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View Case Details
 
Cornelia Whitner, Respondent
vs.
State of South Carolina, Petitioner.
 
Case:
Opinion No. 24468
 
Location:
SUPREME COURT OF SOUTH CAROLINA
 
Date:
May 31, 1996, Heard
 
Attorneys:
Counsel General Charles Molony Condon Deputy Counsel General John W. McIntosh Assistant Counsel General Teresa Nesbitt Cosby Staff Counsel David K. Avant all of Columbia for Petitioner.
C. Rauch Wise of Wise & Tunstall of Greenwood; Lynn M. Paltrow and Lisa S. Tankoos both of The Center for Reproductive Law & Policy of New York for Respondent.
Stephen P. Williams of Columbia for Amici Curiae South Carolina Medical Association; American Medical Association & American College of Obstetricians & Gynecologists.
Robert H. Hood and Joseph C. Wilson IV both of Hood Law Firm of Charleston for Amici Curiae City of Charleston South Carolina; Board of Trustees and various employees of the MUSC; Reuben Greenberg Chief of Charleston Police Department; Charles Molony Condon former Ninth Circuit Solicitor; and David Schwacke current Ninth Circuit Solicitor.
Susan Dunn of Charleston; Carol E. Tracy and Susan Frietsche of Philadelphia PA for Amici Curiae The American Public Health Association; American Medical Women's Association; American Nurses Association; Coalition on Addiction Pregnancy and Parenting; Drug Policy Foundation; National Council on Alcoholism and Drug Dependence; National Perinatal Association; Planned Parenthood of Central South Carolina; National Women's Health Network; NOW Legal Defense and Education Fund; South Carolina Chapter of The National Organization for Women; South Carolina Nurses Association; and The Women's Law Project and Operation PAR.
John D. (Jay) Elliott of Columbia for Amicus Curiae The Alliance for South Carolina's Children.
 
Court:
TOAL A.J. WALLER and BURNETT JJ. concur. FINNEY C.J. and MOORE A.J. dissenting in separate opinions.
 
OPINION: ON WRIT OF CERTIORARI

This case concerns the scope of the child abuse and endangerment statute in the South Carolina Children's Code (the Code) S.C. Code Ann. SEC. 20-7-50 (1985). *fn1 We hold the word "child" as used in that statute includes viable fetuses.

FACTS

On April 20 1992 Cornelia Whitner (Whitner) pled guilty to criminal child neglect S.C. Code Ann. SEC. 20-7-50 (1985) for causing her baby to be born with cocaine metabolites in its system by reason of Whitner's ingestion of crack cocaine during the third trimester of her pregnancy. The circuit court judge sentenced Whitner to eight years in prison. Whitner did not appeal her conviction.

Thereafter Whitner filed a petition for Post Conviction Relief (PCR) pleading the circuit court's lack of subject matter jurisdiction to accept her guilty plea as well as ineffective assistance of Counsel. Her claim of ineffective assistance of Counsel was based upon her lawyer's failure to advise her the statute under which she was being prosecuted might not apply to prenatal drug use. The petition was granted on both grounds. The State appeals.

LAW/ANALYSIS

A. Subject Matter Jurisdiction

The State first argues the PCR court erred in finding the sentencing circuit court lacked subject matter jurisdiction to accept Whitner's guilty plea. We agree.

Under South Carolina law a circuit court lacks subject matter jurisdiction to accept a guilty plea to a nonexistent offense. See Williams v. State 306 S.C.89 410 S.E.2d 563 (1991). For the sentencing court to have had subject matter jurisdiction to accept Whitner's plea criminal child neglect under section 20-7-50 would have to include an expectant mother's use of crack cocaine after the fetus is viable. *fn2 All other issues are ancillary to this jurisdictional issue.

S.C. Code Ann. SEC. 20-7-50 (1985) provides:

Any person having the legal custody of any child or helpless person who shall without lawful excuse refuse or neglect to provide as defined in SEC.20-7-490 the proper care and attention for such child or helpless person so that the life health or comfort of such child or helpless person is endangered or is likely to be endangered shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court. (emphasis added).

The State contends this section encompasses maternal acts endangering or likely to endanger the life comfort or health of a viable fetus.

Under the Children's Code child means a "person under the age of eighteen." S.C. Code Ann. SEC. 20-7-30(1) (1985). The question for this Court therefore is whether a viable fetus is a "person" for purposes of the Children's Code.

In interpreting a statute this Court's primary function is to ascertain the intent of the legislature. E.g. State v. Ramsey 311 S.C.555 430 S.E.2d 511 (1993). Of course where a statute is complete plain and unambiguous legislative intent must be determined from the language of the statute itself. E.g. State v. Blackmon 304 S.C.270 403 S.E.2d 660 (1991). We should consider however not merely the language of the particular clause being construed but the word and its meaning in conjunction with the purpose of the whole statute and the policy of the law. E.g. South Carolina Coastal Council v. South Carolina State Ethics Comm'n 306 S.C.41 410 S.E.2d 245 (1991). Finally there is a basic presumption that the legislature has knowledge of previous legislation as well as of judicial decisions construing that legislation when later statutes are enacted concerning related subjects. See Berkebile v. Outen 311 S.C.50 426 S.E.2d 760 (1993); 82 C.J.S. Statutes SEC. 316 at 541-42 (1953).

South Carolina law has long recognized that viable fetuses are persons holding certain legal rights and privileges. In 1960 this Court decided Hall v. Murphy 236 S.C.257 113 S.E.2d 790 (1960). That case concerned the application of South Carolina's wrongful death statute to an infant who died four hours after her birth as a result of injuries sustained prenatally during viability. The Appellants argued that a viable fetus was not a person within the purview of the wrongful death statute because inter alia a fetus is thought to have no separate being apart from the mother.

We found such a reason for exclusion from recovery "unsound illogical and unjust and concluded there was no medical or other basis" for the assumed identity of mother and viable unborn child. Id. at 262 113 S.E.2d at 793. In light of that conclusion this Court unanimously held: "We have no difficulty in concluding that a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person." Id. at 263 113 S.E.2d at 793 (emphasis added).

Four years later in Fowler v. Woodward 244 S.C.608 138 S.E.2d 42 (1964) we interpreted Hall as supporting a finding that a viable fetus injured while still in the womb need not be born alive for another to maintain an action for the wrongful death of the fetus.

Since a viable child is a person before separation from the body of its mother and since prenatal injuries tortuously inflicted on such a child are actionable it is apparent that the complaint alleges such an 'act neglect or default' by the defendant to the injury of the child . . . .

Once the concept of the unborn viable child as a person is accepted we have no difficulty in holding that a cause of action for tortuous injury to such a child arises immediately upon the infliction of the injury.

Id. at 613 138 S.E.2d at 44 (emphasis added). Fowler makes particularly clear that Hall rested on the concept of the viable fetus as a person vested with legal rights.

More recently we held the word "person" as used in a criminal statute includes viable fetuses. State v. Horne 282 S.C.444 319 S.E.2d 703 (1984) concerned South Carolina's murder statute S.C. Code Ann. Sec. 16-3-10 (1976). The defendant in that case stabbed his wife who was nine months' pregnant in the neck arms and abdomen. Although doctors performed an emergency caesarean section to deliver the child the child died while still in the womb. The defendant was convicted of voluntary manslaughter and appealed his conviction on the ground South Carolina did not recognize the crime of feticide.

This Court disagreed. In a unanimous decision we held it would be "grossly inconsistent . . . to construe a viable fetus as a 'person' for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context." Id. at 447 319 S.E.2d at 704 (citing Fowler v. Woodward supra). Accordingly Court recognized the crime of feticide with respect to viable fetuses.

Similarly we do not see any rational basis for finding a viable fetus is not a "person" in the present context. Indeed it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse. Our holding in Hall that a viable fetus is a person rested primarily on the plain meaning of the word person in light of existing medical knowledge concerning fetal development. We do not believe that the plain and ordinary meaning of the word "person" has changed in any way that would now deny viable fetuses status as persons.

The policies enunciated in the Children's Code also support our plain meaning reading of "person." S.C. Code Ann. SEC. 20-7-20(C) (1985) which describes South Carolina's policy concerning children expressly states: It shall be the policy of this State to concentrate on the prevention of children's problems as the most important strategy which can be planned and implemented on behalf of children and their families. (emphasis added). The abuse or neglect of a child at any time during childhood can exact a profound toll on the child herself as well as on society as a whole. However the consequences of abuse or neglect which takes place after birth often pale in comparison to those resulting from abuse suffered by the viable fetus before birth. This policy of prevention supports a reading of the word "person" to include viable fetuses. Furthermore the scope of the Children's Code is quite broad. It applies "to all children who have need of services." S.C. Code Ann. SEC. 20-7-20(B) (1985)(emphasis added). When coupled with the comprehensive remedial purposes of the Code this language supports the inference that the legislature intended to include viable fetuses within the scope of the Code's protection.

Whitner advances several arguments against an interpretation of "person" as used in the Children's Code to include viable fetuses. We shall address each of Whitner's major arguments in turn.

Whitner's first argument concerns the number of bills introduced in the South Carolina General Assembly in the past five years addressing substance abuse by pregnant women. Some of these bills would have criminalized substance abuse by pregnant women; *fn3 others would have addressed the issue through mandatory reporting treatment or intervention by social service agencies. *fn4 Whitner suggests that the introduction of several bills touching the specific issue at hand evinces a belief by legislators that prior legislation had not addressed the issue. Whitner argues the introduction of the bills proves that section 20-7-50 was not intended to encompass abuse or neglect of a viable fetus.

We disagree with Whitner's conclusion about the significance of the proposed legislation. Generally the legislature's subsequent acts "cast no light on the intent of the legislature which enacted the statute being construed." Home Health Servs. Inc. v. DHEC 298 S.C.258 262 n.1 379 S.E.2d 734 736 n.1 (Ct. App. 1989)(citations omitted). Rather this Court will look first to the language of the statute to discern legislative intent because the language itself is the best guide to legislative intent. E.g. State v. Blackmon 304 S.C.270 403 S.E.2d 660 (1991). Here we see no reason to look beyond the statutory language. See Timmons v. South Carolina Tricentennial Comm'n supra (where statute's meaning can be determined from its language no need to look beyond such language). Additionally our existing case law strongly supports our conclusion about the meaning of the statute's language.

Whitner also argues an interpretation of the statute that includes viable fetuses would lead to absurd results obviously not intended by the legislature. Specifically she claims if we interpret "child" to include viable fetuses every action by a pregnant woman that endangers or is likely to endanger a fetus whether otherwise legal or illegal would constitute unlawful neglect under the statute. For example a woman might be prosecuted under section 20-7-50 for smoking or drinking during pregnancy. Whitner asserts these "absurd" results could not have been intended by the legislature and therefore the statute should not be construed to include viable fetuses.

We disagree for a number of reasons. First the same arguments against the statute can be made whether or not the child has been born. After the birth of a child a parent can be prosecuted under section 20-7-50 for an action that is likely to endanger the child without regard to whether the action is illegal in itself. For example a parent who drinks excessively could under certain circumstances be guilty of child neglect or endangerment even though the underlying act -- consuming alcoholic beverages -- is itself legal. Obviously the legislature did not think it "absurd" to allow prosecution of parents for such otherwise legal acts when the acts actually or potentially endanger the "life health or comfort" of the parents' born children. We see no reason such a result should be rendered absurd by the mere fact the child at issue is a viable fetus.

Moreover we need not address this potential parade of horrible advanced by Whitner. In this case which is the only case we are called upon to decide here certain facts are clear. Whitner admits to having ingested crack cocaine during the third trimester of her pregnancy which caused her child to be born with cocaine in its system. Although the precise effects of maternal crack use during pregnancy are somewhat unclear it is well documented and within the realm of public knowledge that such use can cause serious harm to the viable unborn child. See e.g. Joseph J. Volpe M.D. Effect of Cocaine Use on the Fetus 327 NEW ENG. J. MED. 399 (1992); Ira J. Chasnoff M.D. et al. Cocaine Use in Pregnancy 313 NEW ENG. J. MED. 666 (1985). There can be no question here Whitner endangered the life health and comfort of her child. We need not decide any cases other than the one before us.

We are well aware of the many decisions from other states' courts throughout the country holding maternal conduct before the birth of the child does not give rise to criminal prosecution under state child abuse/endangerment or drug distribution statutes. See e.g. Johnson v. State 602 So. 2d 1288 (Fla. 1992); Commonwealth v. Welch 864 S.W.2d 280 (Ky. 1993); State v. Gray 62 Ohio St. 3d 514 584 N.E.2d 710 (Ohio 1992); Reyes v. Superior Court 75 Cal. App. 3d 214 141 Cal. Rptr.912 (1977); State v. Carter 602 So. 2d 995 (Fla. Ct. App. 1992); State v. Gethers 585 So. 2d 1140 (Fla. Ct. App. 1991); State v. Luster 204 Ga. App. 156 419 S.E.2d 32 (Ga. Ct. App. 1992) cert. denied (Ga. 1992); Commonwealth v. Pellegrini No. 87970 slip op. (Mass. Super. Ct. Oct. 15 1990); People v. Hardy 188 Mich. App. 305 469 N.W.2d 50 (Mich. Ct. App.) app. denied 471 N.W.2d 619 (Mich. 1991); Commonwealth v. Kemp 434 Pa. Super. 719 643 A.2d 705 (Pa. Super. Ct.1994). Many of these cases were prosecuted under statutes forbidding delivery or distribution of illicit substances and depended on statutory construction of the terms "delivery" and "distribution." See e.g. Johnson v. State supra; State v. Luster supra; People v. Hardy supra. Obviously such cases are inapplicable to the present situation. The cases concerning child endangerment statutes or construing the terms "child" and "person" are also distinguishable because the states in which these cases were decided have entirely different bodies of case law from South Carolina. For example in Commonwealth v. Welch the Kentucky Supreme Court specifically noted Kentucky law has not construed the word "person" in the criminal homicide statute to include a fetus (viable or not). Welch 864 S.W.2d at 281. In Reyes v. Superior Court the California Court of Appeals noted California law did not recognize a fetus as a "human being" within the purview of the state murder and manslaughter statutes and that it was thus improper to find the fetus was a "child" for purposes of the felonious child endangerment statute. Reyes 75 Cal. App. 3d at 217.

Massachusetts however has a body of case law substantially similar to South Carolina's yet a Massachusetts trial court has held that a mother pregnant with a viable fetus is not criminally liable for transmission of cocaine to the fetus. See Commonwealth v. Pellegrini No. 87970 slip op. (Mass. Super. Ct. Oct. 15 1990). *fn5 Specifically Massachusetts law allows wrongful death actions on behalf of viable fetuses injured in utero who are not subsequently born alive. Mone v. Greyhound Lines Inc. 368 Mass. 354 331 N.E.2d 916 (Mass. 1975). Similarly Massachusetts law permits homicide prosecutions of third parties who kill viable fetuses. See Commonwealth v. Cass 392 Mass. 799 467 N.E.2d 1324 (Mass. 1984)(ruling a viable fetus is a person for purposes of vehicular homicide statute); Commonwealth v. Lawrence 404 Mass. 378 536 N.E.2d 571 (Mass. 1989)(viable fetus is a person for purposes of common law crime of murder). Because of the similarity of the case law in Massachusetts to ours the Pellegrini decision merits examination.

In Pellegrini the Massachusetts Superior Court found that state's distribution statute does not apply to the distribution of an illegal substance to a viable fetus. The statute at issue forbade distribution of cocaine to persons under the age of eighteen. Rather than construing the word "distribution however, the superior court found that a viable fetus is not a person under the age of eighteen" within the meaning of the statute. Pellegrini slip op. at 10. In so finding Court had to distinguish Lawrence and Cass supra both of which held viable fetuses are "persons" for purposes of criminal laws in Massachusetts.

The Massachusetts trial court found Lawrence and Cass "accord legal rights to the unborn only where the mother's or parents' interest in the potentiality of life not the state's interest are sought to be vindicated." Pellegrini slip op. at 11. In other words a viable fetus should only be accorded the rights of a person for the sake of its mother or both its parents. Under this rationale the viable fetus lacks rights of its own that deserve vindication. Whitner suggests we should interpret our decisions in Hall Fowler and Home to accord rights to the viable fetus only when doing so protects the special parent-child relationship rather than any individual rights of the fetus or any State interest in potential life. We do not think Hall Fowler and Home can be interpreted so narrowly.

If the Pellegrini decision accurately characterizes the rationale underlying Mone Lawrence and Cass then the reasoning of those cases differs substantially from our reasoning in Hall Fowler and Home supra. First Hall Fowler and Horne were decided primarily on the basis of the meaning of "person" as understood in the light of existing medical knowledge rather than based on any policy of protecting the relationship between mother and child. As a homicide case Home also rested on the State is -- not the mother's - interest in vindicating the life of the viable fetus. Moreover the United States Supreme Court has repeatedly held that the states have a compelling interest in the life of a viable fetus. See Roe v. Wade 410 U.S. 113 165 93 S. Ct.705 732 35 L. Ed. 2d 147 183 (1973); see also Planned Parenthood v. Casey 505 U.S. 833 112 S. Ct.2791 120 L. Ed. 2d 674 (1992); Webster v. Reproductive Health Servs. 492 U.S. 490 109 S. Ct.3040 106 L. Ed. 2d 410 (1989). If as Whitner suggests we should we read Home only as a vindication of the mother's interest in the life of her unborn child there would be no basis for prosecuting a mother who kills her viable fetus by stabbing it by shooting it or by other such means yet a third party could be prosecuted for the very same acts. We decline to read Home in a way that insulates the mother from all culpability for harm to her viable child. Because the rationale underlying our body of law --protection of the viable fetus -- is radically different from that underlying the law of Massachusetts we decline to follow the decision of the Massachusetts Superior Court in Pellegrini.

The dissent contends that our holding in this case is inconsistent with Doe v. Clark S.C.457 S.E.2d 336 (1995). Specifically it suggests that Doe v. Clark in which we construed another provision of the Children's Code stands for the proposition that the definition of "child" in S.C. Code Ann. SEC.20-7-50 (1985) means a "child in being and not a fetus." Contrary to the dissent's characterization of that case Doe turned on the specific language in the consent provisions of the Adoption Act S.C. Code Ann. SEC.(s) 20-7-1690 and -1700 (Law. Co-op Supp.1994).

In Doe Wylanda Clark who was pregnant signed a consent form allowing the Does to adopt the child upon its birth. After the child was born Clark decided she wanted to keep the baby and attempted to argue that the consent she executed was void because it did not contain certain information required by statute. The trial Court held Clark's consent was valid. Clark appealed.

On appeal we reversed the trial court. However the basis for our reversal was not that "child" as defined in the Children's Code only includes born children but that the adoption statutes contemplate that the natural mother's consent to the adoption must be given after the birth of the child to be adopted. Doe S.C. at 457 S.E.2d at 337. Specifically section 20-7-1700(A)(3) requires the consent form to contain the race sex and date of birth of the adoptee as well as any names by which the adoptee has been known. Clearly the date of birth requirement could not be fulfilled until after the birth of the child. Furthermore section 20-7-1690 which specifies who must consent to an adoption provides that consent is required of "the mother of a child born when the mother was not married." (emphasis added). Citing these sections as well as the Children's Code's definition of child we concluded that a natural mother cannot consent to adoption until after the birth of her child. Id. We did not hold that the term "child" excludes viable fetuses nor do we think our holding in Doe can be read so broadly.

Finally the dissent implies that we have ignored the rule of lenity requiring us to resolve any ambiguities in a criminal statute in favor of the defendant. The dissent argues that "at most the majority only suggests that the term 'child' as used in SEC. 20-7-50 is ambiguous and that the ambiguity is created not by reference to our decisions under the Children's Code or by reference to the statutory language and applicable rules of statutory construction but by reliance on decisions in two different fields of the law civil wrongful death and common law feticide."

Plainly the dissent misunderstands our opinion. First we do not believe the statute is ambiguous and therefore the rule of lenity does not apply. Furthermore our interpretation of the statute is based primarily on the plain meaning of the word "person" as contained in the statute. We need not go beyond that language. However because our prior decisions in Murphy Fowler and Horne support our reading of the statute we have discussed the rationale underlying those holdings. We conclude that both statutory language and case law compel the conclusion we reach. We see no ambiguity.

B. Ineffective Assistance of Counsel

The State next argues the PCR court erred in holding Whitner received ineffective assistance of Counsel. We agree.

To prove ineffective assistance of Counsel a PCR applicant must show (1) deficient performance by her Counsel and (2) prejudice resulting therefrom. Strickland v. Washington 466 U.S. 668 104 S. Ct.2052 80 L. Ed. 2d 674 (1984). To prove prejudice when challenging a guilty plea the applicant must show that but for Counsel's deficient performance the applicant would not have pled guilty. Hill v. Lockhart 474 U.S. 52 106 S. Ct.366 88 L. Ed. 2d 203 (1985). In this case the basis for the ineffective assistance claim was the failure of Whitner's Counsel to inform her section 20-7-50 did not apply to prenatal drug use. Whitner contends she would not have pled guilty if her lawyer had given her such advice.

Given our holding that section 20-7-50 is applicable to an expectant mother's illegal drug use after the fetus is viable we cannot say Whitner's lawyer's failure to advise her of the statute's inapplicability constituted deficient performance. In fact both the unambiguous language of the statute and this Court's prior case law justify Counsel's belief the child neglect statute applied to Whitner's actions. Therefore the PCR court erred in ruling Whitner received ineffective assistance of Counsel.

C. Constitutional Issues

Respondent Whitner argues section 20-7-50 is unconstitutional as applied to an expectant mother's actions. However none of these arguments were ever raised to the PCR court. All the arguments before that court were based on the scope of section 20-7-50. *fn6 Moreover the PCR Court's Final Order makes no mention of these constitutional arguments and the Record does not reflect any motion under Rule 59(e) SCRCP to amend or alter the judgment. Having failed to raise the issue below Whitner cannot raise it before this Court. E.g. Plyler v. State 309 S.C. 408 424 S.E.2d 477 (1992)(issue not raised before PCR court will not be considered on appeal).

CONCLUSION

For the foregoing reasons the decision of the PCR Court is REVERSED.

WALLER and BURNETT JJ. concur. FINNEY C.J. and MOORE A.J. dissenting in separate opinions.

Dissenting: The Hon. Justice Finney; Moore

I respectfully dissent and would affirm the grant of post-conviction relief to respondent Whitner.

The issue before Court is whether a fetus is a "child" within the meaning of S.C. Code Ann. SEC. 20-7-50 (1985) a statute which makes it a misdemeanor *fn1 for a "person having legal custody of any child or helpless person" to unlawfully neglect that child or helpless person. Since this is a penal statute it is strictly construed against the State and in favor of respondent. State v. Blackmon 304 S.C.270 403 S.E.2d 660 (1991).

The term child for purposes of SEC. 20-7-50 is defined as a "person under the age of eighteen" unless a different meaning is required by the circumstances. S.C. Code Ann. SEC. 20-7-30 (1) (1985). We have already held that this same definition found in another part of the Children's Code means a child in being and not a fetus. Doe v. Clark S.C. 457 S.E.2d 336 (1995). It would be incongruous at best to hold the definition of "child" in the civil context of Doe is more restrictive than it is in the criminal context we consider today.

More importantly it is apparent from a reading of the entire statute that the word child in SEC. 20-7-50 means a child in being and not a fetus. See Jackson v. Charleston County School District S.C. 447 S.E.2d 859 (1994) (when construing a statute we do not view its terms in isolation but rather in the context of the entire statute and its intended purpose). A plain reading of the entire child neglect statute demonstrates the intent to criminalize only acts directed at children and not those which may harm fetuses. First SEC. 20-7-50 does not impose criminal liability on every person who neglects a child but only on a person having legal custody of that child. The statutory requirement of legal custody is evidence of intent to extend the statute's reach only to children because the concept of legal custody is simply inapplicable to a fetus. See Stone v. State 313 S.C.533 443 S.E.2d 544 (1994)(statutes are construed so as to avoid absurd results). Second SEC. 20-7-50 refers to S. C. Code Ann. SEC. 20-7-490 (1985 and Supp.1994) for the definition of neglect. Section 20-7-490 defines a neglected child as one harmed or threatened with harm and further defines harm. SEC. 20-7-490(B) (C) and (D). The vast majority of acts which constitute statutory harm under SEC. 20-7-490 are acts which can only be directed against a child and not towards a fetus. *fn2 The reliance upon SEC. 20-7-490 in SEC. 20-7-50 is further evidence that the term child as used in the child neglect statute does not encompass a fetus. Read in context and in light of the statutory purpose of protecting persons of tender years *fn3 it is clear that "child" as used in SEC. 20-7-50 means a child in being. Jackson v. Charleston County School District supra.

At most the majority only suggests that the term "child" as used in SEC.20-7-50 is ambiguous. This suggestion of ambiguity is created not by reference to our decisions under the Children's Code or by reference to the statutory language and applicable rules of statutory construction but by reliance on decisions in two different fields of the law civil wrongful death and common law feticide. Here we deal with the Children's Code and the meaning of language used in a criminal statute under that Code. We have already indicated that a child within the meaning of SEC. 20-7-90(A)(1985) which criminalizes non-support must be one already born. State v. Montgomery 246 S.C.545 144 S.E.2d 797 (1965)(indictment for violation of predecessor of SEC. 20-7-90(A) fatally defective for failing to identify the child by description or date of birth); see also Doe v. Clark supra. Even if these wrongful death common law and Children's Code decisions are sufficient to render the term child in SEC.20-7-50 ambiguous it is axiomatic that the ambiguity must be resolved in respondent's favor. State v. Blackmon supra.

I would affirm.

MOORE A.J.: I concur with the dissent in this case but write separately to express my concerns with today's decision.

In my view the failure of the legislature on eleven occasions to pass proposed bills addressing the problem of drug use during pregnancy is evidence the child abuse and neglect statute is not intended to apply in this instance. This Court should not invade what is clearly the sole province of the legislative branch. At the very least the legislature's failed attempts to enact a statute regulating a pregnant woman's conduct indicate the complexity of this issue. While the majority opinion is perhaps an argument for what the law should be it is for the General Assembly and not this Court to make that determination by means of a clearly drawn statute. With today's decision the majority not only ignores legislative intent but embarks on a course rejected by every other court to address the issue.

As discussed in the Chief Justice's dissent we are bound by the rules of statutory construction to strictly construe a criminal statute in favor of the defendant and resolve any ambiguity in her favor. State v. Blackmon supra. I cannot accept the majority's assertion that the child abuse and neglect statute unambiguously includes a "viable fetus." If that is the case then why is the majority compelled to go to such great lengths to ascertain that a "viable fetus" is a "child?"

Contrary to the majority's strained analysis in this case one need look no further than the language of SEC. 20-7-50 to clearly discern legislative intent that the statute apply only to children in being. "Legal custody" is not a qualification applicable to a viable fetus. I simply disagree the legislature intended a statute entitled "Unlawful neglect of child or helpless person by legal custodian" to render a pregnant woman criminally liable for any type of conduct potentially harmful to the unborn fetus.

In construing this statute to include conduct not contemplated by the legislature the majority has rendered the statute vague and set for itself the task of determining what conduct is unlawful. Is a pregnant woman's failure to obtain prenatal care unlawful? Failure to take vitamins and eat properly? Failure to quit smoking or drinking? Although the majority dismisses this issue as not before it the impact of today's decision is to render a pregnant woman potentially criminally liable for myriad acts which the legislature has not seen fit to criminalize. To ignore this "down-the-road" consequence in a case of this import is unrealistic.

The majority attempts to support an over inclusive construction of the child abuse and neglect statute by citing other legal protections extended equally to a viable fetus and a child in being. The only law however that specifically regulates the conduct of a mother toward her unborn child is our abortion statute under which a viable fetus is in fact treated differently from a child in being. *fn1

The majority argues for equal treatment of viable fetuses and children yet its construction of the statute results in even greater inequities. If the statute applies only when a fetus is "viable a pregnant woman can use cocaine for the first twenty-four weeks *fn2 of her pregnancy, the most crucial period for the fetus, and be immune from prosecution under the statute so long as she quits drug use before the fetus becomes viable. Further, a pregnant woman, under the majority opinion, now faces up to ten years in prison for ingesting drugs during pregnancy but can have an illegal abortion and receive only a two-year sentence for killing her viable fetus. *fn3

 
Notes:

*fn1 Section 20-7-50 was amended in 1993 to make violation of the section a felony and to make the maximum term of imprisonment conform to the new crime classification system. See S.C. Code Ann. SEC. 20-7-50 (Supp.1994). We cite the earlier version of the statute in this opinion because Whitner was prosecuted under that version. The language in the amended section relating to the actions constituting the crime is identical to the language under which Whitner was prosecuted. In other words although the characterization of and penalty for the crime have changed the acts constituting the crime have not.

*fn2 The State argues we need not reach the issue of the applicability of section 20-7-50 to viable fetuses because the indictment alleged a violation on the date of the child's birth. We disagree. The basis for the indictment was the presence of cocaine in the newborn infant. Unless Whitner gave her child cocaine after the child's birth which no one has alleged the behavior giving rise to the abuse and neglect charge necessarily occurred before the child was born. Moreover the record of Whitner's original hearing and the hearing on her petition for Post Conviction Relief make clear the conviction was for her neglecting her child by ingesting crack cocaine during pregnancy. For that reason we must determine whether section 20-7-50 applies to such behavior.

*fn3 See e.g. S. 4032 (1993)(proposing making it a crime for a pregnant woman to ingest a controlled substance); H. 4486 (1994) (proposing amendment to section 20-7-50 to apply to actions of pregnant women).

*fn4 See S. 1495 (1989-1990) reintroduced as S. 75 (1990-1991)(requiring drug testing of newborns and to include within civil definition of neglect any newborn testing positive for controlled substance); S. 1470 (1989-1990) reintroduced as S. 79 (1991)(mandating reporting to DSS pregnant woman believed to have used controlled substance; providing for education and drug treatment); H. 3858 (1990-1991)(requiring reporting of pregnant woman believed to be using controlled substance and expanding civil definition of "abused child" to include newborn testing positive for illegal drugs); S. 986 (1991)(mandating drug testing on newborn infants requiring reporting such infants as abused under civil abuse laws and requiring reversible sterilization or implantation of birth control until mother completes drug treatment program); S. 155 (1992-1994)(permitting testing newborns for controlled substances and reporting such test results to DSS for limited purposes); S. 1256 (1992) reintroduced as S. 150 (1992-1993)(permitting referral to DHEC of families with children prenatally exposed to drugs and giving pregnant women priority in drug treatment programs).

*fn5 We note that Pellegrini was decided by a Massachusetts superior court. To date no appellate court in Massachusetts has addressed this issue directly.

*fn6 We were able to find only one instance in which Counsel even arguably raised the constitutional issues argued here. During arguments before the PCR court Whitner's Counsel once commented:

That gets to the other issues involved and whether or not it violates the right of privacy . . . but I don't think we even have to get into that fully.

ROA at 56 (emphasis added). We do not think this passing statement raises the constitutional issues. Even if it did however the PCR court's Final Order made no mention of the issues and Whitner's Counsel failed to preserve them by moving under Rule 59(e) SCRCP for a motion to alter or amend the judgment. See e.g. State v. Woodruff 300 S.C.265 387 S.E.2d 453 (1989)(issues not preserved below will not be considered on appeal).

---------------------------------DISSENTING NOTES,FINNY-------------------------------

*fn1 After this case arose the statute was amended to change the classification from misdemeanor to felony. 1993 Act No. 184 SEC. 55 (effective January 1 1994).

*fn2 Examples include condoning delinquency using excessive corporal punishment committing sexual offenses against the child and depriving her of adequate food clothing shelter or education.

*fn3 State v. Jenkins 278 S.C.219 294 S.E.2d 44 (1982)(construing SEC.16-3-1030 recodified as SEC. 20-7-50).

-----------------------------------DISSENTING NOTES, MOORE-------------------------

*fn1 A woman may have a legal abortion of a viable fetus if necessary to preserve her health S.C. Code Ann. SEC. 44-41-20(c) (1985) while of course she may not justify the death of a child in being on this ground.

*fn2 Viability is presumed to occur no sooner than the twenty-fourth week of pregnancy. S.C. Code Ann. SEC. 44-41-10(1) (1985).

*fn3 S.C. Code Ann. SEC. 44-41-80(b) (1985).