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The rights of pregnant women: the Supreme Court and drug testing. (at law).

During the last two decades, states have sought to punish pregnant women for behavior that endangers their fetuses, often without success. (1) Prosecutors have used various novel legal theories, including child abuse and neglect, delivery and distribution of controlled substances, and involuntary manslaughter. Some states have enacted special laws criminalizing prenatal drug use. (2) Other states have authorized "any necessary measures" to protect the fetus. (3) These measures include civil commitment for pregnant women who use drugs and cash incentives for crack-using women to become sterilized. (4)

During the height of concern for fetal rights, in the late 1980s, the Medical University of South Carolina (MUSC) devised a policy, in cooperation with law enforcement officials, for screening pregnant patients for cocaine use. Women who tested positive would be turned over to police and threatened with prosecution to provide "the necessary leverage" to force them into treatment. The policy specified criteria for determining which pregnant women should be tested (targeting, for example, women who had obtained no prenatal care or late or incomplete prenatal care, and women known to have previously abused drugs or alcohol abuse). It also required urine samples to be handled through an appropriate "chain of custody" to ensure that they could be used as evidence in a criminal trial; and it detailed the offenses with which the woman could be charged, depending on the age of the fetus. The charges included simple possession, possession and distribution to a minor, and child neglect. The policy made no mention of any change in the woman's prenatal care and did not prescribe any special treatment for newborns. More than forty women were arrested under the MUSC program, and some who tested positive for cocaine during labor were taken to jail in handcuffs or leg shackles shortly after giving birth. Under South Carolina law, a viable fetus historically has been regarded as a person; on this basis, the state's Supreme Court has held that the ingestion of cocaine during the third trimester of pregnancy constitutes criminal child neglect. (5)

Ferguson v. City of Charleston

In 1999, the U.S. Court of Appeals for the Fourth Circuit (well-known for its conservative judicial activism), held that regardless of whether the women provided informed consent, the MUSC testing program was justified by the "special need" of stopping drug use by pregnant women. This year, in Ferguson v. City of Charleston, (6) the Supreme Court overturned the Fourth Circuit, holding that a public hospital's policy of subjecting pregnant women to nonconsensual drug tests without a warrant, and turning positive test results over to police, violates the Fourth Amendment's proscription against unreasonable searches.

Although the Fourth Amendment is popularly perceived as applying solely to personal or residential searches, the Supreme Court has long recognized that the collection and subsequent analysis of biological samples is a "search." (7) In most criminal cases, a search is unreasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause, and if a warrant is impracticable, then the courts require, minimally, "reasonable suspicion" based on an individualized assessment. The Supreme Court has held, however, that when the state has "special needs beyond the normal need for law enforcement," the warrant and probable or reasonable cause requirements may not be applicable. (8) In three drug testing cases, the Court applied the special needs exception to sustain drug tests for railway employees involved in train accidents, Customs Service employees seeking promotion to certain sensitive positions, and high school students participating in interscholastic sports. (9) In a fourth case, the Court struck down drug testing for candidates for certain state offices. (10)

The Supreme Court in Ferguson held that the MUSC screening program did not fit within the "closely guarded category of constitutionally permissible suspicionless searches." The Court distinguished Ferguson from its previous cases because MUSC conducted drug tests and turned the results over to police without the patients' knowledge or consent. The invasion of privacy was far more substantial because of the physician-patient relationship. A patient has a "reasonable expectation of privacy ... that the results of [diagnostic] tests will not be shared with nonmedical personnel without her consent." The Court stressed that the law enforcement purpose in Ferguson was critically important. The "central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment." Even though the ultimate purpose was beneficent, the purpose it actually serves "is ultimately indistinguishable from the general interest in crime control."

Ferguson is an important judicial precedent not only because it recognizes the special importance of the therapeutic relationship and safeguards patient privacy, but also because it limits the application to the special needs exception in cases involving medical screening. Most courts have assumed a permissive posture when reviewing government screening programs. Government has been permitted to require HIV testing of firefighters, military personnel, immigrants, and sex offenders, for example. (11) The Supreme Court's decision in Ferguson may make courts more willing to scrutinize compulsory public health screening programs.

Gender, Race, and Class

Policies that coerce or punish pregnant women purport to protect the public's health. On closer reflection, however, they may be harmful and reflect subtle forms of discrimination. Conscripting health care professionals to perform law enforcement undermines patient trust, which may lead to a reduction in prenatal care and even in the overall use of health services. Further, policies or laws that coerce or punish pregnant women may encourage more abortions; a woman who must choose between abortion and incarceration may prefer the former. (12)

These policies raise questions of fairness because they are applied exclusively to women and predominantly to poor women of color. Men who endanger the health of the fetus through spousal abuse, for example, are not subjected to special penalties related to fetal protection. Further, even though these policies are neutral on their face, they are applied disproportionately to the poorest, most vulnerable members of society. Illicit drug laws of all kinds are applied more often to racial minorities and the poor; and crack cocaine laws exacerbate that effect. The singling out of drugs, particularly crack cocaine, from all the other ways in which the fetus can be harmed demonstrates the discriminatory impact and purpose of these laws. Consider the most recent data suggesting that the effects of crack on fetal health have been significantly exaggerated due to the confounding effects of an impoverished environment and the physical and sexual abuse experienced by many poor, minority women. (13) Compare the effects on fetuses caused by cocaine with those caused by tobacco or alcoholic beverages, and consider the absence of government coercion in these areas. (14) Predominately poor people of color are punished for risks to their fetuses that are considerably less than the risks accepted by more wealthy mainstream populations.

The Charleston policy illustrates the discriminatory effects. The criteria used to determine who would be subjected to testing included indicia that are prevalent within low-income and minority populations, such as the absence of prenatal care and a previous documented history of substance abuse. The policy was implemented in only one hospital in the state--the public hospital located in a poor community. Many indigent women who were not using illicit drugs were tested without their knowledge or consent. Of the forty-one arrests made pursuant to the Charleston policy, forty were of black women. Physicians who found substances often associated with middle and upper class populations, such as methamphetamine and heroin, made referrals to social services, not to law enforcement.

One highly unusual aspect of Ferguson was that all of the friend of the court briefs opposed the MUSC policy, including an amicus brief filed by the Rutherford Institute, a staunch pro-life organization. Yet Justice Scalia, joined by Rehnquist and Thomas, dissented: the fact that the public officials who participated in the program might now face damages for violating the women's constitutional rights "proves once again that no good deed goes unpunished." The dissent argued that health care professionals were "ministering not just to the mothers but also to the children whom their cooperation with the police was meant to protect."

Justice Scalia is not wrong when he suggests that sound public health policies should protect the health and well-being of the fetus as well as the mother. A great deal more can be done to safeguard maternal and child health, including providing universal access to high quality pre- and postnatal maternal care, mental health care, drug and alcohol treatment, health education, and healthy living environments in early childhood. (15) Offering pregnant women medical, social, and educational services does not erect a false dichotomy between the interests of mother and child, but sees their interests as intertwined. Such policies are effective, fair, and protective of constitutional rights to bodily integrity and medical privacy.

(1.) L.M. Paltrow et al., Year 2000 Overview: Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs (New York: Women's Law Project, 2000).

(2.) Mass. Gen. Law. Ann., ch. 119 [section] 51A (West Supp. 1990).

(3.) Wis. Stat. Ann. [section] 48.13 (West 1997).

(4.) Minn. Stat. Ann. [section] 626.5561 (West Supp. 2000); W. Chavkin, "Cocaine and Pregnancy: Time to Look at the Evidence," JAMA 285 (2001): 1626-28.

(5.) Whitner v. South Carolina, 492 S.E.2d 777 (1997), cert denied, 523 U.S. 1145 (1998).

(6.) 121 S. Ct. 1281 (2001).

(7.) Schmerber v. California, 384 U.S. 757, 767--768 (1966).

(8.) Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 613--14 (1989).

(9.) Skinner v. Railway Labor Executives' Ass'n; Treasury Employees v. Von Raab, 489 U.S. 656 (1989); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995).

(10.) Chandler v. Miller, 520 U.S. 305 (1997). See also Indianapolis v. Edmond, 121 S. Ct. 447 (2000) (holding that traffic stops to search for drugs in cars using trained dogs served no purpose distinguishable from law enforcement, and thus were not within the special needs exception).

(11.) L.O. Gostin, Public Health Law: Power, Duty Restraint (Berkeley: University of California Press and the Milbank Memorial Fund, 2000).

(12.) N. Kubasek and M. Hinds, "The Communitarian Case against Prosecutions for Prenatal Drugs Abuse," Women's Rights Law Reporter 22 (2000): 1-14.

(13.) D.A. Frank et al., "Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review," JAMA 285 (2001): 1613-25.

(14.) C. Marwick, "Challenging Report on Pregnancy and Drug Abuse," JAMA 280 (1998): 1039-41.

(15.) J.G. Frohna et al., "Maternal Substance Abuse and Infant Health: Policy Options across the Life Course," Milbank Quarterly 77 (1999): 531-70.
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Author:Gostin, Lawrence O.
Publication:The Hastings Center Report
Geographic Code:1USA
Date:Sep 1, 2001
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