Today in 2001: The Supreme Court strikes down drug testing on pregnant women in hospitals

March 21, 2014

Today in Legal HistoryMany employers have policies in place that implement random drug testing of their employees.  Some schools have similar drug testing policies in place for students.

But what we could be subjected to drug testing during hospital visits – the results of which could lead to criminal prosecution?

Thanks to a Supreme Court ruling, such policies, at least as they apply to pregnant women, are patently unconstitutional.  That case, Ferguson v. City of Charleston, was decided 13 years ago today on March 21, 2001.

The case started in early 1989 after staff at a Medical University of South Carolina (MUSC) hospital became concerned with an increase in cocaine use by pregnant women receiving prenatal care at the hospital, along with the frequency of “crack babies” – children exposed to crack as fetuses.  In response, MUSC began conducting urinalysis tests on pregnant women and referring those who tested positive for drug use to counseling.

However, when incidence of cocaine use among maternity patients didn’t change despite referrals for counseling and treatment, MUSC staff offered to cooperate with the city of Charleston in prosecuting mothers whose children tested positive for drugs at birth.

Thus, in 1989, MUSC, working with the Charleston Police Department and the Charleston County Solicitor’s Office, developed and implemented a policy under which MUSC subjected pregnant women to warrantless and nonconsensual drug tests if they met any one of several criteria.  These criteria included: “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.”

Under the program, women were immediately arrested if they or their newborn children tested positive for cocaine (one woman spent the final three months of her pregnancy in jail, receiving prenatal care in shackles; another women was arrested shortly after giving birth still dressed in her hospital gown).

The next year, though, prosecutors made the policy less draconian by adding an “amnesty” component to the policy, under which women were given the option of drug treatment to avoid arrest; if they failed to complete treatment or tested positive a second time, however, they were arrested.

Thirty pregnant women brought suit challenging the program as violating the Fourth Amendment prohibition against unreasonable searches.  The jury found, as a matter of fact, that the women consented to the searches, so they are constitutional.

The women appealed, arguing that the evidence was not sufficient to support the jury’s consent finding.  The Fourth Circuit appealed the district court, but not on the question of consent; rather, the appeals court espoused the view that “special needs” may, in certain exceptional circumstances such as the one at issue in the case, justify such a search policy.

The Supreme Court agreed to review the case, and reversed the Fourth Circuit.  The majority opinion, written by Justice Stevens and joined by Justices O’Connor, Souter, Ginsburg, and Breyer (with a concurrence by Justice Kennedy), held that the “special needs” doctrine did not apply in this circumstance.

The previous cases in which the Court invoked the doctrine, such as in 1989’s Skinner v. Railway Labor Executives Association and 1995’s Vernonia School District 47J v. Acton, upheld the use of random drug testing by government actors (the Federal Railroad Administration and local public schools in Oregon, respectively) in non-law-enforcement contexts similar to the one found in Ferguson.

Unlike in the earlier cases, however, the Court found that the invasion of privacy in Ferguson was significant:

The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.

The Court noted that this kind of intrusion was absent in all of their prior cases.

The Court further distinguished Ferguson from its earlier “special needs” case by pointing out that in all of its previous rulings, the policies requiring the drug testing were sufficiently divorced from law enforcement goals.

Such was not the case here, since the hospital was actively working with local law enforcement to prosecute the patients who tested positive – and the tests themselves were administered for the ultimate purpose of assisting law enforcement.

Thus, the Court ruled that the “special needs” doctrine did not apply, and the searches were unconstitutional as a result.

As mentioned at the beginning of this article, Ferguson applied specifically to pregnant women.

However, given the rationale used in majority opinion, it’s unlikely that any hospital policy that created a direct partnership with law enforcement to provide medical results to be used in criminal prosecution would be constitutional.

As such, thanks to Ferguson, we are generally free to seek medical help without fear that the hospital is asking as a direct agent for the police.