John Whitehead's Commentary
Crack Moms Ask the Supreme Court for Protection
Recently, the Supreme Court agreed to hear the appeal of several women who were arrested after testing positive for cocaine while they were pregnant. The women argue that a South Carolina public hospital's urine tests violated their constitutional rights since the tests were used by police officers.
South Carolina's position is fairly straightforward. State officials argue that since a viable fetus is a person under South Carolina law, a pregnant woman who ingests cocaine is guilty of distributing a controlled substance to a minor.
Given this legal predicate, beginning in the late '80s police worked in tandem with hospital workers to target maternal crack users. If women exhibited one of several predetermined signs of drug abuse, hospital personnel gave them a urine test. Positive results were then passed on to law enforcement officers, which resulted in the jailing of several mothers.
Lori Griffin is a typical example. An African-American, Lori was admitted to the hospital with contractions. After testing positive for cocaine, she was arrested and taken to the county jail. Several weeks later, she returned to the hospital to deliver her baby. The other eight women in the case (seven who were also either black or multi-racial) suffered similar fates.
Attorneys for the women argue that the drug testing policy violates the Fourth Amendment's prohibition against unreasonable searches. They contend that consent is required for what is essentially a search of the women's person--and that the hospital never obtained informed consent from those mothers it tested.
A federal appeals court rejected this claim. In a 2-1 decision, judges for the Fourth Circuit did not even consider the consent issue. Instead, they found that the search fit under an exception to the general rule. The exception deals with what the court called "special governmental needs, beyond the normal need for law enforcement."
This "special needs" analysis has also led to drug tests being upheld in other contexts, such as high school sports. Under this reasoning, the government claimed it needed to test the women in order to protect their children, as well as to curb the "resulting drain on public resources," a sum the court hypothesized to be in the billions of dollars per year. Having discovered a "special need," the court then balanced the women's Fourth Amendment rights as well as their rights of privacy and concluded that such constitutional guarantees were outweighed by the need.
There are several flaws with this approach that the Supreme Court should recognize as it prepares to decide this important civil liberties issue. First, as the dissenting opinion in the lower court noted, simply because the police may want to catch mothers who are on drugs has never been held to fit a "special need."
The majority opinion tried to gloss over this fact by referring to a finding that the urine tests were for medical purposes only. But this is clearly not the case. The facts show that police officers suggested the hospital implement their policy for the express purpose of catching mothers on drugs.
This isn't the only reason the High Court should overturn the appeals court ruling. There are serious policy reasons as well. The plain truth is that we should encourage mothers on drugs to seek medical attention. If they fear being thrown in jail for visiting a hospital, however, they won't seek any care at all. This could further injure the unborn child.
Moreover, these mothers could simply choose to abort their child rather than risk a prison sentence. And while the Constitution, at least according to the Supreme Court, may protect the right to abortion, it shouldn't be interpreted to encourage it.
This policy also has serious racial overtones. For example, one of the factors for determining whether to test a mother for drugs is if she has had late or incomplete prenatal care. Poor women are much more likely to fit this description, and African-American and minority women are more likely to be poor.
The choice to test for crack cocaine exclusively is also racially suspect. Even the appeals court agreed that this decision disproportionately impacted African-American women. Mothers--many of them White--who took other drugs that are also harmful to children in the womb weren't faced with jail time.
What this suggests, of course, is that South Carolina's argument that it is simply protecting unborn children is quite suspect. If this were true, why wouldn't the hospital test for all harmful drugs? And why not extend the policy to legal but prenatally harmful drugs like alcohol and nicotine?
In the end, the decision is in the hands of the nine justices on the Supreme Court. Once again in this historic term, they'll be asked to defend individual rights--this time against an intrusive and potentially racist state policy.
WC: 807
South Carolina's position is fairly straightforward. State officials argue that since a viable fetus is a person under South Carolina law, a pregnant woman who ingests cocaine is guilty of distributing a controlled substance to a minor.
Given this legal predicate, beginning in the late '80s police worked in tandem with hospital workers to target maternal crack users. If women exhibited one of several predetermined signs of drug abuse, hospital personnel gave them a urine test. Positive results were then passed on to law enforcement officers, which resulted in the jailing of several mothers.
Lori Griffin is a typical example. An African-American, Lori was admitted to the hospital with contractions. After testing positive for cocaine, she was arrested and taken to the county jail. Several weeks later, she returned to the hospital to deliver her baby. The other eight women in the case (seven who were also either black or multi-racial) suffered similar fates.
Attorneys for the women argue that the drug testing policy violates the Fourth Amendment's prohibition against unreasonable searches. They contend that consent is required for what is essentially a search of the women's person--and that the hospital never obtained informed consent from those mothers it tested.
A federal appeals court rejected this claim. In a 2-1 decision, judges for the Fourth Circuit did not even consider the consent issue. Instead, they found that the search fit under an exception to the general rule. The exception deals with what the court called "special governmental needs, beyond the normal need for law enforcement."
This "special needs" analysis has also led to drug tests being upheld in other contexts, such as high school sports. Under this reasoning, the government claimed it needed to test the women in order to protect their children, as well as to curb the "resulting drain on public resources," a sum the court hypothesized to be in the billions of dollars per year. Having discovered a "special need," the court then balanced the women's Fourth Amendment rights as well as their rights of privacy and concluded that such constitutional guarantees were outweighed by the need.
There are several flaws with this approach that the Supreme Court should recognize as it prepares to decide this important civil liberties issue. First, as the dissenting opinion in the lower court noted, simply because the police may want to catch mothers who are on drugs has never been held to fit a "special need."
The majority opinion tried to gloss over this fact by referring to a finding that the urine tests were for medical purposes only. But this is clearly not the case. The facts show that police officers suggested the hospital implement their policy for the express purpose of catching mothers on drugs.
This isn't the only reason the High Court should overturn the appeals court ruling. There are serious policy reasons as well. The plain truth is that we should encourage mothers on drugs to seek medical attention. If they fear being thrown in jail for visiting a hospital, however, they won't seek any care at all. This could further injure the unborn child.
Moreover, these mothers could simply choose to abort their child rather than risk a prison sentence. And while the Constitution, at least according to the Supreme Court, may protect the right to abortion, it shouldn't be interpreted to encourage it.
This policy also has serious racial overtones. For example, one of the factors for determining whether to test a mother for drugs is if she has had late or incomplete prenatal care. Poor women are much more likely to fit this description, and African-American and minority women are more likely to be poor.
The choice to test for crack cocaine exclusively is also racially suspect. Even the appeals court agreed that this decision disproportionately impacted African-American women. Mothers--many of them White--who took other drugs that are also harmful to children in the womb weren't faced with jail time.
What this suggests, of course, is that South Carolina's argument that it is simply protecting unborn children is quite suspect. If this were true, why wouldn't the hospital test for all harmful drugs? And why not extend the policy to legal but prenatally harmful drugs like alcohol and nicotine?
In the end, the decision is in the hands of the nine justices on the Supreme Court. Once again in this historic term, they'll be asked to defend individual rights--this time against an intrusive and potentially racist state policy.
WC: 807
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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