This is a preview of how your content will look on export. To export the complete content in DOC format, click the blue export button in the upper right corner of this page.
Maternal-Fetal Conflicts and Restrictions on Pregnant Women
  • 1 State ex rel. Angela MW v. Kruzicki

    1
    209 Wis.2d 112 (1997)
    2
    561 N.W.2d 729
    3
    STATE of Wisconsin EX REL. ANGELA M.W., Petitioner-Petitioner,
    v.
    William KRUZICKI, Sheriff of Waukesha County, Rexford W. Titus, III, President, Waukesha Memorial Hospital, Fred Syrjanen, Director, Lawrence Center & Director Of Chemical Dependency At Waukesha Memorial Hospital, Circuit Court for Waukesha County, The Honorable Kathryn W. Foster, Waukesha County Corporation Counsel, Thomas Farley and Assistant Corporation Counsel William Domina, Respondents-Respondents.[1]
    4
    No. 95-2480-W.
    5

    Supreme Court of Wisconsin.

    6
    Oral argument October 30, 1996.
    7
    Decided April 22, 1997.
    8

    [114] For the petitioner-petitioner there were briefs by Robin Shellow, Angela Conrad Kachelski and Law Offices of Robin Shellow; Peter Koneazny and American Civil Liberties Union of Wisconsin Foundation, both of Milwaukee and Mary Wyckoff and American Civil Liberties Union, New York, NY and oral argument by [115] Angela Conrad Kachelski and Sara Mandelbaum of the ACLU's Womens Rights Project.

    9

    For the respondents-respondents there was a brief by William J. Domina, Margaret M. Zimmer and Waukesha County Assistant Corporation Counsel, Waukesha and oral argument by William J. Domina and Jill C. Vento.

    10

    Guardian ad Litem brief was filed by Jill C. Vento and Brenner, Brenner & Wall, Waukesha.

    11

    Amicus curiae was filed by Carol E. Stauder, John M. Stoiber, Thomas L. Potter, assistant district attorneys and E. Michael McCann, district attorney, Milwaukee.

    12

    Amicus curiae was filed by Stephen W. Hayes, Timothy W. Feeley, Susan E. Lovern and Von Briesen, Purtell & Roper, S.C., Milwaukee for the National Association of Counsel for Children.

    13

    Amicus curiae was filed by Keith A. Fournier, Jeffrey A. Brauch and The American Center for Law & Justice, Virginia Beach, VA and Thomas Patrick Monaghan and New Hope Life Center\The American Center for Law & Justice, New Hope, KY, for the New Hope Life Center and The American Center for Law & Justice.

    14

    Amicus curiae was filed by Michael H. Schaalman and Quarles & Brady, Milwaukee; Carol Tracy, Susan Frietsche and Women's Law Project, Philadelphia, PA; Lynn Paltrow, Nancy Stearns and Center for Reproductive Law & Policy, New York, NY; Nadine Taub and Women's Rights Litigation Clinic, Newark, NJ, for the American Public Health Association, The Drug Policy Foundation, The National Black Women's Health Project, The National Center for Youth Law, The National Latina Health Project, The National Women's Health Network, The Northwest Women's Law Center, The [116] NOW Legal Defense and Education Fund, Planned Parenthood of Wisconsin, Inc., The Wisconsin Council on Children and Families and The Wisconsin Women's Network.

    15
    ¶ 1. ANN WALSH BRADLEY, J.
    16

    The petitioner, Angela M.W., seeks review of a court of appeals' decision[2] denying her request for either a writ of habeas corpus or a supervisory writ to prohibit the Waukesha County Circuit Court, Kathryn W. Foster, Judge, from continuing to exercise jurisdiction in a CHIPS (child alleged to be in need of protection or services) proceeding. She maintains that the CHIPS statute does not confer jurisdiction over her or her viable fetus. In the alternative, if the CHIPS statute does confer such jurisdiction, the petitioner contends that as applied to her, it violates her equal protection and due process rights. Because we determine that the legislature did not intend to include a fetus within the Children's Code definition of "child," we reverse the decision of the court of appeals.

    17

    ¶ 2. Although we visit in the facts of this case the daunting social problem of drug use during pregnancy, the essence of this case is one of statutory construction. The relevant facts are undisputed.

    18

    ¶ 3. The petitioner was an adult carrying a viable fetus with a projected delivery date of October 4, 1995. Based upon observations made while providing the petitioner with prenatal care, her obstetrician suspected that she was using cocaine or other drugs. Blood tests performed on May 31, June 26, and July 21, 1995, [117] confirmed the obstetrician's suspicion that the petitioner was using cocaine or other drugs.

    19

    ¶ 4. On July 21, 1995, the obstetrician confronted the petitioner about her drug use and its effect on her viable fetus. The petitioner expressed remorse, but declined the obstetrician's advice to seek treatment. On August 15, 1995, a blood test again confirmed that the petitioner was ingesting cocaine or other drugs. Afterward, the petitioner canceled a scheduled August 28, 1995, appointment, and rescheduled the appointment for September 1, 1995. When she failed to keep the September 1 appointment, her obstetrician reported his concerns to Waukesha County authorities.

    20

    ¶ 5. On September 5, 1995, the Waukesha County Department of Health and Human Services (the County) filed a "MOTION TO TAKE AN UNBORN CHILD INTO CUSTODY," pursuant to Wis. Stat. § 48.19(1)(c) (1993-94).[3] The caption read "In the Matter of: JOHN OR JANE DOE, A 36 Week Old Unborn Child." In its motion, the County requested an order "removing the above-named unborn child from his or her present custody, and placing the unborn child" in protective custody. The motion was supported by the affidavit of the petitioner's obstetrician, which set out the obstetrician's observations and medical opinion that "without intervention forcing [the petitioner] to [118] cease her drug use," her fetus would suffer serious physical harm.

    21

    ¶ 6. In an order filed on September 6, 1995, the juvenile court directed that:

    22
    the [petitioner's] unborn child. . .be detained under Section 48.207(1)(g), Wis. Stats., by the Waukesha County Sheriff's Department and transported to Waukesha Memorial Hospital for inpatient treatment and protection. Such detention will by necessity result in the detention of the unborn child's mother. . . .
    23

    ¶ 7. Later that same day, before the protective custody order was executed, the petitioner presented herself voluntarily at an inpatient drug treatment facility. As a result, the juvenile court amended its order to provide that detention would be at the inpatient facility. The court further ordered that if the petitioner attempted to leave the inpatient facility or did not participate in the facility's drug treatment program, then both she and the fetus were to be detained and transported to Waukesha Memorial Hospital.

    24

    ¶ 8. Also on September 6, 1995, the County filed a CHIPS petition in the juvenile court, alleging that the petitioner's viable fetus was in need of protection or services because the petitioner "neglect[ed], refuse[d] or [was] unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child, pursuant to Section 48.13(10) of the Wisconsin Statutes."[4] The County alleged that the petitioner's 36-week-old viable fetus had been exposed [119] to drugs prenatally through the mother's drug use. Instead of a birth date, the petition stated "Due Date 10/4/95." In the space designated for indicating the sex of the subject child, the petition stated "Unknown."

    25

    ¶ 9. On September 7 and 8, 1995, the juvenile court held detention hearings pursuant to § 48.21(1).[5] At the first hearing, the petitioner appeared by telephone, but without counsel. At the second hearing, now represented by counsel, she appeared again by telephone, and objected to the juvenile court's exercise of jurisdiction. The juvenile court rejected her jurisdictional challenge, and scheduled a plea hearing on the CHIPS petition for September 13, 1995.

    26

    ¶ 10. On September 13, 1995, the petitioner commenced an original action in the court of appeals, seeking a writ of habeas corpus, or, in the alternative, a supervisory writ staying all proceedings in the juvenile court and dismissing the CHIPS petition. In support of her request, the petitioner asserted that Chapter 48 does not vest the juvenile court with jurisdiction over [120] her or her viable fetus. Alternatively, if the statute does grant such authority, the petitioner argued that it violates the constitutional guarantees of procedural and substantive due process, as well as equal protection of the laws.

    27

    ¶ 11. The court of appeals declined to stay the juvenile court proceedings, and issued an order on September 21, 1995, denying both writ petitions. The petitioner gave birth to a baby boy on September 28, 1995. Subsequently, the court of appeals issued an opinion supplementing its earlier order.

    28

    ¶ 12. A divided court of appeals determined that the juvenile court did not exceed its jurisdiction in this case. State ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532, 541 N.W.2d 482 (Ct. App. 1995).[6] The court reasoned that the United States Supreme Court, the Wisconsin legislature, and this court have each articulated public policy considerations supporting the conclusion that a viable fetus is a "person" within the meaning of the CHIPS statute's definition of "child." The court also held that application of the CHIPS statute to the petitioner did not deprive her of equal protection or due process, since the statute was a properly tailored means of vindicating the State's compelling interest in the health, safety, and welfare of a viable fetus. The petitioner then sought review in this court, raising substantially the same arguments she raised before the court of appeals.[7]

    29

    [121] ¶ 13. We stress at the outset of our analysis that this case is not about the propriety or morality of the petitioner's conduct. It is also not about her constitutional right to reproductive choice guaranteed under Roe v. Wade, 410 U.S. 113 (1973). Rather, this case is one of statutory construction. The issue presented is whether a viable fetus is included in the definition of "child" provided in Wis. Stat. § 48.02(2).

    30

    ¶ 14. The interpretation of a statute presents a question of law which this court reviews under a de novo standard. Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 219, 550 N.W.2d 96 (1996). Our primary purpose when interpreting a statute is to give effect to the legislature's intent. We first look to the language of the statute, and if the language is clear and unambiguous, we define the language of the statute in accordance with its ordinary meaning. If the language of the statute is ambiguous and does not clearly set forth the legislative intent, we will construe the statute so as to ascertain and carry out the legislative intent. In construing an ambiguous statute, we examine the history, context, subject matter, scope, and object of the statute. Id. at 220 (citing Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519 (1996)).

    31

    ¶ 15. The statutory language at issue confers on the juvenile court "exclusive original jurisdiction over a [122] child alleged to be in need of protection or services which can be ordered by the court. . . ." § 48.13. A "child" is defined in Chapter 48 as "a person who is less than 18 years of age." § 48.02(2). The petitioner contends that the Chapter 48 definition of "child" is clear on its face, and mandates the conclusion that Chapter 48 uses the term "child" to mean a person born alive. In support, she asserts that by having no "age," a fetus cannot be a person who is less than 18 years of age.[8] The petitioner submits that it is therefore unnecessary for this court to construe the statute to determine its meaning. In contrast, the County asserts that courts in this State and other jurisdictions have determined that "child" and "person" are ambiguous terms. As such, the County contends that we are required to look beyond the language of the statute for the meaning of "child."

    32

    ¶ 16. Statutory language is ambiguous if reasonable minds could differ as to its meaning. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 662, 539 N.W.2d 98 (1995). While the parties' differing interpretations of a statute do not alone create ambiguity, equally sensible interpretations of a term by different authorities are indicative of the term's ability to support more than one meaning. Id.

    33

    ¶ 17. Case law reveals that different courts have given different meanings to the terms "person" and [123] "child." This court has previously held that a viable fetus is a "person" for purposes of Wisconsin's wrongful death statute. Kwaterski v. State Farm Mut. Automobile Ins. Co., 34 Wis. 2d 14, 22, 148 N.W.2d 107 (1967). On the other hand, the United States Supreme Court has concluded that a fetus is not a "person" under the Fourteenth Amendment to the United States Constitution. Roe, 410 U.S. at 158. Perhaps most compelling, courts in other states have arrived at different interpretations of statutory language nearly identical to that in § 48.02(2). Compare State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992) (holding that a third trimester fetus is not "a child under eighteen years of age," as provided in Ohio's child endangerment statute), with Whitner v. State, No. 24468, 1996 WL 393164, at *3 (S.C. July 15, 1996) (concluding that a viable fetus is a "person under the age of eighteen," pursuant to South Carolina's child abuse and endangerment statute). Against this backdrop of conflicting authority, we conclude that the term "child" is ambiguous.

    34

    ¶ 18. In construing the statute, we turn first to the legislative history. Chapter 48 came into existence in 1919 as part of a consolidation and revision of statutory provisions dealing generally with neglected, dependent, or delinquent children. § 2, ch. 614, Laws of 1919. The legislation defined a dependent or neglected child as "any child under the age of sixteen" meeting certain criteria. Wis. Stat. § 48.01(1)(a) (1919). Twenty years later, the definitions were amended to raise the age limit to eighteen years. § 2, ch. 524, Laws of 1939. In 1955, the legislature created a separate subsection for definitions, describing a child as "a person under 18 years of age." § 7, ch. 575, Laws of 1955. In 1977, the legislature created § 48.02(2), which defined a child as a "person who is less than 18 years of age." § 5, ch. 354, [124] Laws of 1977. Finally, substantial changes made to Chapter 48 in the last legislative session have left the definition of "child" unaltered for purposes of our analysis. 1995 Wis. Act 27, § 2424; 1995 Wis. Act 77, § 44; 1995 Wis. Act 275; 1995 Wis. Act 352, § 10p; 1995 Wis. Act 448.[9]

    35

    ¶ 19. In examining the legislative history, we find the drafting files of the more recent amendments to the Code devoid of information which might illuminate our search. We also find no news accounts of debate, dialogue, or even consideration of whether fetus should be included in the definition of "child" in Chapter 48. Furthermore, the parties offer no specific historical references to support their respective positions. The issue of whether the Chapter 48 definition of "child" includes a fetus is one of a controversial and complex nature. One would expect heated dialogue and intense debate if the legislature intended to include fetus within the definition of "child." Yet, we are met with legislative silence.

    36

    ¶ 20. The dissent maintains that the legislature has impliedly ratified the court of appeals' interpretation of § 48.02(2), because amendments to the Code in the months since the court of appeals' decision have left undisturbed the language at issue. Dissent at 150-52. However, the very cases relied upon by the dissent demonstrate the fundamental error of applying the doctrine of legislative acquiescence to the present case.

    37

    [125]

    38

    ¶ 21. The application of the doctrine of legislative acquiescence is justified when the legislature can be "presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged." Reiter v. Dyken, 95 Wis. 2d 461, 471, 290 N.W.2d 510 (1980) (quoting Zimmerman v. Wisconsin Elec. Power Co., 38 Wis. 2d 626, 633-34, 157 N.W.2d 648 (1968)). Of course, if this court has accepted review of a court of appeals' decision construing a statute, the legislature cannot be presumed to know that the court of appeals' interpretation "will remain unchanged." Our acceptance of review makes clear that the construction given to a statute by the court of appeals is subject to change. Thus, the doctrine presupposes the existence of a decision which, unlike the instant court of appeals' decision, is not subject to further appellate review.

    39

    ¶ 22. This principle is confirmed by reviewing those cases cited by the dissent in which this court found implied legislative ratification of a prior decision. We observe that in each case, the legislature acquiesced to a prior decision that was either unappealable or no longer subject to review. See State v. Johnson, 207 Wis. 2d 240, 247, 558 N.W.2d 375 (1997) (finding legislative acquiescence to Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972)); State v. Eichman, 155 Wis. 2d 552, 566, 456 N.W.2d 143 (1990) (citing State v. Harris, 123 Wis. 2d 231, 365 N.W.2d 105 (Ct. App. 1985), and State v. Wild, 146 Wis. 2d 18, 429 N.W.2d 922 (Ct. App. 1988)); Reiter, 95 Wis. 2d at 470-72, 290 N.W.2d 510 (1980) (citing Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 111 N.W.2d 495 (1961)); Milwaukee Fed'n of Teachers, Local No. 252 v. Wisconsin Employment Relations Comm'n, 83 Wis. 2d 588, 600-1, 266 N.W.2d [126] 314 (1978) (citing Board of Sch. Dirs. of Milwaukee v. WERC, 42 Wis. 2d 637, 168 N.W.2d 92 (1969)); Zimmerman, 38 Wis. 2d at 632-634 (citing McGonigle v. Gryphan, 201 Wis. 269, 229 N.W. 81 (1930), and Quante v. Erickson, 2 Wis. 2d 527, 87 N.W.2d 249 (1958)).

    40

    ¶ 23. In this case, the petitioner filed a timely petition for review of the court of appeals' decision, and we granted review on January 23, 1996. The purported acts of legislative acquiescence occurred after that date. The dissent fails to explain how the legislature can be presumed to possess advance knowledge that the court of appeals' construction of § 48.02(2) would "remain unchanged" upon review by this court. The obvious answer is that the legislature made the amendments to the Code with full knowledge that the court of appeals' construction of § 48.02(2) was subject to alteration on further review by this court. Thus, there was no unappealable decision to which the legislature could acquiesce.[10]

    41

    [127]

    42

    ¶ 24. We turn next to a consideration of context, examining the § 48.02(2) definition of "child" in conjunction with other relevant sections of the Code. When attempting to ascertain the meaning of statutory language, we are obligated to avoid a construction which would result in an absurdity. Jungbluth, 201 Wis. 2d at 327. With this in mind, we note that certain relevant sections of the Code would be rendered absurd if "child" is understood to include a viable fetus. For example, in this case, the initial order taking the fetus into custody was issued pursuant to § 48.19(1)(c). That statute allows a child to be taken into custody by judicial order "upon a showing satisfactory to the judge that the welfare of the child demands that the child be immediately removed from his or her present custody." [Emphasis added.] It is obviously inappropriate to apply this language to a viable fetus in utero.

    43

    ¶ 25. Section § 48.19(2) requires the person taking a child into physical custody to immediately notify the parent by the most practical means. Yet, a pregnant woman would never need notification that her fetus had been taken into "physical custody," for she would already have such notice by virtue of the concomitant circumstance of her own detention.

    44

    ¶ 26. Section 48.20(2) requires a person taking a child into custody to make every effort to immediately release the child to its parent. This language assumes that the child is at some point removed from the parent. Again, it is axiomatic that a viable fetus in utero cannot be removed from a pregnant woman in the sense conveyed by the statute.

    45

    ¶ 27. By reading the definition of "child" in context with other relevant sections of Chapter 48, we find a compelling basis for concluding that the legislature [128] intended a "child" to mean a human being born alive. Code provisions dealing with taking a child into custody, providing parental notification, and releasing a child from custody would require absurd results if the § 48.02(2) definition of "child" included a fetus. Each of the provisions addresses a critical juncture in a CHIPS proceeding. Yet, each also anticipates that the "child" can at some point be removed from the presence of the parent. It is manifest that the separation envisioned by the statute cannot be achieved in the context of a pregnant woman and her fetus.[11]

    46

    ¶ 28. The court of appeals determined, and the County asserts, that some prior decisions of this court support the proposition that a fetus is a child under the Children's Code. For example, the court of appeals analogized the present case to those in which this court has recognized a degree of fetal personhood under tort law. In support of its analogy, the court of appeals cited our holding in Kwaterski that "an eighth-month, viable unborn child, whose later stillbirth is caused by the wrongful act of another, is `a person' within the meaning of [the wrongful death statute] so as to give rise to a wrongful-death action by the parents of the stillborn infant." Kwaterski, 34 Wis. 2d at 15.

    47

    ¶ 29. The court of appeals also reasoned that because the CHIPS statute is remedial in nature, its [129] use of "person" should be liberally construed to include a fetus so as to effectuate the statute's purpose of protecting children. Angela M.W., 197 Wis. 2d 558-59 (citing Kwaterski, 34 Wis. 2d at 21). It also noted that in the earlier case of Puhl v. Milwaukee Auto Ins. Co., 8 Wis. 2d 343, 99 N.W.2d 163 (1959), overruled on other grounds by Stromsted v. St. Michael Hosp., 99 Wis. 2d 136, 299 N.W.2d 226 (1980), this court recognized a cause of action of an infant for injuries sustained before birth. In construing "child" to include a fetus, the court of appeals relied heavily on our statement in Puhl that "[i]f the common law has any vitality, . . . it should be elastic enough to adapt itself to current medical and scientific truths so as to function as an efficient rule of conduct in our modern, complex society." Id. at 357.

    48

    ¶ 30. Initially, we note that this court has historically been wary of expanding the scope of the Children's Code by reading into it language not expressly mentioned within the text of Chapter 48.[12] While Chapter 48 is to be liberally construed, § 48.01(2), we will not discern from the statute a legislative intent that is not evident. Green County Dep't of Human Servs. v. H.N., 162 Wis. 2d 635, 652, 469 N.W.2d 845 (1991). Furthermore, a directive to construe the statute liberally to effectuate its purpose does not give license to liberally expand the definition of "child" to the stages before birth or after the age of 18. [130] The directive is to liberally construe the statute to effectuate its purpose of providing for the care, protection, and development of children. See § 48.01(1)(b), (2). The logical extension of the dissent's argument regarding liberal construction would expand the definition of "child" to the moment after conception. No party in this case is advancing such a far-reaching argument. Finally, our decisions placing limited legal duties upon a third person should not be read to confer full legal status upon a fetus. Each must be examined to identify the particular rights and policies underlying the law that is being addressed.

    49

    ¶ 31. We find the tort law analogy unpersuasive in this context. Instead, we agree with the United States Supreme Court that declaring a fetus a person for purposes of the wrongful death statute does no more than vindicate the interest of parents in the potential life that a fetus represents. See Roe, 410 U.S. at 162.[13] Indeed, we have recognized that until born, a fetus has no cause of action for fetal injury:

    50
    Injuries suffered before birth impose a conditional liability on the tort-feasor. This liability becomes unconditional, or complete, upon the birth of the injured separate entity as a legal person. If such personality is not achieved, there would be no liability [to the fetus] because of no damage to a legal person. [131] Puhl, 8 Wis. 2d at 356.[14] For these reasons, we agree with the court of appeals' dissent that our tort law jurisprudence dealing with fetal injury has limited applicability to the present case.
    51

    ¶ 32. Similarly, we reject the County's argument that the protections accorded fetuses by property law have a bearing on the Children's Code definition of "child." As the dissent below noted, "[P]roperty law does not confer the full rights of personhood upon the fetus. Instead, it creates a means of fulfilling the intentions of testators by protecting the right of a fetus to inherit property upon live birth." Angela M.W., 197 Wis. 2d at 576 n.1 [citations omitted]. When there is no live birth, there is no inheritance right.

    52

    ¶ 33. We also find unpersuasive the court of appeals' citation to State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994). In Black, we held that the defendant was properly charged with feticide, "intentionally destroy[ing] the life of an unborn quick child." Wis. Stat. § 940.04(2)(a). As we noted in that case, "the words of the statute could hardly be clearer." Black, 188 Wis. 2d at 642. Unlike § 48.02(2), the language of § 940.04(2)(a) expressly references an "unborn quick child." In the present case, we lack any language approaching the unequivocal legislative statement contained in § 940.04(2)(a). While the Black court concluded [132] that the legislature has acted to protect a viable fetus in § 940.04(2)(a), that case offers little to aid us in construing the term "child" in the Children's Code.

    53

    ¶ 34. Black demonstrates the ease and clarity with which the legislature may, if it so chooses, apply a statute to the unborn. In its several amendments to the Children's Code, the legislature has had ample opportunity to state in similarly clear and unambiguous terms that a fetus is a child. Yet, the legislature has failed to take such action.

    54

    ¶ 35. We disagree with the dissent's assertion that L.K. v. B.B., 113 Wis. 2d 429, 335 N.W.2d 846 (1983) ("In re Baby Girl K."), has any relevance to this case. According to the dissent, this court held and determined in L.K. that the word "child" as used in Wis. Stat. § 48.415(6)(b) (1981-82) includes a fetus. Dissent at 140, n.3, 144, 147. Our reading of L.K. finds no language supporting the statements of law attributed to that case by the dissent.

    55

    ¶ 36. The L.K. court held that a father's parental rights may be terminated based upon his conduct during the mother's pregnancy. The court reached that determination based upon its interpretation of § 48.415(6)(b) (1981-82), which provided in part:

    56
    In evaluating whether the person has had a substantial parental relationship with the child, the court may consider such factors, including, but not limited to, whether the person has ever expressed concern for or interest in the support, care or wellbeing of the child or the mother during her pregnancy.[15] . . .
    57

    [133] ¶ 37. The court deduced from this statutory language a legislative intent "that a father's pre-delivery behavior be a consideration in determining whether the father had established a substantial parental relationship." L.K., 113 Wis. 2d at 438. It concluded "that a parent's action prior to a child's birth can form a sufficient basis for determining whether that parent has [134] established a substantial parental relationship with the child." Id. at 439. Nowhere in the opinion does the court even intimate that the legislature used the word "child" in § 48.415(6)(b) to include a fetus, which is not surprising, since such an inquiry was not necessary to resolve the issue presented. We therefore conclude that L.K. is not germane to our analysis.

    58

    ¶ 38. The court of appeals' reliance on Roe, Kwaterski, Puhl, and Black evidences the fundamental error in its analysis. While positing the correct question-whether the legislature intended to include a fetus within the § 48.02(2) definition of "child"—the court of appeals answered a distinctly different one—whether the legislature could, consistent with the United States and Wisconsin Constitutions, have included a fetus within the term "child." Because we conclude that the legislature did not intend to equate a fetus with a child, we do not reach the question answered by the court of appeals.

    59

    ¶ 39. Finally, the confinement of a pregnant woman for the benefit of her fetus is a decision bristling with important social policy issues. We determine that the legislature is in a better position than the courts to gather, weigh, and reconcile the competing policy proposals addressed to this sensitive area of the law. This court is limited to ruling on the specific issues as developed by the record before it. We base our decisions on the facts as presented by adversarial parties who often narrow the scope of a much larger policy issue.

    60

    ¶ 40. This court was confronted with a similar dilemma in Eberhardy v. Circuit Court for Wood County, 102 Wis. 2d 539, 307 N.W.2d 881 (1981). In Eberhardy, we acknowledged that circuit courts have the subject matter jurisdiction to order the sterilization of the mentally handicapped. However, because the [135] legislature had not yet determined the State's public policy or set guidelines for such sterilization, we directed the courts to refrain from ordering the procedure. This court stated:

    61
    This case demonstrates that a court is not an appropriate forum for making policy in such a sensitive area. Moreover, irrespective of how well tried a case may be—and we consider the instant one to have been well presented and carefully considered—there are inherent limitations in the factual posture of any case which make the extrapolation of judicially made policy to an entire area of such a sensitive nature as this risky indeed. The legislature is far better able, by the hearing process, to consider a broad range of possible factual situations. It can marshal informed persons to give an in-depth study to the entire problem and can secure the advice of experts. . . to explore the ramifications of the adoption of a general public policy. . . .
    62

    Eberhardy, 102 Wis. 2d at 570-71.

    63

    ¶ 41. For similar reasons, we determine that the detention of a pregnant woman for acts harming her fetus is a policy issue best addressed initially by our legislature.[16] Our conclusion is amply illustrated by the following exchange at oral argument:

    64
    [136] GUARDIAN AD LITEM: . . . You asked a legislative history question before. 1955 was the first time that the definition of child appeared in 48.02(2). It was revamped next in 1977 where the distinction of CHIPS was established. It was revisited again in 1996. We cannot wait another 20-some years for the legislature to address this problem.
    65
    JUSTICE BABLITCH: Are you suggesting that we hold public hearings to determine how serious the harm must be before the State intervenes? That we hold public hearings to determine whether or not this seriousness occurs in the first trimester as opposed to the third, or hold public hearings on any of the other myriad public policy ramifications that such a holding you're asking us to do necessarily implicates?
    66
    GUARDIAN AD LITEM: I agree, your Honor, that that would be the role that the legislature would take.
    67
    JUSTICE BABLITCH: These are questions that we're not equipped to deal with as a court. We don't have the AMA or people coming in to testify to us, to explain to us the various medical ramifications. We don't have ethics people coming in and explaining to us the ethical problems of interfering with the patient/physician relationship. We don't have people coming in at a public hearing to explain to us whether or not greater harm can come to a viable fetus for lack of medical care which, some people say, would be the result of what you want. We're not a legislative body.
    68
    [137] GUARDIAN AD LITEM: . . . No, you're not in the business of holding public policy—excuse me—public discussions and public forums. That clearly is the arena of the legislature. But that's exactly the question that this court needs to decide is are you willing to take on this burden and address this issue now, which we are asking you to do because these children cannot wait. We cannot wait for extensive public hearings and public policies and continuous conflicting reports. I don't think that you're going to get much different information; you're just going to get more of the same.
    69

    ¶ 42. This court in no way condones the conduct of the petitioner. Yet, we are not free to register moral disapproval by rewriting the Children's Code under the guise of statutory construction.

    70

    ¶ 43. Our search to ascertain and carry out the legislature's intent results in the conclusion that the legislature did not intend to include fetus within the definition of "child." The legislative history sounds in silence. Although the issue of whether to include a fetus within the definition of "child" in Chapter 48 is one of great social, medical, religious, and ethical significance, there is no record of any dialogue or consideration of the issue. A reading of § 48.02(2) in context with other relevant provisions of the Children's Code, supports the conclusion that the legislature intended "child" to mean one born alive. Despite ample opportunity, the legislature has not expressly provided that a fetus is a "child" under the Code. We decline the guardian ad litem's invitation to "take on this burden" to fill the legislative void. Moreover, the sensitive social policy issues raised in this case weigh strongly in favor of refraining from exercising CHIPS jurisdiction over a fetus until the legislature has spoken definitively on [138] the matter. For the above reasons, we hold that the definition of "child" in § 48.02(2) does not include a viable fetus. Because the court of appeals erroneously held that the § 48.02(2) definition of "child" includes a fetus, we reverse the decision of that court.

    71

    By the Court.—The decision of the court of appeals is reversed.

    72
    ¶ 44. N. PATRICK CROOKS, J. (dissenting).
    73

    I do not join the majority opinion because the majority has not interpreted Wis. Stat. § 48.02(2) (1993-94)[17] in conformity with the express legislative purpose of the Children's Code. I also am not persuaded by the majority's attempt to distinguish the present case from past cases in which this court has indicated that the definitions of "child" and "person" include a viable fetus. Furthermore, I find it significant that although the legislature amended the Children's Code last session, it did not act to alter the court of appeals' interpretation of § 48.02(2) in State ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532, 541 N.W.2d 482 (Ct. App. 1995)—an interpretation in accord with the one set forth in this dissent.[18]

    74

    ¶ 45. Wis. Stat. § 48.02(2) defines "child" as "a person who is less than 18 years of age." The majority holds that the legislature did not intend to include a [139] viable fetus within this definition of "child" based on several factors. First, the majority emphasizes the lack of debate and dialogue regarding whether a fetus should be included in the definition of "child" in the legislative history of Chapter 48. Majority op. at 124. Second, the majority asserts that certain relevant sections of the Children's Code would be rendered absurd if the definition of "child" includes a viable fetus. Id. at 126-27. Finally, the majority concludes that Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967), in which this court held that the definition of "person" includes a viable fetus, is "unpersuasive in this context." Id. at 128-30.

    75
    I.
    76

    ¶ 46. The initial issue before the court is whether the definition of "child" in Wis. Stat. § 48.02(2) includes a viable fetus. Section 48.02(2) defines "child" as "a person who is less than 18 years of age." § 48.02(2) (emphasis added). Accordingly, resolution of this issue depends upon whether the legislature intended the words "child" and "person" to include a viable fetus.

    77

    ¶ 47. As determined by the majority, reasonable minds could differ as to whether the definition of "child" in Wis. Stat. § 48.02(2) includes a viable fetus; therefore, the statute is ambiguous. Majority op. at 121-23. Accordingly, the court must examine extrinsic matters such as the history, context, subject matter, scope, and object of the statute in order to ascertain the legislative intent. See, e.g., Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 220, 550 N.W.2d 96 (1996) (quoting Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519 (1996)). After considering these extrinsic matters, I conclude that the legislature intended [140] the word "child" in § 48.02(2) to include a viable fetus for three reasons: (1) the ordinary and accepted meaning of the words "child" and "person;" (2) the express legislative purpose of ch. 48; and, (3) legislative inaction to the recent court of appeals' decision in State ex rel. Angela M.W..

    78
    A.
    79

    ¶ 48. First, in construing a statute, a court must give effect to the ordinary and accepted meaning of the language. State v. Martin, 162 Wis. 2d 883, 904, 470 N.W.2d 900 (1991) (citing County of Walworth v. Spalding, 111 Wis. 2d 19, 24, 329 N.W.2d 925 (1983)). In light of medical knowledge concerning fetal development, several sources, including precedent of this court, indicate that the ordinary and accepted meaning of the words "child" and "person" includes a viable fetus.[19]

    80

    [141] ¶ 49. For example, in Puhl v. Milwaukee Auto. Ins. Co., 8 Wis. 2d 343, 99 N.W.2d 163 (1959), overruled on other grounds by In re Estate of Stromsted, 99 Wis. 2d 136, 299 N.W.2d 226 (1980), this court considered whether a child can recover for injuries allegedly caused by a car accident that occurred when the child was a non-viable fetus. Although the jury returned a verdict in favor of the child, the circuit court struck the award based on Lipps v. Milwaukee Elec. Ry. & Light, Co., 164 Wis. 272, 159 N.W. 916 (1916).[20] The Puhl court affirmed the circuit court's decision on other grounds, finding that there was not sufficient evidence of causation. However, the court nonetheless considered the vitality of Lipps. The court stated:

    81
    What is now known as the viable theory is based on medical knowledge and even on common knowledge that a child in the viable stage can and does live separately in the womb of its mother and can live and exist as an independent person if born in that stage. Based on this knowledge the courts began to allow recovery for injuries sustained while the child was viable. This reasoning was adopted in 1933 by the supreme court of Canada. . . . This reasoning has been followed by the states of Connecticut, Georgia, Illinois, Maryland, Missouri, New Hampshire, New York, and Oregon. [142] Puhl, 8 Wis. 2d at 355-56 (emphasis added) (citations omitted).[21] Puhl is significant because the court used the word "child" to refer to a viable fetus. Id. at 355-56.
    82

    ¶ 50. This court relied heavily on Puhl in Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967). The Kwaterski court was asked to determine whether the term "person" in Wis. Stat. § 331.03 (1963) includes a viable fetus. Section 331.03 provided:

    83
    Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, . . . would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.
    84

    Id. at 15-16 (emphasis added). After considering Puhl in great detail, the Kwaterski court determined: "[T]he weight of authority continues the trend noticed in Puhl, favoring recognition of an unborn child as a person for purposes of recovery under a wrongful-death statute." Id. at 19. The court therefore held that a viable fetus is a "person" within the meaning of § 331.03. Id. at 22.

    85

    [143] ¶ 51. Kwaterski has significant precedential value in the present case because the legislature has defined "child" as a "person" in Wis. Stat. § 48.02(2). Kwaterski therefore supports the proposition that the definition of "person," and hence "child," includes a viable fetus.

    86

    ¶ 52. The majority attempts to distinguish Kwaterski by pointing out that "the wrongful death statute does no more than vindicate the interest of parents in the potential life that a fetus represents." Majority op. at 130. Therefore, the majority implies that Kwaterski "has limited applicability to the present case" because Kwaterski does not provide the fetus with legal rights. Majority op. at 130. However, this is a distinction without a difference, because the key issue in this case is not one of fetal rights. Instead, this case centers on a question of statutory interpretation, just as Kwaterski did.[22] Kwaterski is persuasive here because both Kwaterski and this case revolve around the question of whether a viable fetus is a "person" under Wisconsin statutes. Thus, the majority's conclusion that Kwaterski only vindicates the interests of parents does not provide a logical basis for concluding that the Kwaterski court's interpretation of "person" is inapplicable here.[23]

    87

    [144] ¶ 53. This court's decision in In re Baby Girl K., 113 Wis. 2d 429, 335 N.W.2d 846 (1983) (L.K. v. B.B.), appeal dismissed, Buhse v. Krueger, 465 U.S. 1016 (1984), also supports the proposition that the word "child" includes a viable fetus. In Baby Girl K., this court was called upon to decide whether the termination of parental rights under Wis. Stat. § 48.415(6)(a)2 could be based upon a parent's prenatal conduct. In order to decide this issue, the court considered the language of Wis. Stat. § 48.415(6)(b) (1981-82),[24] which read in relevant part:

    88
    In evaluating whether the person has had a substantial parental relationship with the child, the court may consider such factors, including, but not limited to, whether the person has ever expressed concern for or interest in the support, care or well-being of the child or the mother during her pregnancy....
    89

    Id. at 431 (emphasis added). Based on this language, the court concluded: "It is clear therefore that the legislature intended that a father's pre-delivery behavior be a consideration in determining whether the father had established a substantial parental relationship." Id. at 438. Furthermore, this court emphasized that "what happens to a fetus in utero can have a significant impact upon the quality of life a child will have after birth. . . ." Id. at 439.

    90

    ¶ 54. Baby Girl K. is significant for two reasons. First, this court determined that the word "child" includes a fetus under Wis. Stat. § 48.415(6)(b), a section [145] of the Children's Code, when it concluded that this section authorizes a court to consider a parent's conduct before a child is born to determine whether the parent has established a substantial parental relationship with the child. Id. at 438. Second, this case highlights the language of § 48.415(6)(b), in which the legislature clearly used the word "child" to refer to a fetus. See § 48.415(6)(b) ("child or mother during her pregnancy").[25] Thus, both the language of § 48.415(6)(b) and the court's decision in Baby Girl K support the proposition that the word "child" in Wis. Stat. § 48.02(2) includes a viable fetus.

    91

    ¶ 55. The majority finds justification for its conclusion that the legislature did not intend to include a viable fetus in the definition of "child" by emphasizing the absence in the legislative history of any "news accounts of debate, dialogue, or even consideration of whether fetus should be included in the definition of `child' in Chapter 48." Majority op. at 123-24. However, lack of such legislative discussion did not prevent this court from holding that "person" in Wis. Stat. § 331.03 includes a viable fetus in Kwaterski.[26]

    92

    [146] ¶ 56. In addition, the majority considers Wis. Stat. § 48.02(2) in the context of other relevant sections of the Children's Code. Majority op. at 127-28. The majority concludes that it would lead to an absurd result in other sections of the Children's Code if "child" is interpreted to include a viable fetus. Id. at 127. However, in the sections that the majority emphasizes, interpreting "child" to include a viable fetus will not lead to ridiculous results. For example, as the majority points out, Wis. Stat. § 48.19(2) "requires the person taking a child into physical custody to immediately notify the parent by the most practical means." Id. If "child" is interpreted to include a viable fetus, § 48.19(2) will not be rendered absurd, since a logical reading of it requires notification to the father, as well as the mother. Likewise, Wis. Stat. § 48.19(1)(c) refers to the removal of a child "from his or her present custody." Again, this section will not be rendered inane, because the detention of a mother, and hence an unborn child, in a drug treatment program does, in effect, constitute a change in custody of the child—the viable fetus. It also is essential to point out that interpreting the word "child" in Wis. Stat. § 48.02(2) to include a viable fetus does not lead to an absurd result, but rather allows the state to protect a viable fetus from substantial harm, consistent with the objectives of the Children's Code. See infra § I B.

    93

    ¶ 57. Furthermore, the majority erroneously assumes that every provision of the Children's Code [147] must fit before it can conclude that the word "child" in Wis. Stat. § 48.02(2) includes a viable fetus. This is an erroneous assumption, because not every provision of the Children's Code is applicable to all situations. Common sense dictates that sections of the Children's Code relating to runaways will never apply to a very young child, i.e. a newborn. Despite the fact that every section of ch. 48 is not applicable in every situation, this court in Baby Girl K. did not have any difficulty in holding that the word "child" in Wis. Stat. § 48.415(6)(b), a section of the Children's Code, includes an unborn child.

    94

    ¶ 58. Moreover, it is the application of the majority's interpretation of "child" in Wis. Stat. § 48.02(2) that leads to an absurd result, by rendering the state's power to protect a child dependent upon whether the child is inside or outside of the womb. For example, under the majority's interpretation of § 48.02(2), the state will have the power to protect an eight-month-old child that has been born prematurely; however, the state will have no power to protect an eight-month-old fetus that is in the womb. The Kwaterski court recognized the absurdity of distinguishing between a viable fetus and a born child in 1967. See Kwaterski, 34 Wis. 2d at 20. This court should certainly recognize the same absurdity in 1997.

    95
    B.
    96

    ¶ 59. Second, the legislative objectives enunciated in the Children's Code support a conclusion that "child" in Wis. Stat. § 48.02(2) includes a viable fetus. The preamble to the Children's Code expressly directs that the chapter "shall be liberally construed to effect the objectives" set forth by the legislature. Wis. Stat. § 48.01(2) (emphasis added). One of the objectives set forth by the legislature is "[t]o provide for the care, [148] protection, and wholesome mental and physical development of children. . . ." § 48.01(1)(b) (emphasis added). Section 48.01(2) also mandates that "[t]he best interests of the child shall always be of paramount consideration."

    97

    ¶ 60. This court has stated that "a `cardinal rule in interpreting statutes' is to favor a construction which will fulfill the purpose of the statute over a construction which defeats the manifest object of the act." In re Estate of Halsted, 116 Wis. 2d 23, 29, 341 N.W.2d 389 (1983) (quoting Student Ass'n, University of Wisconsin-Milwaukee v. Baum, 74 Wis. 2d 283, 294-95, 246 N.W.2d 622 (1976)); accord UFE Inc. v. Labor & Indus. Review Comm'n, 201 Wis. 2d 274, 288, 548 N.W.2d 57 (1996). We likewise have indicated that "the intent of a section of a statute must be derived from the act as a whole." Standard Theaters, Inc. v. State, Dept. of Transp., Div. of Highways, 118 Wis. 2d 730, 740, 349 N.W.2d 661 (1984); Aero Auto Parts, Inc. v. State, Dept. of Transp., Div. of Highways, 78 Wis. 2d 235, 239, 253 N.W.2d 896 (1977).

    98

    ¶ 61. Accordingly, the canons of statutory construction require the court to interpret the word "child" in Wis. Stat. § 48.02(2) consistently with the purpose of the Children's Code, which is clearly to protect children at risk from harm. There can be no dispute that a mother's ingestion of cocaine after her fetus becomes viable has a substantial impact on the physical development of her child in utero and ultimately after birth.[27] Certainly, a mother's ingestion of cocaine is not [149] in the best interests of her child, born or unborn. Moreover, what occurs in utero will have long lasting effects not only on the child, but on society as well.[28] Thus, interpreting the word "child" to include a viable fetus fulfills the express legislative objectives of the Children's Code, by allowing the state to intervene to protect and care for the physical development of an unborn child. Conversely, the majority's interpretation of "child" fails to liberally construe the Children's Code in order to carry out its intentions, fails to consider adequately the best interests of the child, and, in fact, defeats the manifest objectives of ch. 48.[29]

    99
    [150] C.
    100

    ¶ 62. Third, legislative inaction after the decision by the court of appeals in State ex rel. Angela M.W. indicates that the court correctly interpreted Wis. Stat. § 48.02(2). "Legislative inaction following judicial construction of a statute, while not conclusive, evinces legislative approval of the interpretation." State v. Johnson, 207 Wis. 2d 240, 247, 558 N.W.2d 375 (1997); accord State v. Eichman, 155 Wis. 2d 552, 566, 456 N.W.2d 143 (1990). The presumption of legislative adoption of a judicial interpretation is entitled to less weight when there is nearly complete inaction by the legislature. Reiter v. Dyken, 95 Wis. 2d 461, 471, 290 N.W.2d 510 (1980); Green Bay Packaging, Inc. v. Department of Indus., Labor & Human Relations, 72 Wis. 2d 26, 35, 240 N.W.2d 422 (1976). However, "[w]here the legislature has made amendments to the statutory section in question and has not corrected the court's interpretation, the presumption of adoption or ratification is strengthened." York v. National Continental Ins. Co., 158 Wis. 2d 486, 497, 463 N.W.2d 364 (Ct. App.) (citing Reiter, 95 Wis. 2d at 471-72), review denied, 465 N.W.2d 656 (1990).

    101

    ¶ 63. In the current case, the court of appeals' holding in State ex rel. Angela M.W. that the definition of "child" under Wis. Stat. § 48.02(2) includes a viable fetus was released on October 6, 1995. This was a published decision of the court of appeals, which therefore had "statewide precedential effect." Wis. Stat. § 752.41(2); Wolf v. F & M Banks, 193 Wis. 2d 439, 455-56, 534 N.W.2d 877 (Ct. App.) (quoting [151] § 752.41(2)), review denied, 537 N.W.2d 572 (1995); see also In re Court of Appeals of Wisconsin, 82 Wis. 2d 369, 371, 263 N.W.2d 149 (1978); Skrupky v. Elbert, 189 Wis. 2d 31, 56, 526 N.W.2d 264 (Ct. App. 1994). After October 6, 1995, the legislature revised the definition of "child," and made substantial changes to the Children's Code in general. Specifically, 1995 Wis. Act 352, § 10p, enacted on May 23, 1996, and effective on July 1, 1996, directly changed the definition of "child" in Wis. Stat. § 48.02(2) of the Children's Code. In addition, 1995 Wis. Act 275, enacted April 22, 1996, and effective July 1, 1996, made extensive changes to ch. 48 in general. However, the legislature did not alter the court of appeals' interpretation of "child" in either of these amendments. This legislative inaction following the court of appeals' decision demonstrates legislative approval of the court's interpretation of § 48.02(2). Johnson, 207 Wis. 2d at 247; Eichman, 155 Wis. 2d at 566; Reiter, 95 Wis. 2d at 471; Milwaukee Fed'n of Teachers, Local No. 252 v. Wisconsin Employment Relations Comm'n, 83 Wis. 2d 588, 599, 266 N.W.2d 314 (1978) (quoting Zimmerman, 38 Wis. 2d at 633-34).[30]

    102

    [152] ¶ 64. Despite this overwhelming support to the contrary, the majority has reached the conclusion that the legislature did not intend to include viable fetus within the definition of "child". Majority op. at 137-38. The majority states: "Despite ample opportunity, the legislature has not expressly provided that a fetus is a `child' under the Code. We decline the. . .invitation to `take on this burden' to fill the legislative void." Id. However, interpreting the term "child" in Wis. Stat. § 48.02(2) to include a viable fetus does not constitute a "rewriting [of] the Children's Code under the guise of statutory construction," as the majority suggests. Id. at 136-37. Instead, interpreting the word "child" to include a viable fetus fulfills the express purpose of the legislature in ch. 48, and is in conformity with precedent of this court. It simply is not within the spirit of the Children's Code or in accordance with past case law to exclude a viable fetus, capable of life outside the womb, from the same protection afforded a born child under the Children's Code.

    103
    II.
    104

    ¶ 65. Since I am satisfied that the legislature intended the definition of "child" to include a viable fetus under Wis. Stat. § 48.02(2), the arguments concerning the juvenile court's jurisdiction and the alleged [153] violation of Angela's constitutional rights to due process of law and equal protection must be addressed.

    105

    ¶ 66. Angela first argues that the juvenile court did not have original jurisdiction over her or her viable fetus under Wis. Stat. § 48.13.[31] However, the statute does not require jurisdiction over a parent in order to obtain jurisdiction over a child. As the court of appeals determined: "The order worked its custodial effect on Angela not because the juvenile court has asserted jurisdiction over her, but because Angela and her fetus are physically and biologically one." State ex rel. Angela M.W., 197 Wis. 2d at 562.

    106

    ¶ 67. Accordingly, the pertinent issue is whether the juvenile court had jurisdiction over Angela's viable fetus. In order to take a child into protective custody pursuant to Wis. Stat. § 48.19, the county must make a showing satisfactory to the juvenile court that the welfare of the child demands that the child be immediately removed from his or her present custody. See § 48.19(1)(c). In the present case, the county met this burden to the satisfaction of the juvenile court and, as a result, the order was issued. The conclusion that "child" includes a viable fetus, coupled with the finding that the court fulfilled the requirements of § 48.19(1)(c), leads to the conclusion that the juvenile court had jurisdiction over Angela's viable fetus.

    107

    ¶ 68. Angela next contends that the custodial effect of the protective order violated her due process liberty interest under the United States Constitution [154] and the Wisconsin Constitution.[32] The test for violation of a fundamental liberty interest is two pronged. First, in order to restrict a fundamental liberty interest, a challenged statute must further a compelling state interest. E.g., Zablocki v. Redhail, 434 U.S. 374, 388, (1978); State v. Post, 197 Wis. 2d 279, 302, 541 N.W.2d 115 (1995), petition for cert. filed, Mar. 7, 1996. Second, the statute must be narrowly tailored to serve that compelling state interest. E.g., Post, 197 Wis. 2d at 302.

    108

    ¶ 69. In regard to the state interest implicated here, the United States Supreme Court has determined:

    109
    With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.
    110

    Roe v. Wade, 410 U.S. 113, 163 (1973). Nearly twenty years later, the Court confirmed its position, stating:

    111
    [T]he concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can [155] in reason and all fairness be the object of state protection that now overrides the rights of the woman.
    112

    Planned Parenthood v. Casey, 505 U.S. 833, 870 (1992). The Casey Court further emphasized:

    113
    [I]t must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but also the State's "important and legitimate interest in potential life." Roe, supra, at 163. That portion of the decision in Roe has been given too little acknowledgment and implementation by the Court in its subsequent cases.
    114

    Id. at 871. Thus, as determined by the United States Supreme Court, the state's interest in protecting the life and health of an unborn child becomes compelling and dominant once the fetus reaches viability.

    115

    ¶ 70. In addition, this court's decision in State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994), is also relevant. In Black, the petitioner allegedly caused the death of a fetus due to be born in five days by assaulting the unborn child's mother. The state subsequently charged Black with feticide under Wis. Stat. § 940.04(2)(a).[33] Id. at 643. Black argued that the feticide statute, due to its title of "abortion," could not be enforced against him. Id. at 644. The court held that Black was properly charged with feticide because the "statutory language clearly and simply proscribes the intentional destruction of a quick child." Id. at 645. Accordingly, the Black court concluded that the state [156] may enact legislation to protect a viable fetus in areas other than simply abortion, and, therefore, implicitly determined that the state has a compelling interest in the welfare of a viable fetus in other contexts.[34] See id. at 645.

    116

    ¶ 71. In the present case, there is no dispute that Angela's child was a viable fetus when the petition was filed, that Angela was actively using cocaine, and that the use of cocaine put the child at substantial risk of great bodily harm or possibly death. As such, the state has a compelling state interest to protect Angela's fetus under Roe,[35] Casey, and Black.

    117

    ¶ 72. The next issue therefore is whether the infringement on Angela's liberty is narrowly tailored to further the compelling state interest. I conclude that it is. The Children's Code specifies the procedures necessary to further the state's compelling interest in the protection of children. These procedures must be complied with before the state can exercise its right to detain and ultimately protect a child.

    118

    ¶ 73. In particular, the Children's Code requires the state to have jurisdiction over the child. See Wis. [157] Stat. § 48.13. Wis. Stat. § 48.19 provides that the state's power to take a child into custody is limited by specifically enumerated regulations. In addition, the state must conduct a hearing within 24 hours of the time the decision was made to hold the child in protective custody. Wis. Stat. § 48.21.[36] At the hearing, the juvenile court must determine whether there is probable cause to believe the child is within the jurisdiction of the court, and that the child will be subject to injury if he or she is not taken into protective custody.[37] Wis. Stat. § 48.205; Wisconsin Legislative Council Staff, Staff Brief 94-1, Overview of Wisconsin Law Relating To Children in Need of Protection or Services, at 23 (Sept. 1, 1994). In light of all the statutorily imposed procedures necessary to detain a child, it is clear that the means by which the state's compelling interest is served are narrowly tailored to "attain the purposes and objectives of the legislation" to protect children. State v. Yoder, 49 Wis. 2d 430, 438, 182 N.W.2d 539 (1971), aff'd, 406 U.S. 205 (1972).

    119

    ¶ 74. Finally, Angela argues that if the state is allowed to intervene when the mother ingests cocaine, this will "open the door" for the state to intervene whenever a mother acts in any manner that is potentially harmful to her viable fetus. Angela cites as examples the possibility of state intervention if a mother smokes or refuses to take her prenatal vitamins.

    120

    [158] ¶ 75. This argument is not a realistic one because ch. 48 contains the necessary protections against unreasonable or unjustified intervention by the state. Specifically, Wis. Stat. § 48.255(1)(e) requires a petition requesting that a court exercise jurisdiction over a child alleged to be in need of protection or services (CHIPS petition) to state "reliable and credible information which forms the basis of the allegations necessary to invoke the jurisdiction of the court." Accordingly, the test for determining compliance with § 48.255 is the same as that governing the sufficiency of a criminal complaint—probable cause. In re Courtney E., 184 Wis. 2d 592, 601, 516 N.W.2d 422 (1994). In addition, Wis. Stat. § 48.13 lists eighteen scenarios in which ch. 48 authorizes the juvenile court to exercise its original jurisdiction. These scenarios represent situations in which the child is at substantial risk either because of his or her own actions or those of others. See § 48.13. For example, § 48.13(10), the subsection that the county relies on in this case, requires that the parent has "neglect[ed], refus[ed] or [been] unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child. . . ." § 48.13(10) (emphasis added).

    121

    ¶ 76. Clearly, the Children's Code enables the state to intervene only when a child faces substantial risk. Thus, ch. 48 contains the necessary stopping point to protect against Angela's slippery slope argument.[38] In fact, if this were not true, then the same argument [159] would have validity under the Children's Code even if the child has been born. See Whitner v. State, no. 24468, 1996 WL 393164, at *3 (S.C. July 15, 1996).

    122

    ¶ 77. In conclusion, I am satisfied that the legislature intended to include a viable fetus within the definition of "child" in Wis. Stat. § 48.02(2). The ordinary and accepted meaning of the words "child" and "person," as established by Kwaterski, Puhl, and Baby Girl K., supports this conclusion. Furthermore, despite ample opportunity, the legislature did not alter the court of appeals' interpretation in State ex rel. Angela M.W. when it amended § 48.02(2). The legislature's acquiescence to the court of appeals' interpretation of § 48.02(2) indicates that this interpretation was correct and acceptable to the legislature. Finally, interpreting "child" in § 48.02(2) to include a viable fetus carries out the express purpose of the legislature in ch. 48. Consequently, I conclude that the majority's interpretation of § 48.02(2) defeats the legislative objectives of the Children's Code by denying its protections to a viable fetus, ignores established precedent, and fails to acknowledge the importance of legislative acquiescence to the court of appeals' decision.

    123

    ¶ 78. For these reasons, I respectfully dissent.

    124

    ¶ 79. I am authorized to state that Justice DONALD W. STEINMETZ and Justice JON P. WILCOX join this dissent.

    125

    [1] Motion for reconsideration denied June 3, 1997.

    126

    [2] State ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532, 541 N.W.2d 482 (Ct. App. 1995).

    127

    [3] Unless otherwise indicated, all future statutory references are to the 1993-94 volume. Wis. Stat. § 48.19(1)(c) provides:

    128

    48.19 Taking a child into custody. (1) A child may be taken into custody under any of the following:

    129

    . . . .

    130

    (c) An order of the judge if made upon a showing satisfactory to the judge that the welfare of the child demands that the child be immediately removed from his or her present custody. The order shall specify that the child be held in custody under s. 48.207.

    131

    [4] Wis. Stat. § 48.13(10) provides:

    132

    48.13 Jurisdiction over children alleged to be in need of protection or services. The court has exclusive original jurisdiction over a child alleged to be in need of protection or services which can be ordered by the court, and:

    133

    . . . .

    134

    (10) Whose parent, guardian or legal custodian neglects, refuses or is unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child. . . .

    135

    [5] Wis. Stat. § 48.21(1) provides:

    136

    48.21 Hearing for child in custody. (1) HEARING; WHEN HELD. (a) If a child who has been taken into custody is not released under s. 48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of ss. 48.205 to 48.209 shall be conducted by the judge or juvenile court commissioner within 24 hours of the time the decision to hold the child was made. . .

    137

    [6] Judge Nettesheim authored the court of appeals' decision and was joined by Judge Brown. Judge Anderson dissented.

    138

    [7] Because the petitioner has given birth and is no longer being detained, this action is moot. However, we will retain an otherwise moot case for determination in certain circumstances. For example, we have recognized an exception to the general rule of dismissal for mootness when the issues presented are of great public importance, or the question is capable and likely of repetition and yet evades appellate review because the appellate process usually cannot be completed in time to have a practical effect on the parties. See Lenz v. L.E. Phillips Career Dev. Ctr., 167 Wis. 2d 53, 67, 482 N.W.2d 60 (1992); G.S. v. State, 118 Wis. 2d 803, 805, 348 N.W.2d 181 (1984). Because this case satisfies both of the cited mootness exceptions, we proceed to a consideration of the issues presented.

    139

    [8] As further support for her assertion regarding ambiguity, the petitioner notes that a CHIPS petition must include the subject child's date of birth, § 48.255(1)(a), and that other provisions of Chapter 48 indicate that the term "child" was not intended to include a fetus. However, we decline to consider other Chapter 48 provisions until after we have determined that the definition of "child" provided in § 48.02(2) is ambiguous.

    140

    [9] These acts amended the definition of "child" to read:

    141

    "Child" means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, "child" does not include a person who has attained 17 years of age.

    142

    [10] If the dissent's conception of legislative acquiescence were correct, it would follow that this court's review of court of appeals' cases involving construction of a statute would be severely restricted. Under the dissent's reasoning, if the legislature has amended statutory language even tangentially related to the text at issue in a given case, and has not disturbed the court of appeals' decision, we should find legislative acquiescence to the court of appeals' decision. Thus, this court's independent determination of legislative intent would be limited by an inference drawn from a lack of legislative reaction to a court of appeals' decision in the very case before us. We reject such a restriction on our direct review of a court of appeals' decision.

    143

    [11] The dissent asserts that interpreting "child" to not include a fetus is to work an absurd result, "by rendering the state's power to protect a child dependent upon whether the child is inside or outside of the womb." Dissent at 147. This argument employs a circular method of reasoning, which may be summarized as follows: the legislature intended the term "child" to include a viable fetus because the State must have the power to protect children. We decline to consider an argument that assumes the result.

    144

    [12] See, e.g., Green County Dep't of Human Servs. v. H.N., 162 Wis. 2d 635, 645-46, 469 N.W.2d 845 (1991) (noting that Chapter 48 is a "carefully drawn legislative enactment which circumscribes judicial and administrative action in juvenile matters"); Breier v. E.C., 130 Wis. 2d 376, 390, 387 N.W.2d 72 (1986) ("The Children's Code. . .does not confer unfettered discretion to craft unique and unspecified remedies in juvenile matters").

    145

    [13] We disagree with the court of appeals' invocation of Roe v. Wade, 410 U.S. 113 (1973), and its progeny. Much of the court of appeals' discussion of Roe is devoted to establishing that the State has a compelling interest in the well-being of a viable fetus, and may act to protect that interest. Although the State may have the power to act, the existence of such power sheds no light on the question of whether our legislature has in fact so acted.

    146

    [14] See also Lawrence J. Nelson, Brian P. Buggy, and Carol J. Weil, Forced Medical Treatment of Pregnant Women: Compelling Each to Live as Seems Good to the Rest, 37 Hastings L.J. 703, 733 (May 1986) ("Judicial recognition of a live-born child's right to recover damages for tortious prenatal injury does not mean that courts recognize unborn fetuses as persons with full legal rights. Instead, this practice focuses on the need for compensation of a living person wrongfully injured rather than on the legal status of the fetus.").

    147

    [15] According to the dissent, the phrase "child or the mother during her pregnancy" exists as proof that the legislature intended the word "child" to include a fetus for purposes of Chapter 48. Dissent at 144-45. This selective quotation by the dissent underscores the infirmity of the dissent's argument. The disjunctive "or" between "child" and "mother" sets pregnancy as the time period during which a father is expected to "express concern for or interest in the support, care or well-being" of the mother.

    148

    "Because what happens to a fetus in utero can have a significant impact upon the quality of life a child will have after birth," a father's lack of concern for or interest in the welfare of the mother during pregnancy should be considered for purposes of determining whether the father has established a substantial parental relationship with the child. L.K. v. B.B., 113 Wis. 2d 429, 439, 335 N.W.2d 846 (1983). Thus, the statute takes into account the father's post-birth actions toward the child, and his acts toward the mother during her pregnancy. These alternative focuses of the § 48.415(6)(b) language quoted by the dissent are amply demonstrated by the most recent incarnation of that section, the intent of which we assume the dissent would agree remains the same:

    149

    In evaluating whether a person has had a substantial parental relationship with the child, the court may consider. . . whether the person has ever expressed concern for or interest in the support, care or well-being of the child, whether the person has neglected or refused to provide care or support for the child and whether, with respect to a person who is or may be the father of the child, the person has ever expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.

    150

    Wis. Stat. § 48.415(6)(b) (1995-96) (emphasis added). We see no basis for inferring from either version of § 48.415(6)(b) a legislative intent to equate a fetus with a child for purposes of Chapter 48.

    151

    [16] Similarly, the American Medical Association Board of Trustees has determined that courts are an inappropriate forum for reconciling the conflicting interests present when a pregnant woman is detained in order to preserve the health of her fetus.

    152

    [C]ourts are ill-equipped to resolve conflicts concerning obstetrical interventions. The judicial system ordinarily requires that court decisions be based on careful, focused deliberation and the cautious consideration of all facts and related legal concerns. Helene A. Cole, Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women (AMA Board of Trustees Report), 264 JAMA 2663, 2665 (1990).

    153

    [17] All future references are to the 1993-94 Statutes unless otherwise indicated. However, note that 1995 Wis. Act 275 and 1995 Wis. Act 352, which became effective July 1, 1996, made significant changes to the Children's Code.

    154

    [18] The court of appeals concluded that a viable fetus is a "child" for the purposes of the Children's Code. State ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532, 560, 541 N.W.2d 482 (Ct. App. 1995).

    155

    [19] See In Re Baby Girl K., 113 Wis. 2d 429, 335 N.W.2d 846 (1983) (holding that the word "child" as used in Wis. Stat. § 48.415(6)(b) includes a fetus), appeal dismissed, Buhse v. Krueger, 465 U.S. 1016 (1984); Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967) (concluding that the word "person" includes a viable fetus for purposes of wrongful death statute); Puhl v. Milwaukee Auto. Ins. Co., 8 Wis. 2d 343, 355-56 99 N.W.2d 163 (1959) (referring to a viable fetus as a "child"), overruled on other grounds by In re Estate of Stromsted, 99 Wis. 2d 136, 299 N.W.2d 226 (1980); Whitner v. State, No. 24468, 1996 WL 393164, at *1 (S.C. July 15, 1996) (in an analogous case, the court interpreted a provision of South Carolina's Children's Code that defined "child" as "person under the age of eighteen." The court held that the word "person," and therefore "child," includes a viable fetus.); American Heritage Dictionary 332 (3d ed. 1992) (defining "child" as "[a]n unborn infant; a fetus"); Black's Law Dictionary 239 (6th ed. 1990) (defining "child" as "unborn or recently born human being").

    156

    [20] In Lipps, the court held that "[s]ince a non-viable child cannot exist separate from its mother, it must in the law of torts be regarded as part of its mother, and hence, being incapable of a separate existence, it is not an independent person or being to whom separate rights can accrue." Lipps v. Milwaukee Elec. Ry. & Light, 164 Wis. 272, 276, 159 N.W. 916 (1916) (emphasis added).

    157

    [21] The court also stated: "If the common law has any vitality, it has been argued that it should be elastic enough to adapt itself to current medical and scientific truths so as to function as an efficient rule of conduct in our modern, complex society." Puhl v. Milwaukee Auto. Ins. Co., 8 Wis. 2d 343, 357, 99 N.W.2d 163 (1959), overruled on other grounds by In re Estate of Stromsted, 99 Wis. 2d 136, 299 N.W.2d 226 (1980).

    158

    [22] Even the majority stresses from the outset that "this case is one of statutory construction." Majority op. at 130.

    159

    [23] Moreover, as the Supreme Court of South Carolina has concluded:

    160

    [W]e 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. . .wrongful death statutes but not for purposes of statutes proscribing child abuse. Whitner v. State, No. 24468, 1996 WL 393164, at *3 (S.C. July 15, 1996).

    161

    [24] As of 1993-94, Wis. Stat. § 48.415(6)(b) had not changed in any significant manner.

    162

    [25] I do not agree with the majority's interpretation of this phrase. See majority op. at 132 n.14. The focus of this section of the statute is on the parent's relationship with the child during the mother's pregnancy. My reading of this section is consistent with the holding in Baby Girl K. that the father's actions prior to birth of his child may form a sufficient basis for termination of his parental rights.

    163

    [26] I also do not find the lack of legislative debate to be of significant persuasive value, given the fact that the definition of child was originally enacted in 1919. Why would the legislature have debated whether a "child" included a viable fetus in 1919, since this was not such a controversial issue at that time?

    164

    Moreover, it is important to emphasize that the court is often faced with silence in the legislative history. However, when the legislative intent is not explicitly stated in the drafting files or newspapers, we do not simply decline to interpret the language at issue. Instead, this court is required to consider extrinsic sources to ascertain the legislative intent, such as precedent and the purpose of the statute. This is exactly what this dissent has attempted to do.

    165

    [27] See I.J. Chasnoff et al., Cocaine use in pregnancy: Perinatal morbidity and mortality, 9 Neurotoxicol Teratol 291 (1987). Studies have confirmed that the cessation of cocaine use in the third trimester can have a significant positive impact on the development of the fetus. These benefits include improved intrauterine growth, reduced incidences of seizures, and reduced incidences of premature labor which alleviates low birth weight and the multitude of problems associated with low birth weight babies. I.J. Chasnoff et al., Temporal patterns of cocaine use in pregnancy: Perinatal outcome, 261 JAMA 1741 (1989); I.J. Chasnoff, Cocaine: Effects on pregnancy and the neonate, in Drugs, Alcohol, Pregnancy, and Parenting, at 97-103 (1988).

    166

    [28] R.A. Aronson & L.H. Hunt, Cocaine use during pregnancy: Implications for physicians, 89(3) Wis. Med. J. 105 (1990) ("Cocaine damaged children, particularly those from impoverished home environments, are at great risk for school failure and dropout, juvenile crime, teenage pregnancy, unemployment, and chronic disabilities. According to Senator Lloyd Bentsen (D-Texas), chair of the Senate Finance Committee, government at all levels will soon be spending $15 billion annually to prepare cocaine-affected children to enter kindergarten.")

    167

    [29] The majority claims: "The logical extension of the dissent's argument regarding liberal construction would expand the definition of `child' to the moment after conception." Majority op. at 130. I stress that this case deals only with the issue of whether the words "child" and "person" include a viable fetus. In addition, I emphasize that the United States Supreme Court and this court have drawn the line at viability. See Planned Parenthood v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973); Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967).

    168

    [30] I reject the majority's determination that legislative acquiescence to a court of appeals' decision is of no value because the legislature cannot be presumed to know that the decision will remain unchanged. See majority op. at 125-26. The grant of review in a case does not render the legislature powerless to clearly state its intent, especially where it is currently revising the very statutory language at issue. In addition, the majority supports its conclusion with a portion of the following quote: "The legislature is presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged. . . ." Zimmerman v. Wisconsin Elec. Power Co., 38 Wis. 2d 626, 633-34, 157 N.W.2d 648 (1968). This statement was originally made by the court ten years prior to the development of the court of appeals, and therefore could not have been intended to stand for the proposition that acquiescence to a court of appeals' decision has no significance. Although this language was quoted by the court in Reiter v. Dyken, 95 Wis. 2d 461, 471, 290 N.W.2d 510 (1980), the Reiter court in no way indicated that it was relying on this statement to mean anything other than what it meant in 1968.

    169

    [31] Section 48.13 provides in part: "The court has exclusive original jurisdiction over a child alleged to be in need of protection or services which can be ordered by the court, and:. . ." The statute then lists eighteen scenarios in which the court may exercise its jurisdiction.

    170

    [32] As noted by the court of appeals, despite her invocation of the Wisconsin Constitution, Angela did not make a separate argument under the Wisconsin Constitution. See State ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532, 564 n.16, 541 N.W.2d 482 (Ct. App. 1995). All of her arguments rest on cases in which courts considered the federal constitution. Therefore, I do not address any possible implications of the Wisconsin Constitution.

    171

    [33] Section 940.04(2)(a) (1989-90) provided in pertinent part: "Any person, other than the mother, who does either of the following may be imprisoned not more than 15 years:. . .Intentionally destroys the life of an unborn quick child;. . ." State v. Black, 188 Wis. 2d 639, 644, 526 N.W.2d 132 (1994).

    172

    [34] Even the majority recognizes that in Black, this court determined that the legislature can act to protect a viable fetus in contexts other than abortion. See majority op. at 131-32.

    173

    [35] The court of appeals succinctly summarized the significance of Roe to the current case when it stated:

    174

    By recognizing that a state may intervene in an abortion decision after viability, Roe necessarily recognizes the right of the state to protect the potential life of the fetus over the wishes of the mother to terminate the pregnancy. Why then cannot the state also protect the viable fetus from maternal conduct which functionally presents the same risk and portends the same result—the death of the viable fetus?

    175

    State ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532, 552 n.11, 541 N.W.2d 482 (Ct. App. 1995).

    176

    [36] 1995 Wis. Act 275, enacted April 22, 1996 and effective July 1, 1996, changed the time of the hearing from 24 hours to 48 hours.

    177

    [37] Section 48.205 lists several situations in which a probable cause showing would result in the detention of a child; however, only the portion relevant to this case was cited.

    178

    [38] Moreover, the Milwaukee County District Attorney noted in his amicus brief at 11-12 that "despite the extensive and sustained headline coverage of Angela's case in the Milwaukee-area media last fall, in the last nine months the Milwaukee County District Attorney's Office has yet to receive a single Angela-type CHIPS referral. . . .[T]he 'floodgates,' if opened, have not yet impacted Milwaukee County."

  • 2 Whitner v. State

    1
    328 S.C. 1 (1997)
    2
    492 S.E.2d 777
    3
    Cornelia WHITNER, Respondent,
    v.
    STATE of South Carolina, Petitioner.
    4
    No. 24468.
    5

    Supreme Court of South Carolina.

    6
    Heard May 31, 1995.
    7
    Filed July 15, 1996.
    8
    Amended and Refiled on Grant of Rehearing October 27, 1997.
    9
    Rehearing Denied November 19, 1997.
    10

    [3] Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Attorney General Teresa Nesbitt Cosby, Staff Attorney David K. Avant, Columbia, for Petitioner.

    11

    C. Rauch Wise, of Wise & Tunstall, Greenwood; Lynn M. Paltrow and Lisa S. Tankoos, both of The Center for Reproductive Law & Policy, New York, for Respondent.

    12

    Stephen P. Williams, Columbia, for Amici Curiae South Carolina Medical Association; American Medical Association & American College of Obstetricians & Gynecologists.

    13

    Robert H. Hood and Joseph C. Wilson, IV, both of Hood Law Firm, 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.

    14

    [4] Susan Dunn, Charleston; Carol E. Tracy and Susan Frietsche, 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.

    15

    John D. (Jay) Elliott, Columbia, for Amicus Curiae The Alliance for South Carolina's Children.

    16
    TOAL, Justice.
    17

    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. § 20-7-50 (1985).[1] We hold the word "child" as used in that statute includes viable fetuses.

    18
    FACTS
    19

    On April 20, 1992, Cornelia Whitner (Whitner) pled guilty to criminal child neglect, S.C.Code Ann. § 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.

    20

    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 [5] 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.

    21
    LAW/ANALYSIS
    22
    A. Subject Matter Jurisdiction
    23

    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.

    24

    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.[2] All other issues are ancillary to this jurisdictional issue.

    25

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

    26
    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 § 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).
    27

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

    28

    Under the Children's Code, "child" means a "person under the age of eighteen." S.C.Code Ann. § 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.

    29

    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 § 316, at 541-42 (1953).

    30

    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.

    31

    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 [7] 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).

    32

    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.

    33
    Since a viable child is a person before separation from the body of its mother and since prenatal injuries tortiously 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....
    34
    * * * * * *
    35
    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 tortious injury to such a child arises immediately upon the infliction of the injury.
    36

    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.

    37

    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. § 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.

    38

    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, the Court recognized the crime of feticide with respect to viable fetuses.

    39

    [8] 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.

    40

    The policies enunciated in the Children's Code also support our plain meaning reading of "person." S.C.Code Ann. § 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. § 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.

    41

    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.

    42

    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 [9] pregnant women;[3] others would have addressed the issue through mandatory reporting, treatment, or intervention by social service agencies.[4] 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.

    43

    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 [10] our conclusion about the meaning of the statute's language.

    44

    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.

    45

    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.

    46

    Moreover, we need not address this potential parade of horribles 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 [11] (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.

    47

    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 (1992); Reyes v. Superior Court, 75 Cal.App.3d 214, 141 CaLRptr. 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 (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, app. denied, 437 Mich. 1046, 471 N.W.2d 619 (1991); Commonwealth v. Kemp, 434 Pa.Super. 719, 643 A.2d 705 (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, 141 Cal.Rptr. 912.

    48

    [12] 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).[5] 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 (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 (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 (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.

    49

    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, the court had to distinguish Lawrence and Cass, supra, both of which held viable fetuses are "persons" for purposes of criminal laws in Massachusetts.

    50

    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 [13] interpret our decisions in Hall, Fowler, and Horne 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 Horne can be interpreted so narrowly.

    51

    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 Horne, 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, Horne also rested on the State's—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, 732-33, 35 L.Ed.2d 147, 183-84 (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 Serns., 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). If, as Whitner suggests we should, we read Horne 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 Horne 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.

    52

    The dissent contends that our holding in this case is inconsistent with Doe v. Clark, 318 S.C. 274, 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. § 20-7-50 (1985) means a "child in being and not a fetus." Contrary to the dissent's characterization of that case, Doe [14] turned on the specific language in the consent provisions of the Adoption Act, S.C.Code Ann. §§ 20-7-1690 and -1700 (Law.Co-op Supp.1994).

    53

    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 judge held Clark's consent was valid. Clark appealed.

    54

    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, 318 S.C. at 276, 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.

    55

    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 "[a]t most, the majority only suggests that the term `child' as used in § 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."

    56

    [15] 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.

    57
    B. Ineffective Assistance of Counsel
    58

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

    59

    To prove ineffective assistance of counsel, a PCR applicant must show (1) deficient performance by her attorney 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.

    60

    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.

    61
    C. Constitutional Issues
    62
    1. Fair Notice/Vagueness
    63

    Whitner argues that section 20-7-50 does not give her [16] fair notice that her behavior is proscribed.[6] We disagree.

    64

    The statute forbids any person having legal custody of a child from refusing or neglecting to provide proper care and attention to the child so that the life, health, or comfort of the child is endangered or is likely to be endangered. As we have found above, the plain meaning of "child" as used in this statute includes a viable fetus. Furthermore, it is common knowledge that use of cocaine during pregnancy can harm the viable unborn child. Given these facts, we do not see how Whitner can claim she lacked fair notice that her behavior constituted child endangerment as proscribed in section 20-7-50. Whitner had all the notice the Constitution requires.

    65
    2. Right to Privacy
    66

    Whitner argues that prosecuting her for using crack cocaine after her fetus attains viability unconstitutionally burdens her right of privacy, or, more specifically, her right to carry her pregnancy to term. We disagree.

    67

    Whitner argues that section 20-7-50 burdens her right of privacy, a right long recognized by the United States Supreme Court. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). She cites Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), as standing for the proposition that the Constitution protects women from measures penalizing them for choosing to carry their pregnancies to term.

    68

    In LaFleur, two junior high school teachers challenged their school systems' maternity leave policies. The policies required "every pregnant school teacher to take maternity leave without pay, beginning [four or] five months before the expected birth of her child." Id. at 634, 94 S.Ct. at 794, 39 L.Ed.2d at 57. A teacher on maternity leave could not return to work "until the beginning of the next regular school semester which follows the date when her child attains the age of three months." Id. at 634-35, 94 S.Ct. at 794, 39 L.Ed.2d at [17] 57. The two teachers, both of whom had become pregnant and were required against their wills to comply with the school systems' policies, argued that the policies were unconstitutional.

    69

    The United States Supreme Court agreed. It found that "[b]y acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms." Id. at 640, 94 S.Ct. at 796, 39 L.Ed.2d at 60. The Court then scrutinized[7] the policies to determine whether "the interests advanced in support of the policy could "justify the particular procedures [the School Boards] ha[d] adopted." Id. at 640, 94 S.Ct. at 796, 39 L.Ed.2d at 60. Although it found that the purported justification for the policy—continuity of instruction—was a "significant and legitimate educational goal," the Court concluded that the "absolute requirement[ ] of termination at the end of the fourth or fifth month of pregnancy" was not a rational means for achieving continuity of instruction and that such a requirement "may serve to hinder attainment of the very continuity objectives that they are purportedly designed to promote." Id. at 642-43, 94 S.Ct. at 797-98, 39 L.Ed.2d at 61-62. Finding no rational relationship between the purpose of the maternity leave policy and the means crafted to achieve that end, the Court concluded the policy violated the Due Process Clause of the Fourteenth Amendment.

    70

    Whitner argues that the alleged violation here is far more egregious than that in LaFleur. She first suggests that imprisonment is a far greater burden on her exercise of her freedom to carry the fetus to term than was the unpaid maternity leave in LaFleur. Although she is, of course, correct that imprisonment is more severe than unpaid maternity leave, Whitner misapprehends the fundamentally different nature of her own interests and those of the government in this case as compared to those at issue in LaFleur.

    71

    First, the State's interest in protecting the life and health of the viable fetus is not merely legitimate. It is compelling. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d [18] 147 (1973); Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). The United States Supreme Court in Casey recognized that the State possesses a profound interest in the potential life of the fetus, not only after the fetus is viable, but throughout the expectant mother's pregnancy. See Casey, 505 U.S. at 877, 112 S.Ct. at 2821, 120 L.Ed.2d at 716 (plurality opinion).

    72

    Even more importantly, however, we do not think any fundamental right of Whitner's—or any right at all, for that matter—is implicated under the present scenario. It strains belief for Whitner to argue that using crack cocaine during pregnancy is encompassed within the constitutionally recognized right of privacy. Use of crack cocaine is illegal, period. No one here argues that laws criminalizing the use of crack cocaine are themselves unconstitutional. If the State wishes to impose additional criminal penalties on pregnant women who engage in this already illegal conduct because of the effect the conduct has on the viable fetus, it may do so. We do not see how the fact of pregnancy elevates the use of crack cocaine to the lofty status of a fundamental right.

    73

    Moreover, as a practical matter, we do not see how our interpretation of section 20-7-50 imposes a burden on Whitner's right to carry her child to term. In LaFleur, the Supreme Court found that the mandatory maternity leave policies burdened women's rights to carry their pregnancies to term because the policies prevented pregnant teachers from exercising a freedom they would have enjoyed but for their pregnancies. In contrast, during her pregnancy after the fetus attained viability, Whitner enjoyed the same freedom to use cocaine that she enjoyed earlier in and predating her pregnancy—none whatsoever. Simply put, South Carolina's child abuse and endangerment statute as applied to this case does not restrict Whitner's freedom in any way that it was not already restricted. The State's imposition of an additional penalty when a pregnant woman with a viable fetus engages in the already proscribed behavior does not burden a woman's right to carry her pregnancy to term; rather, the additional penalty simply recognizes that a third party (the viable fetus or newborn child) is harmed by the behavior.

    74

    [19] Section 20-7-50 does not burden Whitner's right to carry her pregnancy to term or any other privacy right. Accordingly, we find no violation of the Due Process Clause of the Fourteenth Amendment.

    75
    CONCLUSION
    76

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

    77

    WALLER and BURNETT, JJ., concur.

    78

    FINNEY, C.J., and MOORE, J., dissenting in separate opinions.

    79
    FINNEY, Chief Justice:
    80

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

    81

    The issue before the Court is whether a fetus is a "child" within the meaning of S.C.Code Ann. § 20-7-50 (1985), a statute which makes it a misdemeanor[8] 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).

    82

    The term child for purposes of § 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. § 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, 318 S.C. 274, 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.

    83

    More importantly, it is apparent from a reading of the entire statute that the word child in § 20-7-50 means a child in being and not a fetus. See Jackson v. Charleston County [20] School District, 316 S.C. 177, 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, § 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, § 20-7-50 refers to S.C.Code Ann. § 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. § 20-7-490(B), (C), and (D). The vast majority of acts which constitute statutory harm under § 20-7-490 are acts which can only be directed against a child, and not towards a fetus.[9] The reliance upon § 20-7-490 in § 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,[10] it is clear that "child" as used in § 20-7-50 means a child in being. Jackson v. Charleston County School District, supra.

    84

    At most, the majority only suggests that the term "child" as used in § 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 [21] within the meaning of § 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 § 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 § 20-7-50 ambiguous, it is axiomatic that the ambiguity must be resolved in respondent's favor. State v. Blackmon, supra.

    85

    I would affirm.

    86
    MOORE, Justice:
    87

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

    88

    In my view, the repeated failure of the legislature 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 of judicial activism rejected by every other court to address the issue.

    89

    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?"

    90

    Contrary to the majority's strained analysis in this case, one need look no further than the language of § 20-7-50 to clearly discern legislative intent that the statute apply only to children [22] 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.

    91

    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 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-theroad" consequence in a case of this import is unrealistic. The majority insists that parents may already be held liable for drinking after a child is born. This is untrue, however, without some further act on the part of the parent. A parent who drinks and then hits her child or fails to come home may be guilty of criminal neglect. The mere fact of drinking, however, does not constitute neglect of a child in being.

    92

    The majority attempts to support an overinclusive 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.[11]

    93

    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[12] of her pregnancy, the most dangerous period for the fetus, and be immune from prosecution under [23] the statute so long as she quits drug use before the fetus becomes viable. Further, a pregnant woman 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.[13]

    94

    Because I disagree with the conclusion § 20-7-50 includes a viable fetus, I would affirm the grant of post-conviction relief.

    95

    [1] 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. § 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.

    96

    [2] 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.

    97

    [3] 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).

    98

    [4] 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).

    99

    [5] We note that Pellegrini was decided by a Massachusetts superior court. To date, no appellate court in Massachusetts has addressed this issue directly.

    100

    [6] In a related argument, Whitner suggests section 20-7-50 is void for vagueness. This argument lacks merit. As we noted in our interpretation of section 20-7-50, supra, the same argument could be made about the statute as applied to a child who has already been born.

    101

    [7] The Court applied a rational relationship test, the least rigorous form of scrutiny.

    102

    [8] After this case arose, the statute was amended to change the classification from misdemeanor to felony. 1993 Act No. 184. § 55 (effective January 1, 1994).

    103

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

    104

    [10] State v. Jenkins, 278 S.C. 219, 294 S.E.2d 44 (1982) (construing § 16-3-1030, recodified as § 20-7-50).

    105

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

    106

    [12] Viability is presumed to occur no sooner than the twenty-fourth week of pregnancy. S.C.Code Ann. § 44-41-10(1) (1985).

    107

    [13] S.C.Code Ann. § 44-41-80(b) (1985).

  • 3 April Cherry, Maternal-Fetal Conflicts, The Social Construction Of Maternal Deviance, and Some Thoughts About Love and Justice, 8 Tex. J. Women & L. 245 (1999)

You've reached the bottom of your content preview.
To view the rest in your browser, click here.
To export the complete content in DOC format, click the blue export button in the upper right corner of this page.

(Note: If you view the entire playlist, any changes you've made to export settings will be lost. Large playlists may temporarily freeze your browser while loading, as well.)