Medical University of South Carolina administration backs down

Academe, Jul/Aug 1999

LAST SPRING, THE ADMINIStration of the Medical University of South Carolina (MUSC) narrowly avoided litigation charging it with violating a professor's academic freedom.

In November 1997, Mary Faith Marshall, director of the university hospital's program in bioethics, was evaluated for promotion in rank. Marshall had strong support from her department and from the dean of the medical school. Her nomination stalled, however, once it reached the desk of MUSC president James B. Edwards. Edwards told Marshall that he was unprepared to take her nomination to the board of trustees because of testimony she had given as an expert witness at a 1996 trial. Marshall had testified that a MUSC program violated hospital policy by disregarding patients' rights to informed consent and confidentiality.

According to Marshall, Edwards's refusal to act on her promotion was in direct violation of her academic freedom and had a chilling effect on the relatively new field of bioethics. "Bioethicists, like other researchers," Marshall explains, "have to be free to look at problems objectively and to express their views. If there's a threat of retribution for doing that, bioethics won't be able to survive as a discipline."

The subject of Marshall's testimony was MUSC's Interagency Policy on Management of Substance Abuse During Pregnancy. Started in 1989 by the Charleston-based university, the Charleston County solicitor, and the City of Charleston police department, the policy aimed to "ensure appropriate management of pregnant women who abused illegal drugs. It applied only to women who came to MUSC's obstetrics clinic, which served indigent and Medicaid patients, most of whom were African American. The policy did not affect private obstetrical patients.

To receive prenatal care, clinic patients had to watch a videotape on substance abuse and sign a statement acknowledging their understanding that MUSC would assist them in obtaining treatment at the university's substance-abuse clinic. Women suspected of drug abuse were subjected to urine testing. If a woman tested positive, she received a letter from the county solicitor warning that "[i]f you fail to attend Substance Abuse and Pre-Natal Care, you will be arrested by the Charleston City Police and prosecuted by the Office of the Solicitor." Any patient delivering a child who tested positive for illegal drugs was arrested immediately after her medical release.

In December 1994, MUSC discontinued the program as part of a settlement with the Civil Rights Division of the U.S. Department of Health and Human Services. By that time, however, forty-two pregnant women, forty-one of whom were African American, had been arrested. In 1993, three of these women filed a lawsuit against the parties to the interagency policy asserting that the policy violated their rights to keep their medical condition private, to refuse medical treatment, and to procreate. The American Civil Liberties Union's Center for Reproductive Rights assisted the women in seeking punitive and compensatory damages.

Both sides in the dispute called on Marshall to serve as an expert witness. Subpoenaed by the Center for Reproductive Rights, she testified at trial in 1996. In her testimony, Marshall stated, "As the institution's bioethicist, I am of the opinion that the interagency policy fails to meet the institution's norms or standards that have to do with informed consent." She explained that "the risk of . . . arrest and incarceration was not made clear to the patients up front." In April 1997, the jury found in favor of the sponsors of the interagency policy. The case is now on appeal.

More than a year after the trial's conclusion, Marshall met with MUSC president James Edwards to discuss his delay in submitting her candidacy for promotion to the board of trustees. In a letter sent to her in July 1998, Edwards wrote that the problem with her promotion was her "involvement in the recent lawsuit known locally as the cocaine baby case." He said trustees were unhappy with her involvement, and he proposed waiting an additional six months.

If the delay was meant as a cooling-off period that was not its result. By fall 1998, the prospects for Marshall's promotion seemed to have faded away, and she was told that her departure from MUSC would be welcomed. By then, Marshall had retained an attorney and was prepared to initiate litigation.

In April, the governing board of the AAUP's Academic Freedom Fund, recognizing the implications or Marshall's case for academic freedom, approved a grant to support Marshall in her litigation against MUSC. In addition, a prominent Washington, D.C., law firm made known its intention to participate in the litigation on a pro bono basis. The MUSC administration learned of the commitments of support from the AAUP and the law firm just before a meeting of the board of trustees. Edwards notified Marshall after the meeting that the board had approved her promotion.

The support from the AAUP's Academic Freedom Fund, says Marshall, was crucial, personally and professionally. "The respect that the AAUP engenders," she explains, "lent national credence to the seriousness of this violation of academic freedom."