While Congress frets about how insurance companies use medical information, the Supreme Court is considering a case with far more worrisome implications. Ferguson v. City of Charleston asks not just whether some people have the right to take secret peeks at your health but whether they can compel you to provide medical evidence against yourself.
At issue is a drug abuse intervention program hatched in 1989 by the Charleston cops and the Medical University of South Carolina. Under it, pregnant women seeking prenatal care were tested for cocaine with neither warrants nor the women's consent. Originally, if women tested positive, they were arrested for child neglect or for distributing drugs to a minor, sometimes just hours after giving birth. In 1990 the program was changed to offer drug rehabilitation before sending new or expectant mothers to the slammer.
Ten women are challenging the program on the grounds that, by neglecting to establish probable cause and secure a warrant before searching them, the health care workers who cooperated with the police violated their Fourth Amendment right to privacy. The U.S. Court of Appeals for the 4th Circuit found the searches constitutional under a "special needs" exemption that the women's attorneys say leaves pregnant women with less constitutional protection than other Americans-a situation they asked the Supreme Court to correct in October.
The Center for Reproductive Law and Policy, the public interest firm that is representing the women, points out that the program is not just bad law: It's counterproductive policy. Once word gets around that going to the doctor can mean going to jail, some pregnant women will shy away from important prenatal care. "I will never trust a doctor again," says Lori Griffin, who was arrested in 1989 during such a visit and spent the last three weeks of her pregnancy in jail. "They tormented me."