PRIVACY AND PREGNANCY

WITHIN HOURS, the lawyers had broken out the champagne. It's come to
that. A decision by this Supreme Court that a pregnant women is
entitled to the same medical privacy as any other patient is enough
to bring on the bubbly.

I am willing to take victories where I get them. But a verdict that a
hospital is not a police station? Is this what qualifies these days
for high fives?

Back in 1989 we were at the height of the ''crack baby'' furor. With
little drug treatment for pregnant women, there was lots of punitive
treatment.

That year the hospital of the Medical University of South Carolina
offered to cut a deal with the police that virtually deputized
doctors and nurses. The hospital tested the urine of patients who fit
a certain police ''profile'' and turned over the results of those who
tested positive.

Over a few years, women with the same ''profile'' - all but one of
them African-American and all of them poor - came for maternity care
and ended up in police custody. Eventually the hospital added drug
treatment as an alternative, but some 30 women were jailed during
pregnancy or were shackled in the delivery room or arrested in
recovery.

In many ways this was a story of bad law meets bad medicine. When
Ferguson v. the City of Charleston arrived at the Supreme Court, 75
medical associations argued that when doctors doubled as cops, they
violated the patient-doctor relationship. More to the point, the
policy didn't help the woman or her fetus: It scared her straight out
of medical care.

Now a 6-3 majority of the justices has ruled that a hospital can't
secretly test a pregnant patient for evidence. Without a warrant,
without consent, the drug test amounted to an unconstitutional
search. In short, as Priscilla Smith of the Center for Reproductive
Law and Policy said before popping the champagne cork, ''Women don't
lose their rights even if they are pregnant.''

But before anyone goes whoopee, may I suggest that they read the
dissent - excuse me - the concurrence, the very reluctant
concurrence, of Justice Anthony Kennedy. Kennedy, who holds one of
the swing votes on this dicey court, agreed that this particular cozy
hospital-police policy was unconstitutional. But he added a warning:

''There should be no doubt that South Carolina can impose punishment
upon an expectant mother who has so little regard for her own unborn
that she risks causing him or her lifelong damage and suffering.''

In fact, South Carolina today can still impose punishment. It's the
one state that applies the laws against child abuse to viable
fetuses. A pregnant woman in the Palmetto State may be liable for
''child abuse'' for any number of offenses.

Of course, many of us share Justice Kennedy's tone of outrage. The
first public sign of pregnancy these days is when a friend stubs out
her cigarette and passes up wine. Most women who have decided to have
children feel a deep responsibility for their health. We expect the
same of others.

But the problem is when the moral responsibility becomes legal
responsibility and the expectation becomes prosecution. How do you
enforce it? At what cost?

More than 200 women in 30 states have been prosecuted on some theory
of ''fetal rights.'' Where does it end?

We are not just talking about a skirmish in the drug wars. The danger
to ''crack babies,'' for example, was somewhat exaggerated. But the
danger from alcohol and tobacco may be understated. Do we arrest
women for smoking or drinking? If so, how much?

And since the most damage can be done at the earliest stage of
pregnancy, is every fertile woman held hostage to the possibility of
pregnancy?

The hot words now are fetal rights and women's rights. But the
medical briefs filed in the Ferguson case underscored the futility of
dealing with a woman and her fetus as if they were two separate and
opposing patients. Never mind two separate and opposing clients.

The Supreme Court has said that women have the right to a doctor who
isn't doubling as a cop. That's modest cause for celebration. But
Kennedy's opinion talked approvingly of other legal punishment. As
even the lawyer Smith acknowledges, it's ''a message to state
legislatures to go ahead and criminalize behavior during pregnancy.''

If that happens, the champagne is going to taste very flat.