Poor S.C. women win drug-test case

Staff WriterMarch 22, 2001 

Published on: 03/22/2001

Drug-testing pregnant women and giving the results to police without the women's consent is unconstitutional, the U.S. Supreme Court ruled Wednesday. The decision concludes an eight-year battle waged by 10 low-income South Carolina women.

The decision does not resolve the debate over what is the best way to handle pregnant drug-users: treatment or prosecution. But it does guarantee that all women - be they sober or drug users - are protected by the Fourth Amendment. That amendment forbids illegal searches and seizures without a warrant or the person's consent.

Furnishing tainted urine from pregnant drug users to police, to use as evidence, constitutes an illegal search, the court ruled. "I trusted these people," one plaintiff, Missy Nicholson, 39, of Charleston, said of hospital staff. "They just outright lied to me. It was so sneaky and underhanded."

Pregnant drug-users such as Nicholson, who sought prenatal care at Medical University of South Carolina in Charleston between 1989 and 1994, had their urine used as evidence against them without either a warrant or their consent. Attorney General Charlie Condon was Charleston County solicitor at the time and devised the policy. He now is running for governor.

The arrests were enacted at a hospital that serves mostly poor African-American patients at a time when the crack-cocaine epidemic was in full swing. Hospital workers and law enforcement personnel were frustrated by the influx of pregnant drug users. They teamed in a desperate bid to stop the cycle.

"There is no right of a mother to jeopardize the health and safety of an unborn child through her own drug abuse," Condon said.

Women and some medical professionals said the state went too far and violated women's civil rights. Women were handcuffed, shackled, and/or taken to jail while still pregnant or just after giving birth. Other drug users avoided prenatal care, fearing arrest.

"We were all traumatized very much," said Nicholson, who was eight months pregnant and addicted to drugs when she sought treatment at MUSC in 1994.

The lawsuit was filed in 1993. In October, plaintiffs' attorneys successfully argued before the Supreme Court that the Fourth Amendment had been violated.

"It's such a thrill," said Lynn Paltrow, an attorney with the Center for Reproductive Law and Policy in New York, which represents the women. "The women are getting justice."

The arrests at MUSC ceased in 1994 when the U.S. Department of Health and Human Services threatened to withdraw federal funding. But Condon adopted a similar statewide policy in 1998 that still stands.

The Supreme Court decision does not outlaw that policy, but places stiffer requirements upon it.

Condon's three-year-old policy instructs doctors (except at MUSC) to report all pregnant drug users to the state Department of Social Services. Women who decline to seek drug treatment risk jail time.

The court's ruling simply requires law enforcement personnel to get a court warrant, or signed consent from pregnant women, before using drug test results as evidence.

Getting search warrants will not be difficult, said Condon, who described the court's ruling as "minor."

"Most of these cases are very straightforward," Condon said. "There's generally a history of drug abuse. Generally the women will come in clearly under the influence."

Pregnant drug users can be charged under child abuse laws in South Carolina since a viable fetus is defined as a person in this state. A viable fetus is one at least 24 weeks old and able to survive outside the womb.

"The goal is not maternal prosecution," Condon said. "The goal is fetal protection. "

How often fetal child-abuse cases are filed under this policy, is unclear. Johnny Gasser, deputy solicitor for Richland County, said Condon's policy rarely comes into play.

Most law enforcement agencies and solicitors' offices here pursue crack-cocaine cases involving children only after they are born, he said.

"Our focus has been on mothers who have given birth," Gasser said. "We have not prosecuted one mother solely based on her testing positive during prenatal care."

In deciding the case, filed as Crystal Ferguson vs. City of Charleston, the Supreme Court rejected Condon's argument that the MUSC drug searches fell under a "special needs exception" to the Fourth Amendment. The Fourth Circuit U.S. Court of Appeals had upheld the special needs contention in 1999, finding that fetal health was at stake. The Supreme Court reversed that ruling.

Justice John Paul Stevens wrote for the 6-3 majority: "The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine, cannot justify" the failure to use a warrant. Dissenting were Justices Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist.

The American Medical Association, which joined more than 70 organizations in filing briefs supporting the plaintiffs, said threatening the women with arrest and jail time deters them from seeking care.

"The concern we had, was the preservation of the patient-physician relationship and the chilling effect it might have on women seeking prenatal care," said Dr. Timothy Flaherty, chairman-elect of the AMA Board of Trustees.

Today, the children who were fetuses when their mothers were arrested, range in age from 7 to pre-teens. Wyndi Anderson, director of the South Carolina Advocates for Pregnant Women, spent much of Wednesday calling the women to share the news.

"I was so overwhelmed I started to cry," said Anderson, who has been their adviser for several years. "You hear them say, 'somebody thought they did something wrong to me, finally.' "

The women are seeking millions in damages from Condon and other defendants. The Supreme Court sent the case back to the Fourth Circuit to determine whether any women gave consent for the urine tests. Those who did would be ineligible for financial compensation.

The decision had been broadcast on CNN throughout the day and was the focus of a roundtable discussion. Viewers phoned and emailed comments from across the country.

"I told them this morning, do you understand what you did, protects the rights of every pregnant woman in the country?" Anderson said. "They said, 'little old me?' "

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