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.
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.
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