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The Supreme Court opens its new term with a case that raises the stakes dramatically in the politics of fetal rights. At issue in Ferguson v. City of Charleston is whether a public hospital violates the Constitution when it tests pregnant women for drug use and turns over positive results to the police without so much as obtaining a search warrant.

Medical professionals and the general public agree that it is not desirable for pregnant women to use drugs. But this case raises a different question: Do women forfeit basic constitutional rights to equal treatment, due process and protection against unreasonable searches and seizures when they become pregnant?

South Carolina has been a leader in the movement, building ever since Roe v. Wade legalized abortion, to establish rights for fetuses. No state has done more to target pregnant women who use drugs. Starting in 1989, the Medical University of South Carolina (MUSC) invited the police and local prosecutor to help implement a policy directed at prenatal-care patients. Women who came to MUSC, the only facility for indigent patients in Charleston, were threatened with arrest if they tested positive for drugs. Some were jailed for the duration of their pregnancies (surely not an optimal environment for pregnant women's health), and others were jailed after giving birth, still in their hospital gowns. All but one were black. The crimes they were charged with--drug possession, child neglect and distributing drugs to a minor--carried penalties of two to twenty years.

South Carolina Attorney General Charles Condon has said, "There is no constitutional right for a pregnant mother to use drugs." True enough. But the Constitution does guarantee rights of personal liberty and due process, which in turn require that all people, regardless of race or gender, be treated fairly and equally under the law. And the Charleston police department has never arrested a male hospital patient and charged him with possessing drugs on the basis of a positive urine test.

The real issue is how to respect pregnant women's constitutional rights while improving their (and their future children's) chances of a good outcome. The state maintains that the "stick" of criminal intervention is necessary to make its policy of "encouraging" pregnant women to get treatment effective. But at the time the policy took effect, there was not a single residential drug-abuse-treatment program for women in the entire state. MUSC itself would not admit pregnant women to its treatment center. And no outpatient program in Charleston provided childcare so that pregnant women with young children could keep their counseling appointments.

Finally, arresting women after they give birth does nothing to promote a healthy pregnancy or newborn. This practice also hinders the basic goals of keeping families together and promoting family stability through the provision of rehabilitative services instead of punishment.

Condon has made plain his desire to challenge the premise underlying abortion law: that a fetus is not a person in the constitutional sense and has no rights of its own. In 1998 he told the Washington Times that he would be "proud" and "very pleased" to defend his policies, "even in terms of reversing Roe v. Wade."

Faced with sanctions and the loss of federal dollars when the federal government investigated MUSC for ethics violations and discrimination against African-American women, the hospital suspended its policy in late 1994. But the program's architects got a boost when the State Supreme Court ruled in 1996 that a viable fetus is a person under the children's code, a ruling that the US Supreme Court allowed to stand. Condon then instructed district attorneys around the state to prosecute for "child abuse" women who take drugs during pregnancy.

Because most women in the United States get pregnant at least once in their lives, the practical and political implications of the Supreme Court's decision in Ferguson v. City of Charleston will be enormous. Fetal rights advocates recently scored a victory in Massachusetts when a judge entered an order of protection on behalf of a fetus and took a pregnant woman into state custody. The state alleges that the woman let her last baby die shortly after birth but has not charged her with any crime. If the Court upholds South Carolina's policy, it will encourage similar actions, effectively putting American women on notice that if they become pregnant, their lives are no longer their own.

The Rehnquist Court's paeans of praise for state government are belied by reality.

Arnold Schwarzenegger for governor!

Well, why not? I hadn't thought of putting in a plug for the actor's
political career until Gov. Gray Davis' top political operative, Garry
South, conducted one of the meanest political smear jobs in recent
memory.

South took the lowest of the low roads when he personally made sure
that an article in Premiere magazine got into the hands of a host of
reporters as well as potential Republican backers of a possible
Schwarzenegger gubernatorial campaign. Not content with attacking
Schwarzenegger as a womanizer, as the magazine did, South baited
Republicans for even considering supporting a man whose political views
might be described as more moderate than theirs.

As South told me, Schwarzenegger "defined himself as a social liberal,
pro-choice and pro-gun control, plus he's married to a Kennedy." What a
crime. But South sputtered on, adding that Schwarzenegger also is pro-gay
rights, pro-immigrant and supported Clinton during the impeachment farce.

Most of this kind of talk is aimed at shocking Republicans, but
apparently South got his call list mixed up and mistakenly placed me in
the category of right-winger. Anything to destroy an opponent. South
claimed Schwarzenegger's suggestion that he might be a gubernatorial
candidate made him fair game. Referring to the actor's interview with
L.A. Times columnist George Skelton, South said, "When Skelton put him in the
ring, he [Schwarzenegger] trashed the governor."

Not so. Schwarzenegger criticized Davis's handling of the California
energy crisis as being marked by uncertainty (an assessment shared by
many) and said Davis hadn't kept his campaign promises. But he said
nothing personally denigrating about the Governor. In fact, he said of
Davis, "I hope he does a great job so there's no reason for anyone to run
against him. Because that's the ideal thing." I call that gracious.

Yet South felt compelled to answer with a no-holds-barred smear,
explaining: "When someone attacks my client, I will respond, that's what
I do for a living--when you do what Arnold Schwarzenegger did, you put
yourself in the line of fire. That's my rationale; I have no apology
whatsoever."

Nor does Davis. A campaign press spokesman, Gabriel Sanchez, when
asked about the smear campaign conducted on behalf of the Governor's
campaign committee, said, "The Governor hasn't made any comment on that
issue, nor does he intend to."

The Premiere piece, which South also e-mailed and faxed to a long list
of reporters and political operatives, contained the kind of anonymously
sourced dirt that gets hurled with impunity at public figures, who have
less protection under libel laws. The primary thrust of the article was
that the actor was a serial groper. Weirdly, the magazine's writer also
went into Schwarzenegger's congenital heart problem, speculating that it
was instead the result of steroids used when he was a competitive
bodybuilder. As a smarmy aside, the writer made much of the evidently
unfounded claim that pig, rather than human, heart valves were implanted
in Schwarzenegger. (Schwarzenegger's surgeon insisted the magazine was
wrong, that human valves were used and that there's no evidence that he
used steroids.)

In taking advantage of the hit piece, South began his e-mail with:
"RE: Ah-nuhld's Piggish Behavior (Maybe It's the Pig Valve?)." How
puerile.

Why denigrate a man who has been an exemplary community activist?
While Davis's hatchet man chose to ignore his many charitable and service
contributions over the decades, two are particularly well-known:
Schwarzenegger is national chair of the effort to bring sports to
inner-city kids and has been a major booster of the Special Olympics.
Whatever his failings, and who among us is without, he is a family man
seen frequently in Santa Monica in the company of his wife, NBC reporter
Maria Shriver, and their four children, doing normal family things. I
have observed Schwarzenegger in various settings and have never witnessed
a scintilla of the crudeness ascribed to him. Many years ago, I
occasionally would run into him at Elaine's restaurant in New York, when
he was the young Austrian immigrant bodybuilder who was suddenly the toast of
the town after winning the Mr. Universe contest. It's amazing to me,
after all the worldwide media attention over the following decades, that
he survived to be someone this seemingly decent and balanced.

This ugly episode tells more about Davis than about his feared
opponent. We all know that the Governor is a control freak, and that
South would not be doing this without his boss's approval. It is
infuriating that Davis, whom I have long respected and thought to be a
classy guy, would stoop to this level. It's time for Davis to terminate
South's antics and issue an apology to Schwarzenegger.

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