Need for privacy outweighs need for law

The Supreme Court heard oral arguments Oct. 4 in Ferguson v. City of Charleston, S.C., with potentially notable Fourth Amendment and civil rights consequences for pregnant women. \nAs I waited in line on the Supreme Court's steps that morning, a small group of protesters began to form and spread posters across the sidewalk along First Street, between the Court and the Capitol. At first, there were two lonely women wearing sandwich boards and walking a circle around the signs they had laid on the ground. \nLater, a gray-haired gentleman dressed in a navy suit strolled down the street with a single poster, two baby dolls (one white, one black) and two small American flags. Scribbled on the front of his homemade sign in black marker was: "Test the Mothers, Save the Babies."\nAt issue in the case was whether a South Carolina state law violated the Fourth Amendment and Title VI of the Civil Rights Act of 1964.\nNine minority women petitioned the Court to overturn that law, which seeks to stop the use of cocaine during pregnancy. While this is a laudable goal, the method used in South Carolina's hospitals is unacceptable. \nIn 1989, the Medical University of South Carolina, acting under a recently passed state law, began a practice of testing, without consent, the urine of pregnant women suspected of using cocaine, the only drug covered under the law. The MUSC policy used nine indiciacators of cocaine use, including a lack of prenatal care, pre-term labor and birth defects.\nTwo issues of concern arise from MUSC's testing and the subsequent arrest of women who tested positive: the first is the "unreasonable searches and seizures" clause of the Fourth Amendment; the second is found in the racially discriminatory practice of testing only some of MUSC's patients. \nThe Fourth Amendment is generally a constraint on the government's authority to undertake a search, such as a urine test, without either a warrant "particularly describing the place to be searched and the persons or things to be seized" or a particular governmental "special need."\nLacking either of those, consent must be given by the person to be searched. The 30 women arrested under the law, and several dozen more who were also tested, did not consent. Furthermore, Priscilla J. Smith, who argued for the women, noted that an "expectation of privacy" in hospitals is greater than somewhere else the police might engage in random testing.\nIn the absence of valid consent, the drug testing policy did violate the Fourth Amendment. \nThe number of protesters who had gathered in support of the women arrested by Charleston, S.C., police grew from two to eight by 9 a.m. Their signs highlighted the rights of the women, which they claimed were violated. One proclaimed cocaine addicts needed "hospitals, not handcuffs."\nRegarding the testing's discriminatory practices, the policy at MUSC had a racially disparate impact in violation of Title VI of the Civil Rights Act of 1964. "Thirty women were arrested pursuant to the MUSC policy, all but one or two of whom were African American," according to an amicus brief filed by the American Civil Liberties Union.\nWhile the relative number of minorities being arrested is not alone sufficient for a law to be a violation of Title VI, it is when an alternate program could be used by the government to ensure fairness to everyone in the law's application. The option MUSC failed to use and should have is simply testing all pregnant women, not picking and choosing particular ones. The urine tests are already required in the hospital's routine care, and hardly represents a prohibitive expense on the government.\nOn the street, protesters for the women and the lone protester supporting South Carolina's law engaged in several short yelling matches. One side mentioned the need to protect babies and the other countered that they weren't babies, but fetuses. "Your Latin is a little off," the navy-suited man shouted to his adversaries only a few feet away. "'Fetus' means 'baby.'" \nThe Court must decide whether the government's need to test particular pregnant women for cocaine use outweighs the women's right to be secure against unreasonable searches.\nWe can all agree women should not use any drugs while pregnant, but the government should take a more appropriate approach to how it combats this problem. Preventative measures and drug treatment and counseling services are far preferable to the jail time 30 women received -- some while still in their hospital gowns.