Pregnant Women's Rights Court Filings for Ferguson Risks of Granting Rights to the Fetus

Ferguson v. City of Charleston (South Carolina)
In 1989, a "Search and Arrest" policy was initiated at the Medical University of South Carolina (MUSC) as a joint effort between the hospital and local law enforcement officials. Under the policy, MUSC medical personnel secretly searched a targeted group of pregnant women for evidence of cocaine use without a warrant or their consent to the search. Results were reported to police who arrested 30 women over a five-year period. Some of the women were handcuffed and arrested from their hospital beds immediately after giving birth; others were arrested and jailed while still pregnant. After a lengthy legal battle, the Supreme Court in 2001 determined that the searches, which were conducted without warrants or probable cause, violated the Fourth Amendment in the absence of consent. This decision maintains the Court’s steady determination that the "special needs" balancing test should not be applied to law enforcement searches of citizens, who have a reasonable expectation of privacy in medical and other personal matters.

• 3/21/01 U.S. Supreme Court Decision (PDF)
• Court Filings
• Press Releases
  • 10/18/02 Court Upholds Rights of Pregnant Women
  • 1/21/02 South Carolina Faces Question of Warrantless Criminal Searches of Pregnant Women for Second Time
  • 3/21/01 U.S. Supreme Court Affirms Right to Confidential Medical Care
  • 10/4/00 U.S. Supreme Court Hears Arguments in Ferguson v. City of Charleston
  • 10/4/00 Statement of Priscilla Smith, Lead Counsel
  • 9/11/00 Oral Arguments in Ferguson v. City of Charleston Scheduled for October 4, 2000
  • 9/11/00 Statement of Priscilla Smith, Lead Counsel
• Ferguson v. City of Charleston: A Case Summary
• Excerpt from Oral Argument
• Sample Plaintiff Profiles
• Briefs Filed in Ferguson v. City of Charleston Including Amicus Briefs
• Briefing Paper - Punishing Women for Their Behavior During Pregnancy: An Analysis (PDF)

With the hospital's assistance, police arrested women days or even hours after delivery, removing them from their hospital beds in handcuffs and in shackles. Some women were taken to jail while still bleeding from giving birth. Others were arrested and jailed while they were pregnant, even though the prison could not provide prenatal care or drug treatment. When the incarcerated women went into labor, they were returned to the hospital in shackles. One woman was handcuffed to her bed throughout her delivery.

The record establishes that the policy's purpose, from inception to completion, was to further the needs of South Carolina law enforcement by identifying and gathering evidence of alleged criminal activity by pregnant women. As initially implemented, the policy required the immediate arrest of any patient when a search of her urine or of her newborn resulted in evidence of cocaine. The patients arrested during this phase of the policy received no referral for drug treatment and no opportunity to obtain treatment as an "alternative" to arrest. Even after these women were arrested, no one associated with the policy provided them with any information about drug treatment services. Approximately six months after the policy was instituted, it was revised so that women were informed that they could avoid arrest if they immediately stopped using cocaine and entered a mandatory drug treatment program. Women who were unable to enroll in a mandated program because of child care responsibilities, who failed to complete the program, or who tested positive a second time were arrested.

The Impact of the Policy:
Every major medical group in the country, including the American Medical Association, the American Academy of Pediatrics and the March of Dimes, consistently opposes using punitive methods, such as the "Search and Arrest" policy to address the problem of substance abuse during pregnancy. Studies show that threatening women with arrest and jail time deters them from seeking critical prenatal and postnatal care and drug treatment and could thereby actually harm their health and the health of their children.

In this case, although the hospital, police and prosecutors claim that the goal of the policy was to promote fetal health, reports from women affected show that the coordinated effort ultimately frightened pregnant women away from prenatal care and the little drug treatment that was available. The "Search and Arrest" policy did not reduce cocaine use, improve pregnancy outcomes, or increase the number of women successfully completing drug treatment. Those who did obtain medical attention at MUSC were placed in the impossible position of choosing between inappropriate treatment and jail.

The Lawsuit:
This lawsuit challenging the "Search and Arrest" policy was filed in 1993 against the City of Charleston, local law enforcement officials, medical personnel at MUSC, and the hospital itself. Petitioners in this case are ten women who were each subjected to warrantless, suspicionless, and nonconsensual urine searches for cocaine use in connection with their pregnancies. Because they tested positive for cocaine use, nine of the women, all of whom were African-American, were arrested for cocaine possession, distribution of cocaine to a minor, or child abuse. The tenth petitioner was compelled to admit herself to the MUSC psychiatric unit for substance abuse treatment for a month in order to avoid arrest. None of the plaintiffs were convicted.

The policy was upheld after a 6-week jury trial in federal court in late 1996. In July 1999, the U.S. Court of Appeals for the Fourth Circuit upheld the lower court decision by a 2-1 vote, over a strong dissent; a petition for rehearing by all the judges of the Fourth Circuit was denied by an 8-5 vote. CRLP filed a petition for certiorari with the U.S. Supreme Court on December 1, 1999; the petition was granted on February 28, 2000. Oral arguments will be heard before the Supreme Court on October 4, 2000.

The Issue on Appeal:
The U.S. Supreme Court granted certiorari to consider the following question:

Whether the "special needs" exception to the Fourth Amendment's warrant and probable cause requirements was properly applied to a discretionary drug testing program that targeted hospital patients and was created and implemented primarily for law enforcement purposes by police and prosecutors?

Under established law, the government must obtain a warrant based on probable cause before searching an individual for evidence to be used in an arrest and prosecution. Although a limited exception to the Fourth Amendment's requirements of a warrant and probable cause exists when a search policy serves a special need beyond the normal needs of law enforcement, the "special needs" exception has been carefully limited by the U.S. Supreme Court.

While acknowledging the involvement of law enforcement in the policy, the Fourth Circuit nevertheless applied the "special needs" exception here to excuse the searches, pointing to the "special need" to promote maternal and fetal health. The court of appeals held that the warrant and probable cause requirements of the Fourth Amendment are not applicable where the government can articulate a non-law enforcement rationale for the program or policy, even where the policy implements the state's criminal law by traditional means of searches, arrests and prosecutions. See Ferguson v. City of Charleston, 186 F.3d 469, 476 (4th Cir. 1999). The "special needs" balancing test, applied by the Fourth Circuit, has never before been applied - by the United States Supreme Court or any other court - to a search integral to serving the normal needs of law enforcement and has never been applied to searches of citizens, such as the Petitioners, whose reasonable expectation of privacy is undiminished.

Additional Facts of the Case:

Petitioners (plaintiffs):

Crystal M. Ferguson
Theresa Joseph
Darlene M. Nicholson
Paula S. Hale
Ellen L. Knight
Patricia R. Williams
Lori Griffin
Pamela Pear
Sandra Powell
Laverne Singleton

Respondents (defendants):

City of Charleston, South Carolina
Trustees of the Medical University of South Carolina
Reuben Greenberg
Charles M. Condon
Shirley Brown
other medical personnel at the hospital

Lead counsel for Petitioners:

Priscilla J. Smith
Center for Reproductive Law and Policy (CRLP)

Petitioners are also represented by Simon Heller and Julie Rikelman of CRLP; Susan Frietsche and David S. Cohen of the Women's Law Project in Philadelphia; Susan Dunn of Charleston; Lynn Paltrow of National Advocates for Pregnant Women; and David Rudovsky and Seth Kreimer of Philadelphia.

Lead counsel for Respondents:

Robert Hood
Hood Law Firm
172 Meeting Street, P.O. Box 1508
Charleston, SC 29402

Respondents are also represented by Barbara W. Showers and Mary H. Craig, also of the Hood Law Firm.

The original trial in the case took place in the United States District Court for the District of South Carolina before Judge C. Weston Houck in the winter of 1996-97. A final judgment against the plaintiffs was entered on September 30, 1997.

On July 13, 1999, the United States Court of Appeals for the Fourth Circuit ruled against the plaintiffs in a 2-1 decision written by Judge William W. Wilkins. Judge Catherine C. Blake wrote a dissent. This ruling can be found at 186 F.3d 469.

The United States Supreme Court agreed to review the case on February 28, 2000.

Six amicus ("friend of the court") briefs were submitted in the case, all supporting reversal of the lower court opinion:

American Medical Association
American Public Health Association, American Society of Addiction Medicine, and other health organizations and professionals
ACLU and other civil liberties and civil rights organizations
NARAL Foundation and other reproductive rights organizations
National Coalition for Child Protection Reform
The Rutherford Institute

No amicus briefs were submitted supporting affirming the lower court opinion.

The Court will hear arguments in the case on October 4, 2000, with a decision expected before the end of June 2001.

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Sample Plaintiff Profiles In October 1989, medical staff at the Medical University of South Carolina (MUSC) collaborated with the local police department and prosecutors to develop and implement a "Search and Arrest" policy under which a group of pregnant women was secretly searched for evidence of cocaine use without a warrant or their consent to the search. The searches were conducted to identify women who had used cocaine so that police could arrest them for the crimes of possession of drugs, child neglect, or distribution of drugs to a person under eighteen. With the hospital's assistance, police arrested women days or even hours after delivery, removing them from their hospital beds in handcuffs and in shackles. Others were arrested and jailed while they were pregnant, even though the prison could not provide prenatal care or drug treatment.

The "Search and Arrest" policy as initially implemented and applied to four of the ten Petitioners in this case required the immediate arrest of any patient when a search of her or her newborn resulted in evidence of cocaine. The patients arrested during the policy's initial months received no referral for drug treatment and no opportunity to obtain treatment as an "alternative" to arrest. Even after these women were arrested, no one associated with the policy provided them with any information about drug treatment services. Following are profiles of two of the plaintiffs who were arrested during this initial time period.

Plaintiff Lori Griffin was referred by her primary obstetrician to MUSC for prenatal care in the summer of 1989, before the policy had been instituted. In her eighth month of pregnancy she once again went to MUSC for care, unaware that the policy had been implemented and that her urine would be searched for cocaine for law enforcement purposes.

On October 10, 1989, MUSC Nurse Shirley Brown informed Ms. Griffin that she was being released to go home. Instead, police entered Ms. Griffin's hospital room, informed her that she was under arrest for distribution of cocaine to a minor, and removed her in handcuffs and shackles to a waiting police car. Not knowing that she would be arrested, Ms. Griffin had made no long-term care arrangements for her two young children at home. Nurse Brown never presented Ms. Griffin with the option of avoiding arrest by entering a treatment program. Nor had Ms. Griffin been aware that the results of her medical tests could be turned over to the police and used as the basis for her arrest.

"When I was admitted to the hospital they told me . . . because I was having pre-labor pains that they would have to keep me overnight. . . . Shirley Brown came in that morning and . . . told me that I was going home . . . And after I got dressed three policeman came in, put handcuffs and shackles on me and told me I was under arrest for distribution of cocaine to a minor . . . I will never trust a doctor again . . . they tormented me."

BACK TO INDEX History of the Fourth Amendment and the Special Needs Doctrine 1761
Merchants in Massachusetts, who had suffered at the hands of British officials exercising their power to search and seize, petitioned the Massachusetts Superior Court to end the practice of granting "writs of assistance." The writs provided the British with unfettered discretion and permitted them to conduct forcible searches and seizures at any time and without good cause. James Otis, who represented the merchants, is credited with making the first recorded declaration in support of limiting officials' power to search by relying on specific warrants. He argued that the only reasonable warrant is a specific warrant, which describes the place to be searched and is issued by a magistrate.

Although Otis lost his case before the Massachusetts Superior Court, by the late 1780s, most of the colonies had adopted the specific warrant as the general mode of search and seizure.

1789-90
The states ratified the Fourth Amendment to the United States Constitution to protect the privacy and security of their citizens from the unrestrained discretion of government officials. The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The most comprehensive review of the history and meaning of the Fourth Amendment shows that the Amendment was intended to make specific warrants mandatory and to establish such warrants as the usual method of search and seizure. See W. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791 (1990) (unpublished Ph.D. dissertation).

1877
The United States Supreme Court's first significant discussion of the meaning of the Fourth Amendment occurred in its decisions in Ex Parte Jackson, 96 U.S. 727 (1877) and Boyd v. United States, 116 U.S. 616 (1886). In Jackson, the Court held that letters and packages in the mail could not be opened without a search warrant, and in Boyd it ruled that even a search based on a warrant must be reasonable.

In subsequent cases, the Supreme Court repeatedly held that, "subject to a few specifically established and well-delineated exceptions," a search is reasonable under the Fourth Amendment only if it is conducted pursuant to a warrant issued on probable cause. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Katz v. United States, 389 U.S. 347, 357 (1967); Jones v. United States, 357 U.S. 493, 497-99 (1958).

1985
The Supreme Court first articulated a "special needs" exception to the warrant and probable cause requirement in New Jersey v. T.L.O., 469 U.S. 325 (1985). In this case, Justice Blackmun first articulated the exception by writing that when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable," id. at 351 (Blackmun J., concurring) (emphasis added), the Court will determine the reasonableness of the search using a balancing test. Id. at 341-42. In T.L.O., in which the Court upheld a warrantless search of a student's purse conducted by a school official for school disciplinary purposes, id. at 340-42, the Court stressed that it considered "only searches carried out by school authorities acting alone and on their own authority," and not those conducted "in conjunction with or at the behest of law enforcement agencies." Id. at 341 n.7.

Since T.L.O., the Supreme Court has applied the special needs exception only in cases where (1) law enforcement involvement in the search or search policy was nonexistent or merely incidental, and (2) the individual searched had a diminished expectation of privacy. For example, the Court has upheld searches of public school children that led to school disciplinary action, Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 664-65 (1995), searches of employees for employment purposes, Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 627 (1989) (railway employees), National Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989) (customs employees), searches of probationers for supervisory purposes, Griffin v. Wisconsin, 483 U.S. 868, 880 (1987), and administrative inspections of businesses in "closely regulated" industries, New York v. Burger, 482 U.S. 691, 703-04 (1987).

1999
In Ferguson v. City of Charleston, the United States Court of Appeals for the Fourth Circuit radically expanded the special needs exception by applying it to searches conducted primarily for law enforcement purposes. Further, the Fourth Circuit applied the exception despite the fact that pregnant women, unlike school children and probationers, do not have a diminished expectation of privacy.

The Fourth Circuit's expansion of the narrow special needs exception to the circumstances in Ferguson threatens to eradicate the Fourth Amendment's promise that, when the state is conducting criminal investigations, the privacy of individuals may not be invaded unless the state has obtained a warrant based on probable cause.

BACK TO INDEX Ferguson v. City of Charleston: Timeline of the Case August 1989:
At the suggestion of a nurse, the General Counsel for the Medical University of South Carolina (MUSC) offers the hospital's assistance to the local prosecutor to bring child abuse prosecutions against pregnant women patients who use cocaine. The local prosecutor convenes a task force with local police and medical staff at MUSC to consider the "possible prosecution of the mothers of drug affected babies."

October 1989:
The police, the local prosecutor's office and the hospital initiate a joint policy to search for cocaine in the urine of pregnant patients who come to the hospital for prenatal care or to give birth. The searches are conducted without warrants and without obtaining the consent of the patients searched. Despite the hospital's confidentiality policy, positive search results are reported directly to the police and, in the policy's initial months, patients are arrested based on a single, positive search. The arrests occur at the hospital, often when the patients are in their hospital gowns and are still weak and bleeding from giving birth. Four of the ten plaintiffs in Ferguson v. City of Charleston are arrested in these initial months.

January - March 1990:
Approximately six months after the policy was instituted, it is revised so that MUSC personnel inform pregnant women patients who test positive for cocaine that they can avoid arrest if they immediately stop using cocaine and enter a mandatory drug treatment program. Women who are unable to enroll in a mandated program because of child care responsibilities, who fail to complete the program or who test positive a second time are to be arrested. At least one woman is arrested for failing to enter an inpatient drug treatment program that has no child care, despite having no one to care for her two young sons. Five of the plaintiffs in Ferguson v. City of Charleston are arrested after the policy's revision. A sixth is threatened with arrest and forced to admit herself to the MUSC psychiatric unit for substance abuse treatment for a month to avoid arrest.

October 5, 1993:
CRLP files suit in federal district court in Charleston, South Carolina on behalf of women (including Crystal Ferguson) who were searched under the policy. The suit alleges that the defendants violated the United States Constitution because, among other claims, they infringed the plaintiffs' Fourth Amendment right to be free from unreasonable searches and seizures.

January 1994:
CRLP files a complaint with the National Institutes of Health (NIH), arguing that the search policy constitutes illegal research on human subjects. CRLP states that the search policy is testing the hypothesis that arrest and/or the threat of arrest and prosecution will stop pregnant women from using cocaine. An article discussing this hypothesis, written by personnel from the hospital and the prosecutor's office, has already been published and refers to the authors' "data collection."

August 31, 1994:
After a preliminary investigation of the policy by the Office for Civil Rights (OCR) of the Department of Health and Human Services (HHS), MUSC signs an agreement with OCR agreeing that "effective immediately, [MUSC] shall cease any and all activities undertaken to assist in or effectuate either the arrest and/or prosecution by any law enforcement officials of any of its patients pursuant to the Interagency Policy."

September 8, 1994:
OCR states that the settlement "resolv[es] the need for a formal investigation by OCR of the Title VI legal issues raised by [MUSC's] former Interagency Policy."

September 30, 1994:
After investigating CRLP's complaint, the NIH Office for Protection from Research Risks (OPRR) finds that the hospital violated federal regulations designed to protect human research subjects. Specifically, OPRR finds that "certain activities related to [MUSC's involvement in the Interagency Policy] constitute research involving human subjects, as defined under" HHS regulations, and that the "failure by MUSC personnel to submit human subjects research activities for [Internal Review Board] review constituted serious failure to comply with the requirements of HHS regulations . . . ."

November 1996 to January 1997:
The trial of Ferguson v. City of Charleston takes place in federal district court in Charleston. The policy is upheld.

September 1997:
After entertaining post-trial motions, the trial court enters final judgment against the plaintiffs on all claims, including the Fourth Amendment claim.

October 1997:
CRLP files notice of the plaintiffs' appeal of the trial court's decision to the United State Court of Appeals for the Fourth Circuit.

October 1998:
Oral argument is held in Ferguson v. City of Charleston before a three-judge panel of the United States Court of Appeals for the Fourth Circuit.

July 13, 1999:
The Fourth Circuit panel affirms, by 2 to 1, the judgment of the trial court. Over a strong dissent, the panel concludes that the defendants did not violate the plaintiffs' Fourth Amendment rights because the searches conducted fell within the "special needs" exception to the Fourth Amendment's warrant and probable cause requirements. The dissent states that the special needs exception does not excuse warrantless searches conducted for the purposes of arrest and prosecution.

September 2, 1999:
By an 8-5 vote, the entire United States Court of Appeals for the Fourth Circuit denies CRLP's request for a rehearing en banc.

December 1, 1999:
CRLP and the Women's Law Project, with additional co-counsel, file a petition for certiorari with the United States Supreme Court arguing that the United States Court of Appeals for the Fourth Circuit misapplied the Fourth Amendment's special needs doctrine and therefore erred in rejecting the plaintiffs' Fourth Amendment claims.

February 28, 2000:
The United States Supreme Court grants certiorari in Ferguson v. City of Charleston to consider the Fourth Circuit's application of the special needs doctrine.

June 2, 2000:
CRLP and the Women's Law Project, with additional co-counsel, file their opening brief in the United States Supreme Court, stating that the special needs exception has never before been applied to a search primarily serving the normal needs of law enforcement and has never been applied to searches of citizens, such as the Petitioners, whose reasonable expectation of privacy is undiminished. CRLP argues that the Fourth Circuit's interpretation of the special needs exception to excuse a warrantless search whenever the government can articulate a non-law enforcement purpose for its actions would swallow whole the Fourth Amendment's warrant and probable cause requirements.

October 4, 2000:
The United States Supreme Court hears oral argument in Ferguson v. City of Charleston.

BACK TO INDEX Excerpt from Oral Argument On Wednesday, October 4, 2000, the Center for Reproductive Law and Policy (CRLP) presented arguments in the case Ferguson v. City of Charleston before the United States Supreme Court.

The Court will consider whether a South Carolina public hospital policy violated the rights of pregnant women seeking prenatal care when, without a warrant or consent, the hospital secretly tested them for drug use. With the hospital's assistance, police arrested women days or even hours after delivery, removing them from their hospital beds in handcuffs and, in some cases, in shackles. Others were arrested and jailed while they were pregnant, even though the prisons could not provide prenatal care or drug treatment.

CRLP charges that this scheme is ineffective, dangerous, and an unconstitutional violation of the Fourth Amendment, which protects all Americans from unreasonable searches.

Priscilla Smith, CRLP Deputy Director of the Domestic Program and lead attorney in the case, responded to questions from the Court, including the ones below:

JUSTICE SCALIA: The police didn't show up at the hospital one day and say, you know, we'd like to find some way to bust your patients here.

Below, Justice Souter presents his concerns about the law enforcement aspect of the South Carolina public hospital policy.

JUSTICE SOUTER: So when you say that in so many words it's the police component of the scheme that taints it, what you mean to say is that part of the very -- the very determination of whether to test or not was modified from a medically appropriate set of criteria to at least a partial law enforcement set of criteria. Is that your argument?

MS. SMITH: I think it's not quite my argument, because the issue I think is that the discretion when it's used by a doctor for medical purposes -- doctors have discretion and that may be appropriate in the context of medicine, but once discretion is used by police officers for a law enforcement purpose, the world changes.

JUSTICE SOUTER: You're saying the doctor has become a police agent.

MS. SMITH: Absolutely, Your Honor.

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