Doctors Should Not Police Pregnant Women's Actions

Doctors Should Not Police Pregnant Women's Actions
Posted by FoM on November 15, 2000 at 07:08:33 PT
By Cynthia Daniels
Source: San Francisco Chronicle 
Imagine going to your doctor for routine medical treatment and supplying the typical urine sample. The doctor leaves the examination room, goes down the hall and, without your knowledge or consent, tests your urine for illicit drugs. As you wait in your patient's gown, police enter the room, handcuff and shackle you, and take you off to prison on charges of drug possession. 
Is it legal for you to be tested without your consent? Is it legal for your doctor to call the police if you test positive? Is it legal for you to incriminate yourself with your own blood or urine? These are the questions involved in the Ferguson vs. City of Charleston (S.C.) case argued last month before the U.S. Supreme Court. Now add to the mix the question of fetal rights. In 1989, nurses and physicians at a public hospital in Charleston worked with local police to institute a policy whereby pregnant women were tested for cocaine and, after one positive drug test, were arrested at the hospital. Over five years, the Medical University of South Carolina arrested 30 women for child abuse on these grounds. Some were taken to jail during their eighth month of pregnancy; others were arrested in their hospital gowns, still bleeding from childbirth. Six months after initiating the policy, the medical university added an option whereby women who tested positive could enter in-patient drug treatment instead of going to jail. But many of the women arrested were never offered this option; others say they rejected it because it required them to leave their other children. Ten women who were arrested sued the state of South Carolina on the grounds that the policy violated their Fourth Amendment protection against illegal search and seizure. Under the law, the government must obtain a warrant based on probable cause that a crime is being committed before searching for evidence to be used in an arrest. The court has made only limited exceptions to this rule in "special needs" cases, such as in drunken driving, in which taking the time to get a warrant might result in imminent harm to others. 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. But, as Justice Ruth Bader Ginsburg asked the attorney for South Carolina in oral arguments, how does the arrest of women, some after childbirth, protect fetal health? 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. Who decides which women get tested and which do not? The Medical University of South Carolina targeted women with criteria as vague as "inadequate prenatal care." Such wide discretion opens the door to racial stereotyping. Given the history of prosecutions of drug-involved pregnant women, it is not surprising to learn that in South Carolina, 29 of the 30 women arrested as a result of this policy were African American. And who decides which harmful substances to test for? 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. Why not arrest pregnant women who abuse alcohol and nicotine? 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. It would stretch the "special needs" exception beyond the limits of constitutional protection. 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. Cynthia Daniels is an associate professor of political science at Rutgers and the author of "At Women's Expense: State Power andthe Politics of Fetal Rights" (Harvard University Press, 1993). Source: San Francisco Chronicle (CA)Author: Cynthia DanielsPublished: Wednesday, November 15, 2000 Copyright: 2000 San Francisco ChronicleContact: chronletters Website: Articles:Court Hears Drug-Test Arguments Court Term To Focus on Fourth Amendment Drug Testing Archives:
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