Psychologists and public interest advocates alike are applauding a recent U.S. Supreme Court decision holding that public hospitals cannot secretly search through the drug tests of pregnant women and forward the results to the police.

The March 21 decision in the case Fergusen v. City of Charleston came in response to controversy over a 1989 South Carolina hospital drug-testing policy that had allowed medical practitioners to secretly screen pregnant women suspected of drug abuse for the presence of cocaine without their permission.

Women who tested positive on urine tests were at first simply arrested and later threatened with arrest unless they agreed to enter a drug-treatment program and stopped all drug use immediately. However, no appropriate treatments were available anywhere in the state for these women, in particular in the hospital that created the policy, according to Lynn Paltrow, the attorney who brought the case for 10 women arrested under the policy.

According to the hospital--part of the Medical University of South Carolina--the policy was created in response to the growing number of "crack babies" being born there. But public interest advocates say the policy had racist and sexist overtones: All but one of the 30 women arrested under the policy were poor and black, reflecting a tendency to target this vulnerable group. The policy likewise ignored patients' rights to medical confidentiality and threatened their ability to get good treatment, they say.

Kathy Sanders-Phillips, PhD, a psychologist who has conducted research suggesting that prenatal cocaine use may be linked to developmental problems in infants and children, concurs that such a policy unfairly targets poor, minority women.

"One thing that became clear to me when I was conducting this research was that much more attention was being paid to poor, low-income, minority women seen in public facilities than to middle- and upper-class women, despite the fact that drug abuse rates are also high among women who visit private hospitals," says Sanders-Phillips, director of research at the Center for Drug Abuse Research at Howard University and a faculty member at the University of California at Berkeley's School of Public Health.

In addition, Sanders-Phillips argues, it's by no means clear that cocaine is the worst offender in prenatal complications from substance abuse. That opinion received strong additional support in a March 28 article in the Journal of the American Medical Association analyzing the results of 36 studies on prenatal cocaine use. The article concludes that many developmental abnormalities attributed to cocaine exposure can be partially or completely explained by other factors, including prenatal exposure to tobacco, marijuana and alcohol and the quality of the child's environment.

"If we're going to criminalize drug use, then we had better apply this standard consistently, not just across racial and socioeconomic lines, but across all kinds of drugs," Sanders-Phillips asserts.

A policy to deter treatment

Perhaps the most glaring irony of such a policy is that it deters women from seeking treatment that would benefit them and their developing fetuses, others say. On a basic level, such a policy can prevent women from seeking treatment because they're afraid of imprisonment, say policy analysts at the Lindesmith Center and Drug Policy Foundation in New York.

And unfortunately, correctly targeted treatments for this population are sorely lacking. The state of South Carolina, for instance, had no treatment facilities focusing on the needs of these women at the time the case was brought, says attorney Paltrow.

Even when treatment is available, such women face enormous barriers to treatment, adds Christine Grella, PhD, a research psychologist at the Integrated Substance Abuse Programs at the University of California-Los Angeles. Transportation, childcare, medical coverage and taking time off from work are but a few of these, and treatment centers don't do much to help women jump these hurdles, she says.

"To penalize a few women when there are so many systemic barriers to treatment access for poor women is a misguided policy," Grella says. "There are so many women in the same circumstances as those in this case--low-income women whose drug use is one of many complex, interrelated problems such as poverty, mental illness, employment difficulties, parenting stresses and domestic violence--that the focus should be on increasing their access to needed services."

Research supplies an additional chilling statistic about the obstacles these women face, Paltrow notes: About 70 percent of drug-using women report having been sexually abused before age 16, and more than 80 percent had at least one parent who was addicted to alcohol or one or more illicit drugs.

According to Gwendolyn P. Keita, PhD, director of APA's Women's Programs, quality treatment of substance-abusing women is limited. Most treatment models and programs have been developed for men.

"Although additional research is needed," says Keita, "we already know that there are important gender differences among substance abusers, many of which affect treatment." For example, she says, women substance abusers are more likely to be depressed and to report depression on antedating the substance abuse.

Fourth Amendment violation

In the case Fergusen v. City of Charleston, the high court echoed the concerns of public interest advocates. The justices held 6-3 that the urine tests for cocaine without each woman's permission violated the women's Fourth Amendment right to protection from unlawful searches and seizures. For testing to be valid, the majority argued, the hospital would have had to gain patients' consent showing they understood that any medical tests performed on them could be used as evidence in a criminal case.

The policy, adds Paltrow, is part of a trend among some states to penalize rather than treat such women. That policy, she says, is fueled by anti-abortionists, who use a range of strategies to argue that fetuses are people with the full and complete statutory protections afforded to citizens.

In South Carolina, for example, the state child abuse laws can now be used to send women to jail for doing anything that may pose a risk to her viable fetus, using the reasoning that such behavior is equivalent to child abuse.

In the Supreme Court decision, the high court reversed a 1999 decision and sent the case back to the Fourth Circuit Court of Appeals to determine an ancillary point: whether the arrested women had given their consent to the drug testing by signing documents to that effect.

Tori DeAngelis is a writer in Syracuse, N.Y.