PRIVACY RIGHTS AND FETAL DRUG ABUSE

The U.S. Supreme Court ruled 6-3 the other day that hospitals cannot test
pregnant women for drugs without their consent.

The case, Ferguson vs. City of Charleston, challenged the South Carolina
city's program under which selected obstetrics patients at a municipal
hospital were tested for cocaine use, with positive findings turned over to
the local police.

As vile as it is for a woman to subject her unborn child to illicit drugs,
the policy is still a gross violation of privacy. The court answered the
Fourth Amendment question of whether urine tests performed without warrants
were unconstitutional searches.

The city had argued that they were justified by a "special need," beyond
the bounds of ordinary law enforcement, to protect fetal health, but the
majority of the justices believed the policy went too far, which it did.

But while privacy rights won out in the court, the rights of the unborn
were, again, a secondary consideration. And what we can do about fetal drug
abuse is still unclear.

According to our local Healthy Start chapter, during a 10-year period in
Hillsborough County alone, 2,700 substance-exposed babies were born.
Officials couldn't possibly jail all of these women, and by the time the
infants are born, it's too late to recommend treatment.

Lawmakers in many states, including Florida, have tried to introduce
legislation making fetal drug abuse a crime (South Carolina has such a
law). Their attempts have been thwarted by some women's groups, medical
organizations, civil libertarians and, ironically, abortion opponents who
fear criminal prosecution would encourage the mothers to terminate their
pregnancies.

Even when individual prosecutors have tried to charge drug-abusing pregnant
women with manslaughter, reckless homicide or abuse, many courts have ruled
that a fetus is not a "person" under those criminal statutes. Then again,
that is why women face no criminal prosecution at all when they terminate
their pregnancies and why the law's application of child abuse is so
narrowly applied.

Still, the child is abused, and within this contemporary dilemma is the
very essence of tragedy.