Analysis Law and Policy

Should Pregnant Women Be Concerned With SCOTUS Review of DNA Testing?

Jessica Mason Pieklo

A law designed to help catch serial rapists may have unintended consequences for pregnant women.

Ten years ago the state of Virginia became the first to require anyone arrested for a serious crime to undergo a mouth swab for DNA. Suspects were swabbed regardless if they were charged and soon, 27 other states and the federal government followed the practice. Besides capturing a subject’s fingerprints, standard practice at jail bookings now often includes a DNA swab.

It was that practice that led to the arrest and conviction of Jorge Torrez in the rape and attempted murder of an Arlington, Virginia woman. A few weeks after his arrest in that crime, a DNA match also led to charges against him in the rape and murder of two young girls in Illinois. Jerry Hobbs, the father of one of the girls, had been convicted and was in prison for the crimes. That evidence led to Hobbs’ eventual release.

It’s that practice, of taking DNA samples from people who are arrested for serious crimes, that the Supreme Court will review to determine if it constitutes an unreasonable search. Nationwide DNA samples are taken as a matter of course from people convicted of violent crimes. But gathering those samples before a conviction, and using them, raises some tricky constitutional considerations. And with more and more states policing pregnant women it forces the difficult question of how to balance the legitimate law enforcement aims of capturing rapists with the privacy rights of individuals.

The case before the Court deals with the 2009 conviction of Alonzo King. King was arrested by Maryland police for waving a shotgun in a threatening manner. In Maryland that was a felony which means King was swabbed. King later pleaded guilty to a lesser charge for which no DNA test was required, but the DNA sample that had been taken at his arrest linked King to a burglary and rape from six years earlier. King was eventually convicted and sentenced to life in prison.

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But Maryland’s supreme court overturned his conviction ruling police cannot take DNA samples without a search warrant and probable cause that the suspect had committed another offense. “DNA samples contain a massive amount of deeply personal information,” far more than a fingerprint, the state judges said. Therefore, the sample is far more intrusive, especially in those cases where it is taken before a conviction.

Complicating matters further, last month President Obama signed into law the Katie Sepich Enhanced DNA Collection Act, which is designed to pay the start-up costs for other states who have not yet started the practice to begin testing people arrested. The law is extremely popular with victims rights advocates who argue collecting a DNA sample at arrest is minimally intrusive to those in custody (the sample is usually collected via a cotton swab of a suspect’s cheek) and reasonable given the enormous potential the DNA samples have in solving horrific crimes like rapes and murders, the practice should be considered constitutional.

When placed in context of finding serial rapists and murderers and prosecuting rapes cases that would otherwise go ignored it’s nearly impossible to argue against the practice. In the case of Katie Sepich, her attacker was arrested several times but was not identified until after he was convicted of another crime and his DNA taken. Finding those criminals earlier no doubt saves lives. In terms of potential government searches and under those circumstances DNA collection sounds completely reasonable.

But when placed in the context of policing pregnant women, and with fetal homicide laws becoming a favorite of the right, the privacy concerns of this practice are more apparent. Take for example the case of a pregnant woman recently arrested in Tennessee. After police responded to a crash involving her vehicle she was charged with DUI and child endangerment despite the fact that her blood alcohol content was only half the legal limit and she had no child in the car with her at the time of the crash. Her status as a pregnant woman changed the manner in which the police responded to her accident, and its a shift we’re seeing nationally where law enforcement increasingly approach pregnant women as potential criminal actors in relationship to their pregnancies. That means, for example, in states with fetal homicide laws already on the books, a woman arrested for suspicion of credit card fraud could face a DNA swab to test for drugs, alcohol, or the pregnancy itself when before the police required some reasonable and identifiable suspicion of those crimes before conducting a “search” so to speak. In short, pregnant women may find themselves even more policed than before.

Should the Supreme Court find the practice does violate the 4th Amendment then in some ways the problem is solved in the short-term as those states and the federal government will have to go back and amend their policies in line with whatever guidance the Court chooses to offer. In that scenario, we have an opportunity, because the answer to these concerns may not be to undo a police practice that is at this point almost commonplace but instead to organize against the ever-encroaching fetal rights movement, and it may be that the Supreme Court offers us an unexpected opening.

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