In the early 2000s, authorities in Charleston, South Carolina, issued a policy that led to health care professionals at a state-funded hospital identifying pregnant women they suspected of drug use and testing them for cocaine use.
The policy then expected the hospital to report positive test results to police. Expectant mothers who tested positive were jailed.
Ten women—nine of whom had been arrested under the policy—sued the Medical University of South Carolina (MUSC) for being subjected to warrantless and nonconsensual searches done through urine samples given while they were at the medical facility for prenatal care.
When the case went before the U.S. Supreme Court in 2001, the Litigation Center of the American Medical Association and State Medical Societies stood up for patients’ rights in the precedent-setting case.
The AMA Litigation Center—in an amicus brief filed with several other organizations in the 2001 case Ferguson v. City of Charleston—told the court’s nine justices that the policy violated patients’ expectation to privacy to information exchanged in a patient-physician relationship.
It also informed the court that the protocol discouraged women who misused drugs from seeking prenatal care and that it was a generally ineffective way to prevent drug misuse.
The high court listened to what the AMA had to say.
Court cites patients’ privacy rights
A federal appellate court initially said that the searches were reasonable, citing the “special needs” doctrine that allows an exception to the U.S. Constitution’s Fourth Amendment’s search warrant or probable cause guarantee. Previously, that exception had generally applied for purposes other than law enforcement, such as administrative inspections or drug screenings. But the appellate court said the exception applied in this case.
The Supreme Court, however, stepped in and reversed that judgment because justices said the primary purpose of the program was to use the threat of arrest and prosecution to force women into treatment. That, they reasoned, did not fit into the “special needs” doctrine.
It was a win for patients and the patient-physician relationship.
In reversing the lower-court decision and not allowing Charleston to continue subjecting pregnant women to searchers that were harmful to patient care, the court referred to AMA policy and the AMA brief. These informed justices that the typical patient undergoing diagnostic tests in a hospital setting has a reasonable expectation of privacy.
“The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent,” the court said, noting the reader should consult the AMA brief.
The court also referred to the brief’s argument that the program did more harm than good for pregnant women, saying “it is especially difficult to argue that the program here was designed simply to save lives. Amici claim a near consensus in the medical community that programs of the sort at issue, by discouraging women who use drugs from seeking prenatal care, harm, rather than advance, the cause of prenatal health.”
Finally, in agreeing with the women’s argument that there was no information under the “rules of law or ethics … subject to reporting requirements,” the court referenced the AMA’s Council on Ethical and Judicial Affairs opinion E-5.05 (2000) that reporting is only required when “a patient threatens to inflict serious bodily harm to another person or to him or herself and there is a reasonable probability that the patient may carry out the threat.”
2001 precedent helps cases today
Cases arising out of Wisconsin and Pennsylvania posed similar questions on pregnant women’s rights in 2017 and 2018. And the lower courts considering the issue, had precedent set during the Ferguson case to help guide them in their rulings.
In the closing days of 2018, the Pennsylvania Supreme Court in In the interest of L.J.B., a minor ruled that a mother’s drug use during pregnancy cannot be found to be a perpetrator of child abuse against her newly born child. The 7th U.S. Circuit Court of Appeals ultimately ruled a 2017 case out of Wisconsin, Loertscher v. Anderson, moot because the woman moved out of Wisconsin.
The AMA Litigation Center joined other organizations in filing amicus briefs in each of these cases.
