The Supreme Court
Forcing Drug Tests
Another stage of the war on drugs placed pregnant women on the battlefield. In 1989 in Charleston, South Carolina, representatives of the City of Charleston Police Department, the Charleston County Solicitor's Office (the prosecutor), and the Medical University of South Carolina (MUSC), which is a public hospital, developed and implemented the Interagency Policy on Cocaine Abuse in Pregnancy. Pregnant women were forced to take drug tests if they came to the hospital to give birth and fell into one of these categories:
“In the past several years, the state has increasingly intruded into the lives of pregnant women, policing their conduct in the name of protecting fetuses. Pregnant women have been forced to undergo unwanted cesareans; they've been ordered to have their cervixes sewn up to prevent miscarriage; they've been incarcerated for consuming alcohol; and they've been detained, as in the case of one young woman, simply because she 'lack[ed] motivation or [the] ability to seek medical care.'”
—From the article, “Court-Ordered Obstetrical Intervention,” in a 1987 issue of the New England Journal of Medicine
At the early stages of the policy, women were immediately arrested after they or their newborns tested positive for cocaine. In 1990, an amnesty component was added to the program. Women who tested positive were given the option of entering a drug treatment program to avoid arrest. If they didn't complete the treatment program or tested positive for drugs a second time they were arrested.
In 1994, the Civil Rights Division of the U.S. Department of Health and Human Services investigated MUSC on the issue of whether the hospital had violated the civil rights of its African American patients during the implementation of this policy. Of the 30 women arrested under this policy, 29 were African American. MUSC dropped the program after this investigation.
Patients of MUSC who were arrested after testing positive for cocaine filed suit in district court challenging the policy on the basis that the warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches. The district court instructed the jury to find for the petitioners unless they had consented to the searches. The jury found in favor of MUSC and the women appealed, arguing the evidence was not sufficient to support the jury's finding that the women consented to the tests.
Pregnant women cannot be subjected to warrantless, suspicionless searches just because they are pregnant. Drug testing of a pregnant woman must be done either with her consent or a valid warrant.
The 4th Circuit Court found that the searches in question were reasonable based on the principle that “'special needs' may, in certain exceptional circumstances, justify a search policy designed to serve non-law enforcement ends.” The 4th Circuit Court did not rule on the consent issue.
In a 6 to 3 decision on March 21, 2001, the Supreme Court disagreed and held that, “A state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official non-consensual search is unconstitutional if not authorized by a valid warrant.”
Justice Stevens wrote the opinion for the Court and was joined by Justices Breyer, Ginsburg, O'Connor and Souter. Justice Kennedy wrote a concurring opinion. Justice Scalia wrote a dissenting opinion and was joined by Chief Justice Rehnquist and Justice Thomas. In his opinion for the Court, Stevens wrote:
The Fourth Amendment states, “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.” This amendment protects citizens from searches without a valid search warrant.
Justice Scalia wrote in his dissent:
As you can see from the cases discussed in this section, the Supreme Court does get called upon to decide cases directly impacting our bodies and the type of medical care we receive. In the next section, we'll explore issues of discrimination and affirmative action.