IMAGINE GOING to your doctor for routine medical treatment and supplying
the typical urine sample. The doctor leaves the examination room, goes down the
hall and, without your knowledge or consent, tests your urine for illicit drugs.
As you wait in your patient's gown, police enter the room, handcuff and
shackle you, and take you off to prison on charges of drug possession.
Is it legal for you to be tested without your consent? Is it legal for your
doctor to call the police if you test positive? Is it legal for you to
incriminate yourself with your own blood or urine? These are the questions
involved in the Ferguson vs. City of Charleston (S.C.) case argued last month
before the U.S. Supreme Court.
Now add to the mix the question of fetal rights. In 1989, nurses and
physicians at a public hospital in Charleston worked with local police to
institute a policy whereby pregnant women were tested for cocaine and, after
one positive drug test, were arrested at the hospital. Over five years, the
Medical University of South Carolina arrested 30 women for child abuse on these
grounds. Some were taken to jail during their eighth month of pregnancy; others
were arrested in their hospital gowns, still bleeding from childbirth.
Six months after initiating the policy, the medical university added an
option whereby women who tested positive could enter in-patient drug treatment
instead of going to jail. But many of the women arrested were never offered
this option; others say they rejected it because it required them to leave
their other children.
Ten women who were arrested sued the state of South Carolina on the grounds
that the policy violated their Fourth Amendment protection against illegal
search and seizure. Under the law, the government must obtain a warrant based
on probable cause that a crime is being committed before searching for evidence
to be used in an arrest.
The court has made only limited exceptions to this rule in "special needs"
cases, such as in drunken driving, in which taking the time to get a warrant
might result in imminent harm to others.
In the Ferguson case, South Carolina argued that concern over damage to
fetal health constituted just such a special need and that a fetus was the
third party in danger from maternal drug use. But, as Justice Ruth Bader
Ginsburg asked the attorney for South Carolina in oral arguments, how does the
arrest of women, some after childbirth, protect fetal health?
Seemingly in support of the policy, Justice Antonin Scalia suggested that
doctors might be legally obligated to report such evidence to the police, as
they do in gunshot wound cases. But in this case, we're not dealing with
something as clear-cut as bleeding wounds. Who decides which women get tested
and which do not?
The Medical University of South Carolina targeted women with criteria as
vague as "inadequate prenatal care." Such wide discretion opens the door to
racial stereotyping. Given the history of prosecutions of drug-involved
pregnant women, it is not surprising to learn that in South Carolina, 29 of the
30 women arrested as a result of this policy were African American.
And who decides which harmful substances to test for? At the medical
university, women were tested and arrested only for cocaine. Many substances
can harm fetal health, with alcohol and cigarettes in the lead. Both do more
damage in this country than all illicit drugs combined. Why not arrest pregnant
women who abuse alcohol and nicotine?
More than 75 medical organizations and experts, including the American
Medical Association and the March of Dimes, oppose this policy on the grounds
that it does nothing to protect fetal health and, at worst, drives women away
from their health care providers.
Imagine how reluctant you would be to go back to your doctor or to share
sensitive medical information with any health-care provider after being
threatened with such an arrest.
If affirmed by the Supreme Court, this policy would turn doctors into police
officers, undermining the very foundation of medical privacy rights. It would
stretch the "special needs" exception beyond the limits of constitutional
protection. In the name of protecting fetal health from the admittedly serious
consequences of drug addiction, it would swallow up not just the rights of
pregnant women, but the rights of all citizens to medical privacy.
Cynthia Daniels is an associate professor of political science at Rutgers and the author of "At Women's Expense: State Power andthe Politics of Fetal Rights" (Harvard University Press, 1993).
©2000 San Francisco Chronicle