In the Ferguson case, South Carolina argued that concern over damage to fetal health constituted just such a special need and that a fetus was the third party in danger from maternal drug use. Seemingly in support of the policy, Justice Antonin Scalia suggested that doctors might be legally obligated to report such evidence to the police, as they do in gunshot wound cases. But in this case, we're not dealing with something as clear-cut as bleeding wounds. Such wide discretion opens the door to racial stereotyping. At the medical university, women were tested and arrested only for cocaine.
Many substances can harm fetal health, with alcohol and cigarettes in the lead.
Both do more damage in this country than all illicit drugs combined. More than 75 medical organizations and experts, including the American Medical Association and the March of Dimes, oppose this policy on the grounds that it does nothing to protect fetal health and, at worst, drives women away from their health care providers. Imagine how reluctant you would be to go back to your doctor or to share sensitive medical information with any health-care provider after being threatened with such an arrest. If affirmed by the Supreme Court, this policy would turn doctors into police officers, undermining the very foundation of medical privacy rights. In the name of protecting fetal health from the admittedly serious consequences of drug addiction, it would swallow up not just the rights of pregnant women, but the rights of all citizens to medical privacy.