The safety and welfare of the most vulnerable human beings, especially children, is of great concern in our society. This concern informs outrage that children are killed in school shootings. By the same token, shouldn’t we be concerned about the lifetime ill effects on children born to mothers who abused drugs while pregnant?
Records in the US Supreme Court case Ferguson v. Charleston (2001) indicate that some medical professionals at the Charleston public hospital in South Carolina, concerned about an increase in cocaine use among pregnant women, and the failure of counseling to address the problem successfully, cooperated with local police to test women suspected of drug use and prosecute those found to have cocaine in their system. If the drugs were taken early in pregnancy, a woman would be charged with a drug offense; if after viability she would be charged with child neglect.
On first view, this seems like a reasonable way to protect children when counseling and medical treatment fail to reduce the incidence of babies born with afflictions stemming from their mothers’ cocaine use during pregnancy. However, there are problems.
One problem is the concentration on pregnant women suspected of using crack cocaine, rather than alcohol or other drugs. If the concern is about the health of newborns, why not test for blood levels of alcohol and other drugs that can endanger a child when ingested by her mother during pregnancy? What measures were taken to ensure that health professionals were not influenced by socioeconomic or racial bias when determining which women to suspect, and which substances to look for? There seems to have been no such measures, which raises questions about violations of the pregnant women’s right to equal protection of the law.
Another inequality is exclusive attention to drugs, even if a wider variety of drugs had been included in the program. The medical community has long known that women pregnant with more than two (or possibly three) children at one time expose their children to multiple medical hazards. Almost all such births are the result of in vitro fertilization. Embryos in excess of two should be frozen for later use. Yet, no pregnant woman or medical facility has yet been prosecuted for child endangerment after including more than two embryos in a single pregnancy.
On the other hand, equality concerns can be met with the observation that law enforcement can seldom curtail all actual and possible legal infractions. There are too many crimes of too many kinds to address it all. Law enforcement must therefore be selective. To require that everything be done before anything is acceptable is to make the perfect the enemy of the good.
But selecting the use of law enforcement to curtail drug abuse among pregnant women can be counter-productive. Once it’s known by pregnant women that they can be prosecuted for taking drugs, drug abusers will reduce their interactions with health care providers while pregnant. Children are jeopardized when their mothers, especially those taking drugs, avoid prenatal care.
Here's an example of counter-productive law enforcement. Nurse RaDonda Vaught was prosecuted for killing a patient in 2017 after mistakenly giving her the wrong drug. She recognized her mistake when the woman died and was forthcoming about her role in the death, unlike the hospital which fired her. The hospital suffered no negative consequences, whereas Ms. Vaught was prosecuted and convicted of reckless homicide even after the hospital recognized and corrected deficiencies in its procedures which contributed to the error.
The treatment of Nurse Vaught will almost surely deter other medical professionals from admitting mistakes, which will jeopardize patient safety in the future. Similarly, prosecuting drug-abusing pregnant women will almost surely influence them to avoid contact with medical professionals, which will jeopardize the health of their offspring.
The US Supreme Court ultimately declared unconstitutional the Charleston public hospital’s cooperation with police to catch and prosecute pregnant women who had used cocaine. Their reasoning was based on the Fourth Amendment’s strictures on searches and seizures without probable cause. The pregnant women weren’t asked for their permission for their urine to be tested for drugs. Looking like the type of person who might be using cocaine isn’t probable cause for a search.
The dissent in this 6-to-3 decision countered that the pregnant women had given the urine voluntarily as a normal part of their prenatal care, even if they hadn’t consented to it being tested for evidence of cocaine use that would be shared with police. Neither side seems to have considered the probability that prosecuting such women would endanger more children in the future. This is because government action aimed at promoting positive outcomes is generally guided in our system by legislation, not by Supreme Court decisions, except when a violation of constitutional protection is detected by a Court majority.
Thank you.