Pubdate: Tue, 27 Mar 2001
Source: Cincinnati Post (OH)
Copyright: 2001 The Cincinnati Post
Author: Ellen Goodman
Bookmark: (Women)
Bookmark: (Drug Testing)


BOSTON - Within hours, the lawyers had broken out the champagne. It's come 
to that. A decision by this Supreme Court that a pregnant woman is entitled 
to the same medical privacy as any other patient is enough to bring on the 

I am willing to take victories where I get them. But a verdict that a 
hospital is not a police station? Is this what qualifies these days for 

Back in 1989, we were at the height of the ''crack baby'' furor. With 
little drug treatment for pregnant women, there was lots of punitive treatment.

That year, the hospital of the Medical University of South Carolina offered 
to cut a deal with the police that virtually deputized doctors and nurses. 
The hospital tested the urine of patients who fit a certain police 
''profile'' and turned over the results of those who tested positive.

Over a few years, women with the same ''profile'' - all but one of them 
African-American and all poor - came for maternity care and ended up in 
police custody. Eventually, the hospital added drug treatment as an 
alternative but some 30 women were jailed during pregnancy, or were 
shackled in the delivery room or arrested in recovery.

In many ways, this was a story of bad law meets bad medicine. When Ferguson 
vs. the City of Charleston arrived at the Supreme Court, 75 medical 
associations argued that when doctors doubled as cops, they violated the 
patient-doctor relationship. More to the point, the policy didn't help the 
woman or her fetus: it scared her straight out of medical care.

Now a 6-3 majority of the justices has ruled that a hospital can't secretly 
test a pregnant patient for evidence. Without a warrant, without consent, 
the drug test amounted to an unconstitutional search.But before anyone goes 
whoopee, may I suggest that they read the very reluctant concurrence of 
Justice Anthony Kennedy. Kennedy, who holds one of the swing votes on this 
dicey court, agreed that this particular hospital-police policy was 
unconstitutional. But he added a warning:

''There should be no doubt that South Carolina can impose punishment upon 
an expectant mother who has so little regard for her own unborn that she 
risks causing him or her lifelong damage and suffering.''

In fact, South Carolina today can still impose punishment. It's the one 
state that applies the laws against child abuse to viable fetuses. A 
pregnant woman in the Palmetto State may be liable for ''child abuse'' for 
any number of offenses.

Of course, many of us share Justice Kennedy's tone of outrage. The first 
public sign of pregnancy these days is when a friend stubs out her 
cigarette and passes up wine. Most women who have decided to have children 
feel a deep responsibility for their health. We expect the same of others. 
The problem is when the moral responsibility becomes legal responsibility 
and the expectation becomes prosecution. How do you enforce it? At what cost?

More than 200 women in 30 states have been prosecuted on some theory of 
''fetal rights.'' Where does it end?

We are not just talking about a skirmish in the drug wars. The danger to 
''crack babies,'' for example, was somewhat exaggerated. But the danger 
from alcohol and tobacco may be understated. Do we arrest women for smoking 
or drinking? And since the most damage may be done at the earliest stage of 
pregnancy, is every fertile woman held hostage to the possibility of pregnancy?

The hot words now are fetal rights and women's rights. But the medical 
briefs filed in the Ferguson case underscored the futility of dealing with 
a woman and her fetus as if they were two separate and opposing patients. 
Never mind two separate and opposing clients.

The Supreme Court has said that women have the right to a doctor who isn't 
doubling as a cop. That's modest cause for celebration. But Kennedy's 
opinion talked approvingly of other legal punishment. As Priscilla Smith of 
the Center for Reproductive Law and Policy said, it's ''a message to state 
legislatures to go ahead and criminalize behavior during pregnancy.''

If that happens, the champagne is going to taste very flat.
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