To many people, there is no higher cause in the United States
than the protection of children from danger or mistreatment.
But what happens when the child who is facing potential harm is
yet to be born, and the alleged abuser is his or her drug-addicted
That's the dilemma that prompted a policy in Charleston, S.C.,
requiring pregnant women at a public hospital who tested positive
for cocaine to undergo treatment or be turned over to police to
face prosecution for distributing drugs to a minor.
This morning, the US Supreme Court takes up the case of 10
pregnant women who tested positive for cocaine and who charge that
the Charleston policy violated their Fourth Amendment right to
privacy as an unreasonable government intrusion into the inner-
most aspects of their lives. The case is potentially about much
more than just the propriety of testing to prosecute drug addicts
in a hospital setting.
On a higher level, it raises the divisive issue of trying to
balance the rights of a pregnant woman against the rights of her
And it arises at a time when many prosecutors and judges across
the country are increasingly willing to prosecute parents, or
prospective parents, for conduct that the government views as
falling within an expanding realm of child abuse.
Legal analysts warn that if a majority of justices uphold the
Charleston policy, it could open the door to similar efforts
nationwide, including broader policies permitting prosecution of
women who consume alcohol, smoke cigarettes, or perhaps even drink
coffee during pregnancy.
"It would mean a radical expansion of government authority to
invade the privacy of pregnant women for the supposed benefit of
the pregnancy," says Simon Heller of the Center for Reproductive
Law and Policy in New York, which is arguing the case on behalf of
the 10 women. "There is a very short step between saying we are
going to allow warrantless searches for drugs [via drug tests] and
then saying we are going to allow warrantless searches of the home
or the workplace in order to insure that women are following good
Mr. Heller adds, "It would be open season by law enforcement on
Lawyers for the City of Charleston don't see it that way. They
say their policy, which ended in 1994 after the federal government
threatened to take away part of the hospital's research funding, was
aimed at creating a strong incentive for pregnant drug users to get
off drugs for the sake of their unborn child.
Their legal brief quotes an official as saying: "What we were
trying to do is give those babies a chance to be born normal."
Under South Carolina law, a viable fetus is recognized as a
"child," and using cocaine during the third trimester of pregnancy
is a form of criminal child neglect.
During the five years the drug test policy was in operation, 253
pregnant women tested positive for cocaine. …