NCPA - National Center for Policy Analysis

Is Drug-Testing Of Pregnant Women "Unreasonable Search?"

February 29, 2000

The Supreme Court announced yesterday that it will review an appeal by 10 women who claim they were the victims of an unconstitutional search when they were tested by a Charleston, S.C., public hospital for drug use while they were pregnant. When the tests proved positive for drugs, the hospital reported the matter to the police and the women were arrested.

Some of the 30 women arrested under the program to test women for drug use that might harm their unborn children were taken from their hospital rooms in handcuffs and leg shackles. And some were reportedly still weak and bleeding from childbirth.

  • Legal experts say the case revolves around the extent to which a state may intervene to protect fetal health -- and the circumstances under which pregnant women may be held criminally responsible for behavior which endangers their fetuses.
  • A federal appeals court had earlier ruled that although the urinalysis test was a search, it was not unconstitutional because it was justified by "a special need beyond normal law-enforcement goals."
  • Lawyers for the women contend the lower court's decision amounts to a drastic expansion of what the Supreme Court has previously treated as a "special-needs exception" to the Fourth Amendment's prohibition of unreasonable searches.
  • The women are seeking damages and an injunction against future drug testing.

Last week, the Court accepted for review a similar Fourth Amendment case involving police check points that subjected motorists to drug-detecting dogs. In that case, the lower court rejected the government's argument that the need to detect and deter drug trafficking was a "special need" that justified a warrantless search.

Source: Linda Greenhouse, "Program of Drug-Testing Pregnant Women Draws a Review by the Supreme Court," New York Times, February 29, 2000.


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