DRUG-TEST POLICY NEEDS COURT REVIEW

The Supreme Court will soon be reviewing a very important case that raises
the question of whether pregnant women have less constitutional rights than
everyone else. In so doing, it will establish ground rules governing patient
privacy and the relationship between patients and their health care
providers.

The case arose from a practice instituted a decade ago in a Charleston, S.C.
public hospital. The hospital, in collaboration with the city police and
local prosecutor's office, instituted a policy of non-consensual drug
testing of all pregnant women seeking obstetrical care. Under the policy,
women who tested positive for cocaine could be arrested or threatened with
arrest on the basis of their urine tests for the crimes of possession of
drugs, child neglect, or distribution of drugs to a person under 18.

Nine African-American women and one white woman brought a lawsuit in federal
court challenging this policy. These women received no referral for drug
treatment and no chance to obtain treatment as an alternative to arrest.

Many were arrested right out of their hospital beds, some still bleeding,
weak and in pain from having just given birth. Some were placed in handcuffs
attached to a chain that went around their belly or shackled when taken into
custody. Both the trial court and the Court of Appeals ruled against the
women, finding that their Fourth Amendment right to be free from
unreasonable searches had not been violated.

The policy that the United States Supreme Court will now review requires
health care workers to act in the role of police, a transformation that
inevitably will drive the women most in need away from the health care
delivery system. Trust is essential to the doctor-patient relationship,
especially for women with substance abuse problems, who are more likely to
enter treatment after having establishing a trusting relationship with their
care givers.

In defense of the policy, the South Carolina Attorney General has stated
that "the unborn child has a constitutional right to protection from its
mother's drug abuse." But ironically, there is a notorious lack of drug
treatment programs for pregnant women in this country. For example, in
Charleston, there was not one in-patient drug treatment program for pregnant
women. Moreover, many battered women's shelters won't accept women with drug
problems, and many can't access prenatal care without risking the loss of
custody of their children.

Also, shamefully, all but one of the thirty women arrested pursuant to this
policy have been low-income and African-American, even though the problem of
substance abuse crosses all race and class lines. According to an exhibit
offered at trial, the white nurse who ran the hospital program admitted that
she believed that the mixing of the races was against God's will.

The South Carolina policy has been opposed by no less than the American
Medical Association, which has stated that "[p]regnant women will be likely
to avoid seeking prenatal or other medical care for fear that their
physicians' knowledge of substance abuse or other potentially harmful
behaviors could result in a jail sentence rather than proper medical
treatment." The American Society of Addiction Medicine, the National
Association for Perinatal Addiction Research and Education, the U.S. General
Accounting Office and many others have issued similar objections to this
intrusive policy.

The attorney general's professed concern for the health of children must be
viewed against the realities of his own policy: The director of one
treatment program in Rock Hill, S.C., has reported that her center used to
have about 20 pregnant women addicted to crack; now, there are only 10
because, she believes, pregnant addicts fear being arrested.

As Justice Louis Brandeis once said: "Experience should teach us to be most
on our guard to protect liberty when the Government's needs are beneficent.
... The greatest dangers to liberty lurk in insidious encroachment by men of
zeal, well meaning but without understanding."