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Drug tests on pregnant women unconstitutional, lawyers argue

By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- A lawyer for 10 women arrested after their urine tested positive for cocaine told the U.S. Supreme Court on Wednesday the South Carolina hospital where the women got prenatal care violated the Fourth Amendment by sharing the test results with the police.

Priscilla Smith said the women did not give consent for their test results to be turned over to the police and that the Medical University of South Carolina "searched" the women without probable cause. MUSC officials targeted women who exhibited signs of being drug users and tested only them for cocaine use, she said.

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The policy does not deserve the "special needs" exception to the Fourth Amendment protection against "unreasonable searches" that the high court has permitted in prior cases, said Smith, a lawyer for the Center for Reproductive Law and Policy in New York.

"The special needs exception does not apply in this case," she said. "In this case we have a discretionary list of criteria under which a few women who met the criteria were tested."

"This (program) was designed by and for law enforcement," Smith said while presenting the women's side in Crystal Ferguson v. City of Charleston. "If (MUSC officials) had probable cause, why not obtain a warrant?"

The city's argument

Robert Hood, the lawyer for the city, said the tests were medically necessary and police did not implement the policy, as Smith alleged. He also said the intent of the policy was not to arrest anyone but protect the health of the fetuses, considered "persons" under South Carolina law, by encouraging them to get off cocaine.

"The policy's purpose was to prevent pregnant women from using cocaine," said Hood, a private lawyer who practices in Charleston. "We are trying to stop a woman from doing major, irreparable harm to her unborn child."

He also said he proved in lower court that the women consented to being tested and were aware that if they tested positive twice for cocaine the results would be turned over to the police.

Hood argued that the policy, which no other Charleston hospital has adopted, deserves the "special needs" protection because MUSC officials had a purpose beyond law enforcement in view: protecting fetuses.

Background of the case

MUSC, which began the policy in 1989 and ended it in 1993, began the program at the urging of Shirley Brown, a nurse in the obstetrics department, who sought legal advice after noticing that more and more low-income women seeking prenatal care were testing positive for cocaine.

Brown, Charleston police, local prosecutors and prenatal care doctors at MUSC formed a task force to figure out how best to protect the fetuses, according to a prior court ruling.

The task force reasoned that because a live fetus is a "person" under South Carolina law, expectant mothers who used cocaine after the 24th week of pregnancy could be found guilty of distributing an illegal substance to a minor, a person under the age of 18, court papers show.

From 1989 to 1993, 253 women tested positive for cocaine use, Hood said in an interview before the case was heard. Thirty women who did not get treatment were arrested, though none received prison terms. Instead, they were sentenced to probation and ordered by the courts to undergo treatment, Hood said. Ten of those 30 women filed suit.

The women sued in 1993 on Fourth Amendment grounds, losing in a South Carolina federal trial court and the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.

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The Medical University of South Carolina
The Center for Reproductive Law and Policy

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