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Law Chat     Produced with FindLaw

Attorney Jennifer Granick discusses U.S. Supreme Court case about drug testing of pregnant women

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Chat time: 12:00 p.m. EDT, Wednesday, October 11

Editors Note: For another perspective on this subject, join Law Chat at 12 p.m. Wednesday, October 25, when Catherine Christophillis of the South Carolina Attorney General's office discusses the legal reasoning behind the hospital's drug testing policy in Ferguson v. City of Charleston, South Carolina. The case, argued before the U.S. Supreme Court this term, questions the constitutionality of a hospital policy of testing pregnant women for cocaine use, then turning over the test results to police.

(CNN) -- Defense attorney Jennifer Granick joined Law Chat on Wednesday, October 11, to discuss privacy and security issues raised in Ferguson v. City of Charleston, South Carolina, a case argued before the U.S. Supreme Court this week. Granick practices in the areas of high-tech and computer crime from her office in San Francisco, California. She defends unauthorized access, trade secret theft, and email interception cases nationally. She has written articles on wiretapping, workplace privacy and trademark law for Wired magazine. In addition, Granick has spoken to NASA computer security professionals about computer crime laws, digital forensics and evidence collection. Law Chat is produced with FindLaw. provided a typist for Granick. The following is an edited transcript of the chat:

CNN Host: Can you tell us about Ferguson v. City of Charleston, South Carolina?

Jennifer Granick: This is a case where a hospital in South Carolina had a policy where if pregnant women showed certain signs that led hospital officials to believe that they were using cocaine during pregnancy, they were subject to testing of their urine for the drug.

If their tests were positive, under certain circumstances the hospital would report the women to the police. Approximately 10 women, who had been arrested after giving birth at the hospital, challenged the policy, and they lost at trial. The Fourth Circuit Court of Appeals ruled against them, and the case is now before the U.S. Supreme Court.

Question from CharliGirl: Without a signed release, isn't that type of test an invasion of privacy?

Jennifer Granick: That's exactly what the women claim. They had informed consent for the testing of their urine in accordance with their medical care for pregnancy, but the hospital went beyond that, not only when it tested their urine for cocaine, but also when they revealed the results of those tests to non-medical personnel, and by that I mean to the police. So this is the very question the Supreme Court has to decide.

Question from Lilian: But on the other hand, isn't that a way to protect the life of the baby?

Jennifer Granick: That's what the hospital and the South Carolina prosecutors claim -- that it is the best way, and not a very intrusive way, of protecting the health of the baby. It is certainly something that the State of South Carolina has an interest in doing.

In these Fourth Amendment cases, what the courts do is weigh the effectiveness of the intrusion against the seriousness of the intrusion to the woman. And the Fourth Circuit came out on the side of South Carolina. But the Supreme Court could well go the other way because the Fourth Circuit did not take into account how much an invasion of privacy this is to the pregnant woman. And they just took for granted that the drug testing policy was effective in protecting the unborn babies.

Question from student: What type of drugs do doctors and hospitals regularly test for?

Jennifer Granick: That's a question you have to address to your personal physician. This decision to test for cocaine was made only if the woman made some sign of cocaine use, and they did not have a policy for testing for alcohol abuse, heroine, prescription drug abuse, or anything like that. But even more importantly, when you usually see your doctor, that is a confidential and privileged relationship. And what goes on is kept private between you and your doctor. Unfortunately, that's not what happened for the women in this case.

Question from CharliGirl: What kind of precedent is it setting that they are now worried about the life of a fetus which many say isn't yet a 'human being'?

Jennifer Granick: Under the law in South Carolina, a fetus over 24 weeks old is considered viable, and therefore like a human being. And South Carolina used that when they would arrest these women, and they would charge them with distributing drugs to a minor -- that minor being the fetus. I don't think that the issue of when a fetus is a human being is essential to the determination of this case. But it is certainly an important part of the state of South Carolina's position -- that they have a legitimate interest in protecting the health of the fetus.

Question from Lilian: I am not a mother yet, but I am horrified by the numbers in this country with respect to the use of illegal drugs. If not this way, which other way would you suggest to control this problem? Here, I believe we are not only protecting a future life, but also protecting the mothers' lives, won't you agree?

Jennifer Granick: One thing you have to realize about this case, which demonstrates why this policy is ineffective, is that every one of the women was arrested after she gave birth to her baby. This policy did not stop drug addicted women from taking drugs during their pregnancy, and one of the reasons addiction is such a problem in this country is because the criminal justice system is demonstrably ineffective at helping people overcome addiction.

If the purpose of the testing was to get the women into effective drug treatment programs, that might be a useful policy. But what happened here was initially they would just report the women directly to the police. Then they changed the policy after about a year and gave the women one chance at a drug treatment program. And if they failed that one time, then again they got reported to the police.

Jennifer Granick: One of the hallmarks of addiction is that it's very difficult for the person to stop using the drug. And arresting these women after they give birth, when they are still in their hospital gown, does far more to dissuade other drug addicted women from getting prenatal care than it does to stop the other addicted women from taking drugs.

Question from Fugue: Is it the job of the criminal justice system to help people overcome addiction?

Jennifer Granick: That's one of its jobs, yes. And that's because we don't want to overcrowd our jails and spend all that money, when we could help people to get off drugs and live a good life.

Question from student: Are the officials arguing that this is synonymous with compulsory tests for blood alcohol levels while driving?

Jennifer Granick: No. The argument is that the test is for a special need. And the special need is something important other than for law enforcement purposes. In this case, it is the health of the baby. So the reviewing court will balance the government interest in the health of the child and the effectiveness of the policy, against the degree of intrusion for the woman.

Question from CharliGirl: What ever happened to doctor/patient confidentiality?

Jennifer Granick: That's a great question that I think the Supreme Court needs to answer. One of the reasons the law recognizes doctor / patient confidentiality is to encourage the patient to be honest with the doctor, so the patient can get the best medical care. A policy like this abandons that goal.

CNN Host: What are fetal rights?

Jennifer Granick: If the law of the state views the fetus at a certain stage of development as alive, or as a human being, then the state can treat the fetus as any other human being. That ability is subject to the vast and complicated federal laws on the woman's right to choose and reproductive privacy.

Question from phx: The doctor/patient confidentiality does not extend to such things as gun shot wounds. Why is this different?

Jennifer Granick: I guess it is different in that when a person has a gunshot wound, they would definitely want to go to the doctor, and with these women, they won't definitely go to the doctor for their prenatal care. So when you're talking about the effectiveness of the policy, of allowing the doctor to report these things, there is a vast difference. The other difference is in the degree in which there is a violation of privacy, because if you were shot, everyone knows. But it's not public knowledge what your urine tests will read.

Question from kim: What state/states is this a policy in?

Jennifer Granick: This wasn't a policy in the state of South Carolina as much as it was a policy of a particular hospital, the Medical University of South Carolina. Other hospitals in other states may have this policy as well and I'm just not aware of it. But if the Supreme Court reverses in this case, every hospital in the United States will be prohibited from having this particular policy.

CNN Host: Do you have any final thoughts to share with us?

Jennifer Granick: These cases are difficult because we have an interest in making sure the baby is healthy. But oftentimes we use the explanation that we are protecting children when violating or invading the rights of adults. As citizens, we should look very carefully at these explanations to see whether we are just victimizing these addicted women without helping them get off of the drugs at all. I think the Supreme Court will give this case a very close look.


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