Background concerning Ferguson et. al. v. City of Charleston et. al.

March 09, 2006

It is safe to say that South Carolina has imposed the most punitive policies toward pregnant drug using women of any state. On October 27, 1997, in a case called Whitner v. State, the South Carolina Supreme Court declared that viable fetuses are "children."

Background concerning Ferguson et. al. v. City of Charleston et. al.

By Lynn M. Paltrow, National Advocates for Pregnant Women

It is safe to say that South Carolina has imposed the most punitive policies toward pregnant drug using women of any state. On October 27, 1997, in a case called Whitner v. State, the South Carolina Supreme Court declared that viable fetuses are "children." As a result, the court concluded that a pregnant woman who uses an illicit drug or engaged in any other behavior that might endanger the fetus can be prosecuted as a child abuser and sentenced to up to ten years in jail. It has been estimated that as many as 70 – 80 women have been arrested statewide as a result of policies of arrest beginning in 1989.

In 1989, the Medical University Hospital in Charleston, South Carolina, working in collaboration with the police and solicitor’s office instituted a policy of searching certain pregnant women for evidence of cocaine use and reporting and facilitating their in-hospital arrest. As the contemporaneous documents make clear, the policy was set up with arrest and punishment as its primary focus. For example on August 23, 1989, MUSC’s general counsel, Mr. Good wrote to then-Charleston County Solicitor Charles Condon to inquire as follows:

I read with great interest in Saturday’s newspaper accounts of our good friend, the Solicitor for the Thirteenth Judicial Circuit, prosecuting mothers who gave birth to children who tested positive for drugs . . .

Please 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.

(Emphasis added). On August 31, 1989, Solicitor Condon wrote to Charleston Police Chief Reuben Greenberg to ask him to consider co-chairing with Solicitor Condon a task force consisting of members from MUSC, the Solicitor’s Office and the CCPD. The purpose of the task force was "to consider possible prosecution of the mothers of drug affected babies. . ."

In 1989 there was not a single drug treatment program, in or outpatient that existed to provide treatment for pregnant women or new mothers. MUSC’s own drug treatment program within its Institute of Psychiatry refused admission to pregnant women. As a doctor on staff asked: "Is it fair to order these women to seek treatment and threaten them with incarceration, when rehabilitation will not be available?"

Women were selectively searched through urine drug screening, for evidence of cocaine use. If they tested positive they were dragged out of this predominantly Black hospital in chains and shackles, evoking sharp modern images of black women in slavery. All but one of the thirty women arrested at the hospital was African American. The white nurse, Shirley Brown, who implemented and ran the program admitted that she believed that mixing of the races was against god’s will. She noted in the medical records of the one white woman arrested pursuant to the policy that she lived "with her boyfriend who is a Negro." At MUSC, medical staff working in collaboration with the prosecutor and police, in effect conducted an experiment to see if threats of arrest and arrest would be an effective tool in reducing pregnant women’s drug use. The subjects of this experiment: poor black women.

Despite claims to the contrary, many of the women were never offered any drug treatment before being taken to jail. The state has however now at least admitted that
"[d]uring a short period of time when the Policy was first initiated, a positive test was immediately reported and the patient was arrested." Although, in response to widespread complaints about the policy, it was revised to provide, on paper, a treatment option, the policy in fact created a form of medical vigilantism which empowered the staff to order a woman to follow arbitrary treatment instructions or face immediate arrest.

In 1990, Edgar Horger, M.D., Shirley Brown, R.N., and Charles Condon, then Solicitor of Charleston, published an article, Cocaine in Pregnancy, Confronting the Problem, 86 J.S.C. Med. Ass. 527 (Oct. 1990), purporting to show that the policy of arrest reduced drug use without deterring prenatal care. This study had numerous methodological flaws that were not addressed in the non-peer-reviewed journal that it was published in. For example the study had no control group. Drug testing was done on a selective not universal basis. No documentation of any claims, including that women had been referred for treatment, was ever available. In sworn testimony for a deposition in a civil lawsuit challenging the legality of the arrests, Shirley Brown admitted that the all of the data on which the article was based came from her. She admitted that she recorded the "data" as "tick marks" on her personal employee time records that she was no longer in possession of. In deposition she also admitted that the article had no "scientific validity."

In 1994 several of the women who had been arrested pursuant to the policy filed a complaint with NIH alleging that the article constituted illegal research on human subjects. In response to this complaint the National Institutes of Health found this experiment to violate the law. See Letter from J. Thomas Puglisi, Ph.D., Chief Compliance Oversight Branch, Division of Human Subject Protections, OPRR, OER,OD (Sept. 30, 1994).

Significantly, an attempt was made by researchers at MUSC -- who were not involved with arrest policy’s implementation -- to determine the effect of arrests on women seeking prenatal care at the hospital. The researchers found that the data indicated, "the implemented cocaine screening policy was accompanied with a decrease in the utilization of PNC [prenatal care]…." L.G. Tribble et. al, Analysis of a Hospital Maternal Cocaine Testing Policy: In Association with Prenatal Care Utilization Patterns. National Perinatal Association 1993. Plaintiffs learned of this research during pre-trial discovery in their civil lawsuit. Before turning over the research and other documentation, the authors of this study prepared a letter cautioning that their conclusions were not definitive. Letter from David Annibale, et. al. (May 17, 1994). This letter was never submitted to the National Perinatal Association where the study had been accepted and presented in a poster session. In fact it appeared that this letter was prepared specifically in response to the lawsuit.

Finally, MUSC’s own biomedical ethicist, Mary Faith Marshall, Ph.D. concluded: "[a]s it stands, no evidence suggests that this particular policy promoted healthy pregnancies or reduced costs, instead the policy alienated a patient population. . . ." Mary Faith Marshall et. al., Letters to the Editor, 23 Journal of Law, Medicine &Ethics at 299-300 (1995); Philip H. Jos et al., The Charleston Policy on Cocaine Use During Pregnancy: A Cautionary Tale, 23 Journal of Law Medicine &Ethics 120 (1995).

Since the original Whitner decision was announced in July of 1996, there have been a number of disturbing reports relating to drug treatment and infant mortality. These reports do not constitute empirical research, but are consistent with predictions by numerous leading medical groups that punitive approaches will deter women from seeking drug treatment and prenatal care.

After the highly publicized prosecution of Cornelia Whitner, and the South Carolina Supreme Court’s original decision upholding her conviction in 1996, at least two drug treatment programs in the Columbia, South Carolina, area that give priority to pregnant women reported precipitous drops in admissions for pregnant women. Another one, run by Brenda Dawkins of the Keystone Substance Abuse Services Center in Rock Hill South Carolina, reported that:

. . . . while her center usually has about 20 pregnant women addicted to drugs, usually crack. Now there are only 10. She believes others are passing up counseling and prenatal care because they are afraid of being arrested. "I think they’re going over the state line to North Carolina to have their babies. . ."

Moreover, while it is not possible to know yet what role the decision played in statewide infant mortality figures for the following year, a report just released found that in 1997 the "percentage of babies who died in South Carolina increased for the first time this decade." Similarly, the state is now seeing a twenty percent increase in abandoned babies.