U.S. Supreme Court Agrees That Searching and Arresting Pregnant Women at Hospital Violates United States Constitution

Today, the U.S. Supreme Court agreed Americans have the right to expect that when they seek medical help, their doctor will examine them to provide a diagnosis and treatment, not search them to facilitate their arrest.

For nearly five years, a state hospital in Charleston, South Carolina, collaborated with the local police department to search pregnant women and new mothers for evidence of drug use – without a warrant or their consent. Instead of using this information to provide appropriate medical care and treatment, medical staff gave it to the police who arrested women right out of their hospital beds. They were shackled and chained, some of them still pregnant, others weak and bleeding from just giving birth.

Ten women, however, had the courage to stand up and say that this was unacceptable and unconstitutional. Today the United States Supreme Court agreed. The decision affirms that the Fourth Amendment to the U.S. Constitution protects every American – even those who are pregnant, even those with substance abuse problems – from warrantless, unreasonable searches. This case represented the intersection of the war on abortion and the war on drugs — using claims of fetal rights and false and alarmist assertions about drug use to justify unprecedented violations of patients rights to the detriment of women and children.

“This is a major victory for patient-doctor confidentiality,” said Dan Abrahamson, Director of Legal Affairs at The Lindesmith Center – Drug Policy Foundation who worked with the American Public Health Association and other major medical organizations involved in the case.

After more than a decade, a court has finally given these women a measure of Justice, and reached the conclusion that the policy of testing and arresting was not only unconstitutional, it was also bad medicine. The Court’s decision is in keeping with the recommendations of every leading medical group. More than seventy leading medical, public health and civil rights organizations, as well as leading researchers, joined amicus briefs opposing the hospital’s policy. Not a single organization defended the hospital’s blatant departures from basic standards of medical care and ethical practice.

Organizations ranging from the conservative Rutherford Institute to the American Civil Liberties Union and medical groups including the American Medical Association, the American College of Obstetricians and Gynecologists and the American Public Health Association opposed the policy. In addition, more than 140 leading researchers and organizations joined in a public letter to the US Surgeon General urging him, regardless of the outcome of this case, to oppose punitive approaches to substance abuse during pregnancy because they deter women from seeking critical pre- and post-natal care and drug treatment that can help them and their babies be healthy.

Lynn Paltrow, Executive Director of the National Advocates for Pregnant Women, conceived of the Ferguson case, the first civil rights law suit to challenge a policy of arrest and the first to be decided by any federal court. National Advocates for Pregnant Women is the only national organization devoted to addressing the intersection of the war on abortion and the war on drugs. NAPW acts as a national clearing house on information regarding maternal-state conflicts, and legal issues concerning drug using pregnant women and new mothers. Susan K. Dunn, The Women’s Law Project and the Center for Reproductive Law and Policy are co-counsel in this case.

Statement of South Carolina Advocates for Pregnant Women

Today the United States Supreme Court announced that the Medical University of South Carolina’s Hospital policy of searching certain pregnant for evidence of drug use — without a warrant or consent violates the Fourth Amendment’s prohibition against unlawful searches. This decision makes clear that there is no drug or pregnancy exception to the 4th amendment – it protects all people who seek health care at public hospitals, reinforces and upholds the constitution as guarantor of personal privacy.

“This decision vindicates years of courageous work by 10 of the women who challenged outrageous and dangerous policy of arresting and jailing obstetrical patients rather than providing need treatment. This decisions should send a loud message to the state of South Carolina – focus on treatment not punishment,” said Susan K. Dunn, SCAPW’s general counsel and attorney for the ten women who filed the civil rights action.

Over seventy organizations and individual medical researchers joined amicus briefs condemning the policy, from the conservative Rutherford Institute to the American Civil Liberties Union, including women’s rights, children’s rights, leading medical organizations and leading scientific researchers in the field. Leading national and local medical, public health, and children’s groups – including the American Medical Association, the South Carolina Medical Association, The American Nurses Association, The South Carolina Nurses Association and the American College of Obstetricians and Gynecologists – uniformly oppose South Carolina’s policies of arrest and punishment, which attempted to use the criminal justice system to address the problem of drug use during pregnancy. They assert that a punitive approach such as threatening women with arrest and jail time is counterproductive: it deters women from seeking critical pre- and post-natal care as well as drug treatment.

Wyndi Anderson, Director of the South Carolina Advocates for Pregnant Women said “Today’s decision reinforces the idea that the constitution protects the rights of all citizens including pregnant women and people with drug problems. We know that treatment works and is the best thing for families children and the tax payers’ pocketbook. It is an outrage that the state chose to spend millions of dollars defending this dangerous, inhumane and unconstitutional policy rather than desperately needed drug treatment programs in South Carolina.”

In July of last year, the U.S. Court of Appeals for the Fourth Circuit ruled that the hospital’s policy did not violate the constitutional right to be free from warrantless, unreasonable searches of one’s person. The appellate court reasoned that the policy fell within the legal doctrine allowing an exception in cases in which government officials conduct searches for “special needs.” In this case the special need to deter drug use and promote health. In asking the U.S. Supreme Court to overturn this finding, the South Carolina women noted that the federal courts had never before sanctioned such an exception when the search was being conducted for the purpose of gathering criminal evidence.

The search and arrest policy was implemented in October, 1989, at MUSC, the only hospital in Charleston that serves mostly low-income and African American patients. It was jointly crafted by hospital staff, the local police department, and the prosecutor’s office. Pregnant women and new mothers who met certain criteria were subject to searches through urine drug screens carried out without a warrant or consent. The urine tests, were used to identify women who used cocaine so that the police could arrest them. All but one of the 30 women reported and arrested were African American.

Until the spring of 1990, no woman who tested positive was given the chance to seek treatment before being arrested. Trial testimony established that there was no treatment designed for pregnant or parenting women anywhere in the state at the time the policy was implemented. Although the policy was eventually revised to create the appearance of a treatment alternative, in actuality, the policy merely gave untrained medical staff the authority to arrest women who failed to obey immediately referrals to treatment that were inappropriate and those who failed to overcome their addictions instantaneously.

Wyndi Anderson commented:” It is an outrage that the state has defended a policy that frightens women away from what treatment might be available and in spite of the fact that today, there is still far too little treatment available for all of the women in South Carolina who need and want it.”

MUSC temporarily terminated its policy in 1994 after investigations by two federal agencies. The National Institutes of Health placed the hospital on “probation” after finding that its “research” tracking the policy violated federal law on “experimentation” on human subjects. The Office of Civil Rights also began investigating whether the policy was racially discriminatory. MUSC agreed to stop the arrests to avoid a full-blown inquiry.

Susan Dunn explained, “Now that the constitutional issues have been resolved, we can revist the question of damages and focus on what the hospital should have done in terms of providing proper medical care.”

Punitive policies, however, have been in force statewide. Recently the state proceeded with a homicide trial against a 22-year-old woman who suffered a stillbirth. For more information on these polices and related cases in South Carolina, see SCAPW.