Policing Pregnancy: Ferguson v. City of Charleston On October 4,the U. Though the legal question is narrow -- whether the Fourth Amendment permits the state, acting without either a warrant or individualized suspicion, to drug test pregnant women who seek prenatal care in a public hospital -- the case points to broader issues concerning the right of pregnant women to be treated as fully autonomous under the Constitution. In the past several years, the state has increasingly intruded into the lives of pregnant women, policing their conduct in the name of protecting fetuses. Pregnant women have been forced to undergo unwanted cesareans; they've been ordered to have their cervixes sewn up to prevent miscarriage; they've been incarcerated for consuming alcohol; and they've been detained, as in the case of one young woman, simply because she "lack[ed] motivation or [the] ability to seek medical care" V.
Policing Pregnancy: Ferguson v. City of Charleston On October 4,the U. Though the legal question is narrow -- whether the Fourth Amendment permits the state, acting without either a warrant or individualized suspicion, to drug test pregnant charlfston who seek prenatal care in a public hospital -- the case points to broader issues concerning the right of pregnant women to be treated as fully autonomous under the Constitution.
In the past several years, the state has increasingly intruded into the lives of pregnant women, policing their conduct in the name of protecting fetuses. Pregnant women have been forced to undergo unwanted cesareans; they've been ordered to have their cervixes sewn up to prevent miscarriage; they've been incarcerated for consuming alcohol; and they've been detained, as in the case of one young woman, simply because she "lack[ed] motivation or [the] ability to seek medical care" V.
Kolder, J. Gallagher, and M. Fortunately, in many of these cases the invasive state actions have been rescinded by higher officials or rejected by the courts.
Women and Children's Hospital Departments | CAMC Health System
Unfortunately, many of these decisions im too late to prevent unwarranted suffering and to protect women from being deprived of their rights. Under the policy, MUSC subjected pregnant women to warrantless searches if they met any one of several criteria, including no or minimal prenatal care; unexplained preterm labor; birth defects or poor fetal growth; separation cgarleston the placenta from the uterine wall; a history of drug or alcohol abuse; or intrauterine fetal death.
In the early months of the program, women were immediately arrested after they or their newborns tested positive for cocaine. One woman spent the last three weeks of her pregnancy in jail. During this time she received prenatal care in handcuffs and shackles. Inthe prosecutor's office added an "amnesty" component to the policy: women testing positive for cocaine were given the "option" of drug treatment to avoid arrest.
If they failed to woman through on treatment or if they tested positive a second time, however, they seeking arrested. Department of Health and Human Services began investigating whether the hospital in carrying out the policy had violated the civil rights of its African American patients, MUSC dropped its program. Mem total, 30 women were arrested under the policy; 29 were African American.
Arguments Against Policing Pregnancy Punishing women who use drugs during pregnancy deters them from seeking critical prenatal care and entering drug treatment programs. If the goal is to protect fetuses and to help women become drug-free mothers, punitive measures have the opposite effect. Recent studies done in hospitals and health-care centers in San Diego, Chicago, and Detroit, for example, indicate that when pregnant women fear that they will be prosecuted for their drug use, they do not seek prenatal care and will even choose to deliver their babies at home D.
Indeed, MUSC's policy appears to have driven drug-using charlestons out of the health-care system in that region, isolating them in their drug use rather than helping them have healthy pregnancies and healthy babies L. The punitive approach to drug use during pregnancy also stops women from participating in drug-treatment programs. In another high-profile South Carolina case, involving the Easely Baptist Medical Center, a young woman, Cornelia Whitner, was arrested for "endangering the life of her unborn child" and sentenced men eight years in prison after she mmen birth to a healthy baby boy whose urine, nonetheless, tested positive for cocaine.
Following the publicity surrounding this case, two drug-treatment programs in Columbia, SC, reported a precipitous drop in the of pregnant women entering their facilities.
One clinic found that between andit admitted 80 percent fewer pregnant women than it had a year earlier; the other saw 54 percent fewer pregnant women during the same time period L. Sewking that criminalizing maternal drug use is bad medicine and bad public policy, with potentially tragic consequences for pregnant women, their fetuses, and their families, numerous medical and public-health organizations have denounced the practice.
Pregnant women enjoy the same constitutional rights as other competent adults. Pregnant women have as great a right to privacy, bodily integrity, and autonomy as other free adults. This means that the state cannot subject women to warrantless, suspicionless, nonconsensual searches just because they are pregnant. MUSC's drug testing policy did just that.
Imagine if the tides were turned, and the state began testing men of child-bearing age for illegal drug use because they sreking not have annual physicals or had a history of substance abuse. Imagine further that officials arrest and take into custody in the name of their unborn children those men with positive toxicology reports.
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Given that recent studies have linked male drug use to sperm abnormalities that can cause birth defects, this is not such a far-fetched scenario I. It is doubtful, however, that law enforcement working in tandem with medical providers would consider implementing such a practice. And surely if they did, the courts would rightfully hold such policies unconstitutional. The rules, however, seem to change when it comes to pregnant women, though the Constitution does not.
It is hard to charlfston subjecting fathers or soon-to-be fathers to the same level of state interference in their private lives as we do pregnant women. We do not strip fathers of their constitutional rights, even when their behavior may have deleterious effects on their offspring. We do not, for example, arrest fathers mdn remove them from their families if they smoke hcarleston packs of cigarettes a day around their children and their pregnant wives, though there is ample evidence that exposure -- even prenatal exposure -- to second-hand smoke can have serious long-term health charlston.
Pregnant women, on the other hand, have been arrested or threatened with arrest for consuming not just illegal substances, such as cocaine, but legal substances as well. There are at least two recent incidents of state authorities arresting women for consuming alcohol during pregnancy: one in South Carolina, deeking other in Wyoming Paltrow, ; R.
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And in case the message to pregnant women was not clear, officials in the Wwomen Carolina Department of Alcohol and Other Drug Abuse Services recently distributed literature advising pregnant women that "it's. These and other state policies aimed at policing pregnant women assume that pregnant women are different from other competent adults, that in becoming pregnant, women somehow become wards of the state or forfeit their constitutional charoeston.
The Constitution, however, protects all of us, pregnant women included. Although drug use crosses all racial and class lines, poor women of color have overwhelmingly been the ones targeted and arrested for using drugs while pregnant. MUSC's own records indicate that among its pregnant patients equal percentages of white and African American women consumed illegal drugs Roberts, These s are in line with national statistics.
African American women, however, were 10 times aomen likely than white women to be reported to authorities I. Chasnoff, H.
Landress, and M. There are many factors contributing to these discrepancies, with race and class prejudices playing a major role in all of them. Because poor women of color are far more likely to give birth at public institutions and have more contact with state agencies, their drug use is far more likely than that of middle-class white women to be detected and reported.
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In addition, a of the criteria used to trigger testing under the MUSC policy had little to do with drug use per se meh had much more to do with poverty. For example, the hospital tested women who received little or no prenatal care.
Yet, with fewer resources and less connection to the medical community than middle-class women, poor women are more likely to delay seeking prenatal care until relatively late in pregnancy or to obtain no prenatal care at all. Inadequate prenatal care can, in turn, result in unexplained preterm labor, birth defects or poor fetal growth, separation of the placenta from the uterine iin, or intrauterine fetal death, all conditions that the MUSC policy also identified as grounds for testing pregnant patients.
Moreover, a drug-testing policy that targets crack cocaine, a drug more prevalent among inner-city communities of color, rather than other substances like methamphetamines, a drug used more often by white rural and suburban women, will unfairly result in the arrests of women of color Roberts, The singling out of cocaine is not justified on medical grounds. In practice, therefore, MUSC's policy was a form of racial profiling. By both de and implementation, the policy led inevitably to the identification and punishment of drug use by pregnant, low-income women of color, leaving other pregnant users free of the threat of warrantless, suspicionless, nonconsensual drug seeikng.
Punishing pregnant women for drug use sets the state on a slippery slope. What's eeeking stop the state from arresting women for drinking alcohol or smoking cigarettes while pregnant? Where will we draw the line? In recent years, pregnant women have been forced to undergo an array of medical procedures without their charleston and have been imprisoned for alcohol use, unruliness, and mental illness, all in the name of protecting fetal seeking. When the woman opposed the woman on religious men, the office of the State's Attorney sought a court order compelling her to submit to the cesarean.
Rejecting the state's argument, the appellate court held that seekingg woman's "right to refuse invasive medical treatment, derived from her rights to privacy, bodily chxrleston, and religious liberty, is not diminished during pregnancy. The cesarean was nonetheless performed; the baby died within a few hours of birth; and the woman died two days later. An appellate court ultimately reversed the charlesston that authorized the involuntary surgery, but not in time to help the woman or her family In re A.
She spent charleston men jail before a judge dismissed the charge Roth, An appellate court ultimately held that the district attorney had impermissibly manipulated the juvenile laws to detain the pregnant woman and released her when she was approximately seven months pregnant In re Steven S. State seekings to police pregnant women for the alleged benefit of their fetuses are not only misguided as a chadleston of policy, they are unlawful.
The answer is no. The government may dispense with the protections normally demanded under the Fourth Amendment inn to a search -- securing a warrant or having an individualized woman of criminal conduct -- only if the search falls within a "special needs" exception. To satisfy that exception, the governmental policy must womne unrelated to law enforcement, and the person being searched must have a diminished expectation of privacy.
In this case, however, law enforcement officials were intimately involved in creating and implementing MUSC's policy: women who tested positive for cocaine were arrested and prosecuted, or threatened with these consequences, in case after case. Moreover, the notion that women have a diminished expectation of privacy when they are pregnant is at odds with our strong constitutional tradition of respecting pregnant women's privacy rights. Nothing in U. The Constitution does not permit such an assault on women's privacy and equality.
Though the question before seekig U. While both men and women engage in conduct that may be harmful to a fetus, only women -- by virtue of their pregnancies -- are targeted for punitive measures.
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By singling out women in this manner, the state discriminates against them, potentially violating both the Equal Protection Clause of the Fourteenth Amendment of the Constitution and various civil rights laws. By the same token, womsn, like MUSC's, that target women of color may violate constitutional and statutory prohibitions against race discrimination. Finally, efforts by the state to protect the fetus by confining women -- whether to a hospital or jail -- or by compelling medical treatment -- whether the woman is strapped to a gurney for a charlestoon cesarean section, tied into stirrups for a pelvic exam, or involuntarily hospitalized during delivery -- violate the guarantee of liberty of the Due Process Clause of the Federal Constitution Related Issues.