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Monday, the United States Supreme Court announced that it would hear a case involving a South Carolina law which makes it the policy of public hospitals to drug test pregnant women and report positive results to police. With the announcement, the Supreme Court has put itself in the unenviable position of deciding which takes precedence: Fourth Amendment protections against unreasonable search and seizure or the welfare of the unborn. In the past, the Supreme Court has remanded similar cases similar, which is what it should have done in this situation. The South Carolina law should be stricken from the legal code by the legislature which enacted it, not on constitutional grounds, but because it prescribes bad policy.

The South Carolina law presents no constitutional conflict. "There is no constitutional right for a pregnant mother to use drugs," argues the South Carolina attorney general. Also, the policy falls in the same vein as current public school policies allowing for the drug testing of athletes, which the Court has found constitutional. Though there is no issue of civil liberties, that does not mean that there is no problem with the law.

Protecting the welfare of the unborn, while superficially noble, is actually a legal quagmire. It pits the rights of those already existing people against the rights of those potentially existing people, rights already established against those not clearly defined or established. A woman's right to privacy should come before the right of something that is legally disposable. Apart from this, there is the ever-present issues of state rights as opposed to individual rights and whether some rights are more fundamental than others.

Aside from raising constitutional issues, South Carolina's law is bad policy. First, it is ineffectual. It does not protect the welfare of unborn children because there is no way to stop harmful behavior that is unknown to the state. A woman is usually about eight weeks pregnant before she even knows with certainty that she is carrying a fetus. Pre-natal care probably begins well after that, especially with drug-addicted women. That is at least two months of exposure to drugs - plenty of time to do damage.

If the goal were to punish mothers for breaking the law, then the goal would be met. This, however, is not the goal. It is to protect unborn children, and in this aspect, the law has failed. Turning pregnant drug users over to police does nothing to improve the welfare of unborn children, but rather punishes them.

Indeed, South Carolina should repeal this law because it is actually detrimental to both the unborn and newborn child. The policy hurts the unborn child because it has the unintended consequence of discouraging pre-natal care though proper pre-natal care has a profound effect on neo-natal health. The baby of a drug addict is born with serious health problems - it has already been exposed and become addicted to drugs. It needs all the help it can get before, during and after birth. The law harms the newborn child because it deprives the child of a mother. While a drug-addicted mother is hardly a fit mother, the state is not a better option. Wards of the state typically face lives of poverty and instability and have a very difficult time overcoming these problems as they grow.

Additionally, the state will not keep the child and its mother separated for the life of the child. Eventually, the mother will receive custody of her child, and it is likely, given the nature of the penal system, that she will still be addicted to drugs. Taxpayer money, instead of supporting a child in the hospital and a woman in prison, would be better spent rehabilitating the mother and providing her with job skills so she can be both a better mother and a productive member of society. This would help keep her and her child from becoming state welfare cases.

South Carolina does not need to incarcerate pregnant drug users. These women need to be encouraged to see doctors and counselors who can help them recover from their addictions and better care for their babies. This is the only way to ensure that the state protects both the welfare of unborn children as well as the rights of their mothers.