NO 'SEARCH' OF MOTHERS

The Supreme Court hears arguments today on a question that has
bedeviled doctors nationwide for more than a decade: How can health
officials caring for drug-abusing pregnant women legally prevent
drug-damaged newborns?

In the 1989 case from Charleston, S.C., staff members at the Medical
University of South Carolina joined forces with law-enforcement
officials to get such women into treatment. They designed a policy
that called for testing the urine of pregnant women suspected of
cocaine use and offering those who tested positive the choice of being
arrested or completing a drug-treatment program. In South Carolina,
state law says it is a crime to distribute cocaine to a "person" and
that a "viable" fetus is a person. The crack cocaine epidemic was
raging, and physicians were seeing a sharp increase in babies born
addicted.

In the lawsuit, 10 of the women tested charge that the drug tests
violated the Fourth Amendment, which prohibits "unreasonable searches
and seizures" and requires "probable cause" for warrants. Health
officials say their primary goal was to protect the health of mother
and infant. They argued that the women consented, the intrusion was
minimal and the plan worked. Of 253 pregnant women who tested positive
the first time, 223 completed treatment and did not test positive a
second time.

The justices will decide whether the "special-needs exception" to the
Fourth Amendment applies. Was the probable-cause requirement
impractical in this situation? When is a search "reasonable" and thus
constitutional?

Other states have made similar efforts to get women into treatment so
their babies are born healthy. In Florida, some women who gave birth
to cocaine-addicted babies were charged with violating the state
child-abuse law. In 1992, however, the Florida Supreme Court
overturned the 1989 conviction of an Altamonte Springs woman, Jennifer
Johnson, the first in the nation to be prosecuted successfully for
using the umbilical cord to deliver cocaine to a minor.

Since then, few law-enforcement officials have prosecuted such cases
because they know they can't bring criminal charges. Yet the problem
continues. Pregnant women still abuse drugs. Though more treatment is
available and education helps, addicts can be difficult to convince.
Still, there are proven legal and effective ways to reach them, and
the court should rule for the women. Even a noble cause can't excuse
an otherwise unreasonable search.