Pubdate: Tue, 27 Mar 2001
Source: Quad-City Times (IA)
Copyright: 2001 Quad-City Times
Contact:  500 E. Third St., Davenport, IA  52801
Fax: (319) 383-2370
Author: Ellen Goodman


Court Upholds Fourth Amendment

Last week's decision by the U.S. Supreme Court that a pregnant woman 
is entitled to the same medical privacy as any other patient is 
enough to break out the champagne.  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 high-fives?

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 argues 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, who holds one of 
the swing votes on this dicey court.  Kennedy agreed that this 
particular cozy 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."

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.

But 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 right." 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?  How much?
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