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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:

Supreme Sayings

“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

  • no or minimal prenatal care
  • unexplained pre-term labor
  • birth defects or poor fetal growth
  • separation of the placenta from the uterine wall
  • history of drug or alcohol abuse
  • intrauterine fetal death

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.

Living Laws

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:

  • “While the ultimate goal of the program may well have been to get the women in question into substance-abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal. The threat of law enforcement may ultimately have been intended as a means to an end, but the direct and primary purpose of MUSC's policy was to ensure the use of those means. In our opinion, this distinction is critical. Because law enforcement involvement always serves some broader social purpose or objective, under respondents' view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose. Such an approach is inconsistent with the Fourth Amendment. Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of 'special needs.'
  • “The fact that positive test results were turned over to the police does not merely provide a basis for distinguishing our prior cases applying the 'special needs' balancing approach to the determination of drug use. It also provides an affirmative reason for enforcing the strictures of the Fourth Amendment. While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.”
Court Connotations

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 I indicated at the outset, it is not the function of this Court—at least not in Fourth Amendment cases—to weigh petitioners' privacy interest against the State's interest in meeting the crisis of 'crack babies' that developed in the late 1980s. I cannot refrain from observing, however, that the outcome of a wise weighing of those interests is by no means clear. The initial goal of the doctors and nurses who conducted cocaine-testing in this case was to refer pregnant drug addicts to treatment centers, and to prepare for necessary treatment of their possibly affected children. When the doctors and nurses agreed to the program providing test results to the police, they did so because (in addition to the fact that child abuse was required by law to be reported) they wanted to use the sanction of arrest as a strong incentive for their addicted patients to undertake drug-addiction treatment. And the police themselves used it for that benign purpose, as is shown by the fact that only 30 of 253 women testing positive for cocaine were ever arrested, and only 2 of those prosecuted. It would not be unreasonable to conclude that today's judgment, authorizing the assessment of damages against the county solicitor and individual doctors and nurses who participated in the program, proves once again that no good deed goes unpunished.
  • “But as far as the Fourth Amendment is concerned: There was no unconsented search in this case. And if there was, it would have been validated by the special-needs doctrine. For these reasons, I respectfully 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.

book cover

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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