Pubdate: Tue, 27 Mar 2001 Source: Quad-City Times (IA) Copyright: 2001 Quad-City Times Contact: 500 E. Third St., Davenport, IA 52801 Fax: (319) 383-2370 Feedback: http://www.qctimes.com/write_edletter/writeletter.html Website: http://www.qctimes.com/ Author: Ellen Goodman PRIVACY CASE PROVES DIFFICULTY OF ENFORCING MORAL OBLIGATIONS Court Upholds Fourth Amendment Last week's decision by the U.S. Supreme Court that a pregnant woman is entitled to the same medical privacy as any other patient is enough to break out the champagne. I am willing to take victories where I get them. But a verdict that a hospital is not a police station? Is this what qualifies these days for high-fives? Back in 1989, we were at the height of the "crack baby" furor. With little drug treatment for pregnant women, there was lots of punitive treatment. That year, the hospital of the Medical University of South Carolina offered to cut a deal with the police that virtually deputized doctors and nurses., The hospital tested the urine of patients who fit a certain police "profile" and turned over the results of those who tested positive. Over a few years, women with the same "profile" - all but one of them African-American, and all poor - came for maternity care and ended up in police custody. Eventually, the hospital added drug treatment as an alternative but some 30 women were jailed during pregnancy, or were shackled in the delivery room or arrested in recovery. In many ways, this was a story of bad law meets bad medicine. When Ferguson vs. the City of Charleston arrived at the Supreme Court, 75 medical associations argues that when doctors doubled as cops, they violated the patient-doctor relationship. More to the point, the policy didn't help the woman or her fetus: it scared her straight out of medical care. Now a 6-3 majority of the justices has ruled that a hospital can't secretly test a pregnant patient for evidence. Without a warrant, without consent, the drug test amounted to an unconstitutional search. But before anyone goes whoopee, may I suggest that they read the very reluctant concurrence, of Justice Anthony Kennedy, who holds one of the swing votes on this dicey court. Kennedy agreed that this particular cozy hospital-police policy was unconstitutional. But he added a warning: "There should be no doubt that South Carolina can impose punishment upon an expectant mother who has so little regard for her own unborn that she risks causing him or her lifelong damage and suffering." Of course, many of us share Justice Kennedy's tone of outrage. The first public sign of pregnancy these days is when a friend stubs out her cigarette and passes up wine. Most women who have decided to have children feel a deep responsibility for their health. We expect the same of others. But the problem is when the moral responsibility becomes legal responsibility and the expectation becomes prosecution. How do you enforce it? At what cost? More than 200 women in 30 states have been prosecuted on some theory of "fetal right." Where does it end? We are not just talking about a skirmish in the drug wars. The danger to "crack babies," for example, was somewhat exaggerated. But the danger from alcohol and tobacco may be understated,. Do we arrest women for smoking or drinking? How much? - --- MAP posted-by: Josh Sutcliffe