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March 22, 2001

Stopping Drug Use During Pregnancy – Enforcement vs. Treatment

An Article By Terence T. Gorski

March 22, 2001

Summary:  A recent Supreme Court ruling decided that hospital workers cannot constitutionally test maternity patients for illegal drug use without their consent for the purpose of alerting the police to a crime.  This decision made it clear that pregnant women who are suspected of using illegal drugs that might harm their unborn baby still retain their civil rights.  The good news is that we can help drug abusing pregnant women, their unborn children, and their families without violating their civil rights.  Medical intervention programs that identify and motivate pregnant women to get substance abuse treatment work better than enforcement programs that entrap pregnant women into arrest and prosecution for drug law violations.  Medical intervention programs can be set up by training obstetricians to diagnose substance abusing patients, intervening in their addiction, and coordinating prenatal care with appropriate substance abuse treatment.  Outcomes are best when these medical intervention programs are supported by community-based treatment and sober residential centers that provide treatment for the women during their pregnancy and for the a period of three to six months after delivery. 

On March 21, 2001 the Supreme Court had ruled in the case of Ferguson v. Charleston (No. 99-936) gives us some constitutional guidance in answering that question.  The supreme court decided that hospital workers cannot constitutionally test maternity patients for illegal drug use without their consent for the purpose of alerting the police to a crime. 

This is an important ruling that protects the rights of pregnant women.  It should also encourage health care providers to emphasize medical intervention and substance abuse treatment as a better alternative than law enforcement in addressing the problems caused by drug use during pregnancy. 

The court decision made it clear that pregnant women who are suspected of using illegal drugs that might harm their unborn baby still retain their civil rights.  The court ruling affirms that the mere fact of pregnancy coupled with the possibility of illicit drug use does not justify getting a drug test by deception of force.

To legally obtain a drug test from a pregnant woman and use its results in court would require one of two things: the permission of pregnant women or a valid warrant.  If one of these two things did not exist, the results of the drug test would be deemed to be an unconstitutional search and inadmissible in criminal proceedings. 

Although this decision is controversial, it is important step in the right direction to protect both the constitutional rights of women and addicts.  Prior to this decision, pregnant women in many hospitals who were suspected of drug use were drug tested without their permission.  When the tests came back positive they were immediately turned over to the police who arrested them. 

No effort was made to diagnosis their substance use disorder, intervene, or refer the woman to treatment.  The entire response was punitive and often dehumanizing. These women were not allowed contact with their newborn babies.  The babies were put under the jurisdiction of children and family services who turned them over to relatives or put them in foster care.  The women themselves were often led away shortly after delivery in handcuffs and leg irons to face drug charges.  Although many of these women were latter offered a deal in which the charges would be dropped if they stopped using drugs and entered court mandated treatment, most spent a significant amount of time in jail.  They also developed a justifiable mistrust in medical professional that will probably result in a reluctance to seek medical care for themselves and their children in the future.

The problem began 1999 when the United States Court of Appeals for the Fourth Circuit, in Richmond, Va. decided that it was constitutional to drug test pregnant women regardless of whether the women provided informed consent or a warrant had been issued.  These warrantless drug testing programs ware justified by the "special needs" exception” to the Fourth Amendment of the united States Constitution that recognizes that in limited circumstances it is justified to use drug testing for health and safety purposes.  The stopping of illicit drug use by pregnant women and getting the women into treatment was deemed, in this 1999 decision, to meet the criteria of the special needs exception.

Today’s Ferguson v. Charleston decision clearly Over turned this decision by stating that the special needs exception does not apply when its primary purpose is to provide grounds for the involvement of law enforcement. The special needs exception is only justified when its primary purpose is to use law enforcement to immediately coerce patients into substance abuse treatment.  The court decided that although the long-term goal of the warrantless drug testing of pregnant women without their permission may be to get them off of drugs and into substance abuse treatment, the immediate objective of the searches, as evidenced by the immediate actions of both health care and law enforcement, was to generate evidence for law enforcement to file charges on drug law violations. 

That court also emphasized that the fact that it is harmful for pregnant women to use illegal drugs is not a sufficient reason to remove their constitutional rights pertaining to drug law violations.  Due process of law must still apply.  Medical and law enforcement professionals are still legally accountable to constitutional scrutiny.

It is important to remember that this decision rests on one central premise - the cooperative program between the hospital and the police to drug test pregnant women was primarily designed to obtain evidence of criminal conduct that could be admissible in subsequent criminal prosecutions and provide justification for arrest and prosecution.  Providing medical and substance abuse treatment was a secondary consideration. 

The Position of the AMA & American Public Health Association

The American Medical Association and the American Public Health Association filed briefs with the court on behalf of the plaintiffs.  These briefs pointed out the real problem with punitive programs that deceptively or coercively seek to trap pregnant drug abusers into criminal prosecution.  These programs frighten pregnant women who use drugs away from prenatal care.  This removes the possibility of diagnosing and providing treatment for the substance use disorder and places the unborn child in higher risk of birth defects that result poor prenatal care. 

A More Productive Alternative

There is a more productive alternative – training obstetricians in how implement office and hospital-based programs to recognize the signs and symptoms of substance abuse, intervene, and coordinate prenatal care with appropriate substance abuse treatment.  Such training and program development is readily available, inexpensive to implement, and very effective in motivating pregnant women to get the treatment that they need. 

Outcomes are best when these medical intervention programs are supported by community-based treatment providers and sober residential centers.  Residential centers have been funded by NIDA and NIAAA that provide treatment for the women during their pregnancy and for the a period of three to six months after delivery.  They have proven to be effective in stopping the drug use of pregnant women, providing detoxification that is safe for the woman and the baby.  As a result the mothers get clean and sober, the babies are born healthier, and the mothers learn proper parenting skills and establish a needed social foundation for ongoing recovery. 

The use of law enforcement to coerce treatment should be viewed as a method of last result, used only in emergency situations, and should always be done in a way that protects the constitutional rights of both the mother and the unborn baby.

What Others Say About This Decisions

Lynn Paltrow, the executive director of National Advocates for Pregnant Women, a program of the Women's Law Project in Philadelphia, said today that the decision was "a victory for all patients who are entitled to expect that when they go to the doctor they will receive medical care and not a search for police purposes."

Priscilla J. Smith, a lawyer with the Center for Reproductive Law and Policy in New York who argued the Supreme Court appeal, said the decision would "stop an erosion of the privacy rights of pregnant women by recognizing that concern for the fetus doesn't override pregnant women's rights."

Another lawyer in the case, Catherine Weiss, director of the American Civil Liberties Union's reproductive freedom project, said, "You can't just mouth the words `drugs' and `pregnant woman' and get out from under all the strictures that apply to ordinary law enforcement."

 

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