TESTING POOR PREGNANT WOMEN FOR COCAINE - PHYSICIANS AS POLICE

In 1989, Supreme Court Justice Thurgood Marshall surmised that "declaring a
war on illegal drugs is good public policy . . . [but] the first, and
worst, casualty of war will be the precious liberties of our citizens."1
The same year, in the midst of President George Bush's "war on drugs," the
Medical University of South Carolina initiated a program to screen selected
pregnant patients for cocaine and to provide positive test results to the
police.2 At a time of high public concern about "cocaine babies," this
program seemed reasonable to the university and local public officials.
Drug-screening programs in other groups of people had been found
constitutional by the Supreme Court,1,3 and it was beginning to appear that
the war on drugs would claim the Fourth Amendment, which prohibits
unreasonable searches, as one of its first casualties.4

In this context, it seemed as if the university's policy might survive a
constitutional challenge - and it did in the Fourth Circuit Court of
Appeals, which in 1999 rejected a challenge to the policy.5 In March 2001,
however, the Supreme Court found that the policy was constitutionally
deficient.6

The Policy Of The Medical University Of South Carolina

The university policy, developed with the local police department,
ultimately provided that a pregnant woman who tested positive for cocaine
would be given a letter from the prosecutor saying that if she successfully
completed a drug-treatment program she would not be prosecuted. If she did
not complete the program, however, the police would be notified and she
would be arrested and charged with drug distribution and child neglect. If
she tested positive at the time of delivery, she would be arrested
immediately and charged with child neglect.2 Pregnant women were to be
tested for cocaine if they met any of nine criteria: the receipt of no
prenatal care, of late prenatal care after 24 weeks' gestation, or of
incomplete prenatal care; abruptio placentae; intrauterine fetal death;
preterm labor "of no obvious cause"; intrauterine growth retardation "of no
obvious cause"; previously known drug or alcohol abuse; and unexplained
congenital anomalies.6 The hospital's general counsel was not entirely
supportive of the program and wrote to the state's attorney general that he
would "prefer to have the mothers sign an informed consent to the drug
screen [and that] the DSS [Department of Social Services] be notified
rather than law enforcement. . . . The other weakness in this program is
that the main prosecutions have been against black indigent mothers."2

Under the policy, which was in effect until 1994, 253 women tested positive
for cocaine. Thirty of them were arrested, and two were sentenced to
prison. Ten of the women who were arrested sued for violation of their
constitutional rights. They were represented by the American Civil
Liberties Union. Nine of the 10 were black. All were poor. Six had been
arrested at the hospital, shortly after giving birth. Three had been
arrested when they failed to complete a drug-treatment program. The only
white woman of the 10 was told at a prenatal visit that she must either
voluntarily admit herself to a psychiatric unit or be arrested. She spent
30 days in the unit before giving birth. The lawsuit was filed in 1993.

The university discontinued its policy in September 1994 in a settlement
agreement with the Civil Rights Division of the Department of Health and
Human Services, which was investigating whether the policy violated the
Civil Rights Act. In that same month, the Office for Protection from
Research Risks of the National Institutes of Health, after investigating a
complaint, notified the university that its cocaine-testing policy
constituted a research project that had not been reviewed by the
institutional review board, a violation of federal regulations.

The Fourth Amendment

Because the 10 women were suing for monetary damages, and because the
university would not agree to discontinue using noncriminal coercive
measures, including civil commitment, their lawsuit against the university,
the city, and the police continued even though the arrest policy had been
abandoned. The Fourth Amendment provides that "the right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable search and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the person or things
to be seized." The amendment prohibits unreasonable searches by the police
or those working for the police without a warrant or the consent of the
person searched, unless there is some "special non-law-enforcement need"
for the search that makes it reasonable. At the trial, the defendants
offered two defenses for testing the urine of the pregnant women for
cocaine: first, the women had in fact consented to the searches, so no
warrant was necessary; and second, even without consent, the searches were
justified by a "special non-law-enforcement need." The trial court rejected
the second defense but put the first one to the jury, instructing the jury
that it had to find in favor of the women unless it found they had
consented to the search. The jury found in favor of the defendants. The
women appealed.

The Fourth Circuit Court of Appeals affirmed the finding in a two-to-one
opinion, but for a different reason.5 The circuit court held that the
searches were reasonable under the Fourth Amendment as a matter of law
because of the "special need" to protect women and children from the
complications of the maternal use of cocaine.5 The dissenting judge
disagreed and also concluded that the evidence of consent was insufficient
to sustain the jury's verdict.5 The women appealed again.

The Majority Decision Of The Supreme Court

In a six-to-three opinion, the Supreme Court reversed the decision of the
circuit court regarding the special-needs exception and sent the case back
to the circuit court for a factual determination of whether the women had
actually consented to the search. Justice John Paul Stevens wrote the
opinion of the Court, focusing on the special-needs exception. That
exception had been adopted in 1989 by the Supreme Court in two cases. One
involved testing railway workers for drugs and alcohol after major train
accidents. The other involved testing U.S. Customs employees for drug use
when they were seeking sensitive jobs or promotions.1,3 The special-needs
exception had also been used to justify the drug testing of high-school
students participating in interscholastic sports.7 It had, however, been
found insufficient to make drug testing a condition for filing candidate
papers for certain state offices.8

Justice Stevens concluded that in each of these cases the Court had used a
"balancing test that weighed the intrusion on the individual's interest in
privacy against the 'special needs' that supported the program." The
purpose of testing railway workers, for example, was to try to learn the
cause of accidents so as to prevent them; the Customs employees were tested
to make sure they could not easily be compromised by drug smugglers;
high-school athletes were tested to see whether they were eligible for an
extracurricular activity. Stevens observed that the non-law-enforcement
purpose of the drug tests in all these special-needs cases was clear and
that precautions were taken to ensure that the police did not obtain the
results.

Justice Stevens found that the "critical difference" between the previous
special-needs cases and this one was the "nature of the 'special need'
asserted for the warrantless search." Specifically, Stevens concluded that
whereas the special need in each of the previous cases was "divorced from
the State's general interest in law enforcement," in South Carolina "the
central and indispensable feature of the [drug-testing] policy from its
inception was the use of law enforcement to coerce the patients into
substance abuse treatment."

The drug-testing policy of the Medical University of South Carolina,
Stevens concluded, was "ultimately indistinguishable from the [state's]
general interest in crime control." This conclusion followed from the fact
that the police helped to develop the program, were involved in its
day-to-day administration, determined the procedures to be followed, and
coordinated the "timing and circumstances of the arrests with [university]
staff," and that women were jailed. In Justice Stevens's words, "The threat
of law enforcement may ultimately have been intended as the means to an
end, but the direct and primary purpose of [the university's] policy was to
ensure the use of those means. In our opinion, this distinction is critical."

The Court sent the question of whether the women had consented back to the
circuit court for further consideration. According to the original
instructions to the jury, in order to find that the women had provided
informed consent, the jury had to conclude not only that the women
consented to have a urine sample taken for medical testing but also that
they consented to have their urine tested for cocaine knowing that the
results of the testing would be turned over to the police. Even though the
jury did find that consent had been provided, the dissenting judge in the
Fourth Circuit Court decision may have correctly concluded that there was
insufficient evidence for them to come to this conclusion. The consent form
that was used, for example, was general and vague, providing simply that
"attending physicians, members of the House Staff, and the Medical
University Clinics have my permission to reveal information to appropriate
agencies and individuals where it becomes necessary to protect the welfare
of myself/the patient and/or the community." Far from being evidence that
informed consent to share incriminating evidence of drug use with the
police was obtained, the form is evidence that it was not. Nothing in the
form indicated to the patient that her consent could lead to arrest and
imprisonment.

Since the university's policy was discontinued in 1994, and since no other
hospital or state in the country has adopted such a policy, the Court's
decision has no immediate effect on medical practice. It will, however,
discourage others from adopting a similar policy.

The Concurring And Dissenting Opinions

Justice Anthony Kennedy wrote a concurring opinion that no other justice
joined. Kennedy's point seems to be that cocaine use during pregnancy is
terrible and that the state has the authority to oppose and punish it,
although he agrees that the Fourth Amendment limits what the state can do.
In his words, the state has a legitimate interest in fetal life and is
legitimately concerned with "the grave risk to the life and health of the
fetus, and later the child, caused by cocaine ingestion. . . . South
Carolina can impose punishment upon an expectant mother who has so little
regard for her own unborn that she risks causing him or her lifelong damage
and suffering."

Justice Antonin Scalia wrote a dissenting opinion for himself, Chief
Justice William Rehnquist, and Justice Clarence Thomas. His opinion is
perhaps most notable for its peculiar view of physicians and the
doctor-patient relationship. Scalia believes that as long as the pregnant
women consented to having their urine taken, it is irrelevant whether or
not they knew what it would be tested for or who would obtain the test
results. In this regard, he compared the relationship between a doctor and
a patient to that between a suspected criminal and a police informant who
has gained the confidence of a suspect. Information voluntarily disclosed
by the suspect to the police informant can be used against the suspect.
Scalia thinks the same principle should apply to patients. In his words,
"information obtained through violation of a relationship of trust is
obtained consensually, and is hence not a search."

Even if this conclusion were to be rejected, Scalia argued, the
special-needs exception should still apply: there is no difference, argued
Scalia, between the actions of the physicians in this case and their
actions in adherence to specific statutes that require them to report
certain findings, such as gunshot wounds, to the police. Scalia compared
physicians to probation officers, seeing no difference between a probation
officer's search of a parolee's home for a gun and the physician's search
of a patient's body for cocaine. He concluded with his view that the
primary purpose of the policy at the Medical University of South Carolina
was not law enforcement but the provision of health benefits to the women
through the identification of a "drug-impaired mother and child for
necessary medical treatment."

The Fourth Amendment And Physicians

For more than a decade, it has seemed that the war on drugs in the United
States would gut the Fourth Amendment.9 The trend toward approving searches
of urine for the presence of drugs, however, has now been stalled, if not
stopped. The reasonable expectation of privacy in the doctor-patient
relationship renders unreasonable under the Fourth Amendment nonconsensual
searches for the presence of illegal drugs as part of a plan to turn this
information over to the police. As the majority of the Court stressed, it
is one thing to require physicians to report certain findings from the
ordinary course of administering treatment, such as evidence of child abuse
or neglect or even gunshot wounds. It is another thing for physicians to
work directly with the police to search for evidence of criminal behavior.
In the first instance, the physician only practices medicine and only
performs tests and procedures that are medically indicated for the care of
the patient. In the second instance, the physician becomes an agent of the
police, conducting a criminal investigation that is outside the domain of
medicine and certainly not expected by patients.

There is, nonetheless, some tension inherent in mandatory reporting laws
that the Court does not acknowledge. These deserve attention. Reporting
statutes that are aimed at preventing harm to children - such as the
reporting of child abuse and neglect to state agencies charged with
protecting children - can be seen as consistent with the physician's
obligation to the child. No parent has (or should have) the reasonable
expectation that the physician will keep evidence of child abuse or neglect
from the state's child-protection services, because both the physician and
the state have obligations to act in the best interests of children by
protecting them from serious harm. Moreover, the child-protection-services
agency is not a police or law-enforcement agency; its only function is to
protect the welfare of children by providing protective services to them.

Mandatory reporting of gunshot wounds and knife wounds, however, is more
difficult to reconcile with the duties of physicians, which should be to
care for the wounded person (who can report the source of the wound to the
authorities himself or herself) rather than try to identify the assailant.
Such reporting can, however, be seen as protective of the patient insofar
as it triggers a police hunt for the assailant, and this goal is consistent
with the patient's interests. Moreover, the patient is not being accused of
a crime. Nonetheless, as the Court recognizes, the more physicians and
nurses become entangled in law enforcement, the more they resemble agents
of the police (and police informants and probation officers) rather than
health care professionals. Physicians' role in law enforcement, in turn,
undermines the trust patients place in them and thus the very ability of
physicians to practice medicine; distrustful patients will not be candid
with physicians and may even avoid them altogether.10,11 During pregnancy,
the avoidance of prenatal care can be as devastating to the fetus as drug
abuse.

Medical research fails to support the contention that the exposure of a
fetus to cocaine is uniquely harmful.12 Rather, the evidence supports the
hypothesis that cocaine exposure is itself correlated with other harmful
factors, including poverty, malnutrition, and exposure to tobacco,
marijuana, and alcohol.12,13 Thus, there is no medical justification for
special intervention related only to fetal exposure to cocaine.

Fetuses And The Court

The South Carolina case is about the Fourth Amendment and its prohibition
of unreasonable searches, but it also tells us something about the views of
the individual justices with regard to the power of the states to protect
the fetus from its mother. The justices line up almost exactly as they did
on the 2000 partial-birth-abortion case. Those who believed the state has
the authority to prohibit so-called partial-birth abortions also approved
of physicians' working closely with the police to screen the urine of
impoverished pregnant women for cocaine. As in the partial-birth-abortion
case, the dissenters found both medical practice and medical ethics
irrelevant to their conclusions.14,15

As in the abortion case, Justice Kennedy wrote a separate opinion, although
in the drug-testing case he joined the majority instead of the minority. In
both cases, however, he saw the state's interest in protecting fetal life
and health as stronger than the pregnant woman's interest in her own life
and health. In both cases he also approved of state laws designed to force
pregnant women to act in ways that the state believed were best for the
life or health of the fetus. In the drug-testing case, Kennedy supports
state laws that criminalize behavior during pregnancy that he believes
harms the fetus and thus the child and that treat pregnant women more
severely than others who commit the same crime. He sees punishing the
mother after the birth of the child as appropriate, although it is
difficult to see how putting a new mother in jail helps her newborn baby or
her other children.

In coming to his conclusion, Kennedy ignores the reasoning behind the
previous decision of the Court in the 1991 case of Johnson Controls.16 In
that case, the question was whether a private employer could, consistent
with Title VII of the Civil Rights Act of 1964 and the Pregnancy
Discrimination Act of 1978, exclude women who could become pregnant from
working in jobs that exposed them to lead because such exposure could harm
fetuses. The Court found that being infertile is not "a bona fide
occupational qualification" for making batteries. Put another way,
employers cannot convert a general desire to protect the health of fetuses
into a job qualification, because this would effectively exclude almost all
women from the job. In the Court's words, "women as capable of doing their
job as their male counterparts may not be forced to choose between having a
child and having a job."16 Although Kennedy agreed with the holding in that
case, he joined a concurring opinion of Justice Byron White that argued
that under other circumstances it might be reasonable for an employer to
consider the fetus a "third party" whose safety was, like that of its
customers, its responsibility.

In Johnson Controls, the Court noted that Congress had left the welfare of
the next generation to parents, not employers, and wrote that "Decisions
about the welfare of future children must be left to the parents who
conceive, bear, support, and raise them rather than to the employers who
hire those parents."16 The same reasoning applies to drug abuse. Drug abuse
is an important problem, as is exposure to lead. But to penalize pregnant
women more than other women and men for the same act makes pregnancy itself
the relevant variable. Doing so deprives women of their rights for no other
reason than that they are pregnant. Johnson Controls was about interpreting
a statute, whereas the South Carolina case involves an interpretation of
the Constitution. Nonetheless, the rationale of fetal protection claimed by
the supporters of the policies in both cases is the same. And in both
cases, the Court concluded that the rights of women (whether statutory or
constitutional) are not automatically forfeited because of pregnancy.

Fetal protection cannot reasonably be used to justify uniquely restricting
or criminalizing the activities of pregnant women.17 This would start us
down the slippery slope of controlling all behaviors of pregnant women,
criminal or not, that might affect the health of their fetus - not only
alcohol use and smoking, but also working at certain jobs and engaging in
certain sports.18,19

Remarkably, Justice Marshall's prediction that the war on drugs would spell
the demise of the Fourth Amendment now appears far less likely to come
true. A Court that strongly supports both law enforcement and the war on
drugs has finally declared unequivocally that there are limits on the
tactics that can be used in that war, and some of these limits are set by
the Fourth Amendment.

Source Information

From the Health Law Department, Boston University School of Public Health,
Boston.

References

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