In its latest session the U.S. Supreme Court agreed to hear quite a few cases that center around Fourth Amendment issues. One of those cases, Ferguson v. City of Charleston, centers around a controversial program at a public hospital in South Carolina that tested pregnant women for the presence of cocaine in their bodies. If the women tested positive, they and the results were turned over to police after giving birth.
Is this reasonable? Justice Antonin Scalia, in questioning at the Court today, provided the basic defense of the testing — if a person shows up at a hospital with a gunshot or stab wound, laws in most state require doctors to notify local police. Unfortunately for Scalia, and hopefully the law, the two situations are no analogous.
In the gunshot case, the information the doctor has is a direct result of his duties to take care of the patient. When it comes to pregnancy, however, a) women are not routinely given tests for narcotic substances, and b) even in the South Carolina hospital the doctors drug tested only those women they suspected of using cocaine. This is not information that arises in the normal process of treating a patient, where the expectation of privacy for information related to a possible crime might be diminished, but rather a public hospital actively seeking to collect evidence.
To make the gun shot example analogous, not only would doctors notify the police but they’d also run a series of drug tests on the victims to see if he’d been committing other crimes.
Aside from the Fourth Amendment, it’s scary to think that doctors are running around performing tests that are medically unnecessary in order to squeal to the state. As more than one critic of the law has noted, far from helping infants of cocaine using mothers, the most likely result of the law is to keep women from seeking prenatal care and other medical attention, and possibly even to avoiding giving birth in a hospital (home birth is a great option for many people, but probably not a great idea for a drug addict).
Sources:
Drug tests on pregnant women unconstitutional, lawyers argue. CNN, October 4, 2000.
Supreme Court to decide on women’s medical privacy. Laurie Asseo, The Associated Press, October 4, 2000.
Policing pregnancy. Rachel Roth, The Nation, October 16, 2000.