ACLU Urges High Court to Void South Carolina Law That Strips Pregnant Women of Their Rights

FOR IMMEDIATE RELEASE

WASHINGTON — A South Carolina public hospital policy mandating drug testing of pregnant women unfairly singles out poor and minority women and should be struck down, the American Civil Liberties Union urges in a friend-of-the-court brief filed before the U.S. Supreme Court.

At issue is a South Carolina hospital’s policy that subjects pregnant women to mandatory urine drug screens without suspicion or a warrant. Under the policy, 30 women — all but a few of them African American — have been arrested and charged with drug possession, child abuse, or delivery of drugs to a minor.

“This is a case where women are being singled out because they are poor, black, and pregnant,” said Julie Sternberg, an attorney with the Reproductive Freedom Project. “Because poor minority women are more likely to give birth at public institutions, they are more likely to be the targets of such draconian measures.”

Under the policy, maternity patients are tested if they meet any of several criteria, including no or minimal prenatal care; unexplained preterm labor, birth defects or poor fetal growth; separation of the placenta from the uterine wall; a history of drug or alcohol abuse; or intrauterine fetal death.

Initially, the hospital reported to law enforcement any woman who tested positive for cocaine. Later, the hospital amended the policy so that women who test positive once can choose drug treatment in lieu of arrest. However, if a woman tests positive a second time or if she fails to comply with treatment, she is turned over to the police.

In its brief, the ACLU cautions that “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 . . . monitor the behavior of women more generally throughout their pregnancies.”

“Women do not forfeit their privacy rights by becoming pregnant,” said Louis Bograd, a senior staff attorney with the ACLU.

The main constitutional question in the case, the ACLU said, is whether pregnant women fall under the “special needs” exception of the Fourth Amendment’s protection against unreasonable searches and seizures. The “special needs” exception, however, only applies in situations where there is a diminished expectation of privacy.

“The state is on a slippery slope,” said Sternberg. “There is no logical end. What’s to stop state authorities from monitoring a pregnant woman’s every move, setting limits to how much caffeine she can drink, or watching to make sure she is exercising enough, but not too much? Pregnant women do not have a diminished right to privacy merely because they are pregnant.”

Oral arguments in the case will be heard by the Supreme Court this fall.

The ACLU’s friend-of-the-court brief is available online at: http://archive.aclu.org/court/ferguson_v_charleston.html.

The case is Ferguson v. City of Charleston (No. 99-936). The ACLU brief was written by Julie E. Sternberg, Steven R. Shapiro, Sara L. Mandelbaum, Catherine Weiss, Louise Melling, and Louis M. Bograd of the ACLU, and Martha F. Davis, Yolanda S. Wu, and Roslyn Powell of NOW Legal Defense and Education Fund.