It was the ultimate fantasy for an elite group of law professors and legal journalists: role-play Supreme Court justices in one of the most controversial cases of the upcoming term. As the “justices” entered the courtroom, complete with flowing black robes, the audience rose in response to a law student’s familiar cry of the old French salutation: Oyez, oyez, oyez. Only the presence of C-SPAN cameras spoiled the authenticity of the recent moot court at the Institute of Bill of Rights Law at William & Mary Law School in Williamsburg, Va.–where the Virginia Declaration of Rights, the first constitutional Bill of Rights in the history of the world, was written.
On Monday, the real Supreme Court opens its new term. On Wednesday, it will hear oral arguments in Ferguson vs. City of Charleston, which challenges a state-run hospital’s policy of testing pregnant women for cocaine while they were receiving prenatal care. Under South Carolina law, a viable fetus is considered a person; therefore, a pregnant woman using drugs late in her term can be prosecuted for distributing a controlled substance to a minor. The arguments about this case from the William & Mary moot court are likely to presage those in Washington, D.C.
Professor Susan Herman of Brooklyn Law School, who represented the pregnant women during the moot court, maintained the hospital’s policy violated the 4th Amendment’s prohibition of unreasonable searches and seizures. Without individualized suspicion of wrongdoing, said Herman, the hospital was not justified in screening the women’s prenatal urine tests for cocaine and giving the results to police. Among the criteria the hospital used for choosing which women to test was no or late prenatal care–a more accurate indicator for poverty than cocaine use, according to Herman.
Herman also emphasized the disproportionate number of black women arrested under the policy (29 of 30; the lone white woman gave birth to a biracial child), and she noted that some women were taken away in shackles while still bleeding from childbirth. Such a policy, she said, punished women for being “pregnant while black.” She compared the policy to the controversial practice whereby police stop black motorists on routine traffic violations as a pretext for searching for drugs–an offense referred to as DWB, or driving while black.
Representing the hospital and the city was professor Steven Clymer of Cornell Law School. He supported the circuit court’s ruling that this case represented a “special needs” exception to the 4th Amendment, in order to protect fetal health. The purpose of the drug-testing policy, he said, was not to punish the women for lawbreaking–as evidenced by the fact that charges against all but two were dropped when they entered treatment. The policy was a reasonable and effective response to an epidemic of crack babies, argued Clymer.
He also pointed out that many states require doctors to notify police of evidence of child abuse, domestic violence, and gunshot wounds. Under South Carolina law, drug use by a pregnant woman late in her term would be considered child abuse. In response to the charge of discriminatory enforcement, Clymer cited statistics indicating that a disproportionately high number of the pregnant women who were black also tested positive for cocaine.
Joan Biskupic of USA Today, role-playing the chief justice, issued a disclaimer about the objectivity of the journalists when actually covering the Supreme Court, then proceeded to poll the justices about the case. She pointed out that the track record of the moot court in previous years had not always been accurate, citing its 5-4 decision to prevent Paula Jones from suing President Clinton while he was in office–which the real Supreme Court unanimously allowed (one can argue which court made the better decision).
To professor William Stuntz of Harvard Law School, the discriminatory enforcement of the drug-testing policy against black women was enough to defeat it. Fellow “justice” David Savage of the Los Angeles Times stated that the Supreme Court’s reasoning in such 4th Amendment cases was “we can’t figure it out, so we’ll say it’s a special need.” Linda Greenhouse of The New York Times also voted to strike down the policy, arguing that while the pregnant women had consented to drug tests by the hospital, they had not been informed that police would receive the results. Such consent was not entirely voluntary since poor women had nowhere else to go for medical treatment, noted professor Charles Abernathy of Georgetown Law Center, who cofounded the Southern Poverty Law Center.
Professor Robert Schapiro of Emory Law School best summarized the 8-1 decision of the moot court in favor of the pregnant women when he observed that the drug-testing policy “puts white coats on police officers.” There have been many casualties in the war on drugs–now the doctor-patient relationship appears to be one of them.
