A feminist Fourth Amendment?: Consent, care, privacy, and social meaning in Ferguson v. City of Charleston.

I. INTRODUCTION In Ferguson v. City of Charleston, (1) a public hospital engaged in warrantless, suspicionless urine testing of selected poor, pregnant women for signs of cocaine use. A woman who tested positive was warned that she would face criminal prosecution if she did not enter substance abuse treatment. Moreover, even if she did enter a treatment program, she would be referred for criminal prosecution if she tested positive a second time or missed an appointment with a drug abuse counselor. The program had been jointly designed by the Hospital, that is, the Medical University of South Carolina (MUSC), and by the local police. Ten women arrested under the policy brought a civil suit against the Hospital and others. The United States Supreme Court held that, absent patient consent, this testing program violated the Fourth Amendment to the United States Constitution. The Hospital had argued that the urine testing was done for a beneficent civil administrative purpose: to get cocaine-addicted pregnant moms off of drugs. Such administrative searches are often permitted absent a warrant or individualized suspicion. (2) The Court conceded that the drug abuse treatment purpose was indeed therapeutic, but concluded that the state's primary "programmatic" purpose was criminal law enforcement, thus presumptively requiring probable cause and a warrant. (3) Rather than simply striking down the program, however, the Court remanded the case to the lower courts to determine whether there was sufficient evidence to support the jury's conclusion that the women had consented to the urine testing. (4) Although the Court therefore purported not to resolve the consent question, the Court offered the lower courts guidance on how they should go about resolving the consent issue. That guidance, stated in a single brief paragraph of the Court's opinion, had radical implications, or so this article will argue. There was no question that the women had signed two general hospital consent forms before being tested. (5) But none of those forms or other media specifically informed the patients that they would be tested for cocaine for the specific purpose of turning the results over to the police for criminal prosecution absent prompt and successful treatment. (6) The women were, however, not physically coerced into signing the forms, nor were any pre-signature threats made to get them to do so. (7) Under prior case law defining consent under the Fourth Amendment, simple "voluntariness"--the absence of coercion--was all that was required. (8) Without altering this general definition, however, the Court applied a new consent definition specific to this case, leaving open the possibility of applying this new definition to selected other cases as well. (9) This new definition required, in addition to voluntariness, that consent to search be "knowingly and intelligently made." (10) In other words, the patients must understand more precisely what it was they were consenting to and what were its consequences. (11) Moreover, the Court cited as support for this conclusion Miranda v Arizona, (12) a Fifth Amendment case embracing a more vibrant notion of consent, a notion that the Court had earlier rejected as too limiting for the state in the Fourth Amendment context. (13) In this article, I will argue that the Court's rationale is best understood as reflecting various insights from feminist theory. Specifically, the Court saw the definition of consent as turning on context rather than on a universal notion identical under all circumstances. Critical aspects of that context were the nature of the human relationships involved--primarily the doctor-patient and mother-child relationships--as well as the complexity of human emotion, the power inequalities between the parties, and the social meanings of their actions. (14) The Court at least implicitly gave patient and parental autonomy great weight, and was offended by paternalistic notions that a more powerful social actor, here, the Hospital, knows what is best for, and therefore can take advantage of, the less powerful social actors, the patients. …