Background: Social and Legal Contexts
On October 4th, the U.S. Supreme Court will hear arguments in Ferguson v. City of Charleston, a case considering the constitutionality of a governmental policy of surreptitiously drug testing pregnant women in a South Carolina hospital, which then reported positive cocaine results to law enforcement officers. Though the legal question is narrow -- whether the Fourth Amendment permits the state, acting without either a warrant or individualized suspicion, to drug test pregnant women who seek prenatal care in a public hospital-the case points to broader issues concerning the right of pregnant women to be treated as fully autonomous under the Constitution.
In the past several years, the state has increasingly intruded into the lives of pregnant women, policing their conduct in the name of protecting fetuses. Pregnant women have been forced to undergo unwanted cesareans; they've been ordered to have their cervixes sewn up to prevent miscarriage; they've been incarcerated for consuming alcohol; and they've been detained, as in the case of one young woman, simply because she "lack[ed] motivation or [the] ability to seek medical care" (V. Kolder, J. Gallagher, and M. Parsons, "Court-Ordered Obstetrical Interventions," New England Journal of Medicine (1987) 316, No. 19: 1195).
Fortunately, in many of these cases the invasive state actions have been rescinded by higher officials or rejected by the courts. Unfortunately, many of these decisions came too late to prevent unwarranted suffering and to protect women from being deprived of their rights.
When the Supreme Court rules in Ferguson we are hopeful that it will recognize that the Constitution protects pregnant women on an equal basis with all free adults, making it clear that pregnant women are not wards of the state.
The Facts in Ferguson
In 1989, an interagency group consisting of representatives from the City of Charleston Police Department, the Charleston County Solicitor's Office (the prosecutor), and the Medical University of South Carolina (MUSC, a public hospital in Charleston) developed and implemented the Interagency Policy on Cocaine Abuse in Pregnancy. Under the policy, MUSC subjected pregnant women to warrantless searches if they met any one of several criteria, including no or minimal prenatal care; unexplained preterm labor; birth defects or poor fetal growth; separation of the placenta from the uterine wall; a history of drug or alcohol abuse; or intrauterine fetal death.
In the early months of the program, women were immediately arrested after they or their newborns tested positive for cocaine. One woman spent the last three weeks of her pregnancy in jail. During this time she received prenatal care in handcuffs and shackles. Authorities arrested another woman soon after she gave birth; still bleeding and dressed in only a hospital gown, she was handcuffed and taken to the city jail (Petitioners= brief in Ferguson, 6, 7).
In 1990, the prosecutor's office added an "amnesty" component to the policy: women testing positive for cocaine were given the "option" of drug treatment to avoid arrest. If they failed to follow through on treatment or if they tested positive a second time, however, they were arrested.
In October 1994, after the Civil Rights Division of the U.S. Department of Health and Human Services began investigating whether the hospital in carrying out the policy had violated the civil rights of its African American patients, MUSC dropped its program. In total, 30 women were arrested under the policy; 29 were African American.
Arguments Against Policing Pregnancy
Punishing women who use drugs during pregnancy deters them from seeking critical prenatal care and entering drug treatment programs. If the goal is to protect fetuses and to help women become drug-free mothers, punitive measures have the opposite effect.
Recent studies done in hospitals and health-care centers in San Diego, Chicago, and Detroit, for example, indicate that when pregnant women fear that they will be prosecuted for their drug use, they do not seek prenatal care and will even choose to deliver their babies at home (D. Roberts, Killing the Black Body, NY: Pantheon Books (1997), 192). Indeed, MUSC's policy appears to have driven drug-using women out of the health-care system in that region, isolating them in their drug use rather than helping them have healthy pregnancies and healthy babies (L.G. Tribble et al., Analysis of a Hospital Maternal Cocaine Testing Policy: In Association with Prenatal Care Utilization Patterns, 1993).
The punitive approach to drug use during pregnancy also stops women from participating in drug-treatment programs. In another high-profile South Carolina case, involving the Easely Baptist Medical Center, a young woman, Cornelia Whitner, was arrested for "endangering the life of her unborn child" and sentenced to eight years in prison after she gave birth to a healthy baby boy whose urine, nonetheless, tested positive for cocaine. Following the publicity surrounding this case, two drug-treatment programs in Columbia, SC, reported a precipitous drop in the number of pregnant women entering their facilities. One clinic found that between 1996 and 1997, it admitted 80 percent fewer pregnant women than it had a year earlier; the other saw 54 percent fewer pregnant women during the same time period (L. Paltrow, "Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, Albany Law Review (1999) 62, No. 999: n.147).
Recognizing that criminalizing maternal drug use is bad medicine and bad public policy, with potentially tragic consequences for pregnant women, their fetuses, and their families, numerous medical and public-health organizations have denounced the practice. These include the American Medical Association, the American Academy of Pediatrics, the Association of Reproductive Health Professionals, the American Medical Women's Association, the American College of Obstetricians and Gynecologists, the American Public Health Association, the American Nurses Association, the American Society on Addiction Medicine, the National Council on Alcoholism and Drug Dependence, the National Association of Social Workers, and the March of Dimes, among other prominent groups.
Pregnant women enjoy the same constitutional rights as other competent adults.
Pregnant women have as great a right to privacy, bodily integrity, and autonomy as other free adults. This means that the state cannot subject women to warrantless, suspicionless, nonconsensual searches just because they are pregnant. MUSC's drug testing policy did just that.
Imagine if the tides were turned, and the state began testing men of child-bearing age for illegal drug use because they did not have annual physicals or had a history of substance abuse. Imagine further that officials arrest and take into custody in the name of their unborn children those men with positive toxicology reports. Given that recent studies have linked male drug use to sperm abnormalities that can cause birth defects, this is not such a far-fetched scenario (I. Pollard, "Substance Abuse and Parenthood: Biological Mechanisms-Bioethical Challenges," Women and Health (2000) 30, No. 3: 1-24). It is doubtful, however, that law enforcement working in tandem with medical providers would consider implementing such a practice. And surely if they did, the courts would rightfully hold such policies unconstitutional. The rules, however, seem to change when it comes to pregnant women, though the Constitution does not.
It is hard to imagine subjecting fathers or soon-to-be fathers to the same level of state interference in their private lives as we do pregnant women. We do not strip fathers of their constitutional rights, even when their behavior may have deleterious effects on their offspring. We do not, for example, arrest fathers and remove them from their families if they smoke two packs of cigarettes a day around their children and their pregnant wives, though there is ample evidence that exposure-even prenatal exposure-to second-hand smoke can have serious long-term health effects.
Pregnant women, on the other hand, have been arrested or threatened with arrest for consuming not just illegal substances, such as cocaine, but legal substances as well. There are at least two recent incidents of state authorities arresting women for consuming alcohol during pregnancy: one in South Carolina, the other in Wyoming (Paltrow, 1042; R. Roth, Making Women Pay: The Hidden Costs of Fetal Rights, Ithaca, NY: Cornell University Press (2000), 150). And in case the message to pregnant women was not clear, officials in the South Carolina Department of Alcohol and Other Drug Abuse Services recently distributed literature advising pregnant women that "it's . . . a crime in South Carolina" to "smoke, drink . . . or engage in other activities that risk harming" the fetus. Though in May of 2000, the state attorney general hastily recalled the pamphlet and issued a statement that only pregnant women who use illegal drugs would be prosecuted, the official responsible for redrafting the recalled material has indicated that he "has not decided whether to make reference to nicotine or alcohol abuse as potentially criminal" in the rewritten document (American Civil Liberties Union amicus brief in Ferguson, 18).
These and other state policies aimed at policing pregnant women assume that pregnant women are different from other competent adults, that in becoming pregnant, women somehow become wards of the state or forfeit their constitutional rights. The Constitution, however, protects all of us, pregnant women included.
Although drug use crosses all racial and class lines, poor women of color have overwhelmingly been the ones targeted and arrested for using drugs while pregnant.
MUSC's own records indicate that among its pregnant patients equal percentages of white and African American women consumed illegal drugs (Roberts, 172). However, of the 30 women arrested under the interagency drug-testing policy, 29 were African American (Petitioners brief in Ferguson, 13). These numbers are in line with national statistics. In a 1990 study published in the New England Journal of Medicine, for example, researchers found that 15.4 percent of white women and 14.1 percent of African American women used drugs during pregnancy. African American women, however, were 10 times more likely than white women to be reported to authorities (I. Chasnoff, H. Landress, and M. Barrett, "Prevalence of Illicit Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," New England Journal of Medicine (1990) 322, No. 17: 1202-6).
There are many factors contributing to these discrepancies, with race and class prejudices playing a major role in all of them. Because poor women of color are far more likely to give birth at public institutions and have more contact with state agencies, their drug use is far more likely than that of middle-class white women to be detected and reported.
In addition, a number of the criteria used to trigger testing under the MUSC policy had little to do with drug use per se and had much more to do with poverty. For example, the hospital tested women who received little or no prenatal care. Yet, with fewer resources and less connection to the medical community than middle-class women, poor women are more likely to delay seeking prenatal care until relatively late in pregnancy or to obtain no prenatal care at all. Inadequate prenatal care can, in turn, result in unexplained preterm labor, birth defects or poor fetal growth, separation of the placenta from the uterine wall, or intrauterine fetal death, all conditions that the MUSC policy also identified as grounds for testing pregnant patients.
Moreover, a drug-testing policy that targets crack cocaine, a drug more prevalent among inner-city communities of color, rather than other substances like methamphetamines, a drug used more often by white rural and suburban women, will unfairly result in the arrests of women of color (Roberts, 177). The singling out of cocaine is not justified on medical grounds. Studies on drug use during pregnancy consistently show that the abuse of other substances, both legal and illegal, can harm fetal development as much as or more than cocaine (American Medical Association amicus brief in Ferguson, 15, 16; Public Health Association et al., amicus brief in Ferguson, 29).
In practice, therefore, MUSC's policy was a form of racial profiling. By both design and implementation, the policy led inevitably to the identification and punishment of drug use by pregnant, low-income women of color, leaving other pregnant users free of the threat of warrantless, suspicionless, nonconsensual drug testing.
Punishing pregnant women for drug use sets the state on a slippery slope. What's to stop the state from arresting women for drinking alcohol or smoking cigarettes while pregnant? Where will we draw the line?
In recent years, pregnant women have been forced to undergo an array of medical procedures without their consent and have been imprisoned for alcohol use, unruliness, and mental illness, all in the name of protecting fetal health. Below are a few examples:
* In Massachusetts, a lower court ordered a pregnant women's cervix sewn up against her will to prevent a possible miscarriage. The woman was ultimately spared from undergoing the procedure by the Supreme Court of Massachusetts, which vacated the lower court's order because it had not adequately considered the woman's constitutional right to privacy (See Taft v. Taft, 446 N.E. 2d 395, 396, 397 (Mass. 1983)).
In Illinois, a pregnant woman was advised that, because of an insufficient flow of oxygen to the fetus, the fetus could be born dead or severely retarded if she did not immediately undergo a cesarean. When the woman opposed the surgery on religious grounds, the office of the State's Attorney sought a court order compelling her to submit to the cesarean. Rejecting the state's argument, the appellate court held that a woman's "right to refuse invasive medical treatment, derived from her rights to privacy, bodily integrity, and religious liberty, is not diminished during pregnancy." The woman ultimately gave birth by vaginal delivery to a normal, healthy-though somewhat underweight-baby boy (In re Baby Doe, 632 N.E.2d 332, 329 (Ill. App. Ct. 1994)).
* In Washington, DC, a young pregnant woman, severely ill with cancer, several times mouthed the words "I don't want it done" when told that a court had ordered her to undergo a cesarean and that she likely would not survive the operation. The cesarean was nonetheless performed; the baby died within a few hours of birth; and the woman died two days later. An appellate court ultimately reversed the order that authorized the involuntary surgery, but not in time to help the woman or her family (In re A.C., 573 A.2d 1235, 1241 (D.C. 1990)).
*In Wyoming, officials arrested a pregnant woman because of alcohol use and charged her with felony child abuse. She spent time in jail before a judge dismissed the charge (Roth, 150).
* In Wisconsin, officials held a pregnant sixteen-year-old in secure detention for the sake of fetal development because the young woman tended "to be on the run" and to "lack motivation or ability to seek medical care" (V. Kolder, M.D., et al., 1192, 1195).
* In California, a deputy district attorney, concerned about a pregnant woman's mental state but lacking sufficient evidence to have her committed for psychiatric treatment, instead obtained a juvenile court order declaring her fetus a dependent child of the state and detaining the woman pending birth. An appellate court ultimately held that the district attorney had impermissibly manipulated the juvenile laws to detain the pregnant woman and released her when she was approximately seven months pregnant (In re Steven S., 126 Cal. App. 3d 23, 27, 30-31 (Cal. Ct. App. 1981)).
State actions to police pregnant women for the alleged benefit of their fetuses are not only misguided as a matter of policy, they are unlawful.
In Ferguson, the question is whether the Fourth Amendment of the Constitution permits a public hospital to subject women to drug testing, the results of which are reported to the police, without a warrant, without individualized suspicion, and without the woman's consent. The answer is no.
The government may dispense with the protections normally demanded under the Fourth Amendment prior to a search-securing a warrant or having an individualized suspicion of criminal conduct-only if the search falls within a "special needs" exception. To satisfy that exception, the governmental policy must be unrelated to law enforcement, and the person being searched must have a diminished expectation of privacy.
In this case, however, law enforcement officials were intimately involved in creating and implementing MUSC's policy: women who tested positive for cocaine were arrested and prosecuted, or threatened with these consequences, in case after case.
Moreover, the notion that women have a diminished expectation of privacy when they are pregnant is at odds with our strong constitutional tradition of respecting pregnant women's privacy rights. Nothing in U.S. law permits the state to step in to ensure that women "behave" themselves during pregnancy. The Constitution does not permit such an assault on women's privacy and equality.
Though the question before the U.S. Supreme Court in Ferguson concerns the Fourth Amendment, the restraints imposed on pregnant women in this and other contexts, all in the purported interest of the fetus, raise additional legal concerns. While both men and women engage in conduct that may be harmful to a fetus, only women-by virtue of their pregnancies-are targeted for punitive measures. By singling out women in this manner, the state discriminates against them, potentially violating both the Equal Protection Clause of the Fourteenth Amendment of the Constitution and various civil rights laws. By the same token, policies, like MUSC's, that target women of color may violate constitutional and statutory prohibitions against race discrimination. Finally, efforts by the state to protect the fetus by confining women-whether to a hospital or jail-or by compelling medical treatment-whether the woman is strapped to a gurney for a forced cesarean section, tied into stirrups for a pelvic exam, or involuntarily hospitalized during delivery-violate the guarantee of liberty of the Due Process Clause of the Federal Constitution.