Mothers in chains

Crystal Ferguson lives in a poor neighbourhood in north Charleston, South Carolina. Her home is a prefab, single-storey structure surrounded by a miniature, once-white picket fence, a parody of middle America. Inside the cramped house sausages are frying for her daughters Annika, nine, and four-year-old Hilary. A bombastic preacher on a religious radio programme praises the Lord over and over. On a shabby desk an old, yellowed bible lies open at chapter 15 of Jeremiah: 'And I will deliver thee out of the hand of the wicked. And I will redeem thee out of the hand of the terrible.' Ferguson is tall, fleshless and striking, her cheekbones sharp, her strong eyes flashing suspicion.

She gestures towards the radio. 'My mother is dead, but my foster momma, who raised me, told me to get on my knees and ask the Lord to take the taste for those drugs out of my mouth. I'm trying to keep on the right path, I'm working long hours at a cleaning company so I can provide for my kids. And anyone who comes calling with drugs I say, "Leave that stuff outside on the front porch."'

There are times when drugs have blighted Crystal's life. Alcohol and marijuana were her preferences, but it was when she started smoking joints laced with cocaine that she collided with the authorities. She smoked while she was pregnant with Annika in 1991 and sought prenatal care at the Medical University of South Carolina (MUSC). Hospital staff tested her urine for drugs without her knowledge or consent around the time she gave birth, then passed the results on to the police. Annika was born on 4 August 1991, and the next day head nurse Shirley Brown came to her hospital bedside and broke the news that she had to go into treatment.

'Nurse Shirley Brown came into my room, looked at Annika, and said: "Another one of you. You won't be taking this one home because you tested positive for cocaine." I was lucky because I didn't lose my baby, but I know some women who lost theirs to this policy and then lost their minds, started committing all sorts of crimes and ended up in jail. I was strong. I said to Shirley Brown, "No way in the world am I going to walk out of your hospital without my baby, no ma'am. When I leave, my baby leaves with me."'

She still shudders at Brown's reference to 'you people', branding Ferguson as part of a biological underclass. 'One doctor said my daughter would never be an A student because of what I'd done to her when I was pregnant, that I was no good and should have got my tubes tied instead of getting pregnant.

'Trust me, nobody plans to keep using drugs when they are pregnant. I thought I'd be able to stop, but I couldn't. The last thing I needed to hear was that I was no good. I wish I could meet the doctor who said those cruel things to me because I'd like to tell him that for the past two years Annika has been nothing but a straight-A student.'

A few days after her daughter was born, when Crystal was due to start the outpatient drug treatment, she was arrested for failing to agree to inpatient treatment. She was held in jail before her family managed to get her out on bail. Only after that was she allowed to start the outpatient drug-treatment programme. She cries noisily as she remembers how close she came to losing her daughter. Annika, a beautiful child with soft, wavy hair, looks across at her mother. 'I don't like to see her cry,' says Annika without flinching.

Ferguson is one of 253 women who were pregnant or had just given birth who tested positive for drugs during a controversial six-year policy at MUSC. Because she was targeted when the programme was a few years old, she was offered drug treatment as an alternative to arrest, although the treatment was on the hospital's terms and disregarded the needs of the mothers-to-be, their new babies and older siblings.

In the early months of the programme, women whose babies were due in a few weeks' time or those who had given birth just hours before were not offered treatment. Hospital staff passed on the results of their drug tests straight to the police in what critics have described as a 'law enforcement sting'. The women knew nothing of this policy until the police arrived at the hospital, arrested them for child abuse or distributing drugs to a minor and carried them out in shackles and chains. In some cases, the women were still bleeding from the birth; in others they were held in police cells until they went into labour and were then returned to the hospital and forced to give birth in chains.

In 1993, 10 women sued the hospital - which has since dropped the practice - in a case known as Ferguson v City of Charleston. The women claimed that their federal rights were violated under the fourth amendment, which protects against unreasonable searches. A federal jury ruled against the women and the Fourth Circuit Court of Appeals upheld the verdict in July 1999. Last September the case went to the US Supreme Court, the highest legal authority in the US. What concerns the 75 organisations which filed briefs supporting the women's case - health, women's and civil liberties groups - is not just what went on at one hospital in one state but what is going on all over America. Hundreds of women have been arrested on charges ranging from child abuse to homi cide for taking drugs while pregnant, drinking alcohol or even not taking enough bed rest. According to critics, the law is pitting mother against foetus.

In one 1992 case in California, a woman who used drugs was charged with foetal homicide when her baby was stillborn. In another in Wisconsin in 1996, a woman who used alcohol during her pregnancy and had a stillbirth was charged with first-degree intentional homicide and reckless conduct. One pregnant woman was arrested for ordering a glass of wine. Wyndi Anderson of South Carolina Advocates For Pregnant Women is concerned about this erosion of women's civil rights. 'By setting up an adversarial relationship between the mother and foetus, we are going down a dangerous and slippery slope. Women with the least amount of resources and often large amounts of pain in their lives are expected to be better mothers than anyone else.'

On the other side of town, right in the centre of historic Charleston, with its spacious, spotless streets and tall, elegant buildings, Bobby Hood, the lawyer representing the 28 people the case has been brought against - MUSC staff, the police who made the arrests and local prosecutors - drives us from his offices to his large 18th-century town house a few blocks away. 'Don't you need to wear a seatbelt here?' I ask him. He leans back and laughs genially. 'Ahh no. All the police know me. If they pull me over they'll just say: "Hi Bobby, how're ya doin?"' He asks what my interest in the case is, tells me that what he's really interested in right now is the upcoming turkey season, that he's got another 1,200-acre place in the country with hunting rights on the surrounding land, that Forrest Gump was filmed there and that he's just rushed back from there for this meeting and must take a shower before he poses for photographs.

Hood points out that the women and their lawyers, 'those ladies from New York', have lost the case in the lower courts. 'I asked these women in court if MUSC's policy of arresting them had helped them get off drugs. They said it had. They wouldn't have got treatment otherwise, so you see we helped them. This is not a police state. We have not violated anyone's constitutional rights, least of all the baby in the woman's tummy. It's no big deal. The police officers who came to the hospital wore plain clothes and covered the women in a blanket after they'd chained their ankles so they couldn't run. One female officer stopped at Burger King after one of the women was arrested and bought her a burger out of her own money!'

Then Hood's eyes mist over as he starts to talk about the state of babies born to drug-using mothers. 'It absolutely makes you cry to see those babies. You can hold a whole human being in your hand, it's the most pathetic sight you have ever seen. The nurses got tired of dressing these babies to go home for funerals. They tried to do something about it and the thanks they got was this lawsuit trying to get money for these women who are using drugs, which is a crime anyway. I have seen these children die or become teen criminals and commit crazy crimes because their brains have been messed up by drugs in the womb.

'I voted for Bush because I believe he's going to make a great president and I know he would agree totally with what the hospital did because it was medically and socially right. These women are pathetic human beings, they lead pathetic lives, and they need help. The mother and the foetus both have rights, but society has a duty to protect the weaker of the two. The baby can't do anything about its momma using cocaine. To me, exposing a baby to drugs in the womb is no different from taking a pistol and shooting the baby right through the mother's stomach or taking a knife and sticking it in there.'

Controversy surrounds the so-called 'crack babies' born in the late 80s and early 90s and the subject of much media interest. Contrary to reports, many of the women who tested positive for drugs at MUSC and elsewhere gave birth to healthy babies. When hospitals in New York adopted a policy of taking in all babies born to mothers using cocaine, they soon realised they'd made a mistake. They were inundated with nurseries full of babies, many of them healthy.

While nobody advocates taking drugs during pregnancy (including the women in the Ferguson case), the harm caused by cocaine is being re-evaluated as just one risk factor, alongside the use of other drugs. Alcohol and cigarettes have caused more proven harm to babies, and a 1999 study found that poverty had more impact on the developing brain of the foetus than cocaine.

The question is: does the 'shackles and chains' approach encourage drug-using pregnant women to seek help? At first Nurse Brown insisted that it did. In a report in 1993, she said the policy was working. However, she later admitted her data had no scientific basis.

Mary Faith Marshall, an ethicist who worked at MUSC and testified against the hospital in court, questioned the medical value of this approach. 'The scientific evidence is that cocaine, compared to legal drugs such as alcohol and tobacco, has a very minor effect on foetal outcome.' She added that there was no evidence that the policy promoted healthy pregnancies; rather, it alienated a particular population of patients. Many medical groups believe that the way this policy violated doctor-patient confidentiality has serious implications. And recently the Southern Regional Project on infant mortality found that pregnant women who use drugs won't seek help if they feel that their doctors are going to turn them in to the police.

Reuben Greenberg, Charleston police chief, is upbeat about his officers' involvement. He says they were simply upholding state law. 'If someone says a child has been abused, we have to investigate. We don't handcuff everyone, but in the judgment of my officers the women who were restrained needed to be restrained. An intelligent assessment of the risk was made.'

Lynn Paltrow - a lawyer representing the 10 women, director of National Advocates for Pregnant Women and one of Hood's 'ladies from New York' - has worked on the case for many years, along with Susan Dunn, a Charleston lawyer. Paltrow is in Charleston for a weekend gathering with lawyers, advocates, activists and the women involved in the Supreme Court case. Sitting in the tranquil living room at the Wide Awake Plantation on the outskirts of town, tears stream down the faces of the women taking the case as they relive what happened to them at MUSC.

Paltrow says that the policy has disproportionately targeted poor black women, a charge the hospital denies. 'This issue is about race, about anti-feminism and about America's war on drugs. Carrying black women out of the hospital in chains evokes images of slavery. This policy was never about protecting children - there was no follow-up for the children, no treatment for them despite the mythical claims of severe damage - it was all about punishing women.'

The modern slavery Paltrow refers to has a history in South Carolina, the only US state which still flies the Confederate flag. Around one-third of the slaves who came to North America from African countries entered through Charleston and were quarantined in pens on Sullivan Island before they were sold at slave markets in the city. More recently, MUSC itself was the focus of a pivotal strike during the civil-rights era. In June 1969, 12 black union activists were dismissed. At the time the hospital had no black doctors or nurse students - all the black employees were low-paid nurses' aides and service workers. Bed and waiting-room arrangements for black and white patients were separate and while white husbands were allowed into the delivery room, black ones were not. In an echo of that era, Nurse Brown said that the mixing of the races was 'against God's way'. The majority of the women selected for drug testing were black. Of the 10 who have taken their case to the US Supreme Court, only one is white and Brown remarked in her notes that she had a 'Negro' boyfriend. The hospital declined to allow Brown to be interviewed, but Hood says she apologised for the remark about keeping blacks and whites apart, which she put down to the fact that she was 'brought up in a small Southern town'.

South Carolina, which as a result of a state Supreme Court decision recognises a foetus of 24 weeks or more as a person, has taken some of the most extreme steps to police pregnant women, but other states have passed equally restrictive laws. In 1997, Wisconsin created a new category of unborn child abuse - a child becomes a human being at fertilisation. Paltrow says that under this law, 'a zealous police officer who observes a pregnant woman drinking cocktails at a bar may take the woman into immediate custody'.

Deneen Clark, 36, lives in what she had always thought was the relatively liberal state of New Jersey. She is white and single and is planning to embark on a law degree later this year. For several years she has smoked cannabis for medicinal purposes - she says the drug relaxes her and without it she suffers acute and crippling anxiety attacks which are so severe she is unable to eat.

She had lost two babies in the womb due to rare medical conditions and so when she became pregnant in 1998 she was overjoyed. But she was terrified of losing another baby. She discussed her cannabis use with her doctor, who said it was preferable to smoking cigarettes during pregnancy. On 28 December 1998 she gave birth to a son by Caesarean section. As soon as he was born, he was whisked away by nurses who said they needed to check him over. When she still had not seen her baby by 4pm, she panicked that there was something terribly wrong with him and that she would lose him.

She went to the nursery and saw him surrounded by doctors who said he was having problems co-ordinating sucking and swallowing. He was brought to her at 7pm and appeared to have no problem co-ordinating sucking and swallowing when she breastfed him. The next morning a doctor came in and announced that she had tested positive for THC, the active ingredient in cannabis. She was charged under civil laws with child abuse and neglect and was warned that she might lose the baby. 'It was terrible to be accused like that. I was with my son 24/7 and loved and adored him and took excellent care of him. And I still do. He's my life,' says Deneen.

'I had to sign a form consenting to random drugs tests and had to agree to go to parenting classes. And all the time I had a court case hanging over me. I had no idea that I or my son had been tested for drugs. They must have stolen the urine from my catheter during my C-section.'

She was so terrified of having her son, who she called Justice, taken away during the first weeks of his life that she gave up cannabis although not using it made her feel physically ill. 'I couldn't eat food with poppy seeds in or herbal teas in case they made me test positive and they wanted to check Justice for broken bones, HIV and all sorts.' Social workers called regularly, and one day one visited and insisted Deneen change the baby's nappy. As she laid him on the floor, the social worker bent down to inspect him and he peed all over her.

'That was the one thing in all this which really made me laugh. It was his first act of civil disobedience,' she says. 'The whole experience made me feel as if I was being raped by society. I couldn't experience the joy of holding a newborn baby that had survived while the others hadn't - they took that away from me. They made me feel like low-life, white trash.' On the day she was due to go to court, her lawyer phoned to say that the case had been dropped although she remains on the state register as a child abuser and neglecter until Justice is 18.

'I would love to have another child,' says Deneen, 'but now I'm scared to death. However, the whole experience did make me think that if this was happening to me, what was happening to other people? I decided to speak out because of the way all this has affected my life and my son's life. I'm sure the founding fathers must be spinning in their graves. Our rights were put there to protect us, but instead they are being used against people like me who are being subjected to cruel and unusual punishments.'

Back in Charleston at the Wide Awake Plantation the women who took their case to the Supreme Court wonder what day the court will deliver its judgement. Lori Griffin was taken to jail in chains right at the start of MUSC's policy in October 1989, when she was eight months pregnant. Having tested positive for cocaine, she had to remain in chains when she returned to the hospital for final prenatal checks and to give birth. 'I was charged with distributing drugs to a minor, not realising that the minor was the foetus,' she explains. 'I'd never been in trouble with the law before; I hadn't even got a traffic ticket. The worst thing was having my baby taken off me. I know I'm a good mother and take good care of my kids, and when I came home from the hospital without my baby, everyone in the neighbourhood was whispering about me. It was so hurtful when my two older children said: "You don't even have the baby."'

Laverne Singleton, 44, also received prenatal care at MUSC in the autumn of 1989. She was using cocaine during the pregnancy and discovered she had tested positive for the drug soon after her son Arnold's birth. In her notes, Brown wrote that she 'confronted' Singleton about her drug use and about three hours after she gave birth, Singleton was arrested in her hospital room by police and charged with unlawful neglect of a child. Handcuffed and wearing only a hospital gown she was taken out of the hospital in a wheelchair and detained for a week.

'By the time I got to the cell my gown was covered in blood because I was haemorrhaging. But the staff had no sympathy and no remorse for what they did to me. As soon as I gave birth, they took my baby away. I never even got to look at his face. He was put into foster care and I had to fight through the courts to get him back.' It was a month before she saw her son again. She says that although hospital staff tested her blood and urine during her pregnancy while she was using drugs, no one ever said anything about her testing positive for drugs.

Missy Nicholson, another woman involved in the Supreme Court action, is convinced that policies to punish pregnant women end up driving them underground. 'I know of one woman who had an abortion because she was scared to death about what this hospital would do to her, and another who went to New York to have her baby to avoid this place. I sure wouldn't have come here for my prenatal care if I'd known what was going on.'

While most of the women who tested positive for drugs were using cocaine, Nicholson was taking heroin. A clinic which was part of the MUSC complex had put her on a methadone-maintenance programme during her pregnancy. In February 1994, the clinic told her she was dehydrated and had to go to MUSC's ER. Puzzled at the diagnosis, Nicholson went. She waited for more than an hour and began panicking that she would be late to collect her seven-year-old son Joshua from school.

Eventually Brown came in and announced that she had tested positive for opiates. 'I told her I knew that because I was on prescription methadone at the clinic. I trusted patient- doctor confidentiality, but once Brown got to me, that was finished. She asked me if I'd go into treatment for my drug use. I said I'd think about it but right now I had to collect my son from school. She wouldn't even let me call anyone to say I'd be late. I tried to leave, but two policemen appeared and handcuffed me. I was forced to stay in treatment until after the baby was born.'

Nicholson sees an irony in the fact that a policy which is supposed to protect children and turn women into better mothers forces them to neglect their living children by placing them in custody or removing their newborn babies to foster care. Meanwhile, campaigners are concerned that the protection of civil rights looks seriously threatened. The powerful National Organization of Women has declared a state of emergency over the Bush administration's plans to erode women's rights, particularly the right to abortion. A new bill is coming to Congress which seeks to give a foetus separate legal status, part of a policy described by feminists as 'our Vietnam, where the future of young women is being decided by old men in Washington who will never confront the danger themselves'. The punitive approach to pregnant women is likely to continue, says Paltrow. She cites the case of a woman in California who has been accused of peddling eugenics by paying female drug users $200 to get sterilised.

In north Charleston, Crystal Ferguson carefully brushes Annika's hair. It's a brilliantly sunny Sunday and she's taking her daughters to the park and the library. She lowers her voice and turns away from her daughter in the hope that she won't hear what she is saying. 'My childhood was lousy. I was taught by my mother to do as she said, not as she did. There was always a lot of drinking in the house, and we children weren't allowed to come out of our room when other people were there. When I was 12 and 13 I was repeatedly raped by a relative. I never reported it to the police and it made me feel very low, like a whore. It's because of what happened to me as a child that I'm putting myself through this ordeal of going to court and making a stand. People think this is the land of rights, but it isn't for people like me. I hope we will win the case and get some money so I can provide a decent home and a stable environment for my daughters. I'm doing all this for them so they will be able to make better choices than I ever had the opportunity to make.'

Last month, the women won their case at the US Supreme Court. The judges supported them by six votes to three.

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