FIDA Cameroon’s mission speaks to the importance of protecting individual rights, promoting social justice, and providing legal assistance to women and children who can’t otherwise afford representation. When we look at the regulations surrounding drug testing in South Carolina, it’s important to ask how these laws advance and hinder the mission of FIDA Cameroon? South Carolina has historically had a lot of problems with drug abuse. From the crack cocaine epidemic of the early 90s to the opioid crisis of today, the state has been a concentrated area of drug abuse, over-prescription of narcotics, and drug-related crime. In 2017, South Carolina had the second highest rate in the country of opioid related deaths, with a total of 1,280 fatalities. The first five months of 2018 are showing an upward trend for 2018.
Unfortunately, the drug abuse epidemic has also contributed to a serious problem with pregnant women and drug use. From 2014 to 2017, the number of pregnant women who tested positive for drug use at birth increased by 16%. As a result, drug testing has become a common tool for healthcare providers to use during the pregnancy and at birth. South Carolina has even passed a law that provides for doctors to conduct opioid tests on newborns if the medical staff believes the mother may have used opioids during her pregnancy.
However, the 2017 law, which can be found in SC Code ยง44-41-450, has faced scrutiny for its effect on women’s rights and personal agency. The new drug testing law allows medical professionals to carry out drug tests on pregnant women without her consent. Instead of treating a patient as the decision maker, the law treats the doctor as the ruler of the patient’s body. This means that you do not have any right to refuse a drug test. The only exception is for prenatal drug testing if it is deemed necessary by your health care provider. However, that exception does not apply in the case of testing at birth. Because the state does not provide for any exceptions to the testing, it means that you cannot refuse a drug test at birth. As a result if you are drug tested and the results are positive, then you may no longer be trusted with custody of your child. The law does not allow any consideration for the circumstances of your drug use, and prevents you from having any choice of whether your child is taken away from you.
In addition, the testing often has little if any value. By the time a drug test is given to a newborn baby, the presence of drugs in their system has usually worn off. Therefore the results of the test cannot be used as evidence of current drug abuse. It may be that the newborn baby only tested positive for heroin because the child’s parent used heroin once or twice several weeks before birth. Additionally, because drug testing at birth is so common, women will likely avoid going to the hospital at birth. Later when a woman experiences life-threatening complications after delivery, and can no longer hide her drug abuse, she may be in a worse position than if she had been put into a program for drug abuse before delivery.
Aside from the immediate effects on pregnancy and childbirth, the drug testing law impacts the fundamental right of personal agency. If a drug testing system dehumanizes women and treats them as less than fully capable of making their own decisions, that could have broader implications than just the pregnancy. Drug addiction is a complex issue that is proven to be impacted by social and economic factors. Forcing women into treatment for drug abuse when they are not ready to change will not improve the situation for mothers and their children. Instead it would do more good to reduce the stigma of addiction and provide more readily available treatment options that can be reached by low-income people and women with limited support systems. On a human rights level, the intrusion by the government into a woman’s private choice should be seen as an affront to the inherent worth of individuals and a step towards paternalism and coercion in a vulnerable situation.