Secret Prenatal Drug Test Debated

Secret Prenatal Drug Test Debated
Posted by FoM on February 04, 2001 at 09:15:56 PT
By Mark Curriden, The Dallas Morning News
Source: Dallas Morning News
Lori Griffin walked into a local public hospital in October 1989 eight months pregnant thinking she was going into labor. Doctors told the 36-year-old single mother of two that it was a false alarm. Her symptoms, the doctors told her, were probably caused by the stress of losing her job and home  all because of Hurricane Hugo a week before. 
What happened next resulted in a 12-year legal battle that has reached the U.S. Supreme Court.Without telling Ms. Griffin, hospital officials tested her urine for illegal drugs, found cocaine in her system and summoned police. Two uniformed officers placed her in handcuffs and shackles, told her she was under arrest for distributing cocaine to a minor and took her to jail. She had no criminal record and, in fact, had never been arrested. And drug charges against her subsequently were dropped."I didn't give my permission for these tests to be done," she told the South Carolina judge who ordered her held in a jail cell until she gave birth 18 days later at a hospital. "Do doctors have the right to do it anyway?" A dozen years later, Ms. Griffin and nine other women who faced similar treatment are waiting for the court to answer that question.The justices will decide in the next few months whether hospital officials, in concert with police, in effect conducted illegal searches.Priscilla Smith, the attorney for Ms. Griffin, says that Ms. Griffin's child was born healthy. She also says the babies born to the other women arrested were born with no problems linked to drug use.The tests did not meet any of the basic requirements for searches under the Fourth Amendment's ban on unreasonable searches, the women contend.The women say that physicians at the Medical University of South Carolina conducted secret drug tests on them and hundreds of other pregnant women without obtaining consent, without getting a warrant and without having probable cause. Hospital officials and prosecutors counter that the public and government's interest in ensuring that babies are born drug-free and healthy supersedes the women's right of privacy.Who has the rights?Legal experts say the case, which has been hotly debated among public-health officials, prosecutors, civil libertarians and abortion-rights groups, could open or shut the door to more government oversight of how women behave while they are pregnant.The case presents an array of legal issues: Government interests vs. privacy rights. A woman's right to control her body vs. a child's best interest. The war on drugs vs. confidential doctor-patient relationships.Legal scholars agree that this case provides the justices the opportunity to clarify just how intrusive government can be in pursuing the greater public good."This is a case that not only has a huge legal and constitutional impact," says Cornell University law professor Stephen Clymer, "but it provokes so many emotional and personal feelings, too."Charleston hospital officials and law enforcement developed the prenatal testing policy in 1989 in response to the growing problem of drug addicts giving birth to crack-addicted babies.Physicians say they used the urine tests to identify the women with drug problems and brought in the police to force women to get treatment or face the prospect of going to jail. "It's the carrot-and-stick approach," says Robert Hood, an attorney representing the Medical University of South Carolina, the hospital where the women were treated and then arrested. "We are trying to stop a woman from doing irreparable harm to her child in utero." The hospital suspended the policy in 1994, citing the pending litigation. Officials say the program probably will resume if the Supreme Court finds their methods valid.During the program's five years, 253 women tested positive for cocaine. Most were presented an option: successfully complete drug treatment or go to jail. Thirty women were actually arrested  29 of them were black. Only two women were ever convicted. They were sentenced to treatment, not prison. Attorneys assert that racial profiling did not occur but that women were randomly selected by their economic status.To pass constitutional muster, Charleston officials must show that their drug-testing policy addresses a "special need" or important government concern that is not law enforcement related.In a series of decisions since 1989, the Supreme Court has permitted police or other government agencies to conduct searches without warrants if the objective is some greater societal good. For example, they have permitted roadblocks searching for drunken drivers and drug testing of public school bus drivers.Mr. Hood says that the program was designed to "stem the tide of an epidemic" caused by pregnant women using cocaine. He says the social and economic costs of the problem required immediate government action.In 1993, Ms. Griffin and nine other women sued the city hospital, claiming their civil rights had been violated. Some of the women were arrested prior to giving birth and detained until they delivered, according to the lawsuit. Others were arrested minutes after giving birth. They were handcuffed, shackled and taken to jail still wearing their hospital gown."I had just had a baby," says Sandra Powell, one of the women in the lawsuit. "I was still bleeding, still in pain when they came to haul me away." Ms. Smith, who represents all 10 women, says the policy "transforms a doctor visit into a police sting operation." She says none of the women consented to the drug test nor were they presented with search warrants. "These doctors were acting as agents of the police when they searched my clients looking for evidence of crimes," says Ms. Smith, who is director of litigation at the Center for Reproductive Law and Policy in New York. Many legal experts believe that the Supreme Court will use this case to more narrowly define the parameters under which government agents can usurp people's privacy rights in pursuit of a special public need. The problem, they say, is that the "special needs" exemption to the Fourth Amendment has been undefined, allowing law enforcement to interpret it broadly.Another concern, lawyers say, is whether threatening pregnant women with prosecution is actually effective. The American Medical Association and a dozen other public health organizations have filed briefs in the case, saying the Charleston program actually discourages women from seeking prenatal care if they think their test results will be turned over to police.During the past decade, there have been hundreds of efforts by law enforcement and social workers across the country to punish women who used drugs, alcohol or tobacco during their pregnancy.In Texas, however, an appeals court ruled in 1994 that women can't be prosecuted for passing drugs to fetuses through the umbilical cord because no state law makes that a crime. The court did not address whether such a law would be unconstitutional.While Charleston officials are quick to note that they have not sent anyone to prison under their program, that cannot be said for other parts of South Carolina.In 1998, the South Carolina Supreme Court ruled that a live fetus older than 24 weeks is officially a person.The state justices said that if a woman uses cocaine during the third trimester of pregnancy, she is technically "distributing an illegal substance" to her unborn child through the umbilical cord. That act, they said, would violate state drug laws.In response, South Carolina Attorney General Charles Condon instructed doctors statewide to report to police any evidence that they uncover of illegal drug use by patients. Dozens of prosecutions have resulted, with a handful of women being sent to prison for up to three years. In Myrtle Beach, a young woman is scheduled to stand trial this spring on murder charges after she giving birth to a still-born child last year. Doctors say the mother tested positive for cocaine at delivery. They say her drug use could be partially to blame for the death of the unborn child. "If you refuse drug treatment and continue to use cocaine and continue to hurt babies, then we have a jail cell waiting for you," Mr. Condon says.Ms. Griffin and her lawyers say it is that attitude that proves their point that the drug tests are more about law enforcement than public health."The doctors and nurses were more interested in helping police than helping me," says Ms. Griffin, who works six days a week at a Charleston dry cleaning store. "Because of this, I will never trust a doctor again."Note: Justices to weigh rights in searches.Source: Dallas Morning News (TX)Author: Mark Curriden, The Dallas Morning NewsPublished: February 4, 2001Copyright: 2001 The Dallas Morning NewsAddress: P.O. Box 655237, Dallas, Texas 75265Fax: (972) 263-0456Contact: letterstoeditor dallasnews.comWebsite: Drug Testing Archives 
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Comment #4 posted by Ethan Russo, MD on February 05, 2001 at 07:02:21 PT:
Hypocrites and Inquisitors
"Her symptoms, the doctors told her, were probably caused by the stress of losing her job and home"Did they think that arresting and shackling her wouldn't cause her stress and possibly harm the baby? What hypocrisy. This is the ultimate invasion due to the War on Drugs? Ever heard of thing called "probable cause." Let's count up how many of these women were minorities. I hope that they prevail and take the offending jurisdictions to the cleaners.Let me emphasize, there is an expression, "No drug is the best drug in pregnancy." I am not advocating cocaine use in pregnancy, or saying that it is harmless. However, the harm has been overblown, and is not as clear as that from the legal drug called alcohol, which can cause "fetal alcohol syndrome." In some jurisdictions, particularly Indian reservations, overzealous law enforcement will also jail pregnant mothers to prevent them from drinking. The intention may be noble (although that is not at all uniformly true, but the end result is poor and addicted women avoid prenatal care altogether. Another example of how politicians and law enforcement do not think about the ramifications of their actions before they reflexively legislate or arrest. I propose the problem should remain solely medical, and be dealt with as a medical issue without punishment. Those hypocritical right to lifers should contribute their money so that addicted or alcoholic mothers can be housed, fed and supported during their pregancies and have healthy babies.
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Comment #3 posted by freedom fighter on February 05, 2001 at 05:31:33 PT
I would be honored 
to fight side by side with you.The judges better do what is right. The judges better restore the 4th Amendment.In the name of Peace,ff
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Comment #2 posted by Dan B on February 04, 2001 at 21:25:11 PT:
Their "Demand" Plan: Destroy All Drug Users
"It's the carrot-and-stick approach"How many times must we hear this lame lie used as an excuse to steal babies from their mothers? A more appropriate term would be "the baby-on-a-stick approach," since it is the womens' babies, not carrots, that these fascists hold before these women to lure them into "treatment." And remember, treatment never fails them; they always fail the treatment. And so they must be punished. If the Supreme Court deems it reasonable to conduct these secret tests on pregnant women, watch out for the backlash, because it won't end with cocaine, and it won't end with pregnant women. They've already okayed drug tests as "legitimate" hurdles to cross when attempting to find employment. This case has the potential to open the door for doctors to use anything as a justification for an illegal search of any kind. You have children? Better make sure you don't use non-government-sanctioned drugs. You are employed? Pee in the cup. Over the age of 18? Pee. Under 18? Pee. Once they identify you as treasonous (ultimately, that will be the charge for all drug use), they're just one step away from genocide. Think this is farfetched? They already have over 500,000 drug users in prison, arrest over 700,000 every year. They are rounding up drug users like Nazis rounded up Jews in the 1930s and 40s. Literally. They use the exact same tactics (no-knock "searches," militarized police squads conducting home invasions, letting cops get away with shooting innocents, etc.)How long before we see the next wave of laws aimed at "prison overcrowding"? Do you really think these people have any intention of simply letting the nonviolent drug users go? If they have their way, we will see Americans mass-murdering Americans in the name of the so-called "war on drugs." We are at a point now where we can protest, send letters to politicians, letters to editors of newspapers and other publications. And so we must, or we will see the genocide described above. (See Drug Warriors and Their Prey, by Richard Lawrence Miller for more evidence of this trend).In the future, we may have a different choice: die fighting, or die martyrs. If it comes to that, I will be on the front lines taking out as many of them as possible before they kill me.I'd strongly prefer peace.Dan B
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Comment #1 posted by sm247 on February 04, 2001 at 17:57:07 PT
ACLU ???
where ya at ACLU ??????
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