SUPREME COURT: Hears Case on Drug Tests of Pregnant Women
In a "spirited" and "sometimes heated" debate, the Supreme Court yesterday heard arguments on the constitutionality of a South Carolina public hospital's policy to test pregnant women for cocaine and notify law enforcement officials of positive results, the Washington Post reports. In the case of Ferguson v. City of Charleston, 10 women whose positive drug tests were forwarded to law enforcement in 1993 -- resulting in nine arrests but no prosecutions -- sued in federal court on violation of the Fourth Amendment's prohibition against unreasonable searches. The women also contended that the Medical University of South Carolina's testing policy was "selectively enforced against African-American women," as all but one of the women arrested were black. Under South Carolina law, a viable fetus is considered a "person," and a woman who uses cocaine during pregnancy may be found guilty of distributing illegal drugs to a minor or committing child abuse. The federal district court ruled in favor of the city, and the 4th U.S. Circuit Court of Appeals in Richmond upheld the decision, ruling that the "policy was justified under the 'special needs' exception to the Fourth Amendment," concluding that the urine tests were "minimally intrusive" and that hospital officials had a substantial interest in reducing cocaine use by pregnant women, according to the Post. Yet the prosecution attorneys said that rather than looking out for the best interests of women and children, the hospital's policy and threat of arrest would deter women from seeking prenatal services. Center for Reproductive Law and Policy attorney Priscilla Smith said, "If the real interest here is producing healthy babies and healthy pregnancies, then criminal prosecution is not what works" (Washington Post, 10/5). She added, "Turning a hospital into a police station undermines the privacy rights of all Americans, and is more harmful than helpful to chemically dependent women and their babies. These women need appropriate medical treatment, not jail time. ... MUSC's punitive policy compromised the doctor-patient relationship, failed to treat women's addiction, and endangered children's health and development" (CRLP release, 10/4). The policy was suspended in 1993 when the lawsuit was filed, and a new state policy instructs hospitals to turn over pregnant women using cocaine to social services rather than the police.
Potential 'Victory' for Women
When the Supreme Court decides the case, the ruling will be an important one, as a "victory" for the women could indicate that the "court is growing reluctant to add searches without warrants to the list of governmental 'special needs.' A victory for the city, however, might considerably expand that doctrine" (Lane, Washington Post, 10/5). Thus far, Justices Stephen Breyer, Ruth Bader Ginsburg and Sandra Day O'Connor appear unconvinced by the city's claim that the policy was "preventive" or "protective." Breyer said that "this program probably hurts more fetuses than it helps" (Greenhouse, New York Times, 10/5). In contrast, Justice Antonin Scalia appeared sympathetic to the hospital's efforts, saying, "This is being done for medical purposes. The police didn't just show up at the hospital and say, 'We'd like to find a way to bust your patients'" (McCullough, Philadelphia Inquirer, 10/5). Seventy-five organizations, including the American Medical Association, the American Public Health Association and the March of Dimes, have filed amicus briefs with the Supreme Court on behalf of the women (CRLP release, 10/4).