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Pregnancy And Drug Addiction

A case being deliberated by the United States Supreme Court that involves drug testing of pregnant women in a Charleston, S.C., hospital will determine the constitutionality of the practice, which has occurred in more than 30 states.

Oral arguments in the case of Ferguson v. City of Charleston were heard in October, and one estimate said a ruling may come as early as this month. The case concerns a drug screening program created by the Medical University of South Carolina in Charleston to test pregnant women for evidence of cocaine use. Positive test results were turned over to local law enforcement officials.

The case is not unique. At least 200 women in more than 30 states have been arrested and criminally charged for allegedly using drugs during pregnancy, according to a briefing paper from the Center for Reproductive Law and Policy (CRLP), a nonprofit legal and advocacy organization based in New York City, which brought the lawsuit against the city in the Ferguson case.

Women in 22 of those states have challenged the charges. Twenty-one states have ruled in their favor, holding that criminal prosecution of women for their conduct during pregnancy is without legal basis or is unconstitutional. Only one court decision--that of an appellate court in South Carolina--upheld criminal charges against a woman for using illegal drugs during pregnancy, according to the center.

South Carolina Attorney General Charles Condon said on several occasions that he will reinstitute the drug testing policy in Charleston if the U.S. Supreme Court rules against the plaintiffs in the Ferguson case, a spokesperson for the center said.

The drug screening program being challenged in the Ferguson case was in force from 1989 to 1993. The policy was challenged in 1993 by 10 patients represented by attorneys from the CRLP, who said the policy violated the women's Fourth Amendment rights against unreasonable searches and seizures. However, a federal court in Charleston upheld the policy in 1996, and the United States Court of Appeals for the Fourth Circuit backed the lower court's decision in 1999. The center immediately petitioned the United States Supreme Court to review the case.

Several physician groups support the plaintiffs. Amicus briefs submitted in this case were filed by the American College of Obstetricians and Gynecologists, the American Medical Association, the American Public Health Association, the American Civil Liberties Union, the American Society of Addiction Medicine, and others.

According to a statement from ACOG, "The fact that medical personnel are involved, or that there is a well-intentioned purpose in protecting fetal health, cannot excuse harmful searches conducted without a warrant or probable cause.

"ACOG and other amici believe that such a policy violates basic principles of medical practice and actually harms the potential to care for a drug-dependent woman and her fetus during pregnancy," the statement says.

An attorney for the defendants takes a different view. "What this case is all about is money. It has got nothing to do with anything but money. All they [the physicians] wanted to do was to help these women who couldn't help themselves, and they got sued as their thanks," Robert H. Hood of Charleston said in an interview.

Physicians at the university made the decision to start testing women during an "epidemic" of cocaine use in the 1980s. "Babies were dying, and the doctors said, 'What can we do?'" said Mr. Hood, who could not supply the number of deaths that actually occurred.

The hospital's physicians sought advice from the university's attorney, who advised that, according to South Carolina law, cocaine use in pregnancy was considered child abuse and the physicians were obligated to report it, Mr. Hood said. The physicians then developed a set of medical criteria to flag possible cocaine use and did drug tests on pregnant women who fit those criteria.

The lawsuit names 23 physicians and nurses at the hospital, the city of Charleston, local law enforcement officials, and the hospital itself. The lawsuit asks for monetary damages and attorneys' fees.

In her oral argument before the U.S. Supreme Court, Priscilla J. Smith, deputy director of litigation at the CRLP and one of the plaintiffs' attorneys, said that medical personnel at the hospital "became like a police officer searching a suspect" and that the searches were conducted specifically with the intent to arrest women. Repeated attempts to interview an attorney for the plaintiffs were unsuccessful.

According to a written statement issued by the CRLP, "the question here is whether the Fourth Amendment permits the state, acting without warrant or probable cause, to secretly search women who seek prenatal care for evidence of drug activity, thus invading the private relationship between doctor and patient."

"Besides being an unconstitutional violation of the Fourth Amendment, which protects all citizens from unreasonable searches, the Medical University of South Carolina's drug search policy undermined the doctor-patient relationship and ultimately endangered the health of women and their babies," Ms. Smith said in a separate statement.

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