PROTECTING PRIVACY

After more than a decade of sacrificing the Constitution to the war on
drugs, the U.S. Supreme Court is finally imposing limits. On Wednesday, the
court ruled that a state hospital could not set up a joint program with
police to obtain urine samples from pregnant women for possible prosecution
- unless the women consented.

This is the second limit the court has imposed on drug police within four
months; earlier it ruled out the use of random roadblocks to catch people
with drugs.

The goal of the hospital drug tests was laudable - to reduce the number of
crack babies by forcing women into drug treatment. But the tactics were
unconscionable - invasive, warrantless searches conducted at a time when
women were vulnerable and had every expectation of medical privacy.

The Medical University of South Carolina in Charleston became concerned
about the epidemic of crack babies in the late 1980s. Nurses set up a joint
program with police under which the women who tested positive for cocaine
were threatened with prosecution to prod them into taking their drug
treatment seriously. Thirty of the 253 women who tested positive were
arrested; two were prosecuted. Ten women sued the hospital claiming the
tests were illegal searches.

The hospital argued that the case fell within the ""special needs''
exception that the Supreme Court has carved out of the Fourth Amendment.
Under that regrettable exception, the court has permitted the federal
government to conduct mandatory drug tests on railroad engineers involved
in accidents and on Treasury agents seeking promotions to sensitive jobs.
It also allowed schools to require student athletes to submit to random
drug tests if they wanted to suit up.

But Justice John Paul Stevens said the invasion of privacy was ""far more
substantial'' in the hospital case because most patients expect that test
results won't be shared with the police. In addition, the majority said
there was too much ""entanglement'' between the hospital and police. A
railroad engineer might lose a job, a Treasury agent a promotion and an
athlete a place on the bench. But none faced prosecution.

The decision was closer than the 6-3 vote. Justice Anthony M. Kennedy
criticized the other justices in the majority for not having acknowledged
the ""legitimacy of the state's interest in fetal life.''

The dissenters, Chief Justice William H. Rehnquist and justices Antonin
Scalia and Clarence Thomas, said that the searches were legal because the
hospital's aim was to help the babies, not prosecute the women.

As important as that aim is, caring doctors and nurses can protect babies
without invading their mothers' privacy and the Constitution's sanctity.