On March 21, the U.S. Supreme Court declared that a South Carolina public hospital's policy of testing pregnant patients for illicit substances without their consent violates the Fourth Amendment's protections against unreasonable searches. Ruling 6-3 in Ferguson v. Charleston, the Court held that because the drug tests were taken for the purpose of incriminating the patients, the Charleston Medical University of South Carolina hospital had a special obligation to ensure that the patients were fully informed of their Fourth Amendment rights. The hospital had argued that the searches were valid under a "special needs" exception that allows searches without an arrest warrant in limited circumstances. The Court disagreed, holding that the "special needs" exception does not apply to searches conducted for criminal purposes. The Court remanded the case back to a lower court for a determination as to whether the women actually consented to the testing.

The testing policy was developed in 1989 by the public hospital and local law enforcement officials in response to perceived increases in substance abuse—especially crack cocaine—largely among low-income and minority pregnant women. Originally, the policy required testing of all pregnant women who were suspected of drug abuse, and those women with positive test results were arrested. In 1990, the policy was amended to allow women who entered treatment to avoid incarceration.

A diverse group of 75 organizations filed friend-of-the-court briefs opposing the hospital's policy. These groups, which included the American Medical Association, American Public Health Association, American Academy of Pediatrics and March of Dimes, argued that the hospital's policy undermined the doctor-patient relationship and deterred women who feared prosecution from seeking prenatal care and other important services, thus risking both maternal and fetal health.

Lynn Paltrow, executive director of the New York-based National Advocates for Pregnant Women (NAPW), who represented the Ferguson plaintiffs in the lower courts, called the high court's ruling "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." Jointly with the Women's Law Project in Philadelphia, NAPW monitors federal and state policy in this area and recently published Year 2000 Overview: Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs.

According to the Overview as well as information collected by The Alan Guttmacher Institute, South Carolina is the only state in the nation in which a viable fetus is deemed to be a "person" for child endangerment purposes—which means that women may be held criminally liable for actions such as drug use late in pregnancy that may affect a fetus. Other states have rejected the imposition of criminal penalties, relying instead on a range of less punitive approaches to women's substance abuse during pregnancy ("State Responses to Substance Abuse Among Pregnant Women," TGR, December 2000).

—E. Nash