Women's Privacy vs. Safety of Unborn ; High Court Will Decide If Privacy Rights of Pregnant Women Were Violated by a Drug-Testing Policy
Warren Richey writer of The Christian Science Monitor, The Christian Science Monitor
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 mother?
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 unborn child.
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 prenatal care."
Mr. Heller adds, "It would be open season by law enforcement on pregnant women."
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. …