The rights of pregnant women: the Supreme Court and drug testing.

During the last two decades, states have sought to punish pregnant women for behavior that endangers their fetuses, often without success. (1) Prosecutors have used various novel legal theories, including child abuse and neglect, delivery and distribution of controlled substances, and involuntary manslaughter. Some states have enacted special laws criminalizing prenatal drug use. (2) Other states have authorized "any necessary measures" to protect the fetus. (3) These measures include civil commitment for pregnant women who use drugs and cash incentives for crack-using women to become sterilized. (4) During the height of concern for fetal rights, in the late 1980s, the Medical University of South Carolina (MUSC) devised a policy, in cooperation with law enforcement officials, for screening pregnant patients for cocaine use. Women who tested positive would be turned over to police and threatened with prosecution to provide "the necessary leverage" to force them into treatment. The policy specified criteria for determining which pregnant women should be tested (targeting, for example, women who had obtained no prenatal care or late or incomplete prenatal care, and women known to have previously abused drugs or alcohol abuse). It also required urine samples to be handled through an appropriate "chain of custody" to ensure that they could be used as evidence in a criminal trial; and it detailed the offenses with which the woman could be charged, depending on the age of the fetus. The charges included simple possession, possession and distribution to a minor, and child neglect. The policy made no mention of any change in the woman's prenatal care and did not prescribe any special treatment for newborns. More than forty women were arrested under the MUSC program, and some who tested positive for cocaine during labor were taken to jail in handcuffs or leg shackles shortly after giving birth. Under South Carolina law, a viable fetus historically has been regarded as a person; on this basis, the state's Supreme Court has held that the ingestion of cocaine during the third trimester of pregnancy constitutes criminal child neglect. (5) Ferguson v. City of Charleston In 1999, the U.S. Court of Appeals for the Fourth Circuit (well-known for its conservative judicial activism), held that regardless of whether the women provided informed consent, the MUSC testing program was justified by the "special need" of stopping drug use by pregnant women. This year, in Ferguson v. City of Charleston, (6) the Supreme Court overturned the Fourth Circuit, holding that a public hospital's policy of subjecting pregnant women to nonconsensual drug tests without a warrant, and turning positive test results over to police, violates the Fourth Amendment's proscription against unreasonable searches. Although the Fourth Amendment is popularly perceived as applying solely to personal or residential searches, the Supreme Court has long recognized that the collection and subsequent analysis of biological samples is a "search." (7) In most criminal cases, a search is unreasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause, and if a warrant is impracticable, then the courts require, minimally, "reasonable suspicion" based on an individualized assessment. The Supreme Court has held, however, that when the state has "special needs beyond the normal need for law enforcement," the warrant and probable or reasonable cause requirements may not be applicable. (8) In three drug testing cases, the Court applied the special needs exception to sustain drug tests for railway employees involved in train accidents, Customs Service employees seeking promotion to certain sensitive positions, and high school students participating in interscholastic sports. (9) In a fourth case, the Court struck down drug testing for candidates for certain state offices. (10) The Supreme Court in Ferguson held that the MUSC screening program did not fit within the "closely guarded category of constitutionally permissible suspicionless searches. …