HOSPITAL PERSONNEL NEEDN'T BE POLICE OFFICERS, BUT SCRUTINY OF PREGNANT
WOMEN STILL TROUBLING

Within hours, the lawyers had broken out the champagne. It's come to that.
A decision by this Supreme Court that a pregnant woman is entitled to the
same medical privacy as any other patient is enough to bring on the bubbly.

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 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 argued that when doctors doubled as police officers, they
violated the patient-doctor relationship. 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. In short, as
Priscilla Smith of the Center for Reproductive Law and Policy said before
popping the champagne cork, ''Women don't lose their rights even if they
are pregnant.''

But before anyone goes "whoopee," may I suggest that they read the dissent
-- excuse me -- the concurrence, the very reluctant concurrence, of
Justice Anthony Kennedy. Kennedy, who holds one of the swing votes on this
dicey court, 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."

In fact, South Carolina today can still impose punishment. It's the one
state that applies the laws against child abuse to viable fetuses. A
pregnant woman there may be liable for "child abuse" for any number of
offenses.

Of course, many of us share 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 rights." Where does it end? Do we arrest women for smoking or
drinking?

The Supreme Court has said that women have the right to a doctor who isn't
doubling as a police officer. That's modest cause for celebration. But
Kennedy's opinion talked approvingly of other legal punishment. As even the
lawyer Smith acknowledges, it's "a message to state legislatures to go
ahead and criminalize behavior during pregnancy."

If that happens, the champagne is going to taste very flat.