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.