Black Moms Targeted For Drug Tests

by Katherine Stapp

In all, some 30 women -- 29 of whom were African-American -- were arrested and put in jail after testing positive under the anti-drug policy, which was jointly developed in 1989 by a South Carolina public hospital and local police and prosecutors. The women were charged with crimes like drug possession, child neglect and distribution of drugs to a minor -- meaning the unborn fetus, which, if viable outside the womb, is considered a person under South Carolina law.

"The doctors in this case worked directly with the police to arrest women right out of their hospital beds," said the lead lawyer for the plaintiffs, Priscilla Smith. "We agree with the American Medical Association that this was a shocking abuse of police and governmental power."

In addition to the broad privacy issues raised by the case known as Ferguson v. City of Charleston, the plaintiffs argued that surreptitious drug testing only serves to discourage women from seeking medical care when they are expecting a child.

"No one wants a pregnant woman to do anything that is harmful to herself or her fetus, but the one thing we know about drug addiction is that punitive policies do more harm than good," Smith said, noting that virtually every major American medical association opposes such testing as "counter-productive."

But far worse than the testing itself, she argues, is the fact that the results were promptly disclosed to the police.

Amicus briefs have been filed on behalf of the plaintiffs by the American Civil Liberties Union (ACLU) and numerous medical and reproductive rights groups.

Under close questioning from the Court's nine justices, respondents' attorney Robert Hood insisted that the policy was not intended to punish, but rather to "stop a woman from doing irreparable, major harm to her child in utero."

Hood told the court that the testing was in response to an emergency "epidemic" of crack-addicted mothers, and therefore justified the intrusion.

A trial court affirmed the policy (which had been abandoned by the hospital in 1994), and a federal appeals court also ruled against the plaintiffs, finding that the drug testing fell within the "special needs" exception to the protection against unreasonable search and seizure.

For example, while the doctor-patient relationship enjoys broad confidentiality guarantees in the U.S., medical personnel are required to report a gunshot wound to authorities because a crime may have been committed.

The Supreme Court, located in Washington DC, accepted an appeal from the plaintiffs last year. It is expected to issue a ruling by next July.

Although the race of the women has been largely downplayed in the media, some have noted that not only were the vast majority of the women black, but the hospital -- the Medical University of South Carolina -- was the only one in town serving low-income minority patients, and the only one to institute a "Search and Arrest" policy.

Prof. Susan Herman of Brooklyn Law School, who participated in a moot court rehearsal of the issues at a Virginia university on Monday, termed it a case of "pregnant while black" -- a reference to the racial criteria used by some police officers to pull over motorists that has come to be known, ironically, as "driving while black."

Testimony from the plaintiffs on the CRLP web site paints a grim picture of the policy's implementation. Some of the women were arrested just hours after delivering their babies, and one had her ankle shackled to the bed during labor.

"After I got dressed, three policemen came in, put handcuffs and shackles on me and told me I was under arrest for distribution of cocaine to a minor," recalled Lori Griffin, who had two other young children at home when she was handed over to the police by a hospital nurse in October 1989. "I will never trust a doctor again...they tormented me."

When Sandra Powell was arrested that same year, she was still bleeding from giving birth and was wearing only a hospital gown, open at the back.

"I said please, what could I do to stop this," she testified. "Could you help me...what is going on?"

"I just had a baby, I was still in pain," Powell said. "Before that day was over, I was in jail...I felt so ashamed because I (didn't) know what I had done for them to treat me like that."

In 1990, the hospital started offering women drug treatment in lieu of prison. However, those who refused were subject to arrest.

The case has wide ramifications for civil and women's rights in general, lawyers say.

"Once that justification (of foetal or maternal health) is accepted as the basis for stripping rights away, there is no logical stopping point," says the ACLU's amicus brief.

"Many things men and women do before and after conception can affect the health of future children, from smoking to drinking to bad dietary habits," the group notes.

"If the state can drug test pregnant women based on criteria that have more to do with poverty than with actual drug use, there is no reason why the state could not claim an equivalent right to...monitor the behavior of women more generally throughout their pregnancies."