Amicus Curiae Brief — Ferguson v. Charleston

MOTION FILED No. 99-936 ()

JUN — ¢ 2000 IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

>_>

CRYSTAL M. FERGUSON, et al.,

Petitioners,

eet centiens

CITY OF CHARLESTON, SOUTH CAROLINA, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MOTION FOR LEAVE TO FILE AND BRIEF AMICUS CURIAE OF THE AMERICAN

CIVIL LIBERTIES UNION; NOW LEGAL DEFENSE AND EDUCATION FUND;

NATIONAL ORGANIZATION FOR WOMEN FOUNDATION, INC.; AFRICAN-

AMERICAN WOMEN EVOLVING; AMERICANS FOR DEMOCRATIC ACTION,

INC.; CENTER FOR CONSTITUTIONAL RIGHTS; CENTER FOR WOMEN POLICY

STUDIES; CHICAGO ABORTION FUND; CHOICE; CONNECTICUT WOMEN’S

EDUCATION AND LEGAL FUND; HAWAII STATE COALITION AGAINST

DOMESTIC VIOLENCE; HAWAI’I WOMEN LAWYERS; IOWA COALITION

AGAINST DOMESTIC VIOLENCE; MEDICAL STUDENTS FOR CHOICE;

NATIONAL ASSOCIATION OF WOMEN LAWYERS; NATIONAL CENTER FOR

PRO-CHOICE MAJORITY; NATIONAL NETWORK OF ABORTION FUNDS;

NATIONAL SOCIETY OF GENETIC COUNSELORS; NORTHWEST WOMEN’S LAW

CENTER; SOUTH CAROLINA COALITION AGAINST DOMESTIC VIOLENCE AND

SEXUAL ASSAULT; SOUTH DAKOTA COALITION AGAINST DOMESTIC

VIOLENCE AND SEXUAL ASSAULT; WOMEN’S LAW CENTER OF MARYLAND,

INC.; AND WIDER OPPORTUNITIES FOR WOMEN, IN SUPPORT OF PETITIONERS

Louis M. Bograd Julie E. Sternberg

American Civil Liberties Union (Counsel of Record)

Foundation Steven R. Shapiro

1875 Connecticut Avenue, N.W. Sara L. Mandelbaum

Washington, D.C. 20009 Catherine Weiss

(202) 234-1817 Louise Melling

American Civil Liberties

Martha F. Davis Union Foundation

Yolanda S. Wu 125 Broad Street

Roslyn Powell New York, New York 10004

NOW Legal Defense and (212) 549-2500

Education Fund

395 Hudson Street

New York, New York 10014

(212) 925-6635

nr

—

No. 99-936

SSS...>°->—oNNNN——E——————

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

CRYSTAL M. FERGUSON, et ai.,

Petitioners,

-V.-

CITY OF CHARLESTON,

SOUTH CAROLINA, et ai.,

| Respondents.

S..55>->——0OOoleOOOeee

MOTION OF THE AMERICAN CIVIL LIBERTIES

UNION; NOW LEGAL DEFENSE AND EDUCATION

FUND; NATIONAL ORGANIZATION FOR WOMEN

FOUNDATION, INC.; AFRICAN-AMERICAN WOMEN

EVOLVING; AMERICANS FOR DEMOCRATIC AC-

TION, INC.; CENTER FOR CONSTITUTIONAL

RIGHTS; CENTER FOR WOMEN POLICY STUDIES;

CHICAGO ABORTION FUND; CHOICE; CONNECTI-

CUT WOMEN’S EDUCATION AND LEGAL FUND;

HAWAII STATE COALITION AGAINST DOMESTIC

VIOLENCE; HAWAI’I WOMEN LAWYERS: IOWA

COALITION AGAINST DOMESTIC VIOLENCE: MEDI-

CAL STUDENTS FOR CHOICE; NATIONAL ASSOCIA-

TION OF WOMEN LAWYERS; NATIONAL CENTER

FOR PRO-CHOICE MAJORITY; NATIONAL NETWORK

OF ABORTION FUNDS; NATIONAL SOCIETY OF GE-

NETIC COUNSELORS; NORTHWEST WOMEN’S LAW

CENTER; SOUTH CAROLINA COALITION AGAINST

DOMESTIC VIOLENCE AND SEXUAL ASSAULT;

SOUTH DAKOTA COALITION AGAINST DOMESTIC

VIOLENCE AND SEXUAL ASSAULT: WOMEN’S LAW

CENTER OF MARYLAND, INC.; AND WIDER OPPOR-

TUNITIES FOR WOMEN, FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

SS...

Pursuant to Rule 37.2(b), the organizations listed above

respectfully move this Court for leave to file the attached

brief amicus curiae in support of petitioners. Separate state-

ments of interest follow. Collectively, however, amici have

a long history in defense of women’s rights. Petitioners

have granted consent, but respondents have refused to

consent.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution, and has appeared be-

fore this Court on numerous occasions, both as direct coun-

sel and as amicus curiae. The ACLU of South Carolina is

its statewide affiliate. This case raises important questions

about the right of pregnant women to be treated as fully

autonomous beings entitled to equal status under the Consti-

tution. That is an issue that the ACLU has addressed in nu-

merous contexts over the years through the efforts, among

others, of our Women’s Rights Project and our Reproductive

Freedom Project. The ACLU has also been deeply involved

in the legal debate over suspicionless drug testing, more

generally. The proper resolution of this case is therefore a

matter of substantial concern to the ACLU and its members.

NOW Legal Defense and Education Fund (NOW

LDEF) is a leading national nonprofit civil rights organiza-

tion that performs a broad range of legal and educational

services in support of women’s efforts to combat gender-

based discrimination and promote equal rights. A major

goal of NOW LDEF’s work is to secure reproductive rights

for all women. To this end, NOW LDEF has litigated nu-

merous cases involving clinic violence and efforts to protect

safe access to reproductive health services.

The National Organization for Women Foundation is a

501(c)(3) organization devoted to furthering women’s rights

through education and litigation. NOW Foundation is affili-

ated with the National Organization for Women, the largest

feminist organization in the United States, with a contribut-

ing membership of over 500,000 women and men and more

than 500 chapters in all 50 states and the District of Col-

umbia. Since its inception in 1986, a major goal of NOW

Foundation has been to ensure full equality for women, in-

cluding reproductive freedom and fair treatment in health

care services. In furtherance of that goal, NOW Foundation

has supported related litigation and legislation, and has an

ongoing interest in full health care for pregnant women.

Policies such as those at issue here infringe on the constitu-

tional rights of pregnant women.

Founded in October 1996, African-American Women

Evolving’s (AAWE) mission is to examine and draw the

connections between social justice and basic human rights

issues (i.e., violence against women, substance abuse, HIV/

AIDS, economic development and sustainability, etc.) that

directly and indirectly impact the ability of women of color

to exercise complete autonomy over their lives and bodies.

AAWE supports the protection of a woman’s right to priva-

cy and reproductive autonomy. AAWE further believes that

a ruling permitting unlimited restrictions on pregnant wo-

men’s privacy and autonomy could lead to the diminution of

constitutional rights for nonpregnant women and men, and

have an even harsher impact on women of color, who his-

torically have not had the freedom to choose and have an

even harsher impact on access to the information and re-

sources to exercise their choices.

Americans for Democratic Action, Inc. (ADA) is an in-

dependent, liberal, political organization, founded in 1947

by Eleanor Roosevelt, Joseph Rauh, and others, dedicated to

promoting individual liberty and economic justice. ADA

publishes a weekly legislative newsletter for liberal activists.

a quarterly newsletter, special reports, including an annual

voting record report that ranks Members of Congress ac-

2

Pe

cording to a liberal quotient based on a full spectrum of do-

mestic and international policy issues. In addition to its

legislative advocacy, ADA maintains a political action com-

mittee to support liberal candidates for Congress. ADA also

engages in independent campaign activity in support of pres-

idential candidates.

The Center for Constitutional Rights (the Center) is a

national not-for-profit legal, educational, and advocacy or-

ganization dedicated to advancing and protecting the rights

guaranteed by the United States Constitution and the Uni-

versal Declaration of Human Rights. Founded in 1966, the

Center undertakes litigation on behalf of women and wo-

men’s rights organizations on a wide range of issues, and

assists in the development of legislative policy at the munic-

ipal, state and federal levels of government. The Center’s

current women’s rights litigation and education docket fo-

cuses primarily on issues surrounding the severe repression

of women’s choices regarding sexuality, reproduction and

childrearing, discrimination and unfair treatment in employ-

ment, and violence against women in the home and work-

place. The issues before the Court have significant implica-

tions for the reproductive freedoms of women, particularly

indigent women of color, and are therefore of critical impor-

tance to the Center’s mandate.

Founded in 1972, the Center for Women Policy Studies

(the Center) is an independent, national, multiethnic and

multicultural feminist policy research and advocacy institu-

tion. The Center is a founding member and serves on the

steering committee of the National Coalition for Effective

Drug Policy and co-chairs the Coalition’s Women and Fami-

lies Drug Policy Committee. Since 1989, the Center has ad-

dressed attempts to define a legal status for the fetus and

create an artificial “maternal-fetal conflict” in both HIV/

AIDS and drug policies. We currently are working with a

network of state legislators to promote public health rather

than punitive approaches to address the needs of pregnant

4

women in the context of substance abuse. The Court's deci-

sion in this case will have a significant impact on legis-

lators’ ability to enact comprehensive approaches that in-

crease pregnant women’s access to affordable health care,

protect women’s reproductive choices, and encourage wom-

en to seek prenatal care -- the single most important factor

influencing a healthy pregnancy outcome.

The Chicago Abortion Fund (CAF) was founded in Oc-

tober 1985 by health-care providers and members of Chica-

go’s pro-choice community to provide low-income women

with access to safe, affordable abortion services. CAF’s

mission is to overturn economic barriers to reproductive

choice. CAF further works to increase the awareness of

policymakers and the public about low-income women’s in-

ability to access the full range of reproductive health care,

including safe abortion. Through direct service and educa-

tion/advocacy, CAF helps low-income women in obtaining

safe abortion services by providing clinic referrals, negoti-

ated discounts and financial assistance. In both its direct

service and education/advocacy activities, CAF confronts the

social and economic barriers that make it virtually impossi-

ble for low-income women, disproportionately women of

color, to achieve reproductive autonomy.

CHOICE is a nonprofit agency dedicated to advocacy

and education on issues of reproductive health, family plan-

ning, HIV/AIDS, and children’s health. Founded in 1971,

CHOICE currently serves over 36,000 people annually, pri-

marily low-income women and teens in the Philadelphia

area. CHOICE recognizes the detrimental effect of the

drug-testing policy on women’s and children’s health. If

women fear that their drug use will be discovered by law

enforcement officials, they will be less likely to seek health

services. Fewer pregnant women accessing prenatal care

threatens a potential increase in maternal and infant mortali-

ty; greater high-risk deliveries and critical neonatal condi-

tions; and escalating public cost in financial and human re-

sources to cope with preventable health crises.

The Connecticut Women’s Education and Legal Fund

(CWEALEF) is a nonprofit women’s rights organization dedi-

cated to empowering women, girls and their families to

achieve equal opportunities in their personal and profes-

sional lives. CCWEALF was founded in 1973 and has a

membership of over 1,000 individuals and organizations.

CWEALF has spent much of its history defending the rights

of pregnant women in the courts, workplaces and in their

private lives. We have participated in landmark cases on

termination of parental rights based on prenatal drug use and

have worked with the state’s correctional institutions to pro-

mote drug treatment for female inmates. CWEALF believes

that a ruling which upholds the diminished rights of preg-

nant women sets a precedent for prohibiting a wide range of

activities for pregnant women. The drug-testing policy at

issue in Ferguson v. City of Charleston demonstrates that

pregnant women are impermissibly being subjected to inva-

sions of privacy and autonomy.

The Hawaii State Coalition Against Domestic Violence

(HSCADV) is a not-for-profit statewide coalition of twenty

domestic violence programs, working collaboratively to af-

fect public policy and establish a coordinated and consistent

response for the safety and protection of battered women.

Our goals include public recognition of domestic violence as

a pervasive societal problem detrimental to all members of

society and the obliteration of racism, sexism, and homo-

phobia which contribute to domestic violence.

Hawai'i Women Lawyers (HWL) is a nonprofit organi-

zation devoted to the advancement of the civil rights and

social welfare of Hawai’i’s citizens -- particularly its women

and children. Its membership consists of over 200 lawyers

licensed to practice in the _State of Hawai’i, together with

auxiliary lay and unlicensed members. Throughout its 23-

year history HWL has been a strong supporter of the right

to choose. In its efforts to preserve and extend the civil

rights of Hawai’i’s citizens, HWL has lobbied strenuously

for many years in our State Legislature and has filed numer-

Ous amicus briefs in appellate courts, primarily in Hawai’i

and the Ninth Circuit.

The lowa Coalition Against Domestic Violence

(ICADV) is a nonprofit organization, incorporated in the

state of Iowa in 1985. ICADV provides educational and

technical assistance to domestic violence programs across

Iowa, and also acts on a statewide level to promote public

policy and legislative issues on behalf of battered women

and their children. ICADV’s purpose is to eliminate per-

sonal and institutional violence against women through

Support to programs providing safety and services to bat-

tered women and their children. Recognizing that unequal

power contributes to violence against women, ICADV advo-

cates for social change, legal and judicial reform, and the.

end to all oppression.

Medical Students for Choice represents over 5,000 med-

ical students and residents dedicated to ensuring that women

receive comprehensive reproductive health care, including

abortion. One of the greatest obstacles to safe, legal abor-

tion is the absence of trained providers. Our goals are to

build a network of support and resources for students and

residents, to reform medical curricula and training to include

abortion and reproductive health as a standard part of medi-

cal education, to increase reproductive health education and

training opportunities for medical students and residents, and

to advocate integrating abortion into medical training and

practice by educating policymakers in medicine and govern-

ment. We work on a grassroots basis at medical schools

and residency programs throughout North America, sponsor

national and regional educational meetings, provide repro-

ductive health clinical training externships, maintain a pres-

ence on the Internet, and publish a quarterly newsletter.

7

The National Association of Women Lawyers (NAWL)

is a one hundred year old bar association headquartered in

Chicago. It was the first and is the oldest national women’s

bar association in the United States. NAWL’s missions in-

clude preventing violence against women and achieving re-

productive rights and economic justice for women. NAWL

remains committed to ensuring that all women have safe and

unobstructed access to health providers, without being sub-

jected to unreasonable search or seizure.

The National Center for the Pro-Choice Majority is a

nonprofit organization that provides research and informa-

tion services to the pro-choice movement. It publishes a

national newsletter, The Pro-Choice Report, which informs

its subscribers about the numerous challenges to women’s

reproductive freedom which can prevent them from exer-

cising their constitutional right to make and carry out re-

productive decisions. The drug testing of pregnant women

is an example of one such challenge.

The National Network of Abortion Funds (NNAF) cre-

ated in 1993, is an association of 73 community-based abor-

tion funds in the United States, including one in the state of

South Carolina. In 1999 NNAF member funds helped ap-

proximately 10,000 women who would not have been able

to obtain a safe, legal abortion with their own resources, by

loaning or granting them a combined total of over $1.2

million. Restrictions on abortion access and funding are

discriminatory because they especially burden poor women,

young women, women of color and rural women. NNAF

believes that involuntary drug testing of pregnant women is

a violation of privacy which strikes the most vulnerable

women -- those whose reproductive choices are already

severely limited by government policies such as abortion-

funding cutoffs and welfare child-exclusion laws.

The National Society of Genetic Counselors (NGSC),

an organization comprised of 1800 individual members, is

the leading authority and advocate for the genetic counseling

profession. The NSGC supports an increase in prevention

efforts and treatment services for alcohol and drug-

dependent women and their children. Treatment services

have proven to be a successful way to overcome both drug

and alcohol abuse and thus prevent prenatal exposure to

these agents. These services are far preferable to punitive

sanctions brought against alcoholic and drug-dependent

women solely because they were pregnant when they used

alcohol or drugs.

The Northwest Women’s Law Center (N WLC) is a non-

profit public interest organization that works to advance the

legal rights of all women through litigation, education, legis-

lation and the provision of legal information and referral

services. Since its founding in 1978, the NWLC has been

dedicated to protecting and expanding women’s reproductive

rights, and has long focused on the threats to women’s ac-

cess to care. The NWLC has also challenged efforts by

prosecutors to bring criminal charges of child abuse against

women who use controlled substances while pregnant, suc-

cessfully fought anti-choice initiatives, and challenged ef-

forts to force sterilizations on developmentally disabled

women. The NWLC continues to serve as a regional expert

and leading advocate on reproductive freedom.

The South Carolina Coalition Against Domestic Vio-

lence and Sexual Assault (SCCADVASA) is a strong voice

for women’s rights in South Carolina. SCCADVASA is a

private, nonprofit statewide advocacy organization founded

in 1981 to represent the needs of victims/survivors of do-

mestic and sexual violence. SCCADVASA believes that the

drug-testing policy adopted by law enforcement officials in

Charleston, South Carolina in 1989 is a serious infringement

on women’s rights. As such it is absolutely unacceptable to

this organization and we wholeheartedly volunteer our par-

ticipation as amicus curiae in this case.

The South Dakota Coalition Against Domestic Violence

and Sexual Assault (SDCADVSA) is a nonprofit organiza-

tion of twenty-three local domestic violence/sexual assault

programs dedicated to ending domestic violence.

SDCADVSA provides services such as crisis phone coun-

seling and temporary shelter for battered women and their

children, and promotes public acknowledgment of the prob-

lems of domestic violence and sexual assault. SDCADVSA

holds that oppression of every kind promotes and encour-

ages domestic violence and believes that attempts to create

rights for the fetus at the expense of the liberty of the

mother are a form of oppression which cannot be condoned

by our organization.

The Women’s Law Center of Maryland, Inc. (WLC)

was established in 1971 to meet the legal needs of women

especially in the area of family law and in the workplace.

Through impact litigation, legislative initiatives, direct

service projects, and public education, the WLC works to

eliminate discrimination and unfair practices for women in

the state of Maryland. The WLC’s membership includes ap-

proximately 200 women and men from all walks of life, in-

cluding lawyers, business executives, elected officials, policy

makers, artists, journalists, students, engineers, homemakers,

and health-care professionals. The WLC is concerned that

Ferguson v. City of Charleston presents significant issues

concerning the basic constitutional rights of women, specifi-

cally pregnant women. We believe that the application of

the special needs exception to pregnant women will open the

door to unlimited restrictions on a woman’s right to privacy.

Wider Opportunities for Women (WOW) is a national

nonprofit women’s employment organization with over three

decades of experience helping women and girls achieve

equality of opportunity in education and employment.

WOW’s mission is to help low-income women and their

children achieve economic self-sufficiency and to move out

of poverty. WOW is concerned with ensuring that women

10

have gender equality because the lack of such equality fun-

damentally and negatively impacts women’s ability to attain

economic independence.

For the reasons stated above, amici respectfully seek

leave to file the attached brief amicus curiae.

Respectfully submitted,

Julie E. Sternberg

(Counsel of Recor

Steven R. Shapiro

Sara L. Mandelbaum

Catherine Weiss

Louise Melling

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Louis M. Bograd

American Civil Liberties Union

Foundation

1875 Connecticut Avenue, NW

Washington, D.C. 20009

(202) 234-1817

Martha F. Davis

Yolanda S. Wu

Roslyn Powell

NOW Legal Defense and

Education Fund

395 Hudson Street

New York, New York 10014

(212) 925-6635

Dated: May 31, 2000

1]

TABLE OF AUTHORITIES

INTEREST OF AMICI]

ARGUMENT

I.

II.

IIT.

CONCLUSION

TABLE OF CONTENTS

ONLY PERSONS WITH A DIMINISHED

EXPECTATION OF PRIVACY MAY BE

SUBJECTED TO WARRANTLESS.,

SUSPICIONLESS, _NONCONSENSUAL

SEARCHES UNDER THE SPECIAL

SS et |

PREGNANT WOMEN DO NOT. BY

VIRTUE OF THEIR PREGNANCIES,

HAVE A DIMINISHED EXPECTATION

4 a SS SI en

AN AFFIRMANCE BY THIS COURT

WOULD OPEN THE DOOR TO EXTEN-

SIVE RESTRICTIONS ON INDIVIDUAL

AUTONOMY AND PRIVACY RIGHTS ....

ee ee ae OR a a i a ee ee ee

ee ee ee NR eR a a Oe, oe ee oe a ek ee

ok, ee ee ae ee a a ae ee ee ee

er es ee ee AE Ee a ee a ae ee: SB we, eels

ee I ne ah Oe ee ek ee 6 SO ee eee

TABLE OF AUTHORITIES

Page

Cases

Bell v. Wolfish,

We A Se Ce os 6 ee eo eee 7

Bradwell v. Illinois,

Be 0 C0 Weed 10 CUT ee 5 skews er eee week 12

Breedlove v. Suttles,

WE Sa a RE ee Oe ee eee 1]

Chandler v. Miller,

ee A OE as ae ee eee eee 5, 6

Cleveland Bd. of Educ. v. LaFleur,

EE TT. ee ies ee ea ee Fee ee 4.13

Cruzan v. Director, Mo. Dep't of Health,

re ee I ota ek arate Fn a ae ee ae 11

Florida v. J.L.,

__ U.S. _, No. 98-1993 (March 28, 2000) ......... 14

Frontiero v. Richardson,

One Ce ee a oe a Oe ee oe ee 12

Griffin v. Wisconsin, “

RR Bs Bay eee et an ee 7

Hoyt v. Florida,

ee Ah Ee CRED ot ee eC ee Re es 12

In re A.C.,

Fee ce ee ee See aS 2 ee 21, 22

In re Baby Doe,

O22 Veet aoe tee PO GA, TRS ic 0 0 eee 21

In re Steven S.,

126 Cal. Age. 26 23 Gal: CL. Age, FSET) oo evens 19

ll

In re the Retention of Tanya P.,

No. 530059/93 (N.Y. Sup. Ct. Feb. 24, 1995) ........ 20

International Union, UAW y.

Johnson Controls,

OP SUE CRED moo ko bn wk wee ec, 4, 10, 12, 13

Marshall v. Barlow's, Inc..

RT NPD ok 55 5 ee oc ccc cuuck 7

Muller v. Oregon,

PgR ee a re 10, 13

National Treasury Employees Union

v. Von Raab,

WN Rie EOD ook itn ce a kek duns ce uk 5-7

New Jersey v. T.L.O.,

ee de. Re COA Rae s b ek kn da ake na betanx 7

New York v. Burger,

ee A RP, ck Sad b cake cba eeenuk. 7

Planned Parenthood v. Casey,

Re eh. | en 3, 8, 9, 11, 12, 13

Planned Parenthood v. Danforth.

WO RP We UPON os ok bon 0 en hee ccs 8,9

Schneckloth v. Bustamante,

Od Si. BEAUTE ED 5 bb Ske ba kk kao ec Chk ek et 5

Taft v. Taft,

Gam TE. 20 Spo Cees. 1909)... wc ee cc 20

Skinner v. Railway Labor

Executives’ Ass'n,

Oh.) ee a

United States v. Virginia,

Paw She SEP RUD Sued <A Wide van wa Une eeeks, 1]

ill

Page

Vernonia School District v. Acton,

$15.U.S. 666 (ieee a 6k ee ee es 2, Ot

Other Authorities

"Agency Pulls Pregnancy Pamphlets:

Brochures Recalled for Inaccurate

Statements About Legality of

Substance Abuse,"

Augusta Cheom., Bia 06, 20 ons ae sk 18

"Girl Detained to Protect Fetus,"

Wis. Sete 3., An. 00, SR es ess 19

American College of Obstetricians

and Gynecologists, PLANNING FOR

PREGNANCY, BIRTH, AND BEYOND

(24 ed. 1998) 2.04 0s4 5 Ge eee 15, 16

Clancy, “The Role of Individualized

Suspicion in Assessing the Reason-

ableness of Searches and Seizures,"

25 Mem. St. U.L. Rev. 483 (1994) ............... 5

Daniels, Cynthia R., "Fathers,

Mothers, and Fetal Harm: Re-

thinking Gender Difference and

Reproductive Responsibility," in

FETAL SUBJECTS, FEMINIST POSITIONS

(Lynn M. Morgan & Meredith W. ;

Micheols edis.. TRUE «cca ee ae ee ee es ce 17

D.H., "On Producing Abortion: A

Physician's Reply to the Solicitations

of a Married Woman to Produce a

Miscarriage for Her,"

17 Nashville J. Med. & Surgery 200 (1876) ......... 1]

1V

Eastman, Nicholson, M.D..

EXPECTANT MOTHERHOOD (3d ed. 1957)

Eisenberg, Arlene, ef al.,

WHAT TO EXPECT WHEN YOU’RE

EXPECTING (2d ed. 1996) .............

Flanigan, "Fleeing the Law:

A Matter of Faith,"

pees, Pree Pres, June 29,1982 ..................

Gallagher, Janet, "Prenatal Invasions

and Interventions: What’s Wrong

with Fetal Rights,"

‘ taarv. Women’s LJ. 9, 47 (1967) ..............

Johnsen, Dawn E., "The Creation of

Fetal Rights: Conflicts With Women’s

Constitutional Rights to Liberty,

Privacy, and Equal Protection,"

|

Kolder, Veronika E. B., M.D.., er al..

"Court-Ordered Obstetrical Interventions."

316 New Eng. J. Med. 1192 (1987) ......

Levendosky, Charles, "Turning Women

into Two-Legged Petri Dishes,"

Star-Tribune, Jan. 21,1990 ....................

Levendosky, Charles, "Using the

Law to Make Justice the Victim."

Star-Tribune, Feb. 4, 1990 .....................

Paltrow, Lynn M., "Pregnant Drug

Users: Fetal Persons, and the

Threat to Roe v. Wade."

62 Alb. L. Rev. 999 (1999)

is

20

20

17

‘

Page

Rhoden, Nancy K., "The Judge in

the Delivery Room: The Emergence

of Court-Ordered Cesareans,"

74 Cal. L. Rev. 1951 (1986) 21

Roberts, Dorothy E., "Punishing

Drug Addicts Who Have Babies:

Women of Color, Equality, and

the Right of Privacy,"

Fae See. ey ec PE COE a oooh ak se lee

Roth, Rachel, MAKING WOMEN

Pay: THE HIDDEN COSTS OF

ae, I sn a ee ee re 2a

Siegel, Reva, "Reasoning from the

Body: A Historical Perspective on

Abortion Regulation and Questions

of Equal Protection,"

OO Bie. 3 ee ee Ce 5. ke ks Chon Sede 11,17

South Carolina Department of Alco-

hol and Other Drug Abuse Services,

"Important Facts to Remember: A

Special Delivery Should be Handled

ES PON EA i CR ee 18

INTEREST OF AMICI] '

The interest of amici are set forth in the accompanying

motion.

STATEMENT OF THE CASE

Petitioners in this case are ten women who were each

Subjected to warrantless, suspicionless, and nonconsensual

urine testing for cocaine use by the Medical University of

South Carolina (MUSC), a state hospital, in connection with

their pregnancies. Because they tested positive for cocaine

use, nine of the women, all of whom were African-

American, were arrested for cocaine possession, distribution

of cocaine to a minor, or child abuse. The tenth petitioner

was compelled to admit herself "voluntarily" to the MUSC

psychiatric unit for substance abuse treatment for a month in

order to avoid arrest.

The policy at issue was developed in the fall of 1989 by

a joint interagency task force that included representatives

from the office of the local prosecuting attorney and the

Charleston police department, as well as MUSC. Pursuant

to the policy, any MUSC maternity patient who met one or

more of nine generalized criteria was subject to a urine drug

screen. The criteria were: (1) no prenatal care: (2) late pre-

natal care (beginning after 24 weeks): (3) incomplete prena-

tal care (fewer than five visits); (4) preterm labor without an

obvious cause; (5) separation of the placenta from the uter-

ine wall; (6) a history of drug or alcohol abuse: (7) unex-

' Pursuant to Rule 37.6, counsel for amici States that no counsel for a

party authored this brief in whole or in part and no person, other than

amici, their members, or their counsel made a monetary contribution to

the preparation or submission of this brief.

plained birth defects; (8) intrauterine growth retardation

without an obvious cause; or (9) intrauterine fetal death.

This protocol undoubtedly resulted in the testing of dozens

of pregnant women whose urine contained no trace of con-

trolled substances, although MUSC’s failure to keep records

of its implementation of the policy makes that number im-

possible to quantify. See McCabe Tr.165:15-20, 177:6-17.

Under the policy as originally implemented, a patient

whose urine tested positive for cocaine was reported to law

enforcement and arrested. Later, the policy was amended so

that a woman who had a single positive test for cocaine

could choose to receive drug treatment or be arrested; how-

ever, a second positive test or failure to comply with drug

treatment obligations would result in notification to authori-

ties and her arrest. Thirty women were arrested pursuant to

the MUSC policy, all but one or two of whom were

African-American. See Shapiro Tr.187:15-17.. Many wom-

en at MUSC were arrested during their pregnancies or im-

mediately following delivery.

Petitioners brought this lawsuit against MUSC and other

state defendants to challenge MUSC’s policy of warrantless,

suspicionless, and nonconsensual urine testing of pregnant

women as a violation of, inter alia, their rights under the

Fourth and Fourteenth Amendments to be ...c from unre-

asonable searches and seizures. The court of appeals upheld

the MUSC drug tests as reasonable "special needs" searches

under the Fourth Amendment.

SUMMARY OF ARGUMENT —

The question in this case is whether the Fourth Amend-

ment permits the state, acting without either a warrant or

individualized suspicion, to compel pregnant women who

seek prenatal care in a public hospital to submit to a drug

test. Respondents urge this Court to hold that MUSC’s

mandatory drug testing policy meets the “special needs” ex-

ception to Fourth Amendment requirements. To fit within

the special needs exception, however, the state must estab-

lish both that its policy is unrelated to normal law enforce-

ment needs and that the persons being searched have a di-

minished expectation of privacy. Here, respondents can

establish neither. The integral involvement of law en-

forcement officials in the planning and execution of the

challenged policy is fully discussed in other briefs. This

brief is therefore focused on rebutting the claim that preg-

nant women have a diminished expectation of privacy, and

thus diminished Fourth Amendment rights, merely by virtue

of their pregnancy.

Respondents defend that claim in this case by pointing

to the state’s interest in protecting the health of pregnant

women and the fetuses they carry. There is nothing new

about these proposed justifications for treating women as

less than fully autonomous and denying them rights routine-

ly granted to men. Indeed, this Court not only acknow]-

edged but endorsed such reasoning at an earlier stage of our

history when women were commonly barred by law from

participating in the nation’s social, political, and economic

life. But, as this Court recently observed, those decisions

relegating women to a lesser constitutional status were writ-

ten “when a different understanding . . . of the Constitution

prevailed.” Planned Parenthood v. Casey, 505 U.S. 833.

896 (1992). Just as this Court has refused to give husbands

dominion over their wives for the purpose of enabling them

to assert an interest in the fetus, id. at 898, so this Court

‘must prevent the state itself from exercising such dominion

‘over pregnant women. Indeed, over the past several dec-

ades, this Court has repeatedly and forcefully rejected at-

tempts to deny women equality, even in the face of benign

assurances that the challenged actions were necessary to

protect maternal and fetal health. See, e.g., International

Union, UAW vy. Johnson Controls, 499 U.S. 187 (1991);

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).

As the Court has further recognized, once that justifi-

cation is accepted as the basis for stripping rights away,

there is no logical stopping point. Many things men and

women do before and after conception can affect the health

of future children, from smoking to drinking to bad dietary

habits. If the state can drug test pregnant women based on

criteria that have more to do with poverty than with actual

drug use, there is no reason why the state could not claim

an equivalent right to disregard constitutional constraints and

monitor the behavior of women more generally throughout

their pregnancies. Nor is this concern fanciful. In recent

years, for example, pregnant women in this country have

been forced to undergo cesarean sections without their con-

sent and been imprisoned for alcohol use, all in the name of

protecting fetal health.

Such intrusions by the state necessarily rest on the

paternalistic assumption that the constitutional rights of

pregnant women can be overridden whenever the state pur-

ports to be acting in furtherance of fetal health. This

assumption is legally insupportable. And, as this case once

again demonstrates, it is an assumption that results more

often than not in policies that have a disproportionate impact

on poor and minority women, thereby most heavily burden-

ing those women whose personal and physical autonomy is

already most threatened by the state.

ARGUMENT

I. ONLY PERSONS WITH A DIMINISHED EX-

PECTATION OF PRIVACY MAY BE SUB-

JECTED TO WARRANTLESS, SUSPICION-

LESS, NONCONSENSUAL SEARCHES

UNDER THE SPECIAL NEEDS DOCTRINE

The Fourth Amendment protects the people against "un-

reasonable searches and seizures." Searches performed

without a warrant are generally unreasonable per se, unless

they fit within a carefully defined exception to the warrant

requirement. See, e.g., Schneckloth v. Bustamante, 412 U.S.

218, 219 (1973). Even in contexts where a watrant is not

required, to be reasonable under the Fourth Amendment a

search ordinarily must be based on individualized suspicion

of wrongdoing. See Chandler v. Miller, 520 U.S. 305, 308

(1997); see also Vernonia School District v. Acton, 515 U.S.

646, 671 (1995)(O’Connor, J., dissenting)("‘while the plain

language of the Amendment does not mandate individu-

alized suspicion as a necessary component of all searches

and seizures, the historical record demonstrates that the

framers believed that individualized suspicion was an inher-

ent quality of reasonable searches and seizures’")(quoting

Clancy, "The Role of Individualized Suspicion in Assessing

the Reasonableness of Searches and Seizures," 25 Mem. St.

U.L. Rev. 483, 489 (1994)).

The collection and testing of urine from maternity

patients at MUSC constitutes a search subject to the Fourth

and Fourteenth Amendments. See Chandler. 520 US. 305;

Acton, 515 U.S. 646; National T, reasury Employees Union v.

Von Raab (NTEU), 489 U.S. 656 (1989): Skinner v. Railway

Labor Executives’ Ass'n, 489 U.S. 602 (1989). "As ex-

plained in Skinner, government-ordered ‘collection and test-

ing of urine intrudes upon expectations of privacy that soci-

ety has long recognized as reasonable." Chandler, 520

U.S. at 313 (quoting Skinner, 489 U.S. at 617). Moreover,

contrary to the conclusion of the court below, Ferguson vy.

City of Charleston, South Carolina, 186 F.3d 469, 479

(1999)("searches at issue here ... were only minimally in-

trusive"), such urine testing is a severe intrusion on personal

privacy. Indeed, at least four Justices of this Court have

recognized that "state-compelled, state-monitored collection

and testing of urine ... is ... ‘particularly destructive of

privacy and offensive to personal dignity.’" Acton, 515 U.S.

at 672 (O’Connor, J., dissenting, joined by Stevens and

Souter, JJ.)(quoting NTEU, 489 U.S. at 680 (Scalia, J., dis-

senting)).

The searches at issue in this case were not based on in-

dividualized suspicion. Although respondents have argued

that the "criteria for performing the test . . . provided amble

[sic] suspicion to believe that the patients had been using

cocaine," Op.Cert. at 23, few if any of the factors in the

MUSC policy are closely associated with cocaine use. The

fact that a pregnant woman misses prenatal visits, has a

prior history of alcohol abuse, or experiences medical diffi-

culties during pregnancy does not provide any reasonable

basis to believe that she may have ingested cocaine during

her pregnancy. In fact, a number of the criteria are far

more indicative of poverty than of cocaine use; poor women

often lack ready access to prenatal care and suffer from

health and nutritional deficiencies that may have adverse

consequences for their pregnancies. See, e.g., J.A. at 286-87

(Chasnoff). A claim of individualized suspicion cannot,

therefore, rest on a patient’s satisfaction of any one of the

criteria that triggers testing under the MUSC policy.

This Court has recognized only a few narrow exceptions

to the individualized suspicion requirement, based on

"special needs, beyond the normal need for law enforce-

ment." Chandler, 520 U.S. at 313; Skinner, 489 U.S. at

619. Even then, the Court has upheld a "special needs”

search only when the Court concluded that the person sub-

jected to.a suspicionless search possessed a “diminished ex-

pectation of privacy." See Acton, 515 U.S. at 657 ("school

athletes have a reduced expectation of privacy"); NTEU, 489

U.S. at 679 (customs employees seeking promotions to posi-

tions involving drug interdiction or firearms use "enjoy a

diminished expectation of privacy by virtue of the special,

and obvious, physical and ethical demands of those posi-

tions"); Skinner, 489 U.S. at 627 ("the expectations of

privacy of covered employees are diminished by reason of

their participation in an industry that is regulated pervasively

to ensure safety"); New York v. Burger, 482 U.S. 691. 700

(1987)("expectation of privacy .. . is particularly attenuated

in commercial property employed in ‘closely regulated’ in-

dustries"); see also Marshall y. Barlow's, Inc.. 436 U.S.

307, 313 (1978)("certain industries have such a history of

government oversight that no reasonable expectation of pri-

vacy .. . could exist for a proprietor over the stock of such

an enterprise")(citation omitted); New Jersey v. T.L.O., 469

U.S. 325, 348 (1985)(Powell, J., concurring)("students with-

in the school environment have a lesser expectation of pri-

vacy than members of the population generally").

In particular, the Court has upheld suspicionless

searches of certain classes of people over whom the state

has supervisory or custodial authority, such as pretrial de-

tainees, probationers, and public school students. See Bell v

Wolfish, 441 U.S. 520, 558-60 (1979)(pretrial detainees);

Griffin v. Wisconsin, 483 U.S. 868 (1987)(probationer);

Acton, 515 U.S. 646 (public school athletes). Such a super-

visory relationship, this Court has held, justifies "a degree of

impingement upon privacy that would not be constitutional

if applied to the public at large." Griffin, 483 U.S. at 875;

cf Acton, 515 U.S. at 655 ("the nature of [the State’s]

power is custodial and tutelary, permitting a degree of su-

pervision and control that could not be exercised over free

adults").

As discussed more fully below, pregnant women clearly

cannot be placed in the same category.

Il. PREGNANT WOMEN DO NOT, BY VIRTUE

OF THEIR PREGNANCIES, HAVE A DIMIN-

ISHED EXPECTATION OF PRIVACY

In order to uphold the MUSC drug testing policy, this

Court would have to determine that pregnant women, by

virtue of their pregnancies, have a diminished expectation of

privacy; that, like prisoners, parolees, and schoolchildren,

they are not entitled to the full protection afforded free

adults by the Fourth Amendment. This Court’s recent juris-

prudence leads to the opposite conclusion: pregnant women

have as great a right to privacy as other free adults, as well

as to autonomy and bodily integrity. Unlike its relationship

to public school students, the state does not stand in loco

parentis to pregnant women. Unlike prisoners, probationers,

and detainees, pregnant women have not sacrificed their

right to privacy. Because women do not in any sense be-

come wards of the state by virtue of their pregnancies, the

State cannot subject pregnant women to warrantless, suspi-

cionless, nonconsensual searches.

In Planned Parenthood v. Casey, 505 U.S. 833, 887-98

(1992), the Court struck down a Pennsylvania statutory

provision that required a married woman to notify her

husband before having an abortion. See also Planned

Parenthood v. Danforth, 428 U.S. 52, 69 (1976)(spousal

consent requirement for abortion held unconstitutional). The

Court recognized that a husband has a “deep and proper

concern and interest" in the fetus his wife is carrying.

Casey, 505 U.S. at 895. Nevertheless, the Court ruled that

the husband's interest did not “outweigh{] a wife’s liberty”

and did not permit the state to regulate her pregnancy to

protect his interest. Jd. at 898.

Of particular relevance here, the Court recognized the

slippery slope that a contrary ruling would have created:

If a husband’s interest in the potential life of

the child outweighs a wife’s liberty, the State

could require a married woman to notify her

husband before she uses a post-fertilization

contraceptive. Perhaps next in line would be a

statute requiring pregnant married women to

notify their husbands before engaging in con-

duct causing risks to the fetus. After all. if the

husband's interest in the fetus’ safety is a suf-

ficient predicate for state regulation, the State

could reasonably conclude that pregnant wives

should notify their husbands before drinking al-

cohol or smoking. Perhaps married women

should notify their husbands before using con-

traceptives or before undergoing any type of

Surgery that may have complications affecting

the husband’s interest in his wife’s reproduc-

tive organs. And if a husband’s interest jus-

tifies notice in any of these cases, one might

reasonably argue that it justifies exactly what

the Danforth Court held it did not justify -- a

requirement of the husband’s consent as well.

Id. Thus, the Court concluded: "A State may not give to a

man the kind of dominion over his wife that parents exer-

cise over their children." /d.

A fortiori, the state may not itself exercise the kind of

dominion over pregnant women that parents exercise over

their children. Yet, application of the special needs excep-

tion in this case would reduce the legal status of pregnant

women to less than full adults. Any purported justification

for excepting pregnant women from the Fourth Amend-

ment’s general protection against unreasonable searches

must ultimately rest on an outmoded view of women as

mere incubators of the fetus and mothers to their children,

subjecting women, on that basis, to otherwise unconstitution-

al intrusions into their privacy.

This traditional view of women’s "proper" role has long

been used in a variety of contexts to deny women full par-

ticipation in the social and economic life of the country, as

well as equal status under the Constitution. As this Court

recognized in J/nternational Union, UAW vy. Johnson Con-

trols, 499 U.S. at 211, "[c]oncern for a woman’s existing or

potential offspring historically has been the excuse for deny-

ing women equal employment opportunities." For example,

this Court relied on that "concern" in Muller v. Oregon, 208

U.S. 412, 422 (1908), when it upheld a maximum hours law

intended to protect a woman’s "proper discharge of her ma-

ternal functions":

That woman's physical structure and the per-

formance of maternal functions place her at a

disadvantage in the struggle for subsistence is

obvious. This is especially true when the bur-

dens of motherhood are upon her. Even when

they are not, by abundant testimony of the

medical fraternity continuance for a long time

on her feet at work, repeating this from day to

day, tends to injurious effects upon the body,

and, as healthy mothers are essential to vigor-

ous offspring, the physical well-being of wom-

an becomes an object of public interest and

care in order to preserve the strength and vigor

of the race.

Id. at 421.

This concern for women’s role in "the preservation of

the race” was also cited by the Court as a valid basis for

exempting women from poll taxes, on the assumption that

the "burdens necessarily borne by them" as mothers

prevented them from earning a living. Breedlove v. Suttles.

302 U.S. 277, 282 (1937). Similarly, during the American

Medical Association’s nineteenth century campaign to out-

law abortions, anti-abortion advocates argued that childbear-

ing was "a duty tacitly promised the state." D.H.. "On Pro-

ducing Abortion: A Physician’s Reply to the Solicitations

of a Married Woman to Produce a Miscarriage for Her," 17

Nashville J. Med. & Surgery 200, 201 (1876). See general-

lv Reva Siegel, "Reasoning from the Body: A Historical

Perspective on Abortion Regulation and Questions of Equal

Protection," 44 Stan. L. Rev. 261, 280-323 (1992). During

the same time period, women were excluded from higher

education out of concern that "the physiological effects of

hard study and academic competition with boys would inter-

fere with the development of girls’ reproductive organs."

United States v. Virginia, 518 U.S. 515, 536 n.9 (1996).

But, as this Court recently observed in Casey, those ar-

guments were advanced at a time "when a different under-

standing of ... the Constitution prevailed." 505 U.S. at

896. That "different understanding" is most famously en-

capsulated by Justice Bradley's concurring opinion in Brad-

* Respondents here articulate similarly paternalistic purposes behind the

MUSC policy. E.g.. Op.Cert. at 2 (MUSC has a “special interest in pro-

tecting the health of pregnant patients"), | ("drug screens were medically

necessary for management of pregnancy patients"). Like other paternal-

istic rationales, this one cannot withstand scrutiny. The MUSC policy is

Punitive, not therapeutic, resting as it does on both the threat and the

reality of arrest and imprisonment of noncompliant patients. A thera-

peutic policy cannot depend on coercion. for competent individuals in

this society have the right to accept or reject medical interventions.

E.g.. Cruzan v. Director, Mo. Dep t of Health, 497 U.S. 261 (1990).

1]

| .

well v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873), where

he offered the following rationale for the exclusion of Myra

Bradwell from the practice of law:

Man is, or should be, woman’s protector and

defender. The natural and proper timidity and

delicacy which belongs to the female sex evi-

dently unfits it for many of the occupations of

civil life. The constitution of the family organ-

ization, which is founded in the divine ordi-

nance, as well as in the nature of things, indi-

cates the domestic sphere as that which proper-

ly belongs to the domain and functions of

womanhood. The harmony, not to say identity,

of interest and views which belong or should

belong, to the family institution, is repugnant

to the idea of a woman adopting a distinct and

independent career from that of her husband.

Justice Bradley then concluded: "The paramount destiny

and mission of woman are to fulfill the noble and benign

offices of wife and mother." Id.

By contrast, the Casey Court unequivocally rejected the

notion that women have "special responsibilities" as "the

center of home and family life" that "preclude[] full and in-

dependent legal status under the Constitution." 505 U‘S. at

897 (quoting with disapproval Hoyt v. Florida, 368 U.S. 57,

62 (1961)(upholding Florida’s effective exclusion of women

from jury service)); see also Frontiero v. Richardson, 411

U.S. 677, 684 (1973)(acknowledging “our Nation[’s] ...

long and unfortunate history of sex discrimination ... ra-

tionalized by an attitude of ‘romantic paternalism’ which, in

practical effect, put women, not on a pedestal, but in a

cage"). Similarly, in Johnson Controls, 499 U.S. 187, this

Court unanimously invalidated an employment policy that

barred fertile women, but not fertile men, from certain work

12

in a battery plant because of the risk of lead exposure. In

so doing, this Court implicitly repudiated the paternalistic

rationales for women’s subordination that had animated de-

cisions such as Muller v. Oregon, 208 U.S. 412. As both

Casey and Johnson Controls make clear, even "professed

moral and ethical concerns about the welfare of the next

generation do not suffice" to justify reducing the legal status

of women to less than full adults. Johnson Controls, 499

U.S. at 206; see also Casey, 505 U.S. at 896-98: Cleveland

Bd. of Educ. v. LaFleur, 414 U.S. 632 (invalidating public

school policy that required pregnant teachers to leave work

barely halfway through their pregnancies).

As the Casey Court further emphasized: "The Constitu-

tion protects all individuals, male or female, married or un-

married, from the abuse of governmental power, even where

that power is employed for the supposed benefit of a mem-

ber of the individual’s family." 505 U.S. at 898. The

MUSC drug-testing policy subjects pregnant women to just

such an "abuse of governmental power . . . for the supposed

benefit of a [prospective] member of the individual’s fami-

ly." It seeks to trump women’s liberty with the state’s inter-

est in the health of the fetus. The policy thereby ignores

this Court’s rulings affirming the equal rights of pregnant

women to autonomy, bodily integrity, and privacy. For this

reason it cannot be sustained.

lil. AN AFFIRMANCE BY THIS COURT

WOULD OPEN THE DOOR TO EXTENSIVE

RESTRICTIONS ON INDIVIDUAL AUTON-

OMY AND PRIVACY RIGHTS

This Court should also decline to apply the special

needs exception in this case because doing so would pave

the way for virtually boundless impingements on individual

autonomy and privacy rights guaranteed by the Constitution.

This Court has refused in other contexts to allow the in-

fringement of constitutional rights on the basis of a prof-

fered state interest that has no logical stopping point, "thus

allowing the exception to swallow the rule." Florida v. J.L.,

__ U.S. __, No. 98-1993, slip op. at 6 (March 28, 2000)

(footnote omitted)(refusing to recognize a firearms exception

to the Fourth Amendment’s insistence on reliable tips). The

Court should likewise decline to do so here.

Allowing the diminution of constitutional protections in

the name of the fetus could subject pregnant women to re-

strictions on virtually every aspect of their lives, including

the most private aspects. For generations, a wide range of

common conditions of and activities by pregnant women has

been identified, rightly or wrongly, as posing some threat to

their health and that of the fetus. Although the specific

directives given to pregnant women have changed over time,

the pervasive scope of the conduct that they address has not.

Thus, one generation ago, pregnant women were di-

rected to modify everything from their smoking habits to

their bathing and sexual habits. For instance, one popular

pregnancy guide encouraged women to limit their smoking

to ten cigarettes or fewer per day. Nicholson Eastman,

M.D., EXPECTANT MOTHERHOOD 78 (3d ed. 1957). If,

however, they had "been used to smoking considerably more

than this for several years," then they were told "by no

means to try to give them up during pregnancy," as doing so

would be too upsetting. /d. Alcohol consumption was to be

limited to "a cocktail now and then." Jd. at 66. Baths

during the later stages of pregnancy were forbidden because

of the fear (later proved unfounded) of infection from bath

water, among other reasons. See id. at 71; Arlene Eisen-

berg, ef al., WHAT TO EXPECT WHEN YOU’RE EXPECTING

249 (2d ed. 1996). Fetal welfare and that of pregnant

women further mandated, as an "extremely important and

absolute" rule, that "[u]nder no circumstances" could preg-

14

nant women engage in sexual intercourse during the last

month of pregnancy. Eastman, supra, at 73. Pregnant

women’s diet was likewise strictly regulated: They were

told to eat "no more and no less" than they had eaten before

they became pregnant, id. at 46: to limit salt intake dras-

tically, id. at 65; and to gain between 20 and 24 pounds, id.

at 67.

Today, the range of behavioral guidelines urged on

pregnant women in the name of fetal health is as broad if

not broader. For example, to ensure optimal fetal develop-

ment, pregnant women are now urged to stop smoking en-

tirely and immediately, see Eisenberg, et al., supra, at 54-

57; American College of Obstetricians and Gynecologists,

PLANNING FOR PREGNANCY, BIRTH, AND BEYOND 108-09

(2d ed. 1995)(hereinafter ACOG): to avoid contact with

anyone who is smoking and who could thereby subject the

fetus to contamination from second-hand smoke, Eisenberg,

et al., supra, at 57-58; and to abstain from alcohol con-

sumption, "except perhaps for a celebratory half glass of

wine on a birthday or anniversary," id. at 53: see also

ACOG, supra, at 110-112. In the name of fetal safety,

pregnant women are further urged to refrain from changing

a cat litter box, consuming unpasteurized cheese or under-

cooked meat, and gardening without gloves in order to

avoid contracting toxoplasmosis, Eisenberg, ef al., supra, at

64; to have microwave ovens checked for radiation leakage

because of "talk that [the microwave] may be a modern

menace," id. at 65; and to wear rubber gloves and avoid in-

haling when using household cleaning products in order to

limit exposure to potentially harmful chemicals, id. at 67-68.

Pregnant women are also advised to ensure that their drink-

ing water is free of lead, id. at 68, and to cut back on or

give up caffeine, id. at 60; ACOG, supra, at 109-110.

Gaining no less than 25, and no more than 35 pounds, is

now encouraged, ACOG, supra, at 124; Eisenberg, ef ai.,

15

supra, at 148, as is regular but not too strenuous exercise,

Eisenberg. ef al., supra, at 189-90; ACOG, supra, at 88-90.

Pregnant women with certain medical histories are told to

limit or avoid having sexual intercourse at all during preg-

nancy, ACOG, supra, at 104-05; and some physicians urge

the use of condoms for all couples during the last eight

weeks of pregnancy, Eisenberg, ef al., supra, at 250.

The directives given to pregnant women thus touch on

virtually every aspect of their lives. Many of these di-

rectives may be salutary; if history is prologue, others may

prove to be misguided. But, in either event, there is a

critical constitutional distinction between medical advice that

rests on the premise of patient autonomy, and state-coerced

supervision that overrides individual autonomy in favor of

government paternalism. Under respondents’ proposed for-

mulation of the special needs exception, what is to prevent

the state from requiring blood alcohol level tests of pregnant

women at every prenatal visit? Why could the state not re-

quire blood tests to measure nicotine and caffeine levels?’

What is to stop the police from undertaking surveillance of

pregnant women to ensure that they are making regular pre-

natal visits to an obstetrician, eating properly, taking appro-

priate precautions when using household cleaning products

and changing the cat litter, and exercising enough but not

too much? Why could the police not conduct warrantless

searches of the homes of pregnant women to assess whether

drinking water is being filtered? What about surveillance of

* It is difficult to ascertain the relative risks to the fetus of various

discouraged behaviors. As discussed more fully in the amicus brief of

American Public Health Association, et al, medical studies have not

validated the assumption, underlying the MUSC policy, that prenatal ex-

posure to cocaine poses risks of long-term, negative effects on child

development that are different in degree from the risks posed by expo-

sure to other maternal behavior, whether legal or illegal. See id. at Part

III (citing studies).

16

the bedrooms of pregnant women to ensure that couples are

following a physician’s direction to abstain from sexual in-

tercourse, or searches for condoms when their use has been

directed? And what is to stop the police from placing under

hospital or other detention those pregnant women whose

failure to follow the rules is deemed a threat to the fetus?

As this Court has recognized, the Constitution does not al-

low state action that opens the door to such a troubling de-

gree of intrusion on the rights of pregnant women. See

Point II, supra.*

It is by no means purely theoretical to assume that the

State would attempt such measures. An array of incidents

and policies evidences the willingness of state authorities to

disregard the constitutional rights of pregnant women when

* Moreover, there is no logical stopping point preventing similar imposi-

tions on all sexually active men and women with reproductive capacity.

For example, recent epidemiological studies trace diverse forms of fetal

injuries to sperm damaged by, inter alia, exposure to alcohol, lead, and

pesticides, see, e.g., Siegel, supra, at 337; and both paternal drug use

and paternal smoking have been linked to certain birth defects, see Cyn-

thia R. Daniels, "Fathers, Mothers, and Fetal Harm: Rethinking Gender

Difference and Reproductive Responsibility,” in FETAL SUBJECTS, FEMI-

NIST POSITIONS. 83, 85-88 (Lynn M. Morgan & Meredith W. Michaels

eds., 1999)(citing studies). Furthermore, because a woman’s conduct

has the greatest impact on fetal development during the first several

weeks of pregnancy, when a history of irregular menstrual cycles or

bleeding caused by hormonal changes may obscure from the woman the

fact of her pregnancy, the state might consider regular, mandatory preg-

nancy testing for all sexually active women. See, e.g., Dawn E. John-

sen, "The Creation of Fetal Rights: Conflicts With Women’s Constitu-

tional Rights to Liberty, Privacy, and Equal Protection," 95 Yale L.J.

599, 625 n.82 (1986). Thus, suspicionless searches of all sexually active

men and women with reproductive capacity could be justified by the as-

sertion of a "special need" to protect fetal health.

17

their behavior is deemed unsuitable to fetal development.

Fortunately, in many such cases the invasive measures

undertaken by state authorities have ultimately been re-

scinded by other officials or rejected by the courts; unfor-

tunately, for practical reasons the reversals have often come

too late to prevent unwarranted suffering. and deprivation of

rights.

In one line of cases, state authorities have seized and

detained, or threatened to seize and detain, pregnant women

in the name of protecting the fetus. Officials in the South

Carolina Department of Alcohol and Other Drug Abuse

Services, for example, recently distributed literature advising

pregnant women that "it’s . . . a crime in South Carolina” to

"smoke, drink ... or engage in other activities that risk

harming" the fetus. South Carolina Department of Alcohol

and Other Drug Abuse Services, "Important Facts to Re-

member: A Special Delivery Should be Handled With

Care." Only after the state Attorney General -- in the midst

of the briefing for this Court in this case -- learned of that

message were the brochures hastily recalled and statements

made by the Attorney General to the press that only preg-

nant women who use illegal drugs would be prosecuted.

See, e.g., "Agency Pulls Pregnancy Pamphlets: Brochures

Recalled for Inaccurate Statements About Legality of Sub-

stance Abuse," Augusta Chron., May 14, 2000, at B2. The

official from the Department of Alcohol and Other Drug

Abuse Services who is responsible for redrafting the recalled

literature has indicated, however, that he "has not decided

whether to make reference to nicotine or alcohol abuse as

potentially criminal" in the next edition of the brochures.

Id. Moreover, at least one South Carolina woman has been

arrested for consuming alcohol during her pregnancy. See

Lynn M. Paltrow, "Pregnant Drug Users: Fetal Persons, and

the Threat to Roe v. Wade," 62 Alb. L. Rev. 999, 1055

n.273 (1999)(citation omitted).

18

Wyoming officials have likewise arrested a pregnant

woman because of alcohol use and charged her with felony

child abuse. Rachel Roth, MAKING WOMEN PAY: THE

HIDDEN Costs OF FETAL RIGHTS 150 (2000)(citing Charles

Levendosky, “Turning Women into Two-Legged Petri

Dishes,” Star-Tribune, Jan. 21, 1990, at A8: Charles

Levendosky, "Using the Law to Make Justice the Victim,"

Star-Tribune, Feb. 4, 1990, at A8). She spent time in jail

before a judge dismissed the charge. Jd. And alcohol use is

not the only ground cited for detaining pregnant women. In

Wisconsin, for example, officials held a pregnant sixteen-

year-old in secure detention for the sake of fetal develop-

ment because the young woman tended "to be on the run"

and to "lack motivation or ability to seek medical care."

Veronika E. B. Kolder, M.D., et al., "Court-Ordered Obstet-

rical Interventions," 316 New Eng. J. Med. 1192, 1195

(1987)(citing "Girl Detained to Protect Fetus," Wis. State J..

Aug. 16, 1985, at 3.2).

These incidents are not unique. In California, a deputy

district attorney, concerned about a pregnant woman’s men-

tal state but lacking sufficient evidence to have her commit-

ted for psychiatric treatment, instead obtained a juvenile

court order declaring her fetus a dependent child of the state

and detaining the woman pending birth. Jn re Steven S..

126 Cal. App. 3d 23, 30-31 (Cal. Ct. App. 1981). The ap-

pellate court ultimately held that the district attorney had

impermissibly manipulated the juvenile laws to detain a

woman who, by all accounts, could not properly be commit-

ted under the applicable code. /d. at 30-31. By the time

the appellate court issued its ruling, however, the woman

had already been involuntarily detained for approximately

two months until the delivery of her child, at which point

she was released. Jd. at 27, 31. Similarly, in New York,

state officials sought to detain a pregnant woman in a men-

tal hospital against her will on the sole ground that, if re-

19

leased, she would resume drug use and thereby pose a

danger to her fetus. Jn re the Retention of Tanya P., No.

530059/93, slip op. at 2-4 (N.Y. Sup. Ct. Feb. 24, 1995).

The court rejected the state’s petition, ordered the woman

released, and, in a subsequently issued written decision, em-

phasized that the "right to determine one’s medical treatment

and to make reproductive choices is, and must be, superior

to any interest which the state may have in an unborn fe-

tus." Jd. at 6, 26. Several weeks after her release, the

woman gave birth to a healthy and drug-free baby. /d. at 1.

In other cases, state authorities have sought to compel

pregnant women to submit to surgery in the name of pro-

moting fetal health. In Massachusetts, for example, a lower

court ordered a pregnant woman’s cervix sewn up against

her will to prevent a possible miscarriage. See Taft v. Taft,

446 N.E. 2d 395, 396 (Mass. 1983). The woman was ulti-

mately spared from undergoing the procedure by the Su-

preme Court of Massachusetts, which vacated the lower

court’s order because that court had not adequately consid-

ered the woman’s constitutional right of privacy, id. at 396-

97, and because the record did not show "circumstances so

compelling as to justify curtailing [her] constitutional

rights," id. at 397. In Michigan, a court ordered a pregnant

woman who refused on religious grounds to undergo a ce-

sarean section to report to the hospital or be forcibly

brought there by the police. See Janet Gallagher, "Prenatal

Invasions and Interventions: What’s Wrong with Fetal

Rights," 10 Harv. Women’s L.J. 9, 47 (1987)(citing Flani-

gan, "Fleeing the Law: A Matter of Faith," Det. Free Press,

June 29, 1982, at 3A). Rather than submit to the police, the

woman fled into hiding with her family and about two

weeks later gave birth vaginally, with no complications, to a

healthy baby. /d. In a similar case in Illinois, a pregnant

woman was advised that, because of an insufficient flow of

oxygen to the fetus, the fetus could be born dead or severely

20

retarded if she did not immediately undergo a cesarean. /n

re Baby Doe, 632 N.E.2d 326, 327 (Ill. App. Ct. 1994).

When the woman opposed the surgery on religious grounds,

the office of the State’s Attorney sought a court order com-

pelling her to submit to the cesarean. Jd. That request was

denied, and the Illinois appellate court ultimately issued a

decision affirming that a woman’s "right to refuse invasive

medical treatment, derived from her rights to privacy, bodily

integrity, and religious liberty, is not diminished during

pregnancy." /d. at 332. After the order was denied, the

woman gave birth by vaginal delivery to an "apparently nor-

mal and healthy, although somewhat underweight, baby

boy." Jd. at 329.

Other women have been unable to avoid compelled ce-

sarean sections, notwithstanding the attendant risks.° One

young pregnant woman, severely ill with cancer, several

times mouthed the words "I don’t want it done" when told

that a court had ordered her to undergo a cesarean and that

she likely would not survive the operation. Jn re A.C., 573

A.2d 1235, 1241 (D.C. 1990)(en banc). The cesarean was

nonetheless performed; the baby died within a few hours of

the surgery; and the woman died two days later. Jd. An en

banc panel of the District of Columbia Court of Appeals

* Because a cesarean section is major surgery, it carries with it higher

rates of maternal mortality and morbidity than vaginal delivery. See,

e.g., Nancy K. Rhoden, "The Judge in the Delivery Room: The Emer-

gence of Court-Ordered Cesareans," 74 Cal. L. Rev. 1951, 1958 (1986).

Post-operative infections, including infections of the endometrium,

urinary tract, or surgical wound, are of particular concern, and occur

five to ten times more often after cesarean section than after vaginal

birth. See id. Other risks include "trauma to nearby organs (e.g., uter-

us, bladder, bowel), pulmonary embolus, delayed wound healing, hernia,

bowel obstruction, and hemorrhage." /d.

21

later reviewed the case notwithstanding mootness concerns,

vacated the court order, and held that "in virtually all cases

the question of what is to be done is to be decided by the

patient -- the pregnant woman -- on behalf of herself and

the fetus." /d. at 1237. It further held that if the pregnant

woman’s condition prevented her from clearly giving in-

formed consent, the court must ascertain what her decision

would have been through a substituted judgment procedure.

Id.

Finally, because poor and minority women are more

likely to give birth at public institutions and have more con-

tact with state agencies, they are most often the targets of

the draconian measures attempted by state officials. See,

e.g., Roth, supra, at 91, 147. One study of forced cesarean

section cases, for example, found that eighty-one percent of

the women involved were African-American, Asian, or His-

panic. Kolder, ef al., supra, at 1193. Likewise, the vast

majority of women subjected to sterilization abuse in past

decades were members of minority groups. See Dorothy E.

Roberts, "Punishing Drug Addicts Who Have Babies: Wo-

men of Color, Equality, and the Right of Privacy,” 104

Harv. L. Rev. 1419, 1442-43 (1991). The record in this

case reveals similar racial bias. See, e.g., J.A. at 287-91,

315-16 (Chasnoff); id. at 1192-93 (Williams). Thus, a deci-

sion by this Court allowing the diminution of constitutional

protections for pregnant women will most severely impact

those women whose personal and physical autonomy is al-

ready most threatened by the state.

CONCLUSION

For the reasons stated above, this Court should reverse

the judgment of the United States Court of Appeals for the

Fourth Circuit permitting the state to undertake warrantless,

suspicionless,

women.

Dated: June 1, 2000

nonconsensual urine testing of pregnant

Respectfully submitted,

Julie E. Sternberg

(Counsel of Record)

Steven R. Shapiro

Sara L. Mandelbaum

Catherine Weiss

Louise Melling

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Louis M. Bograd

American Civil Liberties Union

Foundation

1875 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 234-1817

Martha F. Davis

Yolanda S. Wu

Roslyn Powell

NOW Legal Defense and

Education Fund

395 Hudson Street

New York, New York 10014

(212) 925-6635

23