Major Medical Organizations Insist That Hospital Drug Tested Pregnant Women Without Informed Consent <br> U.S. Supreme Court Agreed that Tests Were Illegal Search and Asks Lower Court to Decide Consent Issue
On January 22, 2002, the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia will hear oral arguments in the case Ferguson v. Charleston to decide whether pregnant women who were drug tested by a public hospital in collaboration with the police, consented to the testing. Major medical organizations argue that to interpret consents to medical tests as if they were consents to law enforcement searches undermines the health-care-patient relationship and threatens basic principles of privacy and medical decision making. This follows the U.S. Supreme Court's March 2001 decision that the hospital's drug testing policy violated the 4th amendment's prohibition on unwarranted and non-consensual searches. "Government physicians and nurses should not act as agents of law enforcement, nor should they use 'routine' medical examinations to covertly gather evidence for use against patients in criminal proceedings," wrote the forty medical organizations and leading bio-medical ethicists who offered their expertise to the Fourth Circuit Court in a friend-of-the-court brief. The hospital maintains that the women did not only consent to medical treatment, but also to searches for criminal justice purposes. Professional ethicists agree that the standard medical consent forms the women signed fall far short of stringent requirements for a police search in a hospital setting. National medical organizations worry that weakened standards for informed consent will devastate the trust between a patient and doctor.
"The hospital's drug testing policy effectively gutted the doctor-patient relationship. The U.S. Supreme Court wisely reversed it and now the future of the doctor-patient relationship rests with the Fourth Circuit Court of Appeals," says Daniel Abrahamson, attorney for the medical organizations.
Crystal Ferguson and nine other women who were subjected to searches under the policy brought suit against the city and the hospital in 1993. If the Fourth Circuit rules in the women's favor it will support the U.S. Supreme Court's decision and protect proper medical procedure. If the Court rules against the women, it will be equating a patient's consent to medical tests with a consent to a police search, placing the relationship between patients and their health care providers in jeopardy.
Under the Medical University of South Carolina (MUSC) hospital policy, women who were secretly searched for evidence of drug use during pregnancy were arrested and taken to jail while pregnant or following labor based on a positive test. They were charged with child abuse or delivery of drugs to a minor. South Carolina's policy of prosecuting women who use drugs during pregnancy has been attacked by all major public health organizations in the country, including the American Medical Association and the American Public Health Association (both of which filed friend-of-the-court briefs in this case). The Supreme Court's decision cited the medical community's belief that these policies harm rather than advance prenatal health by discouraging women who use drugs from seeking prenatal care.
Crystal Ferguson testified in trial about the lack of access to treatment and mistrust cultivated by the policy: "As far as the law and the hospital is concerned, I have my doubts about how much you can trust them. Regardless of drugs or alcohol, if you're pregnant, you have the right to get prenatal care and I just feel like I didn't get enough help [and] I was asking for it before I was thrown into jail."