Law Chat
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Attorney Catherine Christophillis Discusses The Reasoning Behind The Drug Testing Of Pregnant Women

October 25, 2000

(CNN) -- Catherine Christophillis of the South Carolina Attorney General's office discusses the legal reasoning behind the hospital's drug testing policy in Ferguson v. City of Charleston, South Carolina. The case, argued before the U.S. Supreme Court this term, questions the constitutionality of a hospital policy of testing pregnant women for cocaine use, then turning over the test results to police.

For another perspective read the chat transcript with Attorney Jennifer Granick (Findlaw)

CNN_Host: Thank you for joining us today Catherine Christophillis and welcome.

Catherine_Christophillis: This is Catherine Christophillis and I am glad to be a part of this program today.

CNN_Host: Please give us some brief history on how this case arose. Catherine Christophillis is joining the chat via telephone from South Carolina. CNN is providing a typist for Catherine Christophillis.

Catherine_Christophillis: In South Carolina we had a case which was heard by our (State) Supreme Court in 1996. The case recognized the right of unborn fetuses to protection when they were in the period of viability. (Viability) has been defined by our medical association as being a fetus at 24 weeks gestation or more. Therefore, that viable fetus has rights and can be abused and neglected, just as a 1-minute-old infant could. The case was appealed to the U.S. Supreme Court, where cert was denied, meaning that the Whitner case is good law. After the Whitner decision, the General Assembly of South Carolina, appointed a multidisciplinary team to study this issue. It consisted of my office, the medical association, the Dept. of Social Services, Drug Treatment, Legal services, Hospital Association, Law Enforcement, and a number of other people. As a result of these meetings, a written protocol was developed, which set forth a treatment oriented program on how to deal with these cases.

Question from [CharliGirl-CNN]: What kind of precedent does it set when they say that the unborn has rights?

Catherine_Christophillis: First of all, in South Carolina, in the early 1960s our Supreme Court recognized the rights of viable fetuses in wrongful death actions. Viable means the ability of the fetus to survive separate and apart from the womb. That precedent was later held in cases in the '80s where a pregnant woman eight months pregnant was murdered, and she and her unborn child died. The Supreme Court ruled that if the fetus could survive separate and apart from the womb it was viable. These were the precedents that came before the Whitner case. What Whitner does is take those precedents and apply them to our child abuse and neglect statutes.

Question from [flightmedic220]: Does it depend on the type of drugs that have been taken ?

Catherine_Christophillis: Yes. Our protocol deals strictly with illegal drugs. The reason for that is that for the state to intervene in a legal action, you must have a viable fetus. We must be able to prove that abuse or neglect occurred during that viability, or 24 weeks or plus, generally in the last trimester of pregnancy. If a baby tests positive (for say cocaine), the mother had to use it during the period of viability, or it would not have shown up in the infant's body. The problem you have with alcohol and cigarettes (legal substances),

Question from [chapper]: Do they test and make the police aware of alcohol and or tobacco which are know to cause defects?

Catherine_Christophillis: is that (1) it's difficult to prove that the use of the alcohol occurred only during the period of viability, because legally you do not have a child until that time. And (2) you can't discriminate against women for certain things, like if they want to work during pregnancy they can work. You can't discriminate against someone for doing something that is legal. If I am eight months pregnant and using crack cocaine, you are not discriminating against me, because I cannot legally use crack. It's the ability to prove it during viability.

CNN_Host: In cases such as these where does doctor/patient confidentiality fit in?

Catherine_Christophillis: The state has an overwhelming right to protect children from abuse and neglect. There are mandatory reporting statutes in South Carolina and all states that mandate professionals to report suspicions of child abuse and neglect. So they are required under law to do that. I don't think it's violated because of the mandatory reporting statutes. Also, they need to know to treat their patients, for example, if someone needs to go to detox or other alcohol or drug abuse treatment. They also have to know how to treat the child, and an overwhelming need is what is in the best interest of the child, and also the mother and the family in general.

Question from [CharliGirl-CNN]: Did they consider that actions such as turning them in to police for drug use may scare some women away from getting proper pre-natal care?

Catherine_Christophillis: Yes, but it has never been true. I worked closely with the drug treatment counselors, and they would be the first to tell me crack addicts were not lining up at their door for treatment. It just was not happening. So with the protocol in place mandating treatment, we are seeing a lot more women coming for treatment, and a lot more babies born healthy. I have been dealing with this issue for 11 years, and what we are seeing is that women are coming in for treatment, and if not they go to family court, a non-criminal court.

Question from [she]: What if the mother ingested the drugs in a country that allows such drugs legally?

Catherine_Christophillis: I think first you would have to determine if the country has an opinion about fetus viability, or if it is a human being or not, then you would want to know, if so, then is it still causing damage to the child, which would be abuse. Or is it something to prevent parenting. Is it something that would prevent a mother from properly parenting the child?

CNN_Host: If a mother is brought up on charges, what happens to the child after it is born?

Catherine_Christophillis: Under our protocol, the mother is not charged. What will happen is that social services and treatment services will be notified, and she will be referred to treatment. It could go to family court, where treatment could be ordered, and other services, like housing or mental health, or other necessary services. These decisions are a result of a multidisciplinary team. In the majority of cases, a relative like a grandmother or aunt, has temporary custody of the child while the treatment is going on. Most of the time, the mother is living in the home with the grandmother and child and so forth. And if the treatment plan is successful, then that is the end of the state intervention, and law enforcement is never involved. In rare cases, children do have to be taken into protective custody, while a treatment plan is going on. But that's not the majority of the cases.

Catherine_Christophillis: We also have treatment facilities in South Carolina where women and children live together, while they are going through treatment.

Question from [heywood]: that doesn't pose a threat to the child with the mother in a state of detox?

Catherine_Christophillis: As long as there is a stable person who has custody, like the grandmother, if the mother is in detox, she is in a treatment facility, so she would not be with the child. So it would not pose a threat. If she were going to outpatient therapy as long as there is a stable adult, like the grandmother, then it usually does not pose a threat. But DSS is monitoring this placement and so is Guardian ad litem. So if there was a problem, they would find it, and change placement through the court.

CNN_Host: Do you have any final thoughts to share with us today?

Catherine_Christophillis: I think the most important thing about our protocol is that it is a team effort: that it's a treatment-oriented program. Anything that's punitive is so far down the line of intervention that it rarely happens, unless it's an aggravated case, like if you had a child that died. Our working in a multidisciplinary team in holistic fashion is helping children and families, which is what this is all about to begin with. We don't want the state of South Carolina to be the parent.

CNN_Host: Thank you for joining us today.

Catherine_Christophillis: I enjoyed it very much, and I hope it helped. We have a written protocol to send to anyone interested. Contact me at agcchristo@ag.state.sc.us. You can also contact me at 620 North Main St., Greenville, SC 29601. The office number is (864) 241-1133. Thank you for having me.