This article is a critical archeology of Ferguson v. City of Charleston, a case still in the courts. The case questions a policy implemented by the Medical University of South Carolina (MUSC) from 1989 to 1993, which called for a hospital to deliver the results of urine tests showing cocaine use in pregnant women to the police. Part I of this article recounts how the policy was conceived and introduces some of the main characters and events, including the incarceration of some of the women, including Crystal Ferguson, and their initiation of a class action lawsuit against the hospital and the City of Charleston. Part II outlines the events of the Ferguson trial, the women’s appeal after their loss at trial and their eventual audience before the United States Supreme Court. Part III takes a step back to consider different approaches the public may take when the health of some individuals endangers the health of others. Towards this end, this part explores debates over HIV testing, an area of public health and law that, during the mid to late 1980s, occupied the public imagination with the same intensity as the crack epidemic and “crack babies.” This material is presented because it offers some compelling comparisons with prosecutions of pregnant women who use drugs. The discussion of AIDS and law also shows how the risks of coercive approaches to public health, and specifically the risk that mandatory testing or incarceration may lead people to avoid beneficial health services, should have been widely understood by 1989, the year the drug tests and reporting to the police began at the MUSC. Instead, it was not until 1990 that public health authorities outlined policy discouraging “testing-and-arresting.” In attempting to explain why sounder policy was not developed and disseminated earlier, part IV explores how the public health establishment failed to counter misinformation about crack babies, and came to incorrect conclusions on the dangers of crack during pregnancy. This part also recites tools trial attorneys might find useful in litigating cases arising from weaknesses in the field of public health, as in Ferguson. Part V continues this evidentiary analysis, exploring how the public health system has failed to apply its own empirical techniques to the question of whether punitive approaches deter health-seeking behavior on the part of pregnant women. Again, material suggestive of how to handle this issue in future litigation is presented. Part VI then critiques the three Supreme Court opinions in Ferguson-the majority opinion, Justice Kennedy’s concurrence, and Justice Scalia’s dissent-for errors in evaluating scientific evidence. The basic focus of this article is to explore the difficult nexus of public health science and the legal system.

This article concludes that the legal troubles confronting Crystal Ferguson and other women arrested in a hospital in Charleston, South Carolina, are partially attributable to a serious failing of the public health system. Furthermore, the form the litigation took shows that the legal system is not well equipped to address such failings appropriately.