Okay, I’m pro-choice too, but I think I got a little sidetracked earlier. Let me use a poor analogy. Lots of people have dogs. That’s great, if that’s what you want. However, if you do something that can potentially harm the dog, like hit it with a stick, I think the government has every right to step in and stop you. That said, I still think that SC has gone a little over the edge. They are eroding Doctor-patient confidentiality. Also, if a woman was on crack, she may avoid the hospitals knowing that her urine was tested for drugs. She may want to keep the child or not, but there is still a need for medical evaluation, and no one should do anything to potentially hinder that.
One clarification - the policy only applies to “viable fetuses” - those who are developed enough to survive outside the womb, and for whom abortion would not be legal anywhere. Unfortunately that allows a mom free rein to expose the baby to harmful substances earlier in pregnancy & possibly cause organ malformation & birth defects. But I believe that the brain, which is what this law is intended to protect, is at it’s most vulnerable stage of development in the last trimester.
The main problem I have with this law is that as I understand it*, the only place applying this policy is the Medical University of South Carolina - the public hospital in Charleston. So if Mrs. Middle-class American goes to her private OB doc’s clinic, or to her HMO for prenatal care, her urine would not be tested for cocaine. Only women on Medicaid or other public assistance or those who voluntarily use that hospital have their urine tested. This is the aspect of the policy that I find truly appalling. *Though I am drawing inferences/reading between the lines of the article I cited, and may misunderstand the policy.
The point that the state makes is that the drug test is no more invasive. It is no more effort or cost to test for drug use than it is for physicians to observe battering when someone comes in with a cold.
I agree that it’s damage, but I argue that it’s not fundamental–the damage has already been done.
I don’t even have a problem with physician’s reporting battering–I just don’t like the laws that require physicians to report crimes–any more than any other law which criminalizes non-criminals (people who are weak, fearful, apathetic, nonpatriotic, or lazy).
Case 99-0936, Ferguson, Cheryl v. City of Charleston, et al. is not yet set for oral argumet (petition for certiorari was granted 2/28/00). Currently, the court is set through the April, 2000 hearing session; presumably this case will get set for sometime in May, 2000, absent some compelling reason to hear it earlier. Don’t you just LOVE http://oyez.nwu.edu and http://www.medill.nwu.edu ?
As for the constitutionality of the practice:
South Carolina’s courts allow the prosecution of women who use cocaine while pregnant as a form of ‘child abuse’. Specifically, by statute a woman cannot “refuse or neglect to provide the proper care and attention” so that a child “is endangered or is likely to be endangered.” The South Carolina Supreme Court has accepted the argument that a viable fetus is a ‘child’ under this law, entitled to protection. The USSC in 1998 refused to review this conclusion. Four other states have specifically refused to allow such prosecutions (Ohio, Florida, Kentucky and Nevada). According to the Associated Press, ‘numerous’ women have been so prosecuted.
In 1989, the Medical University of South Carolina (which runs a public hospital in Charleston) instituted a policy whereby urine tests positive for cocaine use from pregnant women would be forwarded to police, and the woman would be arrested. In 1990, the policy was amended to allow the woman to enroll in a course of drug-dependency treatment. The program was suspended in 1993 when the City was sued.
Contrary to the reports in some news articles, the testing was not ‘arbitrary’. Urine tests were given to women suspected of cocaine use as the result of showing one or more of several indicators of drug use during pregnancy. Positive results were forwarded to the police, unless the counseling program was accepted by the woman.
This language, far from clear to us at times, was really explicit to the framers of the Bill of Rights. They understood pretty well when a warrant was required for searching. It must be noted that at no time in English or American jurisprudence has a warrantless search been in all cases unconstitutional. However, warrantless searches are per se unreasonable if they don’t fall into a specific exception. One well-known classic exception is when waiting for a warrant will result in loss of evidence vital to the trial of a suspect. Another is a search ‘incident’ to a valid arrest.
In recent times, however, the number of exceptions has grown considerably. At one time, there were only a limited few exceptions; today the exceptions almost swallow the rule. One huge exception allowed by the USSC is the ‘special needs’ exemption, which is considered to be a need of government other than law enforcement. This exception was created by the court in Skinner v. Railway Labor Executives’ Assoc., 489 U.S. 602 (1989). Therin, the Court allowed the mandatory urine testing of railway employees when an accident or safety rule violation occurred. Where there is such need, the courts will balance the importance of the need, the degree to which the search will further that need, and the degree to which the search is intrusive on the privacy of the individual. If that sounds silly, I agree; in essence it gives non-police branches of government more power to invade your privacy without a warrant than a police officer has in attempting to enforce the laws.
Here, the 4th Circuit held that the Hospital had identified a compelling need (protection of fetuses from infliction of drug abuse), that the drug testing program was tailored to meet that need (identifying probable drug users then testing them), and that the testing was ‘minimally intrusive’ (all courts have found urine testing to be minimally intrusive, right back to Skinner).
The attorneys for the women assert that this application of the ‘special needs’ exception would allow government to assert almost any health and safety ‘need’ to support searches that could then support arrest and prosecution; in essence, the government would do an end run around the inability of the police to require the same tests. Probably, at the USSC, the issue will hinge on the supposed ‘need’ to engage in such testing. Frankly, given the numerous examples of ‘need’ sanctioned by the Court in the last decade, I doubt that the women can convince the Court the policy of tests is unconstitutional. Hopefully, the Court will find the reporting of such results to law enforcement officials unconstitutional; after all, that is really what makes the whole thing objectionable.
DSYoung, you state “The South Carolina Supreme Court has accepted the argument that a viable fetus is a ‘child’ under this law, entitled to protection.” First, do they give an age for viability? 5 months? Second, does that mean abortion of a viable fetus is also prosecutable in SC?
Majormd: Where do you live? “viable fetuses” - those who are developed enough to survive outside the womb, and for whom abortion would not be legal anywhere.” Except right here in the USA. Late term abortions for the “health” of the mother are indeed legal per the USSC, and health can mean anything down to risk of emotional depression.
TNTruth, you’re right about the maternal health exclusion. When I posted, I was thinking in terms of elective abortions. Do you have cites for the “risk of” depression justification? That sounds awfully tenuous to me.
DSYoung, thanks for the clarifications & cites. I had gotten the impression that ALL pregnant women were tested. This is somewhat less repugnant, I suppose. I could see some justification IF the first + test resulted in substance abuse treatment & mandatory retesting, and only 2nd or subsequent + results were referred to prosecutors. But the discriminatory application of the law (only the public hospital has adopted a policy to apply it) still makes it seem grossly unfair to me.
Leaving aside the greater argument, if testing for cocaine is acceptable then how do they justify not testing for alcohol, tobacco, opiates, marijuana and so forth? Crack addiction is bad, fetal alcohol syndrome is OK? Women will be jailed for not taking folic acid next, you mark my words.
Presumably, one element the prosecution would have to establish for a successful conviction would be ‘viability’ of the fetus. Since I don’t practice in South Carolina, I’m not sure what the age limits on this have been.
Sue, interstingly the plaintiffs in the case raised more than just the issue of 4th Amendment violation; they also argued that the fact that most of the mothers in the program tested at the hospital were black meant the program was violative of the 1964 Civil Rights Act; the 4th Circuit dismissed this argument also, and it seems not to have been raised on the Petition for Certiorari filed with the USSC. The court also dismissed claims that it violated the right to privacy and that the hospital had not committed the tort of ‘abuse of process’.
As for what types of ‘abuse’ could be prosecuted, quite obviously addiction to alchohol would be high on the list; I’m not certain why they haven’t started testing for other substances. Perhaps it awaits only the determination of the USSC.