Women's privacy vs. safety of unborn

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. Most agreed to treatment, but 30 were arrested. According to legal briefs, some of the arrested women were taken away in handcuffs, wearing their hospital gowns almost immediately after giving birth.

Of the 30, only two were later prosecuted for failing to complete their drug treatment. Rather than being sentenced to jail terms, the two were ordered to complete their drug-treatment programs as a condition of probation.

Both sides in the lawsuit disagree over the effectiveness of the policy. City officials say the policy helped make expectant mothers aware of the dangers of drug use and that the policy was a deterrent to continued drug use.

Lawyers for the women counter that the policy encouraged low-income women with a drug problem to avoid public hospitals rather than risk arrest. They say rather than promoting fetal health, the Charleston policy increased the danger to unborn children by depriving many of pre-natal care.

If the high court views the case as primarily a drug test issue, the outcome may turn on whether a majority of justices believe it is reasonable to subject pregnant women in a public hospital to such tests.

Lawyers for the city say urine tests were necessary for the treatment of the maternity patients anyway, and that using those same samples in a law-enforcement context does not substantially increase the privacy concerns of the patients. They say the case falls within a "special needs" exception to the requirement that the government always obtain a warrant prior to conducting a search or drug test.

And they stress that the government's interest in battling "the epidemic of cocaine use by pregnant women" outweighs what they say are "minimal" privacy concerns of the pregnant women.

In their brief to the court, lawyers for the women say the city's approach "would reduce the Fourth Amendment to a balancing test, in which the extent of the invasion of privacy is weighed against the state interests served by the search."

The brief continues: "In such an equation, the rights of the individual will almost always bend to the interests of the state, leaving citizens with no assurance of privacy in their homes or persons."

Two of the briefs filed on behalf of the 10 women quote the same dissenting opinion written by Justice Louis Brandeis in a 1928 wiretap case.

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent," Justice Brandeis writes. "Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

(c) Copyright 2000. The Christian Science Publishing Society