DRUG-TESTING PREGNANT WOMEN IS BOTH COUNTERPRODUCTIVE AND UNCONSTITUTIONAL

By SHERRY COLB


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Wednesday, Oct. 25, 2000

In the late 1980's, several states made attempts to respond to the rising number of babies born to women using cocaine during their pregnancies. The city of Charleston, South Carolina, addressed the problem with a policy whose validity is now before the United States Supreme Court. The policy called for testing the urine of selected women delivering their babies at the University of South Carolina's public hospital and then turning the results over to the police. Approximately thirty women whose urine was screened pursuant to the policy were arrested after testing positive for cocaine; some were led away in handcuffs, while still bleeding in the delivery room.

Ten of the arrested women later brought a lawsuit claiming that the drug-testing policy violated their Fourth Amendment rights to be free from unreasonable searches and seizures. The women claimed that the Fourth Amendment required the police to obtain warrants based upon individualized probable cause, which the police failed to do. On October 4th, 2000 the Supreme Court heard oral argument in the case.

Most people react negatively when they hear about the Charleston policy of drug-testing women delivering their babies at a public hospital. And this reaction seems to be nearly universal: Strikingly, no organization - conservative or liberal, pro-life or pro-choice - submitted an amicus (friend-of-the-court) brief in support of the policy. This raises two questions: Why is there such a strong negative reaction to the policy? And, does the widespread intuition that the policy is bad have a constitutional foundation?

Why Warrants Would Not Cure the Charleston Policy's Ills

Though the Charleston police did not have warrants to search the plaintiffs, this was not the only (or even the most) troubling aspect of the searches. What if the police had obtained warrants, and what if only the women who had a history of drug addiction were screened for cocaine? Would these modifications have alleviated the problems?

Across the political spectrum, most people agree that testing and then arresting drug-addicted women after they deliver their babies will not redound to the benefit of the unborn. Accordingly, the Rutherford Institute, a conservative group that opposes abortion, submitted an amicus brief to the Court arguing that the policy in Charleston will simply deter drug-addicted pregnant women from seeking medical care - thus harming the very group that the policy is purportedly designed to help.

Requiring the police to obtain warrants based on probable cause before drug testing would do nothing to address this deterrence concern. On the contrary, it is probably the very women with respect to whom warrants would issue - those who are most likely to test positive for cocaine - who would also be most likely to avoid doctors and hospitals and thus receive little or no prenatal care.

Can the Fourth Amendment Reflect Our True Concerns about the Charleston Policy?

In summary, many people's objections to the Charleston policy are not primarily procedural - asking whether there was a warrant. Instead, they are substantive - asking whether, even if there was a warrant, we should be screening maternity patients to detect prenatal drug use at all. Can the Fourth Amendment address these substantive concerns? The short answer is "hopefully."

The Fourth Amendment prohibits "unreasonable searches and seizures." One might think that the seizure of urine, and the search of that urine for cocaine, would represent a blatantly "unreasonable search and seizure" if the drug screen would in fact harm the interests of the unborn, its intended beneficiaries. This conclusion, moreover, would not turn at all on whether the testing was conducted pursuant to a warrant and probable cause. Yet under current law, the "reasonableness" of searches is not generally understood to rest on such considerations. That may be why the parties in this case focused on the absence of warrants and probable cause.

The doctrine of search and seizure, as it has developed over the years, tends to emphasize levels of suspicion and warrants - often to the exclusion of any analysis of the underlying objectives and costs of government policies. As a result, the women who challenged the Charleston policy did not have a reliable vehicle, under Fourth Amendment law, for raising the very objections to the policy that trouble virtually everyone, regardless of ideology.

How the Charleston Policy Independently Harms Women's Right to Autonomy

Beyond its counterproductivity, there is another issue that bedevils the Charleston policy and other fetal-protection initiatives like it. This problem is easy to miss, because fetal-protection drug laws seem to resemble legislation barring individuals' possession or use of narcotics. If drug laws generally are unobjectionable, then it would seem to follow, perhaps even more so, that fetal-protection drug laws are also unobjectionable. This appearance, however, is deceptive.

The rationale for drug laws generally is paternalistic; such laws protect people from harming their own bodies. A fetal-protection policy, in contrast, does not purport to serve the health interests of the pregnant woman whose behavior it regulates. Instead, it treats her as a public resource that must be kept clean and operational for the growing fetus - a walking incubator. Thus, under such a policy, when a pregnant woman uses drugs, she is not treated as violating laws against drug use or possession; rather, she is treated as a parent who has abused (or "delivered drugs to") her child.

A pregnant woman, however, is - in important respects - not like a parent. She cannot delegate even one moment of "childcare" to another human being - asking a spouse or a neighbor to mind the baby while she showers, naps, eats or smokes a cigarette - since her moment-to-moment behavior determines how well-housed and fed her baby is. As a result, governmental "parenting" demands are of a different, and of a much greater, order of magnitude when placed upon pregnant women. By regulating a pregnant woman's every move, the law designates her as, in effect, property of the government - not the autonomous individual she has a right to be. In that sense, the government that employs fetal-protection policies might also be viewed as unreasonably seizing the pregnant woman for the duration of her pregnancy.

There is no question that a pregnant woman can inflict serious, real harm on her future baby - by failing to eat or sleep enough, by doing strenuous exercise, by drinking alcohol, by using certain drugs (including various antibiotics), and sometimes even by having intercourse. Morally, many of us might feel disdain for the woman who behaves in a manner that compromises the health of a baby she intends to carry to term and deliver. Legally, however, we must respect her personhood, and it is impossible to do that under a fetal-protection regime that treats her personal behavior as though she exists to serve the being inside her, and reacts to her decision to drink or use drugs as if it were no different from a decision to administer drugs to an infant.

This respect for a woman's autonomy might seem to come at the expense of a child who will some day occupy the outside world and pay the price of that autonomy. But, as discussed above, virtually everyone agrees that fetal-protection laws do not serve children's interests any more than they respect women's autonomy. Instead, they ultimately drive pregnant women away from the very prenatal services that could facilitate the birth of a healthy baby. And that is why the Fourth Circuit's decision to uphold Charleston's policy was wrong as well as unconstitutional, and why the United States Supreme Court should reverse that decision.

Professor Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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