In the Name of the Children : Get Treatment or Go to Jail, One South Carolina Hospital Tells Drug-Abusing Pregnant Women. Now It Faces a Lawsuit and a Civil-Rights Investigation.
IT ALL BEGAN, NURSE SHIRLEY BROWN AND HER COLLEAGUES AT THE Medical University of South Carolina now say, with the pregnant woman who appeared at the emergency room one morning in October, 1988.
The woman was suffering from abruptio placentae--an abrupt separation of the placenta before labor. Her fetus was stillborn. They’d been seeing an increasing number of these abruptions at the hospital, a state institution in Charleston serving a largely indigent black population. The usual causes were conditions such as high blood pressure or trauma such as auto accidents. But the more recent cases didn’t appear to have such causes. This case didn’t appear to have any cause.
Brown and her boss, Dr. Edgar O. Horger III, then head of fetal-maternal medicine at the hospital, turned to the medical literature. In both professional journals and the popular press, they found, pregnant substance abusers were a hot topic. The figures were startling: One out of 10 fetuses in the United States is exposed to cocaine in the womb, affecting 375,000 babies a year. To Brown and Horger, sitting in genteel Charleston, such numbers sounded like a big-city problem. Still, article after article was suggesting cocaine as one cause for abruptions.
So Brown and her colleagues ran a urine drug screen on their patient. The woman tested positive for cocaine.
That was ground zero, they all agreed later. Their eyes now opened, Brown and her colleagues started running drug screens on other pregnant patients. Of the first four, three tested positive. Within one year, they had 119 positives, all but 15 of them women who’d first visited the hospital at the time of delivery.
They still didn’t have a solution, though. Try as she might, Brown--a manager for high-risk obstetrical cases--could not get these women to the Charleston County Substance Abuse Commission. Despite counseling and cajoling, not a single woman kept her appointment for drug treatment. Of the 15 who came in before delivery, only one even came back for additional prenatal care. The hospital next saw the others when they returned in pre-term labor and once again tested positive for cocaine.
What to do? How to stop this?
What to do, the hospital staff eventually decided, was to cross a treacherous line. Prosecutors across the country, they knew, increasingly were going after pregnant substance abusers, charging dozens with distribution to minors and child neglect. We will join them, Brown and Horger resolved. If our patients test positive and refuse treatment, we’ll hand them over to the law.
At the time, it seemed an ideal, if unprecedented, solution. The goal, after all, was not to put these women in jail; the goal was to coerce them into treatment. But not everyone has applauded. Nor has everyone entirely shared the hospital’s preference for treatment over jail. The decision to traffic with police and prosecutors, in fact, has drawn the hospital into an increasingly nasty quagmire, one that is as rich in calculated political posturing as in tortured ethical soul-searching.
Does society have a duty to intervene between a woman and her fetus? If so, when? Who or what public agent is responsible? What are the boundaries of government intrusion?
For having kicked up such questions, hospital and Charleston officials now face a $3-million civil lawsuit, a federal civil-rights investigation, a complaint filed with the National Institutes of Health and a chance of losing the hospital’s federal funding, if not its accreditation. Everyone from the American Civil Liberties Union to the U.S. Department of Health and Human Services has rushed here to join what is at once a revealing test of difficult national issues and a scorching clash between law and medicine.
All sorts of agendas, reaching well beyond the perplexing world of medical ethics, are being played out in Charleston. New York lawyers jump off airplanes waving the Constitution and stacks of legal briefs. Southern politicians lean into microphones to orate about “personal responsibility.” Feminists, hearing obvious echoes of the abortion debate, talk about control of the body and autonomy in the reproductive process. Such repercussions, coming from forces so far beyond their own world, have visibly shaken Horger, Brown and others on the hospital staff. They have not, however, persuaded them to back down.
Brown and Horger see the complexities, the imponderables, the obstacles, but they also see spontaneous abortions, pre-term deliveries, stillbirths and underdeveloped newborns with jumpy nervous systems. “It’s a real difficult issue here,” Shirley Brown says. “I can see both sides, I can see where everyone’s coming from. But don’t we finally have to make a decision? Don’t we finally have to make a choice?”
IT WAS IN AUGUST, 1989, THAT BROWN MADE HER FATEFUL DECISION TO call Charles Condon, at the time the elected solicitor, or prosecutor, for Charleston and Berkeley counties.
By then, MUSC’s drug-testing program had evolved considerably from its genesis nine months before. At first, the hospital’s criteria for such screening had been informal, if not random; when doctors suspected a patient of substance abuse, for whatever reason, they simply ordered a test. This approach had made some at the hospital uneasy. Might they be ordering tests for other than medical reasons? Might they be ordering tests because the patient was poor or black or sullen or not like them? Virtually all those getting screened and testing positive, after all, were indigent blacks.
Listening to such concerns, it occurred to Brown that MUSC could be accused of discrimination. So in April, 1989, seeking to standardize the process, the hospital adopted a more formal protocol. Drug screens would be ordered for patients with any of six indicators: no prenatal care; abruptio placentae; intrauterine fetal death; pre-term labor, intrauterine growth retardation and previously known drug or alcohol abuse. Using these criteria, MUSC still found that it was mainly screening poor blacks--in part because they compose much of the hospital’s patient pool--but hospital staffers no longer felt as uneasy about the selection process. Instead, they worried about the results they were seeing.
Month by month, the number of positive drug screens at the hospital kept rising. By summer, a full quarter of screened patients were testing positive for drugs--up to 24 a month. Not one went for drug treatment. Brown and Horger felt more than frustrated; they felt they were witnessing a crime.
Cocaine, they knew, easily travels through the placenta to the fetus. There is no conclusive evidence about the drug’s lasting impact on infants, since follow-up studies are scarce, and anecdotal reports of “neurobehavioral problems” don’t separate cocaine’s impact from influences such as poverty and family instability. But its immediate effects were often apparent at MUSC. Withdrawal, irritability, lethargy, stiff muscle tone, problems sleeping and eating, cardiovascular dysfunction, aversion to loud sounds or handling--doctors could usually spot the exposed newborns.
It seemed to Brown and Horger that these were abused children. If so, wasn’t the hospital staff legally responsible? Weren’t they morally responsible? “We were not trying to rid the streets of cocaine,” Horger recalled. “We were trying to stop harm to the fetus.”
The Charleston solicitor’s interest, however, proved somewhat different. Charles Condon nearly climbed out of his chair when Brown and others from MUSC, sitting in his office, revealed that they’d identified and treated more than 100 pregnant substance abusers in the past 12 months.
“This has been going on?” he demanded. “This has been going on?” In Condon’s view, the hospital had been doing nothing less than harboring criminals. He had a little problem with the fact that they’d known about cocaine users for a year. The hospital, he believed, had to report these cases once they had viable fetuses.
Condon’s response reflected, in part, his particular bent. A Charleston native from a large Catholic family, Condon is, at 41, running for state attorney general after 12 years as county solicitor, a post he first won at age 27--"the youngest circuit solicitor ever elected in the history of South Carolina,” his resume proudly notes. A Republican, Condon possesses the type of unabashed political streak that leads him to reveal, out of sheer delight, the pragmatic calculations--Who could complain? Who has an interest in this?--that shape his positions. “That’s the real world” is among his favorite observations.
But even more than his personal propensity, Condon’s response reflected a growing pattern in law enforcement across the country. With medical advances giving fetuses ever more social recognition, a number of prosecutors have been inspired to treat fetuses as children. In the past decade, they’ve charged more than 160 pregnant substance abusers in 24 states with child neglect and distribution of drugs to minors. That appellate courts have overturned virtually every conviction on such charges, flatly rejecting the notion of applying child protection laws to fetuses, was no discouragement to Condon.
“It’s nice you came in,” Condon told Brown and the others sitting before him. “But the fact is, you have to come in. There’s no patient-doctor privilege on this. If you don’t report it, it’s a crime.”
From there, events moved rather swiftly.
Together with Charleston Police Chief Reuben Greenberg, Condon called an interagency community meeting to “develop a policy as to possible prosecution” of pregnant substance abusers. Within three weeks, this task force had hammered out its plan. That same day, Police Capt. R.H. Roberts explained it in a memo to all central detectives, declaring it “effective immediately.”
When a prenatal patient at the hospital tested positive, she would be counseled, usually by Brown, then presented a letter from the solicitor offering to defer prosecution if she successfully completed a drug treatment program. If she refused, failed to complete or tested positive again, MUSC would notify the police, who would issue an arrest warrant. If a patient was already at the stage of delivering a child and she or the baby tested positive, there would be no such warnings or second chances. The Department of Social Services would be notified to take the newborn, and the woman would be arrested immediately after her release from the hospital. The hospital contact in all cases would be Shirley Brown. If the fetus was “viable,” the charges would include drug distribution and child neglect. The basis for arrests would not be limited to positive drug-screen results; written or oral statements made by the patient to “third parties” would suffice.
There were, it should be said, more than a few expressions of early concern at the hospital about this “interagency policy,” as it came to be called. A medical resident named Birgit Pols expressed discomfort about acting as an arm of the law. She was distressed that MUSC was applying this policy only to a selected population of indigent blacks; if nurses and doctors screened everybody, she knew from studies and private reports, they’d be amazed at how many positives they’d get. Kathleen Straight, then nurse manager of the neonatal intensive-care unit, told a documentary film team that she thought it dangerous to be setting infants against mothers and labeling substance abusers and their babies as bad. The medical director of the neonatal intensive-care unit, Dr. Celeste Patrick, wrote the Medical University president to point out “serious flaws” in the program, including insufficient drug-treatment facilities in Charleston and “thinly veiled discrimination against . . . poor black women.” The hospital’s general counsel, Joseph C. Good Jr., worried about legal liability as well as other problems. In one letter, he asked the police to obtain a subpoena for medical records when they came calling with arrest warrants, in order “to protect the Medical University . . . from any allegations of breach of confidentiality.” In another letter to a senior assistant state attorney general, he wrote, “This is not a perfect program. . . . I would prefer to have the mothers sign an informed consent for a drug screen. . . . I would also prefer the DSS be notified rather than law enforcement. . . . The other weakness in this program is that the main prosecutions have been against black indigent mothers. . . .”
Such moments of hesitation, however, apparently were overwhelmed by the enthusiasm of those in charge. In fact, according to neonatologist Patrick, the hospital warned doctors that “nonsupport” of the program “may result in revocation of our MUSC-provided malpractice insurance.” Months later, perhaps as a result, Horger could not even recall the plan’s early critics. “Not only didn’t I have a problem with the policy, I was happy with it,” he said. “I welcomed it. I thought at the time it was right.”
By then, though, the hospital’s objections might not have mattered. In joining hands with the world of law enforcement, the medical community plainly had lost considerable control. By the time MUSC’s board of directors officially adopted the interagency policy on Nov. 27--some six weeks after Capt. Roberts’ memo had declared it “effective immediately"--the arrests had already begun, without use of subpoenas.
Pregnant substance abusers’ first awareness of the new policy usually came not from the hospital but from their television sets. There they began seeing a series of public-service announcements featuring the county solicitor. “And not only will you live with guilt, you could be arrested,” Condon explained in one spot. “This is a tragedy you can prevent. . . . If you stay with the (treatment) program, you won’t be arrested. Wake up from the nightmare. Think about your baby first. . . .”
Since MUSC was the only high-risk obstetrical center within 50 miles for indigents, even those frightened by Condon’s words had little choice but to go there, particularly if they depended on Medicaid. Once at the hospital, they had to sign a general consent for medical treatment that--without explicitly saying so--allowed, among many other things, a drug screen. Those who tested positive soon found themselves receiving visits from Shirley Brown. Those unpersuaded by Brown soon found themselves being introduced to a police detective.
It is hard to verify all these women’s stories, partly because many are homeless or rootless. Those who do come forward do so in the foreign milieu of their attorneys’ offices, where it is difficult to get past carefully phrased statements that often, in their personal details, happen to dovetail nicely with the lawyers’ general legal arguments. Nonetheless, it seems clear that at least some of those arrested were taken from their hospital room hours or days after delivering and led to jail in handcuffs and shackles. Others sat in jail cells waiting to give birth, then, when in labor, were brought by ambulance, in handcuffs and shackles, to the hospital. One tells of being seized in a chokehold, near full-term, and escorted forcefully into treatment. Most describe impoverished lives supported by food stamps, Aid to Families with Dependent Children and, in some instances, prostitution. Several talk of backgrounds full of missing husbands, mentally ill parents and early shunting to foster homes. Virtually all make a point of calling Brown “nasty” or “cold” or “degrading.”
“Shirley Brown and another nurse came to my room and told me my baby tested positive,” said Ellen Laverne Knight, recalling the day she delivered her third child at MUSC in November, 1989. “I gotta sign this and do more tests, they said. Next day, they brought my roommate’s baby to her, but not mine. Nurse Brown was a bitch. She came and said I had to go into a room to talk to someone. It was the police. They said I have the right to remain silent. I found out I was going to jail. They brought my clothes, they handcuffed me, they put a sheet over my hands, they pushed me out in a wheelchair. I spent the night in city jail without a sanitary napkin. . . .”
Telling this story, Knight was sitting in a lawyer’s conference room in downtown Charleston, dressed in a business suit. Drug-free after undergoing two three-month treatment programs, she spoke with composure, but also with obvious bitterness. Yes, she said, she’d done coke two days before her baby’s birth. But she took care of her children, made them meals. She never got high in her home. Depression is what drove her to drugs, depression from being unable to find a job, depression from being unable to get her children’s father to make court-ordered support payments. “It’s hard to explain the reality of the addict,” she said. “When you get the urge, it overrides everything. I definitely would have gone to treatment if they’d offered. Instead, they sent me to jail and took my baby.”
After watching 10 such arrests in three months, Brown and others at the hospital felt compelled to remind the solicitor that they wanted patients going to treatment, not jail. Automatically sending women to jail after they’d delivered their babies was purely punitive, Brown pointed out. Treatment would help after delivery as much as before. Everyone should get warnings, everyone should be offered treatment.
“Amnesty for all” Condon called it, consenting only reluctantly to give options to those delivering, instead of hauling them directly to jail. For the good of the program, he’d compromise--but it rankled.
“The truth is, we have an abysmal record of prosecution in this,” Condon said later. “If we wanted to be punitive, we would have marched them down, given high bonds, packed that jail. If they want to see punitive, we can get punitive. This may be punitive in New York, but here, it’s a kid-glove approach. Practically speaking, they’ve got to break into jail to get there.”
Not everyone agreed. Agitated word of Charleston’s program soon began to spread. One day in early 1990, the phone rang in Lynn M. Paltrow’s office at the ACLU Reproductive Freedom Project in New York. Paltrow, then 31, was already one of the nation’s leading litigators responding to “fetal rights” cases, already one of the most visible warriors in the field of reproductive-rights law.
Her caller wondered: Have you heard what’s going on in South Carolina?
ALTHOUGH THE CHARLESTON POLICY WAS IN SOME ways singular, its underpinnings were, to Paltrow, all too familiar.
The same anti-abortion argument that she’d been fighting for years--the premise that the fetus has rights--was exactly what she now was hearing across the country as justification for punishing pregnant substance abusers. Although she didn’t think all the prosecutors in these substance-abuse cases were necessarily anti-abortion, she still feared the ramifications.
After all, she reasoned, if it’s a crime to endanger the life, health and welfare of a fetus, then virtually any action by pregnant women could become the basis for criminal prosecution. You could require women to take folic acid, you could prevent them from having babies as teen-agers or after 40, you could mandate what they eat, how they exercise, whether they have sex.
Paltrow already had served as co-counsel in virtually all of the most critical early prosecutions of pregnant substance abusers. She’d successfully fought Jennifer Johnson’s prosecution in Florida, Kimberly Hardy’s in Michigan, Pamela Rae Stewart’s in California. Now, in early 1990, South Carolina seemed to be presenting a still larger battlefield. This was about even more than women’s rights or fetal rights. This was about civil rights and racial discrimination. This was about sane public-health policy.
It didn’t take Paltrow long to find a host of esteemed professors, doctors and medical groups that agreed. The list eventually included such experts in their fields as Dr. Barry Zuckerman, chairman of the department of pediatrics at the Boston University School of Medicine and Boston City Hospital, and Dr. Jay Katz, professor emeritus of law, medicine and psychiatry at the Yale University Law School. In the mound of essays, declarations and studies on Paltrow’s desk, these specialists offered all manner of objection to Charleston’s policy.
The policy, they argued, violates the right to privacy in medical information, the right to refuse medical treatment, the right to procreate, the right to equal protection under the 14th Amendment. The policy forces doctors to be cops and gives the judgment of doctors--or nurse Brown--the force of law. The policy treats drug addiction as a crime rather than an illness and allows for no relapses, which are expected at treatment centers. The policy frays the doctor’s relationship with patients. The policy violates all notions of informed consent. The policy is tantamount to human research, without the required approvals. The policy, no matter what criteria are used, targets poor blacks by screening only at an indigent center such as MUSC. The policy leads society down a slippery slope--if you’re going after women for harming their fetuses, what about drinkers and smokers, whose behavior produces, overall, greater and more lasting harm each year than cocaine users?
Above all, the academics and doctors assembled by Paltrow argued that the policy, while mandating treatment if you want to avoid jail, ignores the fact that appropriate treatment programs for pregnant addicts just don’t exist in the Charleston area. By “appropriate,” they mean outpatient programs that provide transportation and day-care and long-term residential programs where mothers can live with their children, isolated from the type of potentially violent male addicts they’re all too familiar with.
On this point there can be little dispute. Until the recent opening of the Sojourner Center for Women, which serves only one ZIP code in the city, there was no outpatient program in Charleston that offered day-care or direct door-to-door transportation; there is still no residential program specifically for women and their children. The Department of Alcohol and Other Drug Abuse Services (formerly the Charleston County Substance Abuse Commission), where MUSC directs most pregnant substance abusers, counsels all kinds of abusers, often in group therapy sessions. MUSC itself, in applying for grants, has expressed “serious concern” that needed services “are not available” at the hospital or in the Charleston community. Counselors obliged to ask anxious, depressed mothers to leave their children and ride buses an hour or more across town readily confirm such concerns. Women will come, the counselors claim, only if they feel they and their children are safe. Otherwise, threats and coercion will just drive them away.
That, some believe, is precisely what’s been happening in Charleston. In a South Carolina medical journal article, at various professional gatherings and even in Condon’s resume, the trio of Brown, Horger and Condon have hailed a “marked” decrease in positive drug screens--from 24 to four or five a month--but specialists such as Zuckerman think this MUSC report “deeply flawed.” How do they know the hospital hasn’t merely driven most substance abusers away?
It is hard to judge all these arguments. It is true, for example, that Charleston is targeting poor blacks by screening only at MUSC--but it is also true that the 1991 South Carolina Prevalence Study found black women nearly six times more likely to use cocaine than white women, and women without medical insurance 17 to 18 times more likely. While it is true that more appropriate treatment programs are needed, it is also true that no one really knows if such programs would attract all the pregnant substance abusers who now stay away. Whether to talk about a “failure of personal responsibility” or “the disease of addiction” is in some way, finally, a question of philosophy, not fact.
The central argument against coercion echoes that of many prominent medical organizations. The American Medical Assn., the American Academy of Pediatrics, the American Nurses Assn., the American Public Health Assn., the March of Dimes--in recent years they have all ringingly condemned the national trend toward use of coercion and legal threats. “Criminal sanctions or civil liability for harmful behavior by the pregnant woman toward her fetus are inappropriate,” resolves the AMA. “The public must be assured of non-punitive access to comprehensive health care which will meet the needs of the substance-abusing pregnant woman,” proclaims the AAP. “The threat of criminal prosecution is counterproductive,” declares the ANA.
As the debate in Charleston has developed, such statements have meant more and more to Paltrow, for they’ve helped in her critical effort to keep the matter from being framed as a collision between women’s rights and fetal rights. This is the tricky heart of the controversy.
Personally, Paltrow’s heart goes out to pregnant substance abusers; having grown up on Long Island watching her parents regularly march for social justice, she is one of those inclined to talk about “the disease of addiction” and “the burdens of poverty.” But she knows these substance abusers are enormously unpopular with others. She knows that, as impressive as the intellectual arguments might be in favor of women’s reproductive rights, they pale for many in the face of a sickly newborn twitching from a cocaine rush. She knows she’d lose support, even among those committed to women’s rights, if people felt forced to choose between pregnant substance abusers and their babies.
The medical community’s policy statements provide Paltrow with a way to avoid this perilous choice. “Even if you care only about the baby, even if you don’t give a damn about the mother, you should still oppose Charleston’s policy,” Paltrow finds herself able to argue. “All evidence is, this frightens them away from prenatal health care that’s good for the baby. You can’t punish the woman without punishing the fetus. You need to come up with policies that help both. Threats don’t make sense. Jail doesn’t make sense.”
That sentiment is, in a sense, the heart of her case. To challenge Charleston’s policy in court, however, Paltrow needed not just experts and arguments. She also needed clients who’d actually been prosecuted. So she sent feelers to South Carolina attorneys, and she waited. Not until early last year--by then she’d left the ACLU to co-found the Center for Reproductive Law & Policy in New York--did Paltrow locate the women she wanted.
One was Crystal Ferguson, a tall, thin, outspoken 31-year-old African American who had not taken kindly to her treatment at MUSC. She lived in a trailer with two sons, 10 and 11, and a daughter, 2. She was happy to join a civil suit; she thought someone should pay for what they’d done.
She’d been using drugs when she became pregnant with her little girl, she told Paltrow and Susan Dunn, a local Charleston attorney who’d joined the case. But she hadn’t considered herself an addict. She thought she could stop using, she thought she had it under control. She went to a local health clinic for prenatal care, where she denied drug use, since she’d seen the solicitor talking on TV and was afraid of being arrested. Instead, she tried to overcome her addiction herself, but couldn’t. At 32 weeks, she was referred to MUSC, where she tested positive for cocaine. You go to a residential substance-abuse program for two weeks, Shirley Brown informed her, or you get arrested. At first, Ferguson agreed, but when she went home to pack, “I saw the situation my kids were in. There was no one to take care of them. Someone had stolen our food stamps and my unemployment check while I was at the hospital. There was no way I was going to leave my children for two weeks, knowing the environment they were in.” She called the hospital and asked if there was a place she could go with her sons. Told there was not, she refused treatment and avoided prenatal care the last two months of pregnancy. She returned to the hospital only to deliver a full-term baby girl--and to once again test positive for cocaine.
The other woman was Theresa Joseph, a 35-year-old African American who came to be known in court papers anonymously as Monica Roe. Small and flashy looking, with light skin and a Yankee accent, she was more reluctant to fight than Ferguson; she was more inclined to disappear than stand her ground. Yet she, too, was angry. Supported by AFDC and disability payments, she had a 10-year-old son who lived with her and other children living elsewhere.
She’d used drugs during her pregnancy, she told Paltrow and Dunn, and avoided prenatal care entirely because Condon’s TV announcements frightened her. She’d ended up at MUSC anyway because of a severe foot infection. There, Brown, learning of her history of drug use, came to visit. Joseph had heard about Brown, had heard people talk about her as if she were a witch. Brown told her she’d lose her baby and go to jail if she didn’t go into treatment. Afraid of being arrested, she left the hospital that night--just put on her clothes and ran out. Later, realizing she needed help, she returned to the hospital to ask Brown for entry into a treatment program, but they gave her an appointment for 3 1/2 weeks later. By then, she’d lost her nerve and didn’t keep the appointment. She next came to MUSC in pre-term labor at 7 1/2 months. They didn’t let her see her baby after it was born. The baby, Shirley Brown told her, had tested positive for cocaine.
In both cases, MUSC had called the police, who’d arrested, handcuffed and led the women to jail, Ferguson from her home, Joseph from her hospital bed. Ferguson felt like she was dying; Joseph screamed and cried as they led her away. At bond hearings, David Schwacke--Condon’s successor as solicitor--had charged them with distribution of drugs to a minor. Ferguson stayed in jail 11 hours, Joseph three weeks.
“I now understand more about addiction,” Ferguson said in an affidavit to the court. “I was a sick person. I made a mistake, but MUSC did not make it better. The staff was very insensitive, especially nurse Shirley Brown. . . . I was just another black drug addict to them. . . . They locked me up like I was a mass murderer. If someone had offered me a program where I could have brought my children, I would have gone. . . .”
Getting Ferguson and Joseph’s cases dropped would prove to be the easiest of Paltrow’s legal tasks. Few South Carolina judges were buying the attempt to treat fetuses as children; in 1992, a state appellate court had tossed out the child-neglect conviction of a pregnant substance abuser, basically ruling it a nonexistent charge. So when Paltrow and public defender Ted Phillips--supported by the American Public Health Assn. and 17 other medical and civil rights groups--moved in May, 1993, to quash the distribution charges against Joseph and Ferguson, Schwacke surrendered without a fight. By agreeing to dismiss the charges against those two and rescind the bench warrants on five others similarly charged, Schwacke hoped to preserve the Charleston policy’s options and avoid an even worse legal precedent.
Paltrow wasn’t finished, though. In October, she filed a $3-million class-action complaint seeking compensatory and punitive damages as well as a preliminary injunction “to prevent defendants from continuing to conduct an unconstitutional experiment on African-American women. . . .” In January, she filed a formal complaint to the National Institutes of Health Office for Protection from Research Risks, accusing MUSC--because it published a medical journal article--of “conducting research on human subjects, including our clients,” without the review and approval required by the National Research Act. In February, the federal government, perhaps taking the cue, revealed it had opened a civil-rights investigation of the MUSC program. Civil rights investigator Roosevelt H. Freeman started knocking on doors and asking questions in Charleston. By then, four more women had come forward, signed affidavits and joined the lawsuit.
For the moment, Paltrow seemed on a roll. The hospital’s medical staff was reeling and ducking. That week, several MUSC doctors declined invitations to testify in the state capital about pregnant substance abusers, while others didn’t even return phone calls from the hospital’s own public-relations office.
Soon enough, though, a certain resistance to Paltrow’s attack became apparent. Soon enough, the abiding aversion in the South Carolina low country to pregnant substance abusers, and to folks from out of state delivering moral instruction, began to emerge. When the federal civil rights investigator asked the county solicitor to document everything he said--every trifling fact, every off-hand statement--more than a few began to grumble.
“That’s not the way it’s done down here,” Schwacke later observed. “Down here, people trust each other.”
CHARLESTON IS A UNIQUE place, at once civilized and disinclined to embrace imported notions. On the winding cobblestone and brick roads of this gracious but insular Southern town of 80,000, dozens of grand Colonial and antebellum homes are still occupied by direct descendants of the families that built them in the early 1700s. Cannons on the East Battery still aim across the confluence of the Cooper and Ashley rivers at Ft. Sumter, as they did at the start of the Civil War. This is a town that was flourishing well before the Revolution under management of a sophisticated aristocracy, leaders who grew wealthy in the rice, indigo and slave trades, leaders who were the first to fire on and secede from the Union.
References here are to “our cocaine problem,” not “our interagency policy problem.” Charleston’s policy is still in place; Shirley Brown still requires women who test positive to choose, sometimes on the spot, between treatment and immediate arrest.
“There’s no controversy here,” announces Reuben Greenberg, Charleston’s purposefully provocative police chief, as he paces about his office, eyes glinting. “Only California types and ACLU types are bothered by this, and no one cares about those types here. They have no power here.”
That surely is overstatement, but not by much. The policy’s supporters are many, and they are little swayed by Paltrow’s pile of briefs, reports and affidavits. They are more impressed by the fact that of some 200 women facing prosecution under the policy, 154 went to treatment and only two of the 46 arrested actually received sentences. They remain impressed even when told that no one really knows what happened to those women once in treatment.
How can you say we’re driving patients from prenatal care, they ask, when most substance abusers never even come for prenatal care? How can you say women don’t go to drug treatment because existing programs are “inappropriate,” when most haven’t even tried them once, haven’t even seen what they’re like? How can you say doctors shouldn’t cooperate with the law, when they already must report everything from gunshot wounds and rapes to child abuse? How can you compare cocaine to alcohol, when one is legal and one illegal? How can you say cocaine’s impact isn’t lasting when its enormous cost drains a world of shrinking medical resources?
It is not hard to see why this last point draws particular attention from the policy’s supporters. The average initial hospital visit for a cocaine-exposed baby costs $24,000 at MUSC, compared to $500 for a normal delivery. One drug-exposed baby stayed a year, costing $731,000; then his mother delivered another drug-exposed infant who stayed four months and cost $167,132. What with developmental follow-up, special education and foster care, one federal report calculates the total cost of each drug-exposed baby at $1 million.
When not talking about such cost issues, Charles Condon focuses on the theme of personal responsibility.
“Are we really to blame society?” he asks. “These women want day care and free transportation, but who’s taking care of their kids when they’re on coke? Who’s providing transportation to go get the drugs? Suddenly they’re supermoms who won’t abandon their kids. That these two women want a South Carolina jury to give them $3 million for what happened to them. . . . It’s frightening. If we can’t act in situations like this, when can we act?”
Equally adamant is Police Chief Greenberg, who readily addresses the charges of racial discrimination. A black Jew (by way of his Russian immigrant grandfather), a former Berkeley activist, a onetime sailor, rodeo bull rider and college professor, he is a man given far more to irreverence than Southern gentility. He is also a man given regularly to expressing impatience with “all that psychological sociological crap” that blames criminal activity on impoverished social conditions or bad parenting. Once, at a drug forum in Washington, D.C., after listening to Lynn Paltrow explain that cocaine wasn’t permanently damaging, he rushed up to her, got right in her face, even though they’d never met. “How can you say that?” he demanded. “Cocaine mothers are killing their babies; how can you say that?”
Sitting in his office another day, he explained: “I see hordes of people, mainly black, walk around in a daze. The drug crisis has a tremendous impact on the black community. I wouldn’t care if it were all blacks who got arrested. This policy is helping black kids. The racial aspects don’t bother me. God, this whole political correctness thing. . . .” With that, Greenberg jumped up and fell on his knees. “I pray for when the majority of blacks in jail are there for tax evasion,” he said, raising his arms to the ceiling. “Then we will have made it--then we’ll be part of the American scene.”
In the end, those in Charleston and elsewhere who support the policy just don’t buy Paltrow’s effort to close off the fetal-rights debate. To them a mother and a fetus’s interests are not always the same. To them, what’s most important here is not abortion rights or women’s rights or civil rights. To them, what’s most important here, finally, is the health of the child when born.
“I’m not a lawyer,” Shirley Brown said with a shrug. “I have two patients, mother and unborn child. One patient can talk, one can’t, and people on drugs don’t always make the best decision for themselves. Sometimes you’ve got to choose between your two patients. We took the stance that you’ve got to choose for the unborn patient.”
Speaking these words, Brown was sitting in the hospital’s public-relations office, having arrived 90 minutes late for an interview. She blamed her delay on the need to deal with an agitated addict high on heroin and cocaine. The legal complaints and news media commotion, she said, “create an ominous portrait and make patients very apprehensive. You take people using drugs, who already are afraid, and make them more afraid. This is making my job harder.”
The mother of a 19-year-old daughter, Brown is an earnest woman in her early 40s, born and raised in small-town South Carolina, who enjoys piloting a private plane around the state in her off hours “to see the world from a different, more peaceful perspective.” Watching her march into a room with self-assured composure, hearing her speak evenly and directly, even the more generous involved in the Charleston controversy have felt inspired to call her “steely.”
Now, however, she sounded more wounded than belligerent.
She was raised in a religious home, Brown explained; she was raised in church. Her parents--her dad had a small insurance agency, her mom worked in a bank--loved her, loved her two sisters. Sundays, the whole family would get together with her mom’s seven brothers and sisters, the gatherings full of children, the cousins like siblings to her. Family mattered, she believed. Children are a precious asset, children are our future, children are our dreams. She didn’t understand this furor, she didn’t understand why people thought her a witch, she didn’t understand why people didn’t want to help children.
“You start to talk with care and compassion,” she said of her visits with patients. “But you must make them understand. So you tell them--get treatment, don’t get arrested, I don’t want you arrested. But if you continue using drugs, you . . . will . . . be . . . arrested. I don’t yell. I also don’t say"--here Brown momentarily adopts a soft, cooing voice--" 'don’t worry about it.’ I tell them some have been arrested. That’s why they get upset. If you’re on drugs, and you’re told you will go to jail if you don’t stop, and you don’t want to stop, then the person telling you is mean.”
Brown blinked hard, her face flushed. “How would you feel?” she continued. “How would you feel? I’ve had patients looking through their pocketbook to get a card from that attorney (Lynn Paltrow) to sue me. ‘You can’t make me go into treatment,’ they say. ‘You’re violating my rights. I’m going to call this attorney.’ How’d you like it if you were threatened with a lawsuit each time you walked into a room?”
After two hours of conversation, her visitor rose to leave, but Brown did not want to stop.
“No patient was publicly seen being arrested at MU,” she said. “It was always done low-key and quietly. Plainclothes officer, cloth over the handcuffs, out the back door, unannounced. . . . We’re trying to help pregnant women. . . . I don’t know anyone who’s perfect.”
Her visitor now at the door, Brown still couldn’t let go.
“How would you like it? I can combat the truth, but this, what they’re saying about me. . . . Once said, there’s no recovering. . . . Do you see that bad, mean monster nurse Brown? Is that what you see? Does it look like I have horns? Is that what you see?”
“THIS IS NOT YOUR GARDEN VARIETY case,” a visibly disgruntled U.S. District Judge C. Weston Houck muttered during his first morning of exposure to the various arguments in the case titled Crystal Ferguson and Monica Roe vs. City of Charleston et. al. “This is going to be a complicated constitutional case.”
That was on Wednesday, Feb. 16, at a hearing called to consider Paltrow’s motion for a preliminary injunction. Charles Condon and Shirley Brown were sitting at the defendants’ table, Paltrow and Susan Dunn and two other lawyers at the plaintiffs’ table. Within minutes, it was apparent that Paltrow’s momentum had hit something of a brick wall in Judge Houck.
Called to speak first, Paltrow, having spent hours the night before preparing, rose clutching a legal pad full of notes. The mission she faced was daunting; to get an injunction, she needed to prove her two particular clients faced imminent, irreparable danger.
“I would like to begin . . . by explaining what we’re not asking for today,” she said. “We are not asking this court to enjoin MUSC from counseling its pregnant patients--"
That’s about as far as she got.
“Tell me what you are asking for,” Judge Houck interrupted. MUSC does “a lot of things. And I can’t go down to everything. . . .”
Paltrow tried again. “All that we are asking this court to do is to restore (MUSC) to what it is supposed to be--a health-care facility, not a conduit to jail--"
“Look, look, look, look, look, look” the judge interrupted again. “Tell me what you want. . . . I don’t need all that surplusage . . . OK?”
Paltrow tried shifting from description to legal argument, but that didn’t work either.
“How is that going to the failure for me to grant relief?” Houck asked. “How is that going to cause your clients irreparable harm?”
Paltrow tried summarizing her claims.
“That’s what the lawsuit is all about,” Houck barked. “That’s been done. I can’t stop that by a preliminary injunction.”
Paltrow tried citing case precedents.
“Just hand me those cases,” Houck growled. “But I mean, it doesn’t do any good for you to read cases here in court. I can’t read them now and hear your argument as well.”
As the day wore on, it grew harder and harder to ignore the good ol’ boy routines. The more the judge addressed Bobby Hull, local attorney for the hospital, the more their voices thickened into a distinct Southern drawl. The term “fussin’ at” began appearing with some frequency, as in Hull’s suggestion that “it’s the state they all fussin’ at, not the individuals.” (By suing MUSC, a state institution, Paltrow is effectively suing South Carolina.) Although the judge called the hospital’s lawyer “Mr. Hull,” he could not bring himself to address Paltrow by name or even, at times, look directly at her.
“I believe there is some evidence the goal of this program has been achieved to some extent,” Judge Houck said, upon finally revealing that he was going to deny Paltrow’s motion for an injunction. “I do believe if the program continues, some mothers who are addicted and in prenatal care will not continue treatment. Then I must conclude that the discontinuation of the program is going to cause at least one or more children to be born with addiction to drugs. . . . That is very serious harm. . . . The public undoubtedly is interested in its institutions not violating the constitutional rights of citizens. . . . I also believe that the public interest of this state is focused now, more than probably at any other time, on drugs and (their) effects. . . . It may be that the public interest is not well founded. . . . It may be that they should be more concerned about the deprivation of constitutional rights of the plaintiff, but I really don’t think that’s the case. I think the public is concerned about children who, through no fault of their own . . . are conceived by a mother who is addicted to drugs. . . . To avoid that . . . is of great public interest. . . .”
Paltrow’s obvious dismay and Condon’s satisfied smile as they left the hearing told the whole story. There were many months to go, many more chances coming for Paltrow to persuade and educate; at a second hearing in early June, Paltrow would in fact prevail on several procedural matters. Still, if not readily apparent before, it was now: No matter how much you debate the issues and assemble the experts, this case was not, in the end, only about right or wrong, good or bad, legal or illegal, moral or immoral. This case was also very much about political will--of what the public wants and will support.
Condon, for one, understands this quite well.
Just last summer, after all, Charleston residents--including Mayor Joseph Riley Jr., and Police Chief Greenberg--fought fiercely against locating a residential drug- and alcohol-treatment center near the city, even though it had federal funding and was to include precisely the type of residential facility that specialists believe would attract pregnant substance abusers with children. Expressing concern about the “frequent mental dysfunction” of substance abusers, noting that “even the best treatment programs are only partially effective,” Greenberg declared that he “would not like to see this facility located in my neighborhood or the proposed location.”
By the time everyone finally agreed last fall to build the facility near the MUSC complex, it was clear that the dispute, although ostensibly over location, was also being driven by a more fundamental fear and animosity. “There was a great resentment against people who don’t follow rules ending up in a better position than those who do,” is how Condon put it. “Of people pulling the cart being told what to do by those in the cart.”
Walking to the courthouse from his law office, Condon began to explain, with all the relish of a pragmatic political scientist, the principles underlying such community resistance.
“First, be cognizant that it takes taxpayer money to pay for these programs,” he advised. “That’s the real world. So they must meet harsh tests: Are they necessary? Bare bones? You’re handing out free food, shelter, access to better medical plans than we have. I’m not at all against these programs, but you can’t get resources for them; there’s not great support in this country for them. That’s the real world, just like there’s not enough political will to move after pregnant women who use alcohol or cigarettes. There is, though, a political basis for this interagency program. Leaders can take a position against crack. Our legal system reflects our cultural mores. That’s our system. That’s the real world. . . .”
Condon stopped in mid-sentence, at the moment he reached the television cameras waiting at the courthouse steps. Instantly, he turned from his companion and hit his cue.
“The left-wing ACLU doesn’t represent the American people,” he began, leaning into the microphone. “The left-wing ACLU doesn’t represent the people of South Carolina. MUSC deserves an award. If the plaintiff prevails, in effect we’d be legalizing the use of crack cocaine during pregnancy. . . .” Staring into the camera, Condon posed the enduring question that so grips Charleston: “Who is speaking for the babies in this courtroom?” he asked. “Who is speaking for the babies?”
Then Condon turned back to his private conversation. “Tell Lynn thanks for suing me,” he smiled, as he walked into the courthouse. “Running in South Carolina for attorney general, the best thing you can have happen is to be sued by the ACLU.”