JAILING PREGNANT WOMEN VIOLATES PRIVACY RIGHTS

Imagine going to your doctor for routine medical treatment and supplying a
urine sample.

The doctor exits 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, the 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 v. City of Charleston
(S.C.) case argued last week before the U.S. Supreme Court.

Now add to the mix the question of fetal rights. In 1989, the nurses and
physicians at one 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 by the police. Over
five years, police arrested 30 women at the Medical University of South
Carolina 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, to jail.

Six months after initiating the policy, MUSC 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. According to established 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, where, for instance, taking the time to get a warrant might result in
imminent harm to others (such as in drunken driving cases).

In the Ferguson case, the state of 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 argument, how
does the arrest of women, some after childbirth, protect fetal health?

Who decides which women get tested and which do not? MUSC targeted women
with criteria as vague as "inadequate prenatal care." Such wide discretion
opens the door to racial stereotyping. Twenty-nine of the 30 women arrested
as a result of this policy were black.

And who decides which harmful substances to test for? At MUSC, women were
tested and arrested only for cocaine.

Many substances can harm fetal health, with alcohol and cigarettes in the
lead, doing more damage in this country than all illicit drugs combined.

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 to the Fourth Amendment 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.