PRIVACY CASE PROVES DIFFICULTY OF ENFORCING MORAL OBLIGATIONS

Court Upholds Fourth Amendment

Last week's decision by the U.S. Supreme Court that a pregnant woman
is entitled to the same medical privacy as any other patient is
enough to break out the champagne. I am willing to take victories
where I get them. But a verdict that a hospital is not a police
station? Is this what qualifies these days for high-fives?

Back in 1989, we were at the height of the "crack baby" furor. With
little drug treatment for pregnant women, there was lots of punitive
treatment. That year, the hospital of the Medical University of South
Carolina offered to cut a deal with the police that virtually
deputized doctors and nurses., The hospital tested the urine of
patients who fit a certain police "profile" and turned over the
results of those who tested positive. Over a few years, women with
the same "profile" - all but one of them African-American, and all
poor - came for maternity care and ended up in police custody.
Eventually, the hospital added drug treatment as an alternative but
some 30 women were jailed during pregnancy, or were shackled in the
delivery room or arrested in recovery. In many ways, this was a
story of bad law meets bad medicine.

When Ferguson vs. the City of Charleston arrived at the Supreme
Court, 75 medical associations argues that when doctors doubled as
cops, they violated the patient-doctor relationship. More to the
point, the policy didn't help the woman or her fetus: it scared her
straight out of medical care. Now a 6-3 majority of the justices has
ruled that a hospital can't secretly test a pregnant patient for
evidence. Without a warrant, without consent, the drug test amounted
to an unconstitutional search.

But before anyone goes whoopee, may I suggest that they read the very
reluctant concurrence, of Justice Anthony Kennedy, who holds one of
the swing votes on this dicey court. Kennedy agreed that this
particular cozy hospital-police policy was unconstitutional. But he
added a warning: "There should be no doubt that 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."

Of course, many of us share Justice Kennedy's tone of outrage. The
first public sign of pregnancy these days is when a friend stubs out
her cigarette and passes up wine. Most women who have decided to
have children feel a deep responsibility for their health. We expect
the same of others.

But the problem is when the moral responsibility becomes legal
responsibility and the expectation becomes prosecution. How do you
enforce it? At what cost? More than 200 women in 30 states have been
prosecuted on some theory of "fetal right." Where does it end?

We are not just talking about a skirmish in the drug wars. The
danger to "crack babies," for example, was somewhat exaggerated. But
the danger from alcohol and tobacco may be understated,. Do we
arrest women for smoking or drinking? How much?