I get where Senator Deb Soholt is coming from in proposing Senate Bill 105. But I can’t accept her intrusion on the Fourth Amendment.
The Sioux Falls Republican wants to authorize doctors to test newborns for drugs, without parental/guardian consent, if doctors suspect the mothers used drugs during their pregnancy. Senator Soholt puts the state’s interest in babies over the constitutional rights of children and parents:
Senator Deb Soholt is chair of the committee and the sponsor of the bill. She acknowledges the tension between infant health and parental privacy, bust says the priority should lie with the infant. She also recognizes the need for further action against addiction.
“The intention is to do an assessment, and to help provide support for the family, and healing to the infant,” Senator Soholt says. “So it’s a very small bite out of a large apple” [Jackie Hendry, “Bill Authorizing Toxicology Tests for Infants Without Parental Consent Moves to Senate,” SDPB Radio, 2018.01.24].
Senate Health and Human Services amended SB 105 yesterday to clarify that we’re talking about newborns, replacing a line allowing testing “during the first twenty-eight days of life” with “during the first twenty-eight days after birth.” That amendment avoids any sneaky debates about when life begins and a possible invocation of SB 105 to invade a woman’s womb to test her fetus for drugs. But the same thinking that persuades Republicans to treat women as mere invadable, brow-beatable vessels of child production leads Senator Soholt (and, alas, everyone else on Senate Health and Human Services except for Sen. Phil Jensen) to think they can deputize doctors to seize and search infants without their parents’ permission.
Yes, we care about children. Yes, we want moms to stay clean while they are pregnant. But we also want moms and children to have constitutional rights. SB 105 lies uncomfortably in the gray area between those competing interests.
Granted it has been a long time since I worked Labor and Delivery but I thought the docs already had the grounds to test when they suspected gestational drug abuse. The 28 days distinction is an important one.
I don’t think I see any gray area in this at all. This is not OK. Of course we want children to be healthy and happy. That doesn’t stop when a child is 28 days old, though, so why would it be OK to perform unconstitutional searches for an arbitrary 4 week period? I don’t want babies to be born with any negative consequences from alcohol or drug use, but I also don’t want 3 year old toddlers to suffer those consequences, or 8 year old kids, or 14 year old adolescents.
If there is reasonable suspicion of criminal activity or abuse by either parent, I think healthcare providers should absolutely raise the issue to the appropriate authorities, but nothing good will come from allowing doctors or nurses to issue search warrants based on their own discretion.
Other states have already had their supreme courts rule this unconstitutional. Too many false positives and they have already ruled that even a true positive does not constitute child neglect. You know it’s its what they are after because by the time they test the damage is done and irreversible. The state of South Dakota has many unconstitutional laws but no one challenges them WHY?
Other states have already had their supreme courts rule this unconstitutional. Too many false positives and they have already ruled that even a true positive does not constitute child neglect. You know it’s its what they are after because by the time they test the damage is done and irreversible. The state of South Dakota has many unconstitutional laws but no one challenges them WHY?
What is the purpose of this? Not really much of anything, and believe me, most healthcare professionals can tell by a mother’s history and signs and symptoms if a newborn has had probable exposure to drugs/alcohol/neglect. Again, just republicans trying to control and take away parental rights. Another unnecessary bill.
If the Legislature really wants to help children and families they should start with investing towards public schools, quality daycare centers and affordable healthcare etc.
I would imagine that the medical staff already has the OK to check a child if they show signs of distress. One needs to know how to treat someone in distress. BUT, I find it rather invasive if they are checking a child just to screen a parent.
Well this should be interesting. I think the legislature needs to do some research before they pass this as a law in SD. Potentially every single breast fed baby will test positive for cannabinoids because they are made by our bodies and our babies need them. This is proven by science. Part of the reason breast is better is because of the naturally occurring nutrients and cannabinoids. They are vital to the development of their brains & their CNS.
Just another way SD throws us back into the Stone Age. Thank goodness for the amendment as I don’t doubt the next step would have been testing by amniocentesis. Which would put both the baby and mother at risk.
The baby will not have any drug in its system that the mother does not have in her system. It is much easier to test the blood of the mother than to puncture the placenta to get at the baby’s tiny little blood supply, so just test the mother. The baby will have what the mother has. To invade the placenta without parental approval should need a warrant. If they do not want abortion because the baby is a human, then that baby requires human rights from the constitution just as anyone else does.
Rodger to come anywhere near my body or the body of my children should require a warrant- There is no check of power and abuse.
You do remember the 4th amendment don’t you.
I freaking got my car searched over a d–m domino’s pizza the other day. According the officer he smelled weed , all he found was a pizza SMH !
And before you comment on being pulled over it was over a tail light which when I confronted him on afterwards all he had to say was oops
No wonder this state can’t grow it’s population ! If you want to know what it feels like to live in a third world country you just need to come to South Dakota
Debbie –
Enforce your rights, say no to unreasonable searches and seizures! Especially when the person who wants to search or seize is using a bogus reason to initiate the searching and the seizing!
Thanks Ryan – I pulled my old lady bat s–t crazy lady out on him lol .
Debbie writes:
Clarification. Did you have a taillight out?
Kurt,
no and cops still do not need to be searching cars unless they have real evidence- Spearfish looks like the boarder crossing at Tijuana because they are always searching cars- If they have that much time on their hands they have a lack of crime and need to reduce the number of the police force
If the officer used the taillight excuse as a false pretense for pulling you over, Debbie, then I want to go after him. Would you contact me if Cory sent you my email address?
The easiest thing in the world of law to get is a search warrant. More than 98.5%+ requests are approved. Let the judges continue being the arbitrators of “reasonable”, “rights”, and civil decorum. Docs, nurses, and DSS need to stick to their jobs. If they have a concern then they need to vet it with law enforcement for proper, trained investigation and analysis – and, ultimately then to a judge. Stop trying to circumvent what works. Instead – make it work. For crying out loud. If a person shows up in a clinic or hospital with a gunshot wound you can bet they’ll call law enforcement. It should be no different if those workers have reasonable medical suspicion of a drug issue. – especially in a minor.
Come on, Kurt. Cops pull people over all the time on false pretenses. You are delusional if you think you can “go after him.”
I admit that I am surprised to see this from Soholt. I thought she was all about the right to privacy at any cost. I guess she just really likes abortion.
I am surprised there is no mention of the federal HIPPA laws. The State lacks the authority to allow searches contrary to HIPPA, as this law (along with the 4th Amendment) provides blanket protections to patient privacy.
https://www.hhs.gov/hipaa/for-individuals/guidance-materials-for-consumers/index.html
bcb – you think a state senate committee that intends to violate the US constitution is worried about also violating a federal congressional act like hipaa? South Dakota’s lawmakers do so much childish and ignorant stuff, I have no faith whatsoever that anybody in pierre understands federal preemption.
Good point Ryan! If they intend to violate our Constitution they certainly wouldn’t worry about a federal statute. Yet, I doubt that any committee member actually intended to violate the Constitution with this proposal. Instead, they probably have decided the 4th Amendment is ambiguous enough to permit this warrantless search as reasonable.
On the other hand, HIPAA (sorry about my earlier spelling error), prohibitions are much more direct and explicit. My guess is that committee members failed to consider HIPAA when passing this drug testing provision.
Generally it seems our legislature only will intentionally pass an unconstitutional law if they hope for a legal challenge that reaches the Supreme Court, which in turn will change its interpretation of the Constitution by overruling existing precedent, such as Brown v. Board of Education or Roe v. Wade.
Debbie, I agree with you, I was only writing on a warrant would be needed for the baby as well because that was what the article was about.
HIPPA SCHMIPA. If an officer has reasonable suspicion or provides reasonable suspicion to a judge whom then issues a warrant the breath, blood, toxicology test is done.
That is why we should follow existing law and processes. “Telling DSS” may “feel good” but is akin to banging ones head on the wall. DDS’s goals, in practices, are to minimize case load management and do so by returning kids. It’s hard, stressful, underpaid, under appreciated work by folks who often suspect there are better short or long term alternatives for their kids.