Amicus Curiae Brief — Ferguson v. Charleston

MOTION FILED 7

17)

JUN - 2 2000 ‘.

No. 99-936

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

CRYSTAL M. FERGUSON, et al.,

Petitioners,

V.

THE CITY OF CHARLESTON, SOUTH CAROLINA, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

MOTION FOR LEAVE TO FILE AN AMICUS CURIAE

BRIEF AND BRIEF OF THE NARAL FOUNDATION®

ET AL. AS AMICI CURIAE IN SUPPORT OF PETITIONERS

ELIZABETH CAVENDISH NANCY L. PERKINS*

JODI MICHAEL AMY E. WEISSMAN

THE NARAL FOUNDATION ROBERT J. KATERBERG

1156 15® Street, N.W. SARAH KARLSSON

Suite 700 ARNOLD & PORTER

Washington, D.C. 20005 555 12™ Street, N.W.

(202) 973-3000 Washington, D.C. 20004

(202) 942-5000

Counsel for the NARAL

Foundation et al.

June 2, 2000 *Counsel Of Record

No. 99-936

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1999

CRYSTAL M. FERGUSON, et al.,

Petitioners,

V.

THE CITY OF CHARLESTON, SOUTH CAROLINA, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

MOTION OF THE NARAL FOUNDATION ET AL.

FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

IN SUPPORT OF PETITIONERS

The NARAL Foundation et al. hereby move,

pursuant to Rule 37 of this Court, for leave to file an amicus

curiae brief in support of Petitioners. The motion is

necessitated by Respondents’ refusal to consent to the filing

of the brief. A copy of Petitioners’ letter providing such

consent is submitted herewith.

The resolution of this case is of great significance to

the NARAL Foundation et al. The NARAL Foundation and

x =

several co-amici are organizations dedicated to promoting

women’s reproductive health and freedom, ensuring that

women are not punished based on their reproductive

capacities, and helping decision-makers understand the

impact of policies and laws on women’s health and lives.

Other groups join us, due to their commitment to sound drug

policy, promotion of minority health, knowledge of

behavioral health, and advocacy for the health and nghts of

prisoners and the homeless. The Court’s decision in this

case will have a profound effect on women’s lives, freedoms,

and reproductive mghts. Punitive policies that impose

involuntary drug searches on pregnant women and threaten

incarceration upon a positive drug test infmnge upon

women’s reproductive nights and impose burdens on women

due to their reproductive capacity that are not imposed on

men. Moreover, because such punitive policies can actually

deter women from seeking necessary medical care, they fail

to promote healthy childbearing. Additionally, such policies

as historically and currently implemented bear most heavily

on women of color.

The NARAL Foundation et al. seek to help inform

the Court about the dangers to women’s health inherent in

such punitive policies and the unmet need for adequate,

voluntary drug treatment programs designed to meet the

needs of pregnant women and their families. The NARAL

Foundation et al. believe our amicus curiae brief will serve

this purpose by providing the Court with relevant legal and

factual information not already brought to the Court’s

attention by the parties, particularly with respect to the

societal circumstances that may lead women to dmg

addiction, the barners such women face in attempting to

overcome their addiction, and the deficiencies of the

measures applied by Respondents in this case as a means to

address the particular needs of pregnant women battling drug

addiction.

xe

To bring such additional information before the

Court, the NARAL Foundation et al. respectfully request

leave to file the amicus curiae brief submitted herewith.

Respectfully submitted,

ELIZABETH CAVENDISH

JODI MICHAEL AMY E. WEISSMAN

THE NARAL FOUNDATION ROBERT J. KATERBERG

1156 15" Street, N.W. SARAH KARLSSON

Suite 700 ARNOLD & PORTER

Washington, D.C. 20005 555 12" Street, N.W.

(202) 973-3000 Washington, D.C. 20004

(202) 942-5000

Counsel for the NARAL

Foundation et al.

June 2, 2000 *Counsel Of Record

TABLE OF CONTENTS

Page(s)

TAREE: OR AUTTOROURTT IIS ic icicci slic ccccsscceccecassccsneasnsze iii

INTERESTS OF AMICI CURIAE u.ic.cccccccssccsesescescssecesseseeceees l

SUMMARY OF ARGUMENT. ........ccccccccoceccececceseccecescsceseeces l

SOI iii i ae 5

I. RESPONDENTS CONDUCTED THEIR

DRUG SEARCHES PRIMARILY FOR AN

INCRIMINATORY PURPOSE. ..........cc.cccccceseseeeeees 5

Il. THE SEARCH POLICY WAS NEITHER

EFFECTIVE TO ACHIEVE RESPONDENTS’

ASSERTED GOAL NOR MINIMALLY

II oie Oe 8

A. Respondents’ Involuntary Drug Searches

Failed to Improve the Health of Pregnant

Women and Their Fetuses................sc.csecsseess 9

1. Involuntary Drug Searches Alone

EOD PNOE SERGI EIRU UIOD os sinssccccscscrsssicsnases 9

2. Respondents Offered Only an

Illusory Treatment “Choice”’...............0. 11

B. Involuntary Search Policies Deter

Drug-Using Pregnant Women From

Fo Ree 18

os The Degree of Intrusion Caused By The

Search Policy Was Neither Objectively

Nor Subjectively Minimal......................0004 21

l

CONCLUSION

APPENDIX

tli

Page(s)

~ Conducting Involuntary Drug

Searches During Medical

Examinations Does Not Make

Them Minimally Intrusive ..................... 21

The Involuntary Drug Searches

Were Highly Subjectively Intrusive. ...... 23

™

- ill -

TABLE OF AUTHORITIES

Cases:

Chandler v. Miller, 520 U.S. 305 (1997) ............000 aye, me

International Union, United Automobile, Aerospace &

Agricultural Implement Workers of America v.

Johnson Controls, Inc., 499 U.S. 187 (1991)..........cccee 5

International Union, United Automobile, Aerospace &

Agricultural Implement Workers of America v.

Johnson Controls, Inc., 886 F.2d 871 (7th Cir.

SOS, FO, OED. TEE IG IE ovcvckacicsccsesccinssscsvssacaases 8

Michigan Department of State Police v. Sitz,

ee Ie CE OD ia ticcidebta pia chiibitnbascicciateeakexadsaechiins 25

National Treasury Employees Union v. Von Raab,

aie eS hacen cicigs alike setinaabies ee Ay

Pierce v. Smith, 117 F.3d 866 (Sth Cir. 1997) .0...... ee. 22

Skinner v. Railway Labor Executives’ Association,

re Oe CE Aisin tnincianianinonis ae Pe de

Vernonia School District 47J v. Acton, 515 U.S. 646

Ee iviickisssacecestulsceacesreplacthbabncstaaseauses a, is et oe

_—

American Medical Association Board of Trustees

Report, Legal Interventions During Pregnancy:

Court-Ordered Medical Treatment and Legal

Penalties for Potentially Harmful Behavior by

Pregnant Women, 264 JAMA 2663 (1990) .............:005 18

-iv-

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (4th ed.

PIE bis iniscenikie nisin nada apbimnab dad tinaiaruniaik 10

Mary E. Becker, From Muller v. Oregon to Fetal

Vulnerability Policies, 53 U. Chi. L. Rev. 1219

INE Pe issih a Sadie dconcuesiciechc eh laced nanan dcigsasaeoncaaiees 5,8

Board of Directors of the American Society of

Addiction Medicine, Public Policy Statement on

Chemically Dependent Women and Pregnancy

(visited May 26, 2000) <http://(www.asam.org/

EE caisbii iin cin bbtcinnilauatainihdiasin 19

Carol J. Boyd, The Antecedents of Women’s Crack

Cocaine Abuse: Family Substance Abuse, Sexual

Abuse, Depression, and Illicit Drug Use, 10 J.

Subst. Abuse Treat. 433 (1993).........cccccscccesessscsccssscscsses 16

Center for Substance Abuse Treatment, U.S. Dep’t

of Health and Human Services, Pub. No.

(SMA) 953056, Pregnant, Substance-Using

We tt cist oii caiagtdiineicn 15, 17, 18, 19

Ira J. Chasnoff et al., The Prevalence of Illicit-Drug or

Alcohol Use During Pregnancy and Discrepancies

in Mandatory Reporting in Pinellas County,

Florida, 322 New Eng. J. Med. 1202 (1990)................ 24

Amin N. Daghestani, Psychosocial Characteristics of

Pregnant Women Addicts in Treatment, in Drugs,

Alcohol, Pregnancy and Parenting 7 (Ira J. Chasnoff

ad EE Ci cciaa iiss sky hacicsnns’ nica lacaaiahscayluaacdibsiatasiotcnencn: 16

Drug Strategies, Keeping Score: Women and Drugs:

Looking at the Federal Drug Control Budget (1998).....14

Page(s)

Lisa A. Eckenwiler, Pursuing Reform in Clinical

Research: Lessons from Women’s Experience, 27

BE. MRO. GE BIS BGG (IGG) sisicnvnccesiccacsacsanscessncasscanee 26

Teresa Ann Hagan, A Retrospective Search for the

Etiology of Drug Abuse: A Background Comparison

of a Drug-Addicted Population of Women and a

Control Group of Non-Addicted Women, in 81

Monograph Series National Inst. on Drug Abuse

PR FSG CRIED whisicicitsescsainscccsncsnnsticdsnajacesstncnsraese 16

Embry M. Howell et al., A Review of Recent Findings

on Substance Abuse Treatment for Pregnant

Women, 16 J. Subst. Abuse Treat. 195 (1999)......... 13, 16

ICD-9-CM International Classification of Diseases

I NE te ais kiiatiinithcidinicaihinniseies 10

Dawn Johnsen, Shared Interests: Promoting Healthy

Births Without Sacrificing Womens Liberty, 43

Sa BB. Fe Cae ictcicicatnsncinincinininciticancenheniencnannnains 17

Philip H. Jos et al., The Charleston Policy on Cocaine

Use During Pregnancy: A Cautionary Tale, 23 J.L.

BG Be Te Fa Ce achiisinasaneicnteinrtinciernntciinsonens 14

Legal Action Center, Steps to Success: Helping

Women with Alcohol and Drug Problems

Move from Welfare to Work (1999) .........ccceeeeeeeeeees 15

National Council on Alcoholism and Drug Dependence,

Policy Statement, Women, Alcohol, Other Drugs

I Fa echt ahidinahatieteatiahenstniamansinionni 20

National Institute on Drug Abuse, Sixth Triennial

Report to Congress from the Secretary of Health

and Human Services, Drug Abuse and Addiction

- Vi -

Page(s)

Research (visited Apr. 19, 2000) <http://www.

nida.nih.gov/STRC/Role6.html> ..0...... eee 14, 16, 17

| Lawrence J. Nelson & Mary Faith Marshall, Ethical and

Legal Analyses of Three Coercive Policies Aimed

at Substance Abuse by Pregnant Women (1998).....18, 19

Pier Vincenzo Piazza et al., Behavioral and Biological

Factors Associated with Individual Vulnerability to

Psychostimulant Abuse, in Medications

Development for the Treatment of Pregnant Addicts

ee Tee TD TES Ci ieiisibiniciscinisasidiisienivornanne 10

Dianne O. Regan et al., Infants of Drug Addicts: At Risk

for Child Abuse, Neglect, and Placement in Foster

Care, 9 Neurotoxicology and Terotology 315

CED ssdinisisnessenisithetndescisaanaiamebelntadienenmiiaaoedanimiioaats 16

Dorothy E. Roberts, Punishing Drug Addicts Who Have

Babies: Women of Color, Equality, and the Right of ©

Privacy, 104 Harv. L. Rev. 1419 (1991)... ee eeeeees 19

Marsha Rosenbaum, Women and Treatment, Drug

Policy Letter 10 (Winter 1998) .0....... eee 11, 16, 19

Marsha Rosenbaum, Women: Research and Policy, in

Substance Abuse, A Comprehensive Textbook 654

(Joyce H. Lowinson et al. eds., 3d ed.-1997) ............... 1]

Jean Reith Schroedel, Is the Fetus A Person? A

Comparison of Policies Across the Fifty States

(Cornell University Press, forthcoming 2000)............... 16

South Carolina Department of Alcohol and Other Drug

Abuse Services, Specialized Services for Women

and Children (visited Apr. 26, 2000) <http://www.

daodas.state.sc.us/services/womenchildren.htmI>......... 14

- Vil -

Dan Steinberg & Shelly Gehshan, National Conference

of State Legislatures, State Responses to Maternal

Drug and Alcohol Use: An Update (2000) ................... 25

Maia Szalavitz, War on Drugs, War on Women, 8 On

The Issues Magazine 42 (1999), reprinted in

Lindesmith Center (visited Apr. 26, 2000)

<http://www.lindesmith.org/lindesmith/library/

szalavitz2.html>

U.S. General Accounting Office, GAO/HRD9180,

ADMS Block Grant: Women’s Set-Aside Does

Not Assure Drug Treatment for Pregnant Women

POSTED ac sencnsdbianinsieuidiiducsiideduonnthanarebacsdl 12, 13, 14, 17, 18, 19

INTERESTS OF AMICI CURIAE

The NARAL Foundation and several co-amici are

organizations committed to promoting women’s reproductive

health and freedom, ensuring that women are not punished

based on their reproductive capacities, and _ helping

decision-makers understand the impact of policies and laws

on women’s health and lives. Other groups join us, due to

their commitment to sound drug policy, promotion of

minority health, knowledge of behavioral health, and

advocacy for the health and rights of prisoners and the

homeless. All of the amici have a strong interest in the

Court’s decision in this case, which will have a profound

effect on women’s lives, freedoms, and reproductive rights.

Descriptions of each of the amici are provided in the

Appendix hereto. '

SUMMARY OF ARGUMENT

Respondents undertook the involuntary drug searches

at issue in this case for a purpose and in a manner that cannot

be justified under the narrow “special needs” exception to

the warrant and individualized suspicion requirements of the

Fourth Amendment to the United States Constitution.

This Court has sustained warrantless, suspicionless

searches only in cases where “special governmental needs,

beyond the normal need for law enforcement” existed that

made it impractical to require a warrant or some level of

individualized suspicion, National Treasury Employees

Union v. Von Raab, 489 U.S. 656, 665 (1989), and the

searches were premised on “concerns other than crime

' This brief was not authored, in whole or in part, by any

counsel for a party. No person or entity, other than the amici

curiae, their members, or counsel contributed monetarily to the

preparation or submission of this brief.

xo

detection,” Chandler v. Miller, 520 U.S. 305, 314 (1997)

(citation omitted). The Court has found such searches

permissible, however, only if they are both effective at

advancing the asserted non-law enforcement interest and

minimally intrusive on an individual’s privacy. Vernonia

Sch. Dist. 47] v. Acton, 515 U.S. 646, 658-63 (1995). The

hospital’s searches neither had a true non-law enforcement

purpose nor were they effective to accomplish Respondents’

purported goals, and they were highly intrusive.

Respondents designed their drug search policy with a

dominant law enforcement purpose. From the moment

Medical University of South Carolina (“MUSC”) Nurse

Shirley Brown mentioned the possibility of prosecuting

pregnant drug users to the MUSC General Counsel,

Respondents pursued punishment for such women,

collaborating with law enforcement personnel to develop and

- implement the policy and turning over search results to law

enforcement personnel in order to facilitate the arrest of

women who tested positive for cocaine. Although the

searches were conducted in the hospital, rather than at a

police station, they were very much intended for law

enforcement purposes. Women subjected to the search

policy were arrested on the spot, some being led out of the

hospital in handcuffs just after giving birth, still dressed in

their hospital gowns. The fact that the person conducting the

search wore a white hospital coat instead of a police uniform

cannot, under proper scrutiny, obscure the policy’s dominant

law enforcement aim.

Even if Respondents had undertaken the searches for

the asserted purpose of protecting the health of pregnant

women and their fetuses, they failed egregiously to achieve

that end because the searches did not result in appropriate

drug treatment. Respondents did not provide the women

they searched with treatment or services that came even

close to meeting the women’s needs or those of their future

children.

=

Respondents purportedly offered pregnant women a

“choice” between arrest and treatment. In fact, this

purported “choice” was merely illusory: the only treatment

available did not provide childcare, was difficult for some

women to access, did not appear to account for the societal

factors that led to and compromised the women’s ability to

recover from their addiction, and was not designed to treat

pregnant women. Respondents offered, therefore, no

realistic treatment option.

Furthermore, involuntary drug search programs such

as Respondents’ can perversely discourage women from

seeking treatment. The fear of punishment engendered by

such policies deters some women from going to the hospital

to receive prenatal medical care. By discouraging women

from seeking treatment, involuntary search policies actually

threaten the health of pregnant women and their fetuses

because some pregnant women undoubtedly go through their

pregnancies without appropriate medical attention.

In addition to being ineffective to achieve

Respondents’ asserted goal, the involuntary searches

constituted a major intrusion into the privacy interests of the

women in question. They were not the “normal, routine, and

expected part of a medical examination,” as the court below

erroneously found. Ferguson v. City of Charleston, 186 F.3d

469, 479 (4th Cir. 1999). The fact that they took place in a

hospital made them no less intrusive than if they had been

conducted in the jailhouse, because their principal purpose

and effect was to incriminate those searched. Moreover, the

criteria that were used to select whom to test accorded the

MUSC staff wide discretion, making the searches highly

intrusive on a subjective basis and inviting abuse. Cf Von

Raab, 489 U.S. at 667 (concluding warrant not required to

protect against major intrusion where discretion is absent).

This is particularly evident from the disparate impact of the

selection criteria on African American women: rather than

selecting women for testing based solely on neutral,

+

objective standards, Respondents focused on factors closely

tied to race and poverty.

For all these reasons, Respondents’ search policy

cannot be justified under the “special needs” exception. The

search policy is representative of policies that punish, rather

than effectively aid, pregnant drug users. Such punitive

approaches fail to recognize that drug addiction is a disease

requiring medical treatment. While it is tragic if an infant is

born suffering negative effects from prenatal drug exposure,

adopting a punitive approach to this dilemma only

compounds the tragedy. Providing voluntary treatment

opportunities for drug-addicted pregnant women, not

incarcerating or demonizing them, is the proper method for

addressing this social concern. The search policy at issue in

this case and others like it are counterproductive and harmful

to women and children, serving as pretexts for punitive,

evidence-gathering missions, where law’ enforcement

masquerades as medicine.

Because drug-addicted pregnant women may face

multiple obstacles to overcoming their addiction, they need

comprehensive drug treatment and related social services

addressing the totality of circumstances surrounding their

drug use. Research demonstrates that women with drug

problems experience violence, such as rape, incest, and

domestic violence, at a substantial rate. Effective treatment

addresses these concerns, while incorporating a therapeutic,

rather than an adversarial, approach to recovery.

Additionally, appropriate programs provide childcare in

recognition of the fact that women taking care of other

children may be forced to forgo treatment without such

service. Transportation services also are essential for those

women, especially poor women, lacking access to treatment.

To properly judge the legitimacy of the searches

Respondents conducted requires probing beyond the

seemingly benign interests asserted. This Court’s experience

ee

with policies aimed at protecting women, children, and

fetuses that in fact violate fundamental rights should be

instructive. See, e.g., International Union, United

Automobile, Aerospace and Agricultural Implement Workers

of America v. Johnson Controls, Inc., 499 U.S. 187 (1991)

(recognizing that an employment policy premised on

protecting women and their children from actual or potential

lead exposure discriminated against women on the basis of

gender); see also Mary E. Becker, From Muller v. Oregon to

Fetal Vulnerability Policies, 53 U. Chi. L. Rev. 1219 (1987) ©

(criticizing fetal vulnerability and protectionist policies as

actually threatening the health of women and children). Had

Respondents in fact sought to promote healthy childbearing,

they would have offered voluntary and appropriate treatment

for women of childbearing years struggling with addiction,

poverty, abuse, and the lack of childcare. Respondents failed

to do so, instead devising a policy that resulted in the arrest

of pregnant and postpartum women, who in effect were

targeted for prosecution based on their reproductive capacity.

Respondents’ involuntary drug search policy cannot,

therefore, be justified under the special needs exception.

ARGUMENT

I. RESPONDENTS CONDUCTED THEIR DRUG

SEARCHES PRIMARILY FOR AN

INCRIMINATORY PURPOSE.

Respondents claimed that the search policy aimed to

improve the health of pregnant women and their future

children. However, the record amply belies this claim,

demonstrating that Respondents’ primary goal was to seek

out and punish lawbreakers. That goal cannot support

application of the “special needs” exception to the Fourth

Amendment. Cf Skinner v. Railway Labor Executives’

Ass'n, 489 U.S. 602, 620-21 & n5 (1989) (finding

governmental interest acceptable in part because searches

were conducted “not to assist in the prosecution of

iti

employees” and observing that showing of pretextual

searches might render search program invalid).’

Police and prosecutors, particularly the Office of the

Solicitor of the Ninth Judicial Circuit of South Carolina,

were integrally involved in formulating the search policy. In

the fall of 1989, MUSC Nurse Shirley Brown heard of

Greenville’s program of arresting drug-using pregnant

women. She spurred MUSC’s General Counsel to write to

Solicitor Condon regarding the Greenville Solicitor who was

“prosecuting mothers who gave birth to children who tested

positive for drugs” and to ask Solicitor Condon to “advise us

if your office is anticipating future criminal action and what

if anything our Medical Center needs to do to assist you in

this matter.” (App. to Pet. for Cert. 67.) Next, Solicitor

Condon wrote to Police Chief Reuben Greenberg about

“forming a task force to consider possible prosecution of the

mothers,” and asked the Police Chief to co-chair the task

force on this matter. /d. at 69.

MUSC, the Charleston City Police Department, and

the Solicitor’s Office then met to formulate the search

policy, focusing on arrest of drug-using pregnant women.

See id. at 64. Arrest likewise became the theme of the

MUSC Medical Center Policy Manual M-7, which explained

that “[p]regnant women abusing illegal drugs” is a problem

that necessitates “‘medical/police intervention.” /d. at 53.

The manual urged hospital staff to follow chain-of-custody

procedures with respect to urine samples and prescribed

procedures for providing search results to the Police

2

Petitioners’ brief examines the “special needs” exception, and

amici will not undertake a comprehensive examination here. As

the relevant case law makes clear, the “special needs” doctrine is

fundamentally inconsistent with an underlying purpose of

incrimination and prosecution. Amici incorporate by reference

here the documentation to that effect provided by Petitioners.

~*.

Department. See id. at 53-56. The Police Department, in

turn, established operational guidelines regarding arrest of

hospital patients when a search revealed evidence of cocaine

use. See id. at 49-52. The police were instructed that “{a]s

in.the case of all arrests, the suspect shall be questioned

concerning the charges against her and a written record made

of same.” /d. at 51.

The search policy was not only grounded on

investigative purposes and effectively crafted by law

enforcement authorities, but also administered in conjunction

with police. For example, the Charleston City Police

Department designated a “lead investigator” and instructed

MUSC staff “to contact the police dispatcher and request a

Crimes v. Persons detective” for after-business hours cases.

Id. at 52 (revealing the implicit assumption that a pregnant

woman’s drug use is a crime against the fetus as a person).

Similarly, the hospital employed proper chain-of-custody

procedures, underscoring the expectation that search results

would be used in criminal prosecutions. See id. at 54.

Medical staff so identified with law enforcement that nursing

notes included such comments as, “At this point we do not

have legal ground to arrest.” (J.A. 618 (Hilderbrand Test.))

(emphasis added).

These facts, and in particular the systematic release

of drug search results to law enforcement by Respondents,

distinguish this case from every one of the cases in which

this Court found drug testing to be justified under the special

needs doctrine. See, e.g., Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 658 (1995); National Treasury Employees

Union v. Von Raab, 489 U.S. 656, 666 (1989); Skinner,

489 US. at 621 n.5. Based on its law enforcement purpose

alone, the search policy cannot be justified under that

exception.

wii

II. THE SEARCH POLICY WAS NEITHER

EFFECTIVE TO ACHIEVE RESPONDENTS’

ASSERTED GOAL NOR MINIMALLY

INTRUSIVE.

Even if, as Respondents assert, the search policy was

not aimed primarily at law enforcement, the searches they

undertook in this case were unreasonable because they were

not effective in serving Respondents’ purported drug

treatment objective. See Vernonia, 515 U.S. at 660-61

(evaluating whether a search policy was effective in meeting

the stated governmental concern). Further, even if the policy

could have helped some women, the searches were

unreasonable because, by their very nature, they were more

than minimally intrusive upon the searched women’s right to

privacy.”

The search policy was ineffective because

Respondents did not offer those women who tested positive

treatment options that were either realistic or appropriate,

and because the involuntary drug searches most likely

deterred some pregnant women from seeking prenatal care —

a result directly contrary to Respondents’ purported interest.

Cf. International Union, United Automobile, Aerospace &

Agricultural Implement Workers of Americayv. Johnson

Controls, Inc., 886 F.2d 871, 916-18 (7th Cir. 1989)

(Easterbrook, J., dissenting) (observing that “Title VII does

not allow an employer to adopt a policy that simultaneously

makes both women and their children worse off’), rev'd, 499

U.S. 187 (1991); see also Mary E. Becker, From Muller v.

Oregon to Fetal Vulnerability Policies, 53 U. Chi. L. Rev.

1219 (1987) (criticizing fetal vulnerability and protectionist

policies as actually threatening the health of women and

ee

> Amici cannot, in fact, conceive of an involuntary drug search

program for women that would only “minimally” intrude on

fundamental privacy rights.

————————————————

sf.

children). Both in failing to serve its purported

governmental purpose of treatment and in failing to reach the

women needing treatment, the search policy was ineffective

and therefore disqualified for justification under the special

needs exception.

A. Respondents’ Involuntary Drug Searches

Failed To Improve the Health of Pregnant

Women and Their Fetuses.

Under the special needs exception, effectiveness is

measured by the degree to which a search advances the

asserted governmental interest. Cf Chandler, 520 U.S. at

319 (concluding Georgia drug testing regime was not well

designed to advance interest in identifying candidates who

violated drug laws). Respondents’ involuntary drug searches

did not result in appropriate treatment or otherwise end

pregnant women’s drug use. Contrary to the findings of the

Fourth Circuit below, the mere identification of some

pregnant women using cocaine was not sufficient to render

the search policy effective to achieve its purported goal.

1. Involuntary Drug Searches

Alone Do Not Stop Drug Use.

A drug search is not a form of drug treatment.

Rather, a drug search is simply one tool — neither the only

nor even the best tool— for identifying substance use.

Respondents could not have achieved their asserted objective

unless they offered the women subject to the search policy

some reasonable means of addressing their addiction, namely

appropriate treatment.‘ However, Respondents did not

4

Respondents should have been aware of the need for an

effective therapeutic program. (J.A. 710-11 (Jessup Test.))

Solicitor Condon contacted Dr. Ira Chasnoff, the only national

expert Respondents consulted when they developed the policy, for

(footnote continued on next page)

ee

provide appropriate drug treatment. For example, Patricia

Williams testified that she was never offered referral to a

substance abuse program other than the Charleston County

Substance Abuse Treatment Program (“CCSA”), which

provided only generic outpatient services. (J.A. 1208-09

(P. Williams Test.)) Lori Griffin stated that she was never

given or referred to counseling or treatment. (J.A. 546, 548,

562 (Griffin Test.))

Drug addiction is a disease and to be treated

effectively must be understood as such. See American

Psychiatric Association: Diagnostic and Statistical Manual

of Mental Disorders 222-23 (4th ed. 1994) (cocaine

dependence classified as a _ disease); 1ICD-9-CM

International Classification of Diseases 49-50 (Sth ed. 9th

Rev. 1997) (cocaine dependence classified as a disease); see

also Pier Vincenzo Piazza et al., Behavioral and Biological

Factors Associated with Individual Vulnerability to

Psychostimulant Abuse, in Medications Development for the

Treatment of Pregnant Addicts and Their Infants 105, 105

(1995) (suggesting possible genetic predisposition to drug

addiction). Respondents claimed the search policy would

scare pregnant women off drugs; however, drug users cannot

overcome their addiction simply because someone tells them

to stop. (J.A. 294-95 (Chasnoff Test.)); (J.A. 656-57

(footnote continued from previous page)

an opinion on the search policy. (J.A. 279-80 (Chasnoff Test.))

Chasnoff opposed the policy and informed Solicitor Condon that

such a punitive policy would steer women away from treatment

and prenatal care, that focusing exclusively on cocaine was

unwarranted, and that the policy would not improve fetal health.

(J.A. 281-82, 293-94 (Chasnoff Test.)) Moreover, Sarah Schuh, a

pediatrician at MUSC, testified that around 1989, she developed a

grant proposal that would have provided much-needed services,

counseling, and transportation. The grant proposal never went

forward. (J.A. 1107-13 (Schuh Test.))

oft

(Horger Test.)) Indeed, criminal action ignores the

underlying disease and demonizes such women when, in

fact, research demonstrates the attempts of some such

women to protect fetal health: they “separated drug use and

parental roles, budgeted money, tried to get away from the

crack scene... [and] tried to lower their intake, switched

from ‘harder’ to ‘softer’ drugs... and _ ingested

health-promoting substances such as vitamins.” Marsha

Rosenbaum, Women: Research and Policy, in Substance

Abuse, A Comprehensive Textbook 654, 656-57 (Joyce H.

Lowinson et al. eds., 3d ed. 1997) (footnote omitted)

{hereinafter “Research and Policy”]. Pregnancy may

actually be an incentive for women to enter drug treatment.

See Marsha Rosenbaum, Women and Treatment, Drug Policy

Letter 10, 12 (Winter 1998) [hereinafter “Women and

Treatment’”’]. The search policy countered this incentive by

threatening arrest rather than offering appropriate treatment

to pregnant women.

2. Respondents Offered Only an

Illusory Treatment “Choice.”

Initially, the search policy required that a woman

who tested positive for cocaine upon delivery be arrested,

based on that single search. See Ferguson, 186 F.3d at 474.

During the initial phase of the policy, three of the Petitioners

were arrested after giving birth. See id. at 485 (Blake, J.,

dissenting in part).° Additionally, women testing positive

prior to delivery were supposed to be offered treatment in

> Sandra Powell delivered her child at MUSC, tested positive

for cocaine, and was arrested at the hospital the next day. Laverne

Singleton delivered her child in the ambulance en route to MUSC,

tested positive for cocaine upon admission and was arrested at the

hospital the following morning. Although Ellen Knight tested

negative, her child tested positive at birth and Ms. Knight was

arrested at the hospital. See id. (Blake, J., dissenting in part).

«42

lieu of arrest. (J.A. 342-43 (Condon Test.)) (describing

policy as purportedly “amnesty”’-based when _ first

implemented). Respondents concede, however, that this did

not happen when the search policy was first implemented.

See Respondents’ Br. in Opp’n to Pet. for Cert. at 7 n.4.°

-In early 1990, the policy was revised to require the

offer of treatment to all women whose first search indicated

the presence of cocaine. See Ferguson, 186 F.3d at 474.

Under the revised policy, a woman who tested positive for

cocaine could avoid arrest and prosecution if (and only if)

she entered into a generic drug treatment program. See id.

However, if a second search yielded evidence of cocaine, she

would be arrested. See id. The purported choice between

treatment and arrest under the search policy was illusory,

however, because the treatment offered was neither

realistically accessible to nor adequate for the women in

need.

a. Charleston had no treatment

facilities geared to treat

indigent pregnant women.

Charleston — and indeed South Carolina in general —

had no drug treatment centers designed to treat indigent

pregnant women when the search policy was implemented.

(J.A. 135 (Brown Test.)); (J.A. 601 (Haynes Test.))’ The

° For example, Lori Griffin tested positive upon entering the

hospital with contractions, and was jailed, returning to the hospital

several weeks later to deliver. See Ferguson, 186 F.3d at 485

(Blake, J., dissenting in part). While in state custody, Griffin

endured premature labor pains, received medical care, and

delivered her baby all while shackled and handcuffed.

(J.A. 559-563 (Griffin Test.))

>

See also U.S. General Accounting Office, GAO/HRD-91-80,

ADMS Block Grant: Women's Set-Aside Does Not Assure Drug

(footnote continued on next page)

«tS.

hospital’s own psychiatric department did not provide

substance abuse treatment to indigent pregnant women until

1991. (J.A. 135-36 (Brown Test.)) CCSA had no programs

specifically geared toward women, pregnant women, or

cocaine users. (J.A. 57 (Beckett Test.)); (J.A. 601 (Haynes

Test.)) In addition, CCSA was temporarily closed in 1989

due to Hurricane Hugo (J.A. 54-55 (Beckett Test.))

Consequently, plaintiff Ellen Knight, who tested positive for

cocaine in November of 1989, had to wait until January of

1990 for treatment-— by which time she had already been

- arrested and criminal prosecution had been initiated. (J.A.

777-78, 784-86 (Knight Test.))

b. The treatment available was

inadequate.

To have been effective to accomplish Respondents’

purported goal, the drug treatment offered would have to

have been designed to address the particular needs of

pregnant women, including childcare and transportation.

Generally, women without a spouse, partner, or support

system to care for their children while they seek treatment, or

the funds for an alternate caregiver, are forced either to

forego treatment or to risk leaving children unattended. This

deters women with drug problems from seeking treatment or

prenatal care because they fear losing their children. See

Embry M. Howell et al., A Review of Recent Findings on

Substance Abuse Treatment for Pregnant Women, 16 J.

Subst. Abuse Treat. 195, 209 (1999); see also ADMS Block

Grant, supra, at 20. Provision of childcare and

transportation for addicted mothers are not perks but

(footnote continued from previous page)

Treatment for Pregnant Women, App. I at 12 (1991) [hereinafter

“ADMS Block Grant”] (in 1990, South Carolina had no “specific

treatment services for pregnant women and mothers with young

children”).

_ e

essential elements for effective treatment. (J.A. 720-21

(Jessup Test.)); (J.A. 296-97 (Chasnoff Test.)); (J.A. 604

(Haynes Test.))*

CCSA did not offer childcare. (J.A. 604 (Haynes

Test.)) Indeed, “[c]hild care services and women-only

substance abuse treatment programs . . . were not available in

Charleston until November 1994.” Philip H. Jos et al., The

Charleston Policy on Cocaine Use During Pregnancy: A

Cautionary Tale, 23 J.L. Med. & Ethics 120, 128 n.47

(1995). Nor was adequate transportation available, as

Petitioners made _ evident. Patricia Williams wanted

treatment but had no transportation to get there, a fact to

which Nurse Shirley Brown was unsympathetic. (J.A.

1204-06 (P. Williams Test.)) Ms. Nicholson needed to be

home to take care of her 7-year-old son when he returned

from school, but instead was forced to attend immediate

Women taking care of other children of any age are often

inhibited from entering treatment because they lack childcare

alternatives. See South Carolina Department of Alcohol and Other

Drug Abuse Services, Specialized Services for Women and

Children (visited Apr. 26, 2000) <http://www.daodas.state.sc.us/

services/womenchildren.html>; ADMS Block Grant, supra, at 17.

Studies have found that “women who have their children with

them during residential treatment are less likely to drop out and

are more successful after treatment than women whose children

are not with them during treatment.” Drug Strategies, Keeping

Score: Women and Drugs: Looking at the Federal Drug Control

Budget /7 (1998); see also National Institute on Drug Abuse,

Sixth Triennial Report to Congress from the Secretary of Health

and Human Services, Drug Abuse and Addiction Research (visited

Apr. 19, 2000) <http://www.nida.nih.gov/STRC/Role6.html>

[hereinafter “Sixth Triennial Report”]. In addition, “[{t}reatment

programs are often located in areas that are relatively inaccessible

by public transportation; this can be a formidable barrier for

pregnant women and mothers with young children.” ADMS

Block Grant, supra, at 18.

oh.

inpatient drug treatment. (J.A. 900-02 (Nicholson Test.))

Similarly, Ms. Ferguson requested outpatient treatment to

care for her children, but was arrested for not going to the

inpatient psychiatric unit on the very day she was supposed

to start outpatient treatment at CCSA. (J.A. 457-58, 460-62,

478-79 (Ferguson Test.)) Because the majority of women

seeking prenatal care at the hospital were poor, see

Ferguson, 186 F.3d at 489 (Blake, J., dissenting), and many

of them had children, they had difficulties availing

themselves of the “treatment” offered.

Even beyond their lack of childcare and failure to

provide transportation, the limited drug treatment programs

that were available do not appear to have been designed to

deal with the circumstances facing pregnant drug users. As

experts have recognized:

Women with alcohol and drug problems

report high rates of violence, including

rape, incest, and domestic violence.

Suppression of past violent experiences is

identified throughout the literature as a

major relapse trigger and is a critical issue

that must be addressed as women move

into recovery.

Legal Action Center, Steps to Success: Helping Women

with Alcohol and Drug Problems Move from Welfare to

Work 14 (1999); see also 2 Center for Substance Abuse

Treatment, U.S. 'Dep’t of Health and Human Services, Pub.

No. (SMA) 95-3056, Pregnant, Substance-Using Women 6-7

(1993) [hereinafter “HHS TIP”] (listing characteristics of

pregnant women seeking drug treatment through publicly

funded programs).? Furthermore, whether as a result of

See generally Maia Szalavitz, War on Drugs, War on Women,

8 On The Issues Magazine 42 (1999), reprinted in Lindesmith

(footnote continued on next page)

—-.

abuse or other physical and psychological disruptions in their

lives, drug-dependent women have higher levels of

depression, lower self-esteem and lower overall

self-satisfaction than the population generally, and some

become suicidal. See CarolJ. Boyd, The Antecedents of

Women’s Crack Cocaine Abuse: Family Substance Abuse,

Sexual Abuse, Depression, and Illicit Drug Use, 10 J. Subst.

Abuse Treat. 433, 437 (1993); AminN. Daghestani,

Psychosocial Characteristics of Pregnant Women Addicts in

Treatment, in Drugs, Alcohol, Pregnancy and Parenting 7, 8

(Ira J. Chasnoff ed., 1988).

Drug treatment centers historically have concentrated

on male addiction patterns and treatment needs. See Howell

et al., supra, at 203. The existing treatment paradigm has

proven dramatically less effective for women patients than

for men. See Women and Treatment, supra, at 11. Women

typically utilize drugs as a form of self-medication for the

physical and mental trauma they have sustained. See Jean

(footnote continued from previous page)

Center (visited Apr.26, 2000) <http://www.lindesmith.org/

lindesmith/library/szalavitz2. html> (noting that “most treatment

doesn’t deal with... the long-term mental health care needs of

addicted women, who’ve commonly experienced molestation,

rape, and other violent traumas.”) (internal quotation marks

omitted). Physical or sexual assault is the most prevalent correlate

for drug use in pregnant women and is often thought to be a cause

of drug use. See, e.g., Dianne O. Regan et al., Infants of Drug

Addicts: At Risk for Child Abuse, Neglect, and Placement in

Foster Care, 9 Neurotoxicology and Terotology 315, 318 (1987);

Teresa Ann Hagan, A Retrospective Search for the Etiology of

Drug Abuse: A Background Comparison of a Drug-Addicted

Population of Women and a Control Group of Non-Addicted

Women, in 81 Monograph Series National Inst. on Drug Abuse

Research 254, 259 (1987); see also Sixth Triennial Report, supra

(“up to 70 percent of women in drug use treatment report histories

of physical and sexual abuse’’).

atts

Reith Schroedel, Is the Fetus A Person? A Comparison of

Policies Across the Fifty States (Cornell University Press,

forthcoming 2000) (manuscript at 103).

As of 1990, South Carolina generally did not provide

drug treatment tailored to the particular needs of women.

See ADMS Block Grant, supra, at15. Effective drug

treatment for Petitioners required, at a minimum, the

establishment of a therapeutic alliance with a health care

provider, which was lacking in this case. (J.A. 699-702

(Jessup Test.))'® Such an alliance is critical to effective

treatment for women. A therapeutic alliance takes a

“compassionate” approach offering a “continuum of help”

starting with prenatal care and continuing through successful

completion of treatment. (J.A. 718, 720-21 (Jessup Test.))

Furthermore, “[s]ervice providers need to be sensitive to the

feelings and the cultural background of pregnant,

substance-using women and offer care in an environment

that is supportive, nurturing, and nonjudgmental.” HHS TIP,

supra, at 2. The coercive environment created by

Respondents’ search policy was the antithesis of establishing

a relationship and environment conducive to recovery from

drug addiction. (J.A. 699, 700-02, 725-26 (Jessup Test.))

None of the MUSC staff who had direct contact with

Petitioners under the policy had the training in substance

abuse counseling or treatment necessary for effective

communications with the patients. (J.A. 643-45 (Horger

Test.)); (J.A. 296-97 (Chasnoff Test.))

'° “[{T]reatment of drug-dependent women was more likely to be

successful if treatment was provided in a mutually supportive

therapeutic environment... .” Sixth Triennial Report, supra. See

generally Dawn Johnsen, Shared Interests: Promoting Healthy

Births Without Sacrificing Women’s Liberty, 43 Hastings L.J. 569,

573-75 (1992) (explaining the social policy ramifications and

positive social benefits of utilizing a “facilitative,” as opposed to

“adversarial,” model to address pregnant women’s health issues).

_ =

Unfortunately, many of the deficiencies that faced

Petitioners still exist. Drug treatment programs geared to

pregnant women that employ a therapeutic model are scarce.

See Research and Policy, supra, at 659. Despite federal

government recognition that “[i]t is imperative that programs

include services designed specifically for women,

particularly pregnant women,” HHS TIP, supra, at 6, some

drug treatment centers turn away pregnant women because

they fear legal liability, ADMS Block Grant, supra, at 18.

B. Involuntary Search Policies Deter Drug-

Using Pregnant Women From Obtaining

Treatment.

The knowledge or fear that a positive drug search

would lead to punitive measures commonly deters women

from seeking any prenatal medical care. See ADMS Block

Grant, supra, at 5, 20. Contrary to Respondents’ claim that

the search policy would lead women simply to stop using

drugs or seek treatment on their own, criminalization of ©

substance abuse during pregnancy is counter to the best

interests of fetuses and “pregnant women as pregnant women

may forgo early prenatal care or substance abuse treatment

for fear of losing their children or of being arrested.”

Lawrence J. Nelson & Mary Faith Marshall, Ethical and

Legal Analyses of Three Coercive Policies Aimed at

Substance Abuse by Pregnant Women 12 (1998)."

Abundant evidence demonstrates that laws and policies

similar to the search policy at issue in this case deter women

from coming to the hospital for prenatal care or to deliver.

'' See also American Medical Association Board of Trustees

Report, Legal Interventions During Pregnancy: Court-Ordered

Medical Treatment and Legal Penalties for Potentially Harmful

Behavior by Pregnant Women, 264 JAMA 2663, 2667 (1990).

-19-

See, e.g., ADMS Block Grant, supra at 20.’ These punitive

laws and policies “drive women underground.”

Maia Szalavitz, War on Drugs, War on Women, 8 On The

Issues Magazine 42 (1999), reprinted in Lindesmith Center

(visited Apr. 26, 2000) <http://www.lindesmith.org/

lindesmith/library/szalavitz2.html>. The net result is that

children and society are harmed rather than helped. See

Nelson, supra, at 12; see also Board of Directors of the

American Society of Addiction Medicine, Public Policy

Statement on Chemically Dependent Women and Pregnancy

(visited May 26, 2000) <http://www.asam.org/frames.htmI>.

Here, the record demonstrates that Respondents’ search

policy likely had exactly this harmful deterrent effect. (J.A.

700-09, 719-20 (Jessup Test.)); (J.A. 905-06 (Nicholson

Test.)) (describing how she avoided prenatal care for some

time because she feared being put in jail). Ironically, in

some extreme cases, the fear of involuntary drug searches

may even lead a woman to have an abortion when she

otherwise would not have had one. See Dorothy E. Roberts,

Punishing Drug Addicts Who Have Babies: Women of

Color, Equality, and the Right of Privacy, 104 Harv. L. Rev.

1419, 1445 (1991).

Further undermining the ability of the search policy

to identify drug-addicted pregnant women was the fact that it

focused only on cocaine users, despite ample evidence that

many other substances, both legal and otherwise, are equally

or more harmful to a developing fetus. (J.A. 706 (Jessup

Test.)); (J.A. 281-85 (Chasnoff Test.)) While amici do not

mean to suggest either that cocaine use during pregnancy is

acceptable or that involuntary searches for all drugs would

12

Additionally, women fear that they will be stigmatized if it

becomes known that they have used drugs. See HHS TIP, supra,

at 8. Many pregnant substance users have experienced indifferent

or harsh treatment from medical personnel, who treat them like

they are “just junkies.” See Women and Treatment, supra, at 11.

- 20.

be appropriate, focusing solely on cocaine use was not the

right approach. Moreover, the undue discretion afforded to

MUSC staff to determine subjectively which women to test

(discussed further below) created a selectivity that

inaccurately identified the women to be searched.”

In finding the policy effective for identifying the

target population, the court below ignored the consequences

of Respondents’ penal and discriminatory approach. The

court below additionally ignored the inevitable outcome of a

policy that deters women from seeking prenatal care or

medical attention during childbirth: the endangerment of

both the pregnant woman and the fetus. Instead of

encouraging pregnant women to obtain medical treatment

and other services that often result from a_ prenatal

examination, such as information, referrals, social services,

and the like, the search policy likely left some women

feeling they had no choice but to deal in isolation with their

problems. The search policy thereby deprived these women

of the assistance they needed to overcome the societal and

economic hurdles that stood in their way.

'5 See also National Council on Alcoholism and Drug

Dependence, Policy Statement, Women, Alcohol, Other Drugs and

Pregnancy (1990) (there is “increasing evidence of disparities

regarding the screening and reporting of positive toxicologies of

newborns, with women of color, poor women and women

receiving care in public hospitals having the greatest likelihood of

being subject to drug testing and subsequent reporting to legal

authorities”).

nic

C. The Degree of Intrusion Caused By The

Search Policy Was Neither Objectively

Nor Subjectively Minimal.

1. Conducting Involuntary Drug

Searches During Medical

Examinations Does Not Make

Them Minimally Intrusive.

The searches in this case were highly intrusive under

established Fourth Amendment jurisprudence. In Skinner v.

Railway Labor Executives’ Association, 489U.S. 602

(1989), this Court held that the collection and testing of urine

intrudes upon unquestionably reasonable expectations of

privacy, id. at 617, and requires its subject “to perform an

excretory function traditionally shielded by great privacy,”

id. at 626. Moreover, urine testing invades the subject’s

privacy insofar as “it discloses [information] concerning the

State of the subject’s body, and the materials [she] has

ingested.” Acton, 515 U.S. at 658.

Here, the court below held that “the context in which

the searches at issue here occurred” made them only

minimally intrusive, reasoning that “(t]he giving of a urine

sample is a normal, routine, and expected part of a medical

examination.” Ferguson, 186 F.3d at 479 (citation omitted).

That reasoning misconstrues the applicable Fourth

Amendment principles. Searches based on urine samples

taken in a medical environment may sometimes be less

intrusive than comparable searches in which urine samples

are taken in the field (ie., by police officers, or direct

supervisors of employees), see Skinner, 489 U.S. at 626, but

that does not make them minimally intrusive. In this case,

Respondents co-opted the symbols of professional medicine

to conceal the actual purpose and consequences of the drug

searches effected through urinalysis — which were revealed

7.

only later when law enforcement personnel handcuffed and

arrested Petitioners.'* In fact, Petitioner Nicholson was even

lied to about the purposes for which her sample was taken.

(J.A. 900 (Nicholson Test.)) As such, the searches were

highly intrusive, which distinguishes them from those at

issue in Acton, 515 U.S. at 658 (“[T]he results of the tests are

disclosed only to a limited class of school personnel who

have a need to know; and they are not turned over to law

enforcement authorities or used for any internal disciplinary

function.”), and Pierce v. Smith, 117 F.3d 866, 875 (Sth Cir.

1997) (holding that a urine test was relatively noninvasive

where “the test was not undertaken for law enforcement

purposes, law enforcement personnel were not involved, and

there was no threat of force and no potential criminal or civil

penalty for refusing.”).'° Respondents’ attempt to cloak the

'* The Fourth Amendment cases this Court and others will likely

face in the future may increasingly involve seemingly innocuous

search policies with disastrous consequences for privacy.

Technological advances and the sophistication of law enforcement

enable the government to craft search methods that appear

unintrusive but in fact may cause severe invasions of personal

dignity and autonomy. Amici urge this Court to consider these

ramifications of this important “special needs” case, and to clarify

the analytical framework to make it responsive to the changing

face of the intrusiveness inquiry.

'° This case is also distinguishable from Chandler v. Miller,

520 U.S. 305 (1997), where this Court held that Georgia’s

program of urine testing of prospective candidates for political

office was “relatively noninvasive.” Jd. at 318. The policy at

issue there provided that “the results of the test are given first to

the candidate, who controls further. dissemination of the report.”

Id. Here, in contrast, hospital staff routed drug search results to

police, and the subjects of those searches could not control

dissemination of search results. Moreover, unlike Chandler (and

all of this Court’s prior “special needs” drug testing cases), the

Petitioners did not necessarily know that their urine would be

(footnote continued on next page)

-23-

searches in a medical mantle should not mislead this Court

into believing the urine testing was no different than a

“regular physical examination” consistent with medical

norms and incidental to medical care and treatment and

therefore minimally intrusive.

2. The Involuntary Drug Searches

Were Highly Subjectively Intrusive.

The intrusiveness of a search also has a subjective

component measured by the amount of discretion vested in

the person conducting the search, see Von Raab, 489 U.S. at

667, and the threat of risk, trauma, or pain to the person

being searched, see Skinner, 489 U.S. at 625. The court

below acknowledged this point, yet found the searches here

subjectively minimally intrusive because “urine drug screens

were conducted whenever one of the criteria for testing was

met; a treating physician had no discretion to decline to order

a urine test under the policy.” Ferguson, 186 F.3d at 479.

This conclusion is flawed for three reasons.

First, the hospital staff used inaccurate and subjective

criteria to determine who would be searched. Hospital staff

chose certain identifying characteristics to determine who

would be searched. Several of the characteristics (e. g., “late”

or “incomplete prenatal care”) were thinly veiled proxies for

low socioeconomic status or race — thereby exacerbating the

invidiousness of a policy framed in the shadow of racial

animus.'° (J.A. 286-91 (Chasnoff Test.)) (“Women who are

(footnote continued from previous page)

tested for drug use at the time they submitted urine samples, as

illustrated by Petitioner Nicholson’s testimony cited above.

16

Amici are aware that Petitioners’ Title VI discrimination claim

is not presently before this Court. Amici submit, however, that the

policy’s racial impact must be considered in evaluating the level of

subjective intrusion.

~ =

poor have very little access to prenatal care, so that if you

say, well, you didn’t get prenatal care and so we’re going to

test your urine for drugs, what you’re also saying is, you’re

poor, we’re going to test your urine for drugs.”) The

plethora of triggering characteristics invited the medical staff

to apply far-reaching discretion in deciding who was to be

searched. Indeed, a hospital social worker who observed

firsthand the operation of the policy testified that Nurse

Brown boasted that she dictated which patients should be

tested. (J.A. 1199 (M. Williams Test.)) See also J.A. 209,

250, 256-57 (Brown Test.) (Brown believes “mixing of races

is against God’s way” and admits she recorded the race of

her patients and their boyfriends in medical charts).

Petitioners’ nationally renowned expert witness, Dr.

Ira Chasnoff, described certain triggers for testing as

subjective and medically senseless. (J.A. 286 (Chasnoff

Test.)) For example, two criteria, premature delivery and

abruption, may be associated with tobacco use and a “wide

range of problems.” Jd. A prominent 1990 research article

co-authored by Dr. Chasnoff explained that where vague

standards are used to identify drug users in this context,

African-Americans are disproportionately targeted because

of prejudices and preconceptions, even though the rates of

substance use during pregnancy are similar across racial

groups. See Ira J. Chasnoff et al., The Prevalence of

Illicit-Drug or Alcohol’ Use During Pregnancy and

Discrepancies in Mandatory Reporting in Pinellas County,

Florida, 322 New Eng. J. Med. 1202, 1205-06 (1990); see

also (J.A. 286-93 (Chasnoff Test.)).

Second, the selection of the site for drug searches

was itself subjective and resulted in overly intrusive searches

of disadvantaged African-American women. The policy was

instituted at only one hospital in Charleston — the hospital

that served a large number of African-American,

economically disadvantaged patients. (J.A. 24-25 (Annibale

Fi eS ae, Tey a ee

e

Test.)); (J.A. 429 (Durban Test.)); (J.A. 1121, 1123

(Schwacke Test.))

Third, although the urinalysis Respondents used

detected all drugs used, not just cocaine, Ferguson, 186 F.3d

at 482, the search policy had an unmistakably discriminatory

impact on African-American women because Respondents

acted only upon positive results for cocaine and made no

effort to track or punish women who tested positive for other

drugs. See id. at 489 (Blake, J., dissenting). In fact,

“90 percent of maternity patients who tested positive for

cocaine were African-American,” while “only 68 percent of

maternity patients who tested positive for any drug were

African-American.” Ferguson, 186 F.3d at 481. That is,

cocaine use, compared to that of other drugs, was

disproportionately concentrated among African-Americans.

Yet cocaine may be far less dangerous to fetuses than

substances like nicotine and alcohol. Dan Steinberg &

Shelly Gehshan, National Conference of State Legislatures,

State Responses to Maternal Drug and Alcohol Use: An

Update, at 4 (2000). Respondents’ decision to target only

cocaine users was an unwarranted exercise of discretion.

For all of the above-stated reasons, the level of

subjective intrusion in this case was exponentially greater

than that in Michigan Department of State Police v. Sitz,

496 U.S. 444 (1990). Sitz was a checkpoint case, not a

special needs case, see id. at 450, and therefore is not

controlling. However, because the Fourth Circuit relied on

Sitz, amici discuss the Sitz framework to demonstrate why

the Fourth Circuit’s analysis was wrong. In Sitz, all

motorists passing a checkpoint were treated universally and

uniformly when police simply glanced into their passing

cars. Here, in contrast, individual women were singled out

from the population of pregnant hospital admittees at the

whim of certain members of the medical staff because they

exhibited some trait perceived to be marginally correlated

with possible drug use. In at least one instance, the

i

6 a

discretion of the hospital staff did not stop with the

determination of who was to be searched. Following the

testing and identification of a white patient as a drug user and

that patient’s noncompliance with treatment, Nurse Shirley

Brown called the Solicitor’s Office to intervene on behalf of

the white patient and requested that she be given another

chance before arrest. (J.A. 265-66 (Brown Test.)) The

Fourth Circuit’s analysis of subjective intrusiveness

erroneously ignored the fundamental racial slant of the

policy. Had the court sufficiently probed the record, it could

not have overlooked the fact that the policy plainly created a

grave risk that MUSC staff would abuse the discretion

accorded them.

Because it was subjectively intrusive and arbitrarily

applied, the search policy and others like it have dire

consequences for minority participation in America’s health

care system. Indeed, drug search policies such as

Respondents’ add fuel to the minority mistrust of the medical

profession that has existed historically because of incidents

like the Tuskegee Study, in which syphilis-afflicted African-

American men were systematically denied treatment in the

name of science. See Lisa A. Eckenwiler, Pursuing Reform

in Clinical Research: Lessons from Women’s Experience,

27 J.L. Med. & Ethics 158, 160 (1999). Several Petitioners

acknowledged that Respondents’ search policy has caused

them to mistrust doctors. See, e.g., (J.A. 550 (Griffin Test.))

(“I will never trust a doctor or a physician again... They

just — they just tormented — tormented me.”); (J.A. 1146-47

(Singleton Test.)) (“I don’t trust the system anymore....

And from now on I'll be right particular of whom I go to for

medical care.”). A holding by this Court that the search

policy was unconstitutional will help heal that mistrust and

create an atmosphere in which African-Americans have a

basis for embracing, rather than fearing and being victimized

by, our health care system.

7

CONCLUSION

For the reasons set forth above, amici respectfully

urge the Court to reverse the decision below and clarify that

the special needs exception cannot be used to justify the

types of fundamental rights violations that occurred in this

case.

Respectfully submitted,

ELIZABETH CAVENDISH ,

JODI MICHAEL AMY E. WEISSMAN

THE NARAL FOUNDATION ROBERT J.KATERBERG

1156 15" Street, N.W. SARAH KARLSSON

Suite 700 ARNOLD & PORTER

Washington, D.C. 20005 555 12™ Street, N.W.

(202) 973-3000 Washington, D.C. 20004

(202) 942-5000

Counsel for the NARAL

Foundation et al.

June 2, 2000 *Counsel Of Record

APPENDIX

weeny

et:

v3

DESCRIPTIONS OF THE AMICI

The Abortion Access Project is a group of activists and

health care providers that seeks to increase awareness of

abortion as a critical part of comprehensive reproductive

health services, address the shortage of abortion providers,

and ensure access to abortion for all women. The Abortion

Access Project works to ensure that reproductive health

services meet all of women’s health needs and allow women

to make their own decisions around their health, including

decisions about preventing unintended pregnancy and having

children, without government intrusion.

The American Jewish Congress is a national organization of

American Jews founded to protect fundamental

constitutional freedoms and American democratic

institutions. Its Commission for Women’s Equality is an

activist group seeking to advance women’s rights in a Jewish

context. It believes these rights can only be secured if

women’s reproductive health and freedom is ensured.

Catholics for a Free Choice (““CFFC”’) shapes and advances

sexual and reproductive ethics that are based on justice,

reflect a commitment to women’s well-being, and respect

and affirm the moral capacity of women and men to make

sound decisions about their lives. Through discourse,

education and advocacy, CFFC works in the United States

and internationally to infuse these values into public policy,

community life, feminist analysis and Catholic social

thinking and teaching.

_ As such, CFFC is committed to promoting the just and equal

treatment of all women, specifically with regard to sexual

and reproductive health practices and policies, regardless of

race, Class and sexual orientation.

xo

The Coalition of Labor Union Women (“CLUW”) is a

national association of over 20,000 union members which

advances the benefits of organized workplaces for women.

Since the AFL-CIO Executive Council decision in 1991 to

remain neutral on supporting or opposing the issue of a

woman’s right to choose, CLUW’s Reproductive Rights

Project is the only vehicle to join the pro-choice labor

movement with the pro-choice movement. The Project’s

mission is to raise the support of union members for

reproductive health issues and to increase their involvement

in the pro-choice movement. CLUW is especially

committed to addressing the reproductive health needs and

concerns of minority women to provide ALL women with

the means to achieve economic self-sufficiency.

The mission of the Connecticut Consortium for Women and

Their Children with Behavioral Health Needs (“CT

Consortium”) is to improve behavioral health care for

women and their children. The CT Consortium works

through facilitation, collaboration, communication, and

cooperation within the women’s behavioral health

community in Connecticut by researching, educating, and

advocating with respect to salient issues. We promote and

support promising practices, programs, and policies through

consultation, technical assistance, and training. We believe

the consortium model encourages diversity and meaningful

participation by consumers and persons in recovery. We

believe that the success of the consortium model depends on

mutual respect, trust, and collaboration. We believe the

results of our work should be widely shared to promote

positive changes in policy and practice. We believe that the

work needed to improve women’s behavioral health must

address social, economic, environmental, physical, political,

and legal issues and policies as well as mental health and

addiction treatment. Our goals and objectives are to improve

behavioral health care for women and their children through:

integration and coordination of services across disciplines

and agencies; increased access to treatment and recovery

my

support services; improved matching of women’s service

needs to appropriate, state-of-the-art treatment; and provision

of technical assistance and support to consumers, providers,

and policymakers.

Family Watch is a national network of parents and other

family members concerned about the impact of drug abuse

and drug policy on families, women and children. We are

dedicated to educating the public and increasing the

availability of drug abuse prevention programs that preserve

the health and well-being of the family unit and each of its

individual members, particularly the children.

The Feminist Majority Foundation (“Foundation”) is a

non-profit organization with offices in Arlington, Virginia

and Los Angeles, California. The Foundation is dedicated to

eliminating sex discrimination and to the promotion of

equality, women’s rights and safe access to abortion and

birth control. The Foundation actively pursues legal

protection for reproductive health services, including having

provided legal counsel for Respondents in Madsen v.

Women’s Health Center, Inc., 512 U.S. 753 (1994), which

upheld the use of clinic safety buffer zones.

The Institute for Health and Recovery (“IHR”) is a

non-profit organization committed to the development of a

continuum of comprehensive services for alcohol and drug

dependent women and their families throughout

Massachusetts. IHR is committed to establishing

collaborative models of service delivery and fostering

family-centered services. IHR firmly believes that addiction

is an illness requiring treatment, not a crime requiring

punishment. IHR members know firsthand the fears

pregnant substance abusing women have _ regarding

prosecution and loss of child custody, causing them to be

reluctant to seek prenatal care and substance abuse treatment.

Prosecution of pregnant women only serves to keep women

out of treatment, thereby endangering the health and well

a

being of more women and children. Arresting substance

abusing mothers and pregnant women is not a substitute for

providing accessible, supportive and therapeutic treatment

for their addiction. Therefore, we fully support the NARAL

Foundation’s brief in support of the Petitioners.

The Legal Action Center is a non-profit organization with

offices in New York City and Washington, D.C.,

specializing in legal issues of concern to alcohol, drug and

AIDS prevention/treatment communities. The Legal Action

Center plays a major role in the policy debate and policy

formulation on issues affecting women with alcohol and

drug problems and their families, working to enact public

policies that promote increased access to care for them. The

Legal Action Center also provides legal representation to

individuals who have faced discrimination because of their

alcohol and drug dependencies. This petition raises issues of

great importance to the Legal Action Center and the

individuals and treatment programs it represents.

Medical Students for Choice represents over 5,000 medical

students and residents who are demanding a comprehensive

medical education including abortion training. 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

medical 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

government. We work on a grassroots basis at medical

schools and residency programs throughout North America,

sponsor national and regional educational meetings, provide

reproductive health clinical training externships, maintain a

presence on the Internet, and publish a quarterly newsletter.

Medical Students for Choice is dedicated to ensuring that

women receive comprehensive reproductive health care,

tie

including abortion. One of the greatest obstacles to safe,

legal abortion is the absence of trained providers. Abortion

and reproductive health care must be a part of standard

medical training and practice. As medical students and

residents, we are committed to ensuring that medical

practitioners are prepared to provide their patients with a full

range of reproductive health care choices.

The National Abortion and Reproductive Rights Action

League Foundation (“the NARAL Foundation”) is a

national, non-profit organization dedicated to keeping

abortion safe, legal, and accessible for all women. The

NARAL Foundation’s mission is to work for the right of

every woman to make personal decisions regarding the full

range of reproductive services, including preventing

unintended pregnancy, bearing healthy children, and

choosing legal abortion. In fulfilling this mission, the

NARAL Foundation promotes the input and participation of

a diverse group of individuals and is committed to combating

institutional racism and discrimination.

The National Asian Women’s Health Organization

(“NAWHO”) is a non-profit, community-based advocacy

organization that has significantly changed the health and

well-being of Asian Americans since its founding in 1993.

NAWHO’s mission is to improve the health status of Asian

American families through research, education, leadership

and public policy programs that empower women, and

address broader social justice issues for under-served

communities of the entire American population.

The National Black Women’s Health Project is the only

national organization dedicated to the health and well-being

of African American women. We support the right of every

woman — regardless of age, income, or education — to make

her own decisions regarding whether, when, and under what

conditions she will bear children and to receive confidential,

comprehensive and quality health care.

a.

The National Partnership for Women & Families, founded as

the Women’s Legal Defense Fund in 1971, is a non-partisan,

non-profit advocacy group that uses public education and

advocacy to promote fairness in the workplace, quality

health care, and policies that help women and men meet the

dual demands of work and family. The National Partnership

firmly believes that quality health care must never include

punitive policies that infringe on a woman’s reproductive

health. The National Partnership has a long history of

promoting and defending a woman’s right to choose by filing

amicus curiae briefs in major reproductive rights and health

cases.

The National Women’s Health Network is an independent,

member-supported organization dedicated to safeguarding

women’s health rights and interests. The Network advocates

for policies that will improve the health of women and

provides women with information and resources to assist

them in making better health care decisions. Nationwide, the

Network has more than 12,000 individual members and 300

organizational members. It is the only national member-

based organization devoted solely to the health of all women.

The National Women’s Law Center is a non-profit legal

advocacy organization that has been working since 1972 to

advance and protect women’s legal rights. The Center’s

primary goal is to ensure that public and private sector

practices and policies better reflect the needs and nghts of

women. Women’s ability to access the full range of

reproductive health services, including abortion services (the

fundamental right to which is recognized in Roe v. Wade) is

of profound importance to the women’s lives throughout the

country. Because of the tremendous impact that barriers to

health services can have on to women’s ability to participate

fully in society, the National Women’s Law Center seeks to

preserve their right to the full range of reproductive health

services.

m. F

Neighborhood Youth & Family Services is a 30-year-old,

Bronx, community-based, minority-led social service

agency. Its mission is to prevent the placement of children

in any but their natural homes whenever possible. The

agency serves two thousand families annually in its six

divisions. One of its largest divisions is a woman-specific

drug treatment program that has integrated domestic violence

services. The program also provides infant and childcare,

job development and placement, a basic education school

leading to a high school diploma, pre and postnatal care,

pediatric care as well as van services. It is a medically

supervised, drug free intensive day treatment program.

The Osborne Association (“OA”) is a 75-year-old non-profit

criminal justice organization that provides educational,

vocational and treatment services to prisoners, former

prisoners and their families. We have service sites in

Brooklyn, Manhattan and the Bronx in New York City, as

well as 10 city and state correctional facilities.

Physicians for Reproductive Choice and Health® (“PRCH”)

1s a national physician-led not-for-profit organization

founded in 1992. PRCH represents more than 3,700

physicians of various disciplines and _ non-physician

supporters. The mission of PRCH is to enable concerned

physicians to take a more active and visible role in support of

voluntary universal reproductive health. PRCH is committed

to ensuring that all people have the knowledge, equal access

to quality services and freedom of choice to make their own

reproductive health care decisions. Non-consensual drug

testing of pregnant women directly opposes PRCH’s

mission.

The ProChoice Resource Center (“PCRC”) provides on-site

workshops, extensive technical assistance, innovative print

and electronic publications, and other resources to the pro-

choice grass roots. PCRC also serves as a clearinghouse of

information about the grass roots for the reproductive rights

= =

community, policymakers, and the media. PCRC is an

independent, nonpartisan, nonprofit organization.

We are interested in Ferguson v. City of Charleston because

the issue of non-consensual drug testing of pregnant women

seeking obstetrical care affects the reproductive freedom of

women all over America, and the grass roots groups that we

work with consequently have a strong interest in the case.

Women In Need, Inc. (“WIN”) was established in 1983 by

Rita Zimmer, who serves today as President and CEO. WIN

serves more than 2,500 homeless and disadvantaged women

and children each year. WIN’s programs and counselors

address the leading causes of homelessness: domestic

violence, substance abuse, and lack of job skills or

education. WIN provides comprehensive services ranging

from childcare to educational programs to help clients

achieve permanent housing and compete for employment

opportunities that will allow them stable and secure futures.

We at WIN feel the mghts and needs of women are of the

utmost importance and we are constantly examining new

ways of implementing help to Women in Need of a broad

range of services that are currently unavailable to them now.

It is important that disadvantaged women are given a chance

to succeed and become independent wage earning citizens.

The YWCA of the U.S.A. is the nation’s oldest and largest

women’s membership movement. Operating out of

thousands of locations in all 50 states, the YWCA of the

U.S.A. represents approximately 2 million women, girls, and

their families. Because the YWCA’s Mission is to empower

women, to eliminate racism and to pursue justice, freedom

and dignity for all people, the YWCA has historically been

concerned about women’s health and access to health care

services. This concern extends to the quality of services, the

availability of health care to women of all socioeconomic

backgrounds, the nght of women to be informed about legal

es

options, and the right of an individual to make her own

decisions privately with her physician’s guidance based on

her own religious and ethical values.