Last week’s ruling by the U.S. Court of Appeals for the Third Circuit in Reedy v. Evanson, reviving a Butler County rape survivor’s civil lawsuit against the police officers who wrongly arrested and jailed her for false reporting, was gratifying to women’s advocates for several reasons.
Most importantly, the Court of Appeals showed the face of justice to a young woman who had been viciously attacked not just by her assailant but also by a hostile criminal justice system. The lengthy precedential appellate opinion [PDF] exposed and dismantled the sexist assumptions the police used against her: real victims fight back to the utmost, even with a gun to the head; real victims accept psychological counseling; real victims are polite and compliant even when falsely accused; real victims are so shattered they couldn’t possibly remember the exact time of the rape; real victims don’t use profane slang in describing the obscenities committed upon them. The court ruling almost could have been written by the sexual assault experts who joined the Women’s Law Project’s amicus brief in the case, so impassioned was the opinion and so grounded in the realities of women’s experience. The situational irony here is rich: the victim who wasn’t believed, in part because she didn’t fight hard enough, just smashed her tormentors to smithereens.
But there’s another reason why feminists should be celebrating the Reedy decision, and that is the ruling’s heavy reliance on another Women’s Law Project case, the 2001 U.S. Supreme Court case Crystal Ferguson v. City of Charleston. This case figured prominently in the Reedy Court’s discussion of whether the police defendants violated Ms. Reedy’s Fourth Amendment rights when, in their frenzy to incriminate her for something, they seized her hospital blood test results in a warrantless search for illegal drug use.
Crystal Ferguson was a poor, pregnant, African-American mother with an untreated addiction at a time and place where no accessible treatment for women with children existed. Unfortunately for Ms. Ferguson, the South Carolina public hospital where she got obstetric care had a secret agreement with local police and prosecutors to drug test pregnant patients without their consent and turn the test results over to the police if they tested positive.
Ms. Ferguson gave birth to a healthy baby, and was taken in handcuffs from her hospital bed to jail. The hospital defended its policy—technically, an unconstitutional search and seizure of Ms. Ferguson’s body fluids—by invoking the “special needs” exception to the Fourth Amendment’s warrant requirement. They argued that because the state has a “special need” to protect fetuses (to whom the state attorney general referred as “fellow South Carolinians”), women lose their Fourth Amendment rights to be free from unreasonable searches and seizures when they become pregnant. The hospital claimed, in essence, that the state should have the power to inspect and monitor women’s wombs to ensure a healthy pregnancy.
The Women’s Law Project together with the Center for Reproductive Rights represented Ms. Ferguson in the U.S. Supreme Court, which ruled in her favor. In the opinion, Justice John Paul Stevens wrote, “The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.” Importantly, these core constitutional protections are not shed when a woman becomes pregnant. The high court noted that to rule otherwise could well discourage women from seeking medical care when they need it most.
The Reedy Court found a perfect parallel between the unconstitutional search and seizure of Crystal Ferguson’s body fluids and the police seizure of Ms. Reedy’s hospital blood test results. The police officers claimed that Ms. Reedy consented to the drug testing when she signed consents to undergo a rape exam, but drawing on Ferguson, the appeals court rejected this reasoning, pointing out the practical consequences if rape victims knew they could be involuntarily drug tested for law enforcement purposes whenever they consented to treatment for sexual assault. The court concluded that, in addition to the other civil rights violations committed against Ms. Reedy, the police had violated her Fourth Amendment rights when they seized her hospital test results without her consent.
This evolving caselaw, building on earlier WLP victories, illustrates perfectly how the strategic selection of impact litigation works to strengthen and expand women’s rights. How right that Ms. Reedy’s legal weapon was forged a decade ago by another apparently powerless woman, equally marginalized and likewise betrayed by the institutions that should have protected her.
Crystal Ferguson died tragically in 2007. We wish she could have witnessed this late flowering of the seeds she planted during her own long struggle.
