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Unresonable Search

Here are the bare bones of a case the Supreme Court heard last week: A decade ago, some pregnant women who went to a South Carolina public hospital for prenatal care were given urine tests and arrested if the results turned up positive for cocaine.

Doesn’t that flagrantly violate the patients’ Fourth Amendment protection against unreasonable searches of their “persons, houses, papers, and effects”? It certainly does in our book. But in the lawbooks, the Supreme Court has said no warrant or probable cause is necessary for a search that meets some special need apart from enforcing the criminal laws.

And in this case, lower courts bought the Charleston hospital’s argument that it was protecting the health of fetuses, if need be, by jailing the women who were carrying them.

That argument breaks down on several counts, even though a third-trimester fetus is considered a person in South Carolina.

No other hospital in the state found it necessary to turn drug-positive patients over to the police. What’s more, some of the Charleston women weren’t arrested until after they had given birth-too late, as Justice Ruth Bader Ginsberg pointed out, to protect the fetuses.

In any event, medical needs are ill served by deputizing nurses and doctors as agents of law enforcement. If anything, the possibility of being arrested is likely to discourage prospective mothers from seeking prenatal care at all.

There’s more than a hint of racial profiling in this case, although the courts so far have refused to acknowledge it. The hospital’s patients are predominantly poor and African-American, and nine of the 10 Charleston plaintiffs are minorities. Fortunately, the hospital has seen the error of its ways to this extent: Pregnant women who test positive for drugs are now sent to social workers, rather than turned over to police officers. That’s a better way to meet the needs of mothers and children without trashing the Bill of Rights.

Posted by A. Shapiro
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