During last two decades, states have sought to punish pregnant women for behavior that endangers their fetuses, often without success. (1) Prosecutors have used various novel legal theories, including child abuse and neglect, delivery and distribution of controlled substances, and involuntary manslaughter. Some states have enacted laws criminalizing prenatal drug use. (2) Other states have authorized necessary to protect fetus. (3) These measures include civil commitment for pregnant women who use drugs and cash incentives for crack-using women to become sterilized. (4) During height of concern for fetal rights, in late 1980s, Medical University of South Carolina (MUSC) devised a policy, in cooperation with law enforcement officials, for screening pregnant patients for cocaine use. Women who tested positive would be turned over to police and threatened with prosecution to provide the necessary leverage to force them into treatment. The policy specified criteria for determining which pregnant women should be tested (targeting, for example, women who had obtained no prenatal care or late or incomplete prenatal care, and women known to have previously abused drugs or alcohol abuse). It also required urine samples to be handled through an appropriate chain of custody to ensure that they could be used as evidence in a criminal trial; and it detailed offenses with which woman could be charged, depending on age of fetus. The charges included simple possession, possession and distribution to a minor, and child neglect. The policy made no mention of any change in woman's prenatal care and did not prescribe any treatment for newborns. More than forty women were arrested under MUSC program, and some who tested positive for cocaine during labor were taken to jail in handcuffs or leg shackles shortly after giving birth. Under South Carolina law, a viable fetus historically has been regarded as a person; on this basis, state's Supreme Court has held that ingestion of cocaine during third trimester of pregnancy constitutes criminal child neglect. (5) Ferguson v. City of Charleston In 1999, U.S. Court of Appeals for Fourth Circuit (well-known for its conservative judicial activism), held that regardless of whether women provided informed consent, MUSC testing program was justified by special of stopping drug use by pregnant women. This year, in Ferguson v. City of Charleston, (6) Supreme Court overturned Fourth Circuit, holding that a public hospital's policy of subjecting pregnant women to nonconsensual drug tests without a warrant, and turning positive test results over to police, violates Fourth Amendment's proscription against unreasonable searches. Although Fourth Amendment is popularly perceived as applying solely to personal or residential searches, Supreme Court has long recognized that collection and subsequent analysis of biological samples is a search. (7) In most criminal cases, a search is unreasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause, and if a warrant is impracticable, then courts require, minimally, suspicion based on an individualized assessment. The Supreme Court has held, however, that when state has special needs beyond normal need for law enforcement, warrant and probable or reasonable cause requirements may not be applicable. (8) In three drug testing cases, Court applied needs exception to sustain drug tests for railway employees involved in train accidents, Customs Service employees seeking promotion to certain sensitive positions, and high school students participating in interscholastic sports. (9) In a fourth case, Court struck down drug testing for candidates for certain state offices. (10) The Supreme Court in Ferguson held that MUSC screening program did not fit within closely guarded category of constitutionally permissible suspicionless searches. …