PREGNANCY AND PRIVACY

Secret Drug Tests Violate Rights And Could Deter Women From Seeking

The U.S. Supreme Court returns to work this week with a knotty issue on its
docket: whether a pregnant women can be tested for drug use, without her
knowledge, to protect the fetus.

Since the justices divide almost evenly on abortion rights and lean toward
granting police more powers, the high court may be inclined to say yes,
especially during the later months of pregnancy. But there are overriding
reasons to say no.

At issue is a public South Carolina hospital's practice of running blood
tests on pregnant women and turning the results over to police, without
telling the women. Ten women sued the hospital, charging violation of their
constitutional right against unwarranted searches.

"There is no constitutional right for a pregnant mother to use drugs,"
declared the state's attorney general. "The unborn child has a
constitutional right to protection from its mother's drug abuse."

The South Carolina Supreme Court upheld the practice, saying the state's
child endangerment law applies to any fetus that could live outside the uterus.

The 4th U.S. Circuit Court of Appeals took the state's side, too, in a July
ruling that noted the public interest in seeing babies born healthy,
especially when South Carolina and its taxpayers must bear the substantial
expense of weaning babies off drugs or tending to other, potentially
debilitating effects of a mother's drug use.

But the idea of taking a part of a person, without consent, to test what
has been going on in her body essentially creates a special class of people
who must surrender the constitutional protections available to everyone
else. It is untenable to argue that a woman gives up all privacy rights the
minute she gets pregnant.

South Carolina is one of 21 states that considered such testing. Twenty
dropped the idea, some after courts rejected it, including Michigan's Court
of Appeals. It ruled that laws against delivering drugs to children cannot
be used against pregnant mothers. Many courts have reasoned that everything
a pregnant woman does affects the health of her baby, from taking vitamins
to climbing a ladder. It's intrusive for the state to regulate a woman's
behavior for nine months.

The South Carolina law led to the arrest of 30 women over five years, all
but one of them African American, giving rise to claims that it is based on
racial profiling. Moreover, the state has never provided adequate drug
treatment, so it has been more about punishing a woman than protecting her
fetus, according to the Center for Reproductive Law and Policy, the group
challenging the law.

Fear of secret testing also can deter a pregnant woman from seeking medical
care.

A law that horribly subjugates a woman's right to privacy and fails to
achieve a supposed objective of healthier babies should not pass muster
before the U.S. Supreme Court.