SUPREME COURT: Debates Pregnancy Drug Testing Policy
The U.S. Supreme Court yesterday agreed to review whether South Carolina public hospitals can test pregnant women for drug use and turn over the results to the police without women's consent. The case was appealed on behalf of 10 South Carolina women who, after being arrested on the basis of hospital-provided evidence, sued Medical University of South Carolina, the city of Charleston and local law enforcement, alleging Fourth Amendment violations (Carelli, AP/Newport News Daily Press, 2/28). In the lower court ruling, the U.S. Court of Appeals for the Fourth Circuit said the situation created a special law enforcement need that was "exempt from the Fourth Amendment's usual mandate that police obtain a warrant before conducting a 'search'" (Biskupic, Washington Post, 2/29). Plaintiffs' attorneys in Ferguson v. City of Charleston argue that the policy permits unreasonable searches of pregnant women. South Carolina charges women with child abuse if their infants are born with traces of illegal drugs in their blood. Lynn Paltrow of the Women's Law Project said, "Our clients went to the hospital to get medical help. Instead they got jail. The hospital staff collaborated with the police to search pregnant women and new mothers and send them to jail, bound in chains and shackles" (Murray, Washington Times, 2/29).
According to Paltrow, 29 of the 30 women arrested under the policy were African Americans, proving that officials' efforts were "directed almost entirely at poor, black women" (Savage, Los Angeles Times, 2/29). The New York Times reports that the hospital, which serves many low-income and black people, did not test all patients, but instead singled out those "most likely to be using drugs," including women who had unexplained pre-term labor or a known drug or alcohol history, as well as those who displayed "certain physical symptoms" or had received little or no prenatal care. But defendants in the case maintain that the "clinical necessity for drug screens, the health problems associated with maternal cocaine use and the astronomical economic costs of caring for infants suffering from the effects of cocaine use by their mothers all created special needs beyond normal law enforcement goals," making the searches justifiable (Greenhouse, 2/29). Charleston attorney Bobby Hood, who represents the hospital and state prosecutors, "likened the situation to turning over a bullet removed from a suspect during surgery." He said, "A doctor treating a lady who is pregnant has to know what her condition is and has to test her for drug use. ... All these doctors ... are abiding by a policy that is medically driven, trying to protect the babies in utero from mothers who could not protect themselves due to addiction to cocaine." Under South Carolina law, a viable fetus is considered a child (Washington Times, 2/29). Alluding to this, Hood added that "testing [a woman's] urine to protect her child is only doing what the law against child abuse allows" (Washington Post, 2/29). Defense attorneys also note that addicted women can avoid arrest by agreeing to undergo drug treatment, but according to the plaintiffs, "no workable treatment program is really available" (Washington Times, 2/29). Between 1989 and 1993, when the lawsuit was filed and the policy suspended, about 200 women tested positive and were reported to the authorities, with most opting for drug counseling (Washington Post, 2/29).
The case has prompted a vigorous defense of privacy rights from reproductive advocacy groups, such as the Center for Reproductive Law and Policy, which helped the South Carolina women appeal their case after the lower court decision. Claiming that "pregnant women who tested positive for cocaine were ... arrested right out of their hospital beds, still bleeding from having given birth." CRLP Director of Litigation Simon Heller said that the court must decide "whether pregnant women have lesser constitutional rights than other Americans, and, as a result can be searched for evidence of a crime in their private doctor's office without Fourth Amendment protection" (CRLP release, 2/28). Officials in the medical field also decried the law. In a "friend of the court" brief in support of the women, the American Public Health Association, the California Medical Association and other groups representing nurses, physicians and public health counselors across the country, argued that the law violated patient-doctor confidentiality and trust. They wrote, "The trust inherent in the doctor-patient relationship was manipulated by law enforcement authorities to obtain bodily fluids from indigent pregnant women for use as incriminating evidence" (Los Angeles Times, 2/29).
The groups added, "Without denying the clear advisability of protecting infants from exposure to cocaine ... medical research is increasingly finding that the sense of impending 'crack baby' crisis that impelled the prosecutors, doctors and nurses here to discard ethical and legal responsibilities ... [was] without solid foundation" (Washington Post, 2/29). But South Carolina Attorney General Charlie Condon (R) remained adamant about the state's efforts to prevent "crack babies." He said, "South Carolina's policy of protecting unborn children from their mothers' cocaine abuse will continue, even at public hospitals. Search warrants can be used as well as consents to search. There is no constitutional right for a pregnant mother to use drugs. The unborn child has a constitutional right to protection from its mother's drug abuse" (Atlanta Journal-Constitution, 2/29). The Supreme Court will hear the case this fall and should issue a ruling in 2001 (Washington Post, 2/29).