Ferguson v. City of Charleston, South Carolina: "fetal abuse," drug testing, and the Fourth Amendment.

• Author: Gagan, Bryony J.

INTRODUCTION

In June 1991, Crystal Ferguson was tested for drag use during a routine prenatal checkup at the Medical University of South Carolina (MUSC) in Charleston, South Carolina. She never consented to be tested. Confronted by hospital staff after her drug screen came back positive, Ferguson agreed to attend substance abuse counseling. On August 4, 1991, when she delivered her child at MUSC, hospital staff again tested her without her consent and found traces of cocaine in her bloodstream. She was given an ultimatum: Enter a two-week residential treatment program or face arrest and prosecution. Unable to find childcare for her two older children, she requested a referral to an outpatient treatment program. Her request was rejected and she was arrested on August 7, 1991, for failing to comply with the order to receive drug treatment.

Ferguson was one of forty-two women arrested under a collaborative policy between law enforcement officials in Charleston and MUSC. All but one of the women were black. Her arrest for "fetal abuse" sparked national media attention, copycat prosecutions, and, ultimately, a class action lawsuit challenging the MUSC policy. That case, Ferguson v. City of Charleston, South Carolina,(1) is one of several Fourth Amendment cases before the United States Supreme Court this term. While the lawsuit was initially filed on behalf of Ferguson and one other woman, it eventually grew to include ten female patients arrested at MUSC. Depending on when they were tested, the women were arrested either before or after giving birth. Those who tested positive for cocaine before birth were arrested and sent to jail, brought to MUSC every week for checkups, and, in some cases, chained to their hospital beds during birth.(2) Some of those arrested after birth were dragged away from the delivery room in shackles, still bleeding.(3)

The MUSC policy, developed in 1989, was the brainchild of the then local Charleston solicitor, Charles Condon.(4) Elected Attorney General of South Carolina in 1994, Condon has continued on a statewide basis the "fetal abuse" prosecutions he began locally in Charleston. (5) In October 1993, nearly two years after Ferguson's arrest, the Center for Reproductive Law and Policy (CRLP) in New York filed a class action suit in federal district court in South Carolina against Condon, MUSC, the City of Charleston, and others.(6) The plaintiffs demanded three million dollars in damages for the violation of several constitutional rights, including "the right to privacy in medical information, the right to refuse medical treatment, the right to procreate, and the right to equal protection of the laws regardless of race."(7) The defendants prevailed on these issues in the lower courts. The surviving issue, which the Supreme Court will address this term, is whether the drug tests of Ferguson and her fellow plaintiffs were searches which violated the Fourth Amendment.

It is well established that the collection and testing of blood and/or urine are searches governed by the Fourth Amendment.(8) Traditionally, to be found reasonable under the Fourth Amendment, searches require either a warrant or probable cause. Notably, in none of the forty-two MUSC cases did MUSC obtain a warrant, nor did probable cause exist.(9) Moreover, while consent to a search may cure Fourth Amendment problems, neither Ferguson nor her fellow plaintiffs consented to their drug tests or to the release of the results to law enforcement.(10) Instead, defendants argued that the testing fell within the "special needs" exception to normal Fourth Amendment requirements. Pursuant to this exception, a court can excuse the warrant and probable cause requirements in situations in which the existence of "special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirements impracticable."(11) When "special needs" are deemed to exist, a court excuses the state actor from the regular requirements and instead conducts a reasonableness analysis, balancing the government interests at stake against the individual's privacy interests.(12)

In Ferguson's case, prosecutors argued that testing her for substance use without a warrant, probable cause, or consent was justified by the need to protect her fetus. The Fourth Circuit agreed, holding that the warrantless testing of pregnant women's urine when the indicia of possible cocaine use were present constituted reasonable "special needs" searches and therefore did not violate the Fourth Amendment.(13) The Supreme Court granted certiorari on this issue only. Specifically, the question Ferguson poses in her appeal is whether the "special needs" exception to the Fourth Amendment's warrant and probable cause requirements was properly applied to a discretionary drug-testing program that targeted hospital patients and was created and implemented with police and prosecutors primarily for law enforcement purposes.(14) The Court has also agreed to hear another "special needs" case this term: City of Indianapolis v. Edmond,(15) a Seventh Circuit case which involves drug interdiction roadblocks set up by the Indianapolis Police Department. It appears that the Court is intent on articulating the scope of the "special needs" exception.

Like many of the judicially created exceptions to the Fourth Amendment--most articulated in the name of more effective crime fighting--the "special needs" exception is a remarkably modern doctrinal development. Despite its recent provenance, however, it has quickly swelled to an exception which threatens to undermine the Fourth Amendment's warrant and probable cause requirements.(16) Only once in the last twenty-five years has the Court put a stop to the expansion of the exception's scope.(17) In all other cases, the Court has approved the special need asserted by the government, allowing it to tromp the interest of the individual being searched. This note contends that the "special needs" exception threatens to swallow the warrant preference rule, and that the Supreme Court should take the opportunity in deciding both Ferguson and Edmond to both clarify and narrow the scope of the exception. Ideally, the Court should take its lead from Judge Posner's majority opinion in Edmond and hold that the purpose of the search--criminal or regulatory--is critical to the "special needs" analysis. As the exception is designed to address government needs other than those of regular law enforcement, the intent to use evidence gathered during the search as probable cause for arrest and prosecution should preclude the application of the "special needs" balancing test. In short, where the search is for "ordinary crime detection," the normal warrant and probable cause requirements should apply.(18)

Part I of this note attempts to put into context the late 1980s proliferation of prosecutions for "fetal abuse," while Part II outlines the development of the MUSC policy and Ferguson's arrest under that policy. Part III reviews the Supreme Court's articulations of the "special needs" exception. Part IV analyzes the Fourth Circuit's decision in Ferguson, focusing in particular on the dissent's argument that a search motivated primarily by a prosecutorial purpose does not fit within the exception. Lastly, Part V considers what the Court might do, evaluates Ferguson's arguments, and suggests that the Court seize the opportunity to narrow the scope of the exception.

1. AMERICA'S WAR ON DRUGS AND THE RISE IN FETAL ABUSE PROSECUTIONS

   To paint an accurate portrait of Ferguson's arrest and prosecution, it is important to understand the climate in which the MUSC policy was adopted. Most critically for Ferguson and her fellow plaintiffs, the late 1980s and early 1990s marked both the height of America's "War on Drugs" and the beginning of the conservative pro-life movement's shift in strategy from a focus on opposing abortion to an embrace of fetal rights.(19) Over the last twenty-five years the "War on Drugs" has been characterized by a prohibitive policy of "zero tolerance" and increasingly harsh sanctions for those who are held criminally responsible for distribution or possession.(20) The policy has had disastrous results. Nearly one in every 150 Americans is in prison or in jail.(21) "A big reason [for the high prison population] is that so many of the new inmates are drug offenders. In the Federal system, nearly 60 percent of all people behind bars are doing time for drug violations; in state prison and local jails, the figure is 22 percent."(22) As a recent New York Times article points out:

   Americans do not use more drugs, on average, than people in other nations; but the United States, virtually alone among Western democracies, has chosen a path of incarceration for drug offenders. More than 400,000 people are behind bars for drug crimes--and nearly a third of them are locked up for simply possessing an illegal drug. "America's internal gulag" is what Gen. Barry McCaffrey, the nation's drug czar, calls the expanding mass of drug inmates.(23) During the late 1980s, crack cocaine emerged as the most frightening enemy in the "War on Drugs." The media frenzy over the alleged crack epidemic was intense. A review of media reporting in 1986, when stories about crack reached their peak, concluded that six of the nation's biggest and most prestigious newspapers and newsmagazines had run more than one thousand stories about crack.(24) Time and Newsweek each ran seventy-four stories about crack cocaine in six months, and over fifteen million Americans watched CBS' prime-time report "48 Hours on Crack Street."(25) Three now-familiar characters took center stage in the media's racist presentation of the crack story: the crack whore, the welfare queen, and the crack baby. Politicians and the media warned that an entire generation--consistently portrayed as a frightening "biological underclass" of mainly black urban youth--would be born addicted and...