Pubdate: Thu, 28 Sep 2000
Source: Boston Globe (MA)
Copyright: 2000 Globe Newspaper Company.
Contact:  P.O. Box 2378, Boston, MA 02107-2378
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


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 

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. 
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