- In a case testing the right of patients to be protected from secret law enforcement searches of their urine during hospital visits, the United States Supreme Court will consider whether a Charleston, South Carolina hospital and local police and prosecutors violated the rights of pregnant women seeking medical care by collaborating to secretly search patients for cocaine use without a warrant or consent, and arrest them if results were positive. The Center for Reproductive Rights, which represents the ten women plaintiffs in Ferguson v. City of Charleston, charges that this scheme was dangerous, counterproductive and an unconstitutional violation of the Fourth Amendment, which protects all Americans from unreasonable searches.
"Transforming a confidential doctor visit into a sting operation for law enforcement is not only an unconstitutional violation of rights, it is also a misguided and counterproductive health policy that only serves to deter women from seeking critically-needed pre and postnatal care," says Priscilla Smith, Deputy Director of Litigation at the Center for Reproductive Rights and lead counsel in this case. "Turning a hospital into a police station undermines the privacy rights of all Americans, and is more harmful than helpful to chemically dependent women and their babies. These women need appropriate medical treatment, not jail time," she said.
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 Supreme Court.
While acknowledging the involvement of law enforcement in the policy, the United States Court of Appeals for 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. In July 1999, the Fourth Circuit 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 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.
"The question before the Supreme Court is whether pregnant women have lesser constitutional rights than other Americans and, as a result, can be searched secretly for evidence of a crime in their private doctor's offices," said Smith. "MUSC's punitive policy compromised the doctor-patient relationship, failed to treat women's addiction, and endangered children's health and development," she said.
The nation's leading medical, public health and children's groups - including the American Medical Association, the American Public Health Association, and the American College of Obstetricians and Gynecologists - uniformly oppose using such punitive methods to address the problem of substance abuse during pregnancy. These groups are among the 75 organizations and individual experts that filed amicus briefs with the Supreme Court on behalf of the plaintiffs. They assert that threatening women with arrest and jail time deters them from seeking critical prenatal care and drug treatment and could thereby actually harm their health and the health of their children. These groups also assert that those who promote prosecutions ignore the severe shortage of drug treatment programs, especially those that will accept pregnant women or provide services needed by women with young children at home.
The coercive policy was initiated in 1989 as a joint effort between the hospital and local law enforcement officials. A targeted group of pregnant women was subject to secret urine searches to test for cocaine use without a warrant or consent. Results were reported to police who arrested 30 women over a 5-year period for the crimes of possession of drugs, child neglect, or distribution of drugs to a person under eighteen. All but one of the women arrested were African-American. Some of the women were handcuffed and arrested immediately after giving birth; others were arrested and jailed while still pregnant, even though the prison could not provide prenatal care or drug treatment.
Until at least January 1990, women who tested positive for cocaine at the time they gave birth were not given the opportunity to seek treatment but were simply arrested. Even after the policy was revised to give women the opportunity to get treatment, the drug treatment services available were inadequate. At least one woman was arrested for failing to enter an inpatient drug treatment program that had no child care, even though she had no one to care for her two young sons.
The Center for Reproductive Rights first challenged the law in 1993. 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. The Center for Reproductive Rights filed a petition for hearing with the U.S. Supreme Court on December 1, 1999 and the Court granted certiorari on February 28, 2000. Oral arguments will be heard before the Supreme Court on October 4, 2000.
In addition to the Center for Reproductive Rights, the Petitioners are also represented by the Women's Law Project, Philadelphia attorneys David Rudovsky and Seth Kreimer, and Charleston attorney Susan K. Dunn. Click here to view the brief filed in the case Ferguson v. City of Charleston (99-936).
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Ferguson v. City of Charleston
