(WOMENSENEWS)–A South Carolina woman who gave birth to a stillborn child nearly two years ago is facing a retrial for homicide by child abuse. An admitted cocaine user, Regina McKnight stands accused of killing her unborn child through using an illegal drug and, if convicted, could face at least 20 years and as much as life in prison.

McKnight’s second trial on these charges is slated to begin May 21 in Myrtle Beach. Her prosecution marks the first time the state has applied a child abuse statute to an in utero death. The first trial ended in a mistrial Jan. 12 when two of the jurors admitted searching the Internet to explore issues surrounding homicide by child abuse.

Under South Carolina law, a fetus in the third trimester is considered a person and authorities have vigorously pursued different kinds of prosecutions, from charging mothers with distributing drugs to a minor to murder if the believe the women are harming their fetuses.

Women’s rights advocates say the statute has been misapplied in the McKnight case and thus could open the door for prosecution of any type of activity considered injurious to a fetus–including legal activities such as smoking, drinking or even participating in athletic events.

“A person wearing a plaid shirt and striped pants could be arrested and charged with disturbing the peace, but that doesn’t mean he committed the crime of disturbing the peace or that’s what the statute was intended to punish,” is the analogy drawn by Lynn Paltrow. A lawyer and director of the New York-based National Advocates for Pregnant Women, Paltrow is assisting the defense by the public defender’s office.

McKnight is an indigent African American who is developmentally disabled, according to Wyndi Anderson, the executive director of the South Carolina Advocates for Pregnant Women.

Case Is Latest in Series of Prosecutions of African-American Mothers

The case against McKnight, now 23, is based on the successful prosecution in 1997 of another South Carolina woman for child abuse for using drugs while pregnant. In that case, Cornelia Whitner was sentenced to prison despite giving birth to a healthy child.

The National Institute on Drug Abuse Research reports that the full extent of the effects of prenatal drug exposure are not completely known. Infants born to mothers who use cocaine tend to be premature, have low birth weights and are shorter, however, other factors, such as multiple drug use, inadequate prenatal care, lack of income, poor maternal nutrition and other health problems also are likely to play a role in fetal health.

The best known South Carolina case involving prosecution of mothers is now before the U.S. Supreme Court. That case, argued in October, rests on the drug testing of urine collected from pregnant women seeking prenatal care. The decision is likely to rest on whether mandatory drug testing of pregnant women seeking medical care was an unreasonable search and seizure and a violation of the Constitutional right to privacy.

In that case, 10 prenatal patients at the public hospital women’s clinic in Charleston tested positive for cocaine in 1989. Nine were arrested for cocaine possession and distribution of cocaine to a minor or child abuse. One avoided arrest by admitting herself to a substance abuse treatment program. All those arrested were African American; the one permitted to seek treatment was white. It is not known when the Supreme Court will issue its ruling in that case.

Attorney Paltrow said most members of the legal, medical and feminist communities agree that pregnant women with alcohol or drug problems should be handled as a health issue, not a criminal matter.

The prosecutor in the case says he is not taking a position on public policy but doing his job.

“To me it’s a much simpler issue,” said Bert von Herrmann, an assistant solicitor in Horry County, S.C. “I’m out to prove a case where I believe a mother killed a child. I am not concerned that it is first time it’s been tried in South Carolina. I am not concerned that I am applauded by some and criticized by others for trying it. My concern is: Did she kill her child? That’s really the only concern I have.”

Von Herrmann added that South Carolina seeks only to go after those women who harm their fetuses through illegal drug use.

But the child abuse statute has been applied in less obvious cases and can have wide-ranging applications, Paltrow warned. She pointed to a 1998 case in which a woman in Lancaster, S.C., was arrested after her child was born with fetal alcohol syndrome.

One of the most invasive uses of the anti-child abuse law occurred last month, she said, when a South Carolina hospital proposed applying the statute when a woman refused to submit to a Caesarian section after spending 40 hours in labor. Doctors feared the prolonged labor might put the fetus in distress. But in that case the woman ultimately gave birth to a healthy child without going through the surgery, Paltrow said.

Trial Will Focus on Cause of Death

Orrie West, who heads the Horry County Public Defender’s Office, said she intends to steer clear of the policy issues–like whether the case should be handled criminally or medically–and focus strictly on her client’s defense.

“I’m really just trying my best to help my client at this point, as opposed to making a statement,” West said.

The prosecutor agrees public policy should play no role in the trial.

“I think there is a bright-line test when you have somebody doing illegal drugs–smoking crack cocaine,” von Herrmann said. “The mother had a lot of cocaine in her system and the child had a lot. And there is nothing else that could cause that child’s death.”

West disagrees. She believes her case hinges on the fact that stillborn deaths can result from multiple causes and the state must prove cocaine killed McKnight’s baby. McKnight is off drugs and living in a Christian-based treatment center and homeless shelter in Myrtle Beach, S.C. She has three other children.

Siobhan Morrissey is a free-lance writer and former prosecutor in Miami.