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We already know the rights of those arrested and charged with a crime are limited. DUI suspects must submit to blood and breath tests. And the police can collect DNA samples from anyone they arrest. But what about jails forcing women inmates to submit to pregnancy tests?
This somewhat unusual practice was allegedly commonplace in Alameda County jails for several years, until the American Civil Liberties Union filed a lawsuit against the county over the practice. While the county has agreed to discontinue mandatory testing, whether it's legal in other jurisdictions remains to be seen.
Peremptory Pregnancy Testing Policies
According to Prison Legal News, just getting confirmation of the mandatory pregnancy test policy was difficult. Alameda County head sheriff Gregory Ahern told the ACLU in 2010 that "every female prisoner is required to submit to a pregnancy test through urinalysis." But sheriffs also told reporter and arrestee Susie Cagle that it was the private health-care company overseeing medical needs in the county's jails conducting the tests. "That's Corizon's policy. That's not us. You should talk to them."
Official policy or not, a multitude of women came forward claiming they were compelled to submit to pregnancy tests against their will. This included women who were infertile or even menstruating at the time. As one former female detainee claimed, "Deputies at the Glenn Dyer jail wouldn't give me a pad, but still made me take a pregnancy test."
Getting Into Legal Trouble, or Trying to Stay out of It?
Alameda officials had claimed that they are using the tests to protect women and provide them with the proper medical care while incarcerated. The sheriffs department pointed to a 1989 settlement agreement that was the result of a class action lawsuit against the county for its mistreatment of pregnant inmates. So Corizon and Alameda County could have been trying to avoid further litigation by ensuring pregnant women got the treatment they need. (The county recently paid $8.3 million to the family of a man who had been Tased to death in a Corizon-run facility)
Regardless of the county's motivations, the ACLU alleged the forced pregnancy tests violated the women's Fourth Amendment rights against unreasonable searches. Whether these tests are reasonable could depend on an inmate's expectation of privacy, which is generally greatly diminished in jail. The ACLU and Alameda County reached a settlement in October 2015 under which pregnancy tests will be optional, unless there is a court order or the woman is incapable of giving consent to the test.
But a recent report from the University of Minnesota School of Public Health indicates this practice may not be unique to Alameda County. So a definitive court ruling on the matter may be necessary. If you've been forced to submit to a pregnancy test against your will, you should contact a criminal defense attorney as soon as possible.