Pubdate: Thu, 28 Sep 2000 Source: Boston Globe (MA) Copyright: 2000 Globe Newspaper Company. Contact: P.O. Box 2378, Boston, MA 02107-2378 Feedback: http://extranet.globe.com/LettersEditor/default.asp Website: http://www.boston.com/globe/ Author: Jennifer Braceras Note: Jennifer Braceras is an attorney and research fellow at Harvard Law School. Her column appears regularly in the Globe. Related: more on Ferguson v. City of Charleston http://www.mapinc.org/find?153 DEFINING THE RIGHTS OF UNBORN CHILDREN Fans of the television drama "ER" might remember the episode in which nurse Carol Hathaway reported her pregnant and drug-addicted patient to the police in order to protect the woman's near-term fetus from further exposure to drugs. Next week, when the US Supreme Court begins its 2000-2001 term, the court will consider a difficult Fourth Amendment case that brings to life nurse Hathaway's fictional dilemma. At issue in the case, Ferguson v. City of Charleston, is whether a public hospital may constitutionally test pregnant patients for illegal drugs and report positive test results to law enforcement. In the late 1980s, nurse Shirley Brown, a case manager in the obstetrics department of the Medical University of South Carolina, became alarmed at the dramatic rise in cocaine use among pregnant women. Brown's concern for the health of the developing babies ultimately led to the adoption of the drug-testing policy now before the Supreme Court. Under the policy, the hospital tested pregnant women suspected of cocaine use. The threat of arrest was used to persuade women who tested positive to seek treatment. Any patients arrested under the policy could have the charges dropped by completing a drug treatment program. The petitioners - 10 women tested by the hospital, none of whom were prosecuted - argue that the hospital violated their right to privacy and their right to be free from unreasonable searches and seizures. Lawyers for the City of Charleston contend that the policy is a legitimate response to a public health crisis. Significantly, the women are represented by the Center for Reproductive Law & Policy. The National Abortion Rights Action League has filed a brief on their behalf. These activists have taken up this cause not because of their concern for the complicated criminal procedure issues presented but rather because of the implications the case may have for the unfettered right to abortion. Radical abortion-rights activists view the Ferguson case (and the dilemma of nurse Hathaways everywhere) as a clash of absolutes - a conflict between the rights of pregnant women and the rights of their fetuses, in which women's rights must always prevail. Consider the lawsuit filed against the State of Connecticut challenging as unconstitutional the state's baby AIDS law. That law requires Connecticut hospitals to administer HIV tests to any woman admitted for childbirth who has not been tested as part of her prenatal care. If the hospital does not test the mother, it must test the newborn within 24 hours of delivery. Although Connecticut law reflects the state's compelling public interest in reducing the risk of HIV transmission to infants, abortion rights extremists claim that it violates the mother's right to privacy. The reality, however, is that supporters of abortion on demand object to Connecticut's efforts to reduce the number of HIV-infected babies because they fear that such efforts legitimize claims that the fetus is a human life. Closer to home, the Ferguson case calls to mind the case of Rebecca Corneau, the pregnant member of an Attleboro religious cult who has been hospitalized against her will because, among other things, she may have been complicit in the death of her last child. Ironically, proponents of abortion, who are ordinarily hostile to religious persons, have sided with Corneau. In the name of "reproductive freedom," they have turned Corneau into a cause celebre. The underlying question posed by all three of these controversies is this: Is there any circumstance in which the pro-abortion lobby believes that unborn life deserves protection? It seems that to radical feminists any attempt to protect the unborn places us on a slippery slope toward total prohibition of abortion; any acknowledgment that a fetus is a life worth protecting represents a threat to "a woman's right to choose." Of course, proponents of this view fail to recognize that Ferguson, like the Connecticut baby AIDS case and the Corneau case, is not about choice. Indeed, in all three of these cases, the women have already made their choices - they have chosen to carry their babies to term. By portraying well-intentioned efforts to address complex social problems, such as crack babies, AIDS, and child abuse, as threats to women's freedom, these feminist groups fail to recognize that with rights come responsibilities. This is not a zero-sum game in which either the pregnant woman or her fetus must lose. It's time for the pro-abortion lobby to recognize that when mothers deliver healthy babies, everybody wins. - --- MAP posted-by: Thunder