital employees were concerned it targeted poor Black women who had no choice but to seek prenatal care at MUSC. It was one of the only hospitals for miles that accepted Medicaid patients.

A lawyer for the hospital worried about arresting women without a subpoena of medical records; he feared the practice could prompt allegations MUSC breached patient confidentiality.

His fears proved valid.

Lynn Paltrow, a New York-based lawyer and founder of Pregnancy Justice, joined forces with Charleston attorney Susan Dunn in 1993 to sue the city and hospital for violating the constitutional rights of 10 patients.

The lawsuit dragged on until the U.S. Supreme Court in 2001 ruled in favor of the women. But the justices’ opinion focused primarily on privacy and unlawful searches.

As far as the nation’s highest court was concerned, South Carolina could continue to drug-test pregnant women and report the findings to police, so long as the women were made aware.

As far as Paltrow was concerned, MUSC’s policy was a product of its time, a merging of anti-abortion attitudes and heavy-handed criminalization. To justify child abuse charges, prosecutors were contending drug use harmed a fetus — and, by extension, the fetus had rights.

“It was never about protecting children,” Paltrow said more than three decades later. “It was about controlling poor mothers, particularly Black mothers.”

The hospital declined to comment on the Supreme Court case for this article. Both Brown and Condon declined to comment on the MUSC policy and their roles in the episode.

No scientific consensus

The science around perinatal drug use is unresolved, said Dr. Mishka Terplan, an OB-GYN and addiction medicine physician who directs the Friends Research Institute in Maryland. No research on humans links marijuana use to the chance of miscarriage, for instance, but substantial evidence shows the drug can cause low birth weight in babies.

Some studies suggest exposure to cocaine in the womb may inhibit growth and cause developmental delays. But research shows the drug’s long-term effect on infants is difficult to separate from other environmental influences of a drug-using lifestyle, like poor nutrition and a lack of prenatal care.

Much of the country’s child welfare policy rests on the assumption that people who use drugs while pregnant are more likely to abuse or neglect their children. But research doesn’t support this theory, Terplan said.

The American College of Obstetricians and Gynecologists argues drug use during pregnancy is best addressed through education and treatment, not testing and prosecution. Research suggests drug screens aren’t the best way to identify people with substance-use disorders who might benefit from treatment, Terplan said.

And tests aren’t perfect. Initial screens can net false positives, and those presumptive results aren’t always followed up with confirmatory testing, the doctor added. But some experts say rapid tests identifying drug-dependent newborns are critical in helping doctors make treatment decisions.

Medical professionals and prosecutors wrestled with the science amid several landmark rulings in South Carolina courts.

The first case came after a judge in 1993 released Cornelia Whitner from her eight-year prison sentence. The Easley woman spent 19 months behind bars after her newborn tested positive for cocaine.

The judge decided child abuse laws don’t apply to a fetus. Condon, by then the state’s attorney general, disagreed. The state Supreme Court sided with him, ruling in 1996 that a pregnant woman who uses drugs can be charged with abusing her viable fetus.

The ruling drives prosecutions. Today, the most common charge is unlawful neglect of a child, the newspaper’s analysis found. It’s a felony punishable by up to 10 years in prison.

In 2001, Regina McKnight of Horry County became the first woman in South Carolina to be convicted of homicide for delivering a stillborn baby exposed to drugs. Pathologists testified her crack cocaine use was to blame.

The state Supreme Court overturned her conviction seven years later. Justices decided prosecutors didn’t show enough proof McKnight’s baby died because of her cocaine use. The woman pleaded guilty to a lesser crime instead of going to trial, and was released from prison for time served.

Whitner’s case laid the groundwork for McKnight’s conviction. The decisions helped establish fetal personhood as case law. The concept guides many anti-abortion groups’ belief that a fetus should be afforded the same legal protections as a child.

“That person (the fetus) is more vulnerable, and more innocent, and deserves a special protection,” said Rep. Josiah Magnuson, a member of the state’s ultra-conservative Freedom Caucus.

Courts in Alabama and Mississippi used the S.C. rulings to espouse similar ideas. Those states lead the country in arrests for alleged perinatal drug use, according to Pregnancy Justice.

After the Whitner ruling, Condon said he planned to instruct prosecutors and social workers to monitor and punish pregnant women who abuse drugs, this newspaper reported in 1996.

The 30-year-old court decision — not a law — continues to invite charges against South Carolina women. Similar approaches exist elsewhere. Alabama courts and prosecutors have interpreted the state’s chemical endangerment statute to charge expectant and new mothers for using drugs. The law was first created to protect children from home meth labs.

Greenwood Republican John McCravy is the Statehouse’s lead sponsor of abortion bans and a member of its Family Caucus. The representative said he considers drug use during pregnancy to be child abuse and wouldn’t propose changing South Carolina’s approach.

Magnuson, a Spartanburg County Republican, said he’d support a law that clearly spells out an unborn child has individual rights, including protection from perinatal drug use. But he said the state could better discern which defendants are “victims of the system” who need care rather than punishment.

Patchwork prosecutions

Prosecutors handle perinatal drug use differently. Barbara Morgan served for nearly two decades as 2nd Circuit solicitor of Aiken, Bamberg and Barnwell counties, in the 1990s and early 2000s. She recalled the devastating effect of the crack epidemic, particularly for women of childbearing age and their families.

“That toll on children and families is something you can’t grasp at times,” she said.

Investigations illustrated the human cost of the era, Morgan recalled: women having multiple miscarriages, mothers and stillborn babies testing positive for cocaine, parents losing custody of older children due to drug use.

The former prosecutor said she didn’t endorse incarcerating people based on addiction alone. Helping people quit drugs isn’t straightforward or always successful, she noted.

Morgan recalled referring first-time offenders to pre-trial intervention, dismissing cases if defendants successfully completed treatment and working with social service agencies.

A woman in 2007 agreed to a plea deal in which taking birth control was a voluntary condition of her probation. Morgan’s office prosecuted the case; she reflected on it 16 years later. She witnessed defendants telling judges they knew addiction harmed their families and were grateful for access to oral contraceptives.

“The women would say, ‘Judge, it would be really good that I did that until I got better,'” Morgan said.

Current prosecutors in Horry and Georgetown counties rarely see cases involving perinatal drug use, said 15th Circuit Solicitor Jimmy Richardson. Cases that reach his office typically involve drug tests with a paper trail and police involvement — a collaborative effort between medical workers and law enforcement, Richardson said.

Sentences for homicide by child abuse, a crime carrying a mandatory minimum sentence of 20 years, almost always involve prison time, he said. Unlawful neglect sentences are handled on a case-by-case basis and depend on a defendant’s prior charges, age and drug history.

The prosecutor prefers recommending drug court for defendants rather than probation. 

An elusive allegation

Trouble for Megan McKenzie started at the end of her pregnancy. During her last prenatal checkup at a Greenville clinic, a nurse handed her a blank piece of paper, she recalled. McKenzie asked what it was for. A consent form for drug screening, the nurse replied.

But the procedure wasn’t listed on the form, McKenzie recalled. Believing the nurse bungled the rules of informed consent, she refused to sign.

“I’m a stickler for accountability,” she said.

McKenzie said she was also a stickler for sobriety. It was true, she told a counselor during her pregnancy, that she had previously smoked marijuana to cope with an abusive relationship. But she said she never smoked while pregnant, and in the waning days of August 2008 delivered Ellie, a healthy baby girl.

As McKenzie remembers it, someone claimed she’d admitted to smoking marijuana during her pregnancy. She doesn’t know who. But that led medical providers to test Ellie’s urine for drugs. 

She gave birth at Prisma Health Greenville Memorial Hospital, which declined to comment on McKenzie’s case, citing patient privacy.

The hospital provided The Post and Courier with a written statement indicating that it follows the law when it comes to getting patients’ informed consent. But medical providers don’t need that consent to perform a drug screen when “presented with a court order or search warrant, or in cases involving suspected infant drug exposure,” the statement read. Drug screening infants doesn’t require parental consent.

A presumptive test declared Ellie’s urine positive for cannabis compounds. But experts caution that presumptive tests can net false positives. Nurses hadn’t collected enough urine to perform a confirmatory test, medical records show. McKenzie said a lab manager later told her Ellie’s sample likely got mixed up with a positive result. And records show both parents tested negative on hair follicle screens hours after Ellie’s birth.

McKenzie suspects a hospital worker passed Ellie’s presumptive results to social workers. Hours after giving birth, the new mom was the subject of an investigation for alleged abuse.

Questions of consent

There’s no uniform drug-testing policy for mothers and newborns in South Carolina. In many cases, individual practitioners have the authority to order tests on patients who meet certain criteria, according to several hospital policies obtained by The Post and Courier.

At Spartanburg Regional Healthcare System, patients must sign off on maternal urine and umbilical cord screens, and a consent form plainly indicates positive results can trigger a DSS investigation that “could result in the removal of (a) baby,” or even “criminal consequences.” Placental abruption and newborn withdrawal can qualify a mother for a drug test. So can a lack of prenatal care, an admission of drug use or a request by DSS.

Bon Secours St. Francis Health System in Greenville has a similar list of criteria for ordering a test, in addition to “clinical suspicion of substance misuse.”

At MUSC, doctors use their judgment to drug test newborns based on the baby’s condition at birth, a hospital spokeswoman said. Mothers are tested with their informed consent, she added.

Clinicians at Conway Medical Center and Greenville Memorial, where McKenzie gave birth, don’t need parental consent to drug test infants. Newborns are “minor(s),” Conway’s policy states, subject to “appropriate care.”

Today, as a result of the 2001 U.S. Supreme Court ruling, hospitals must get informed consent before drug testing pregnant women if results can be reported to police. When asked how its policy squares with the ruling, Greenville Memorial said it “complies with state and federal laws regarding the informed consent required of pregnant women.”

Clinics that take Medicaid patients are more likely to drug test their clientele than practices that serve wealthier patients, said Wendy Bach, a law professor at the University of Tennessee. So are hospitals located in poor areas.

Race affects a patient’s chance of getting tested, too. Black mothers, researchers found, receive the lion’s share of tests at birth.

Terplan, the OB-GYN, questions whether providers give patients the option to deny a drug test. Case management is notified at Spartanburg Regional if mothers refuse drug screens, the policy states.

He also wonders whether hospitals are transparent about the passing along of results. McKenzie didn’t know her daughter’s positive test would reach DSS, then end in her arrest. But there’s nothing unusual about these information exchanges, oiled by loopholes in medical privacy laws.

Exemptions in the Health Insurance Portability and Accountability Act allow law enforcement officers to obtain protected medical information. If the information is believed to be evidence of a crime — or even if its collection could prevent perceived safety threats — officers can get the records with or without patient authorization.

“HIPAA is a leaky faucet,” Bach said.

Chilling effect on care

In her first months as a mom, McKenzie avoided doctors’ offices, scared to get care.

“When your medical providers become evidence collectors for the state,” McKenzie said, “you don’t want to go see them.”

Fresh in her mind were those frantic days in the hospital. Nurses held watch over Ellie for a week, restricting her mother’s visits to every three hours.

McKenzie shuttled from home to hospital and hospital to home, hardly sleeping for several days, worried she’d miss her daughter’s first moments.

“I would get there early,” she recalled, “and there would be a woman sitting in the nursery rocking my child.”

McKenzie completed an infant CPR class, a precondition for bringing Ellie home. She proactively got a drug abuse assessment at a Greenville treatment center. It confirmed she was an attentive mother who reported no drug use in the home.

“Client is willing to do whatever necessary for her child,” wrote an addiction counselor. “Client will not be placed into treatment services until DSS makes a decision.”

There was little McKenzie could do to disentangle her family from DSS. Two months after Ellie’s birth, the department found evidence of abuse, documents show. Days after that, Greenville police officers arrested her on an unlawful neglect charge.

Her daughter was nearly nine weeks old — around the time when babies begin to smile.

‘The system destroyed me’

After her arrest, McKenzie obtained the services of Rauch Wise, a Greenwood attorney who has represented women accused of perinatal drug use. In the 1990s, he represented Whitner. In the early 2000s, McKnight. (Pregnancy Justice covered Wise’s legal fees.)

In the weeks after Ellie’s birth, a case manager concluded she was safe, records show. But DSS remained a presence in the family’s life.

Once, an agency employee arrived at her doorstep with a police officer and a warrant, allowing them to inspect the house. McKenzie said the visit made her no longer feel safe at home: “That’s an unsettling feeling when you’re a new mom,” she said.

The department at another point told her to enroll in drug treatment. But McKenzie didn’t have a substance use disorder, she said. Why should she get help?

McKenzie appealed the department’s finding of abuse to no avail. In summer 2009, DSS, alleging McKenzie was uncooperative with treatment, wanted a judge to approve a treatment plan. Prosecutors, meanwhile, were pushing her to plead guilty to the criminal charge.

She was terrified Ellie would land in foster care. So she left.

McKenzie and Ellie got on a plane headed for Washington state. With a single suitcase and a plan to stay with her mom and sister, McKenzie fled South Carolina.

“It was a vacation, I told my lawyer. But I knew we weren’t coming back,” she said.

South Carolina case managers were now thousands of miles away, and McKenzie’s lawyer told her in spring 2010 the department transferred her case. Washington social services reversed South Carolina’s abuse finding several months later; her criminal case was expunged.

For the first time in two and a half years, McKenzie was unencumbered to make memories with her daughter. But she still felt deflated. “Destroyed,” she repeatedly said.

A spokeswoman for South Carolina DSS declined to comment on McKenzie’s case.

McKenzie started to rebuild her life after moving to Washington state. She became a supportive confidante for pregnant women who use drugs. She also gave birth to two more children, Carl Jr. and Ali. Each pregnancy brought her back to that Greenville hospital room with Ellie and the case managers gathered inside.

She explained everything to her Washington doctors, fearing anything unsaid could leave her vulnerable to accusations.

But she had little to fear, even if she had been using drugs. In 1996, a Washington state appeals court ruled pregnant women who use drugs can’t be charged with criminal mistreatment of a child.

McKenzie had the advantage of a lawyer and a support network in Washington, and ended with a clean criminal record. Not all women can say the same.

Families splintered

For some women, these allegations were their first introduction to the criminal justice system. For others, they upended lives already blanketed with instability from addiction, domestic violence and poverty. 

Such was the case for Jessica Jackson of Conway. She left home at an early age and moved around the country before settling in the Myrtle Beach area. The single mother picked up misdemeanor convictions for speeding, trespassing, driving without a license and domestic violence, state records show.

But she landed in deeper waters in 2019 with her first felony conviction for using amphetamines while pregnant. The episode cost her custody of the baby and her two other children. Her problems only snowballed from there. 

She gave birth to a fourth child — a boy — in 2021. She raised him for a year before police arrested her on a drug possession charge, records show. State workers removed the boy from her care soon after. 

More trouble followed Jackson in June. She was implicated in a federal drug case involving two men accused in July 2022 of transporting large amounts of cocaine and methamphetamine from Mexico to South Carolina. Federal prosecutors declined to discuss her role in the episode, but they have charged her with drug trafficking and conspiracy. 

She pleaded not guilty during an Aug. 28 hearing in Florence’s federal courthouse and remains on home detention.

Jackson desperately wants to get her children back. Her Conway home still looks like they live there. Bikes and a car seat dot the front yard. Inside, a bag spills with toys. Artwork flutters from the fridge. Neon chalk streaks the walls.

Her children are scattered across the country, living with different guardians in South Carolina, North Carolina and Nevada. Jackson tries to see each of them as much as she can.

Her eldest daughter Paloma often visits. On a recent August morning, the 6-year-old filled Jackson’s trailer with movement, happy shrieks and piles of toys. 

But separation has strained the family’s bond. Her youngest daughter calls her “Jessica.” Her youngest son calls someone else “mom.”

“They’re not used to being with you anymore,” Jackson said, fighting tears.

Her situation is decades removed from the 1990s, when South Carolina drew attention for taking new mothers to jail for drug use. The pattern of prosecutions has changed since then. DSS is the driver of child abuse cases stemming from positive drug tests.

But arrests have endured, and treatment services haven’t kept pace, several addiction counselors said. The state has only three programs that treat mothers and babies together — a model medical professionals consider the gold standard.

Drug tests can still end with a new mom in handcuffs. A conviction can still leave her separated from her child.

An Horry County woman was charged in July after she admitted to taking drugs while pregnant and her newborn baby tested positive for cannabis compounds.

McKenzie and Jackson say South Carolina’s punitive approach left them worse off. But case managers said their daughters’ positive tests were evidence of abuse, the ensuing investigations essential to keeping children safe. And court rulings bolster the belief that a fetus has legal rights.

The stakes are high. Everyone says they just want what’s best for the baby.