JUSTICES STRIKE DOWN PREGNANCY DRUG TESTS

Hospital Notified Cops When Women Tested Positive

WASHINGTON -- In a decision hailed as protecting the privacy rights of
all Americans, the Supreme Court ruled Wednesday that hospitals cannot
test pregnant women suspected of drug use and turn positive results over
to police unless the patient consents.

The court, in a 6-3 decision, said a South Carolina hospital's policy of
working with law enforcement to detect and deter drug use among pregnant
women violated the Constitution. Even though the hospital said the
program was designed to protect the mother and fetus from the harmful
effects of drugs, the court said the program's primary purpose was to
collect evidence for prosecution.

As a result, police must get a warrant or the patient's consent before
testing, the court said. It then sent the matter back to a federal
appeals court in Richmond, Va., to consider whether the women in the
case actually had consented to the testing.

"While the ultimate goal of the program may well have been to get the
women in question into substance abuse treatment and off of drugs, the
immediate objective of the searches was to generate evidence for
law-enforcement purposes in order to reach that goal," the court said in
an opinion written by Justice John Paul Stevens.

The case was among the most closely watched of the term and drew the
attention of scores of women's rights groups and medical organizations
that weighed in with legal briefs supporting the 10 women who challenged
the policy. They maintained that the policy undermined the
doctor-patient relationship and would discourage women from seeking
medical care.

Priscilla Smith, the lawyer for the Center for Reproductive Law and
Policy who argued the case on the women's behalf, said the ruling was an
"extremely important decision in protecting privacy rights" and
reaffirmed that pregnant women "have the same right to privacy in their
medical information as everyone else."

But Robert Hood, who represented the state hospital in Charleston, said
the court failed to recognize that medical personnel were less concerned
about law enforcement than with working to help the women and their
children.

"The policy was an attempt to give women amnesty rather that prosecute
them," Hood said. "Each of these women needed substance abuse treatment,
and they got it."

But Justice Anthony Kennedy said in a separate concurring opinion, "The
use of handcuffs, arrests, prosecutions and police assistance in
designing and implementing the testing and rehabilitation policy cannot
be sustained under our previous cases."

The hospital, working with police and prosecutors, developed the policy
in 1989 after officials became concerned about a perceived epidemic of
cocaine use among pregnant women. The policy first provided that a woman
who tested positive for drugs would be arrested for distributing drugs
to a minor -- her fetus -- but the policy later was amended to give the
option of drug treatment. The policy has been suspended.

Ten women sued, arguing that the drug testing was an unconstitutional
search under the 4th Amendment, which prohibits unreasonable searches.
The hospital said the search was not unreasonable because it was needed
to protect the mother and fetus.

For a search to be reasonable under the 4th Amendment, authorities
generally must have cause to believe an individual has done something
wrong and must get a warrant. But the Supreme Court has created some
exceptions.

It has allowed random drug testing without warrants where needed for a
special reason other than enforcing the law, such as testing transport
workers involved in train accidents, Customs Service employees seeking
promotions to sensitive positions or high school students participating
in interscholastic sports.

The U.S. Court of Appeals for the 4th Circuit said the drug testing of
pregnant women also was such a case, because the purpose of the program
was to prevent women from using cocaine.

But the Supreme Court rejected that reasoning, ruling that testing the
pregnant women involved a "far more substantial" invasion of privacy
than in the other cases, where there were protections against
disseminating the results to third parties.

The critical difference, the court said, stemmed from the reasons
officials gave for the searches. In the earlier cases, the court said,
the testing was not necessary for law-enforcement reasons.

In the South Carolina case, however, the primary purpose of the program
"was to use the threat of arrest and prosecution in order to force women
into treatment."

To do so, there was "extensive involvement of law enforcement at every
stage of this policy," the court said.

Hood said the irony of the case is that medical personnel in some
circumstances still could notify police if they discovered a woman had
used drugs in the last weeks of her pregnancy, as provided in state laws
requiring that evidence of child abuse be reported.

Kennedy made that point in concurrence, noting the South Carolina
hospital's policy actually could be more forgiving to the women than
other alternatives because it gave them a chance to avoid prosecution by
enrolling in a drug treatment program.

But the court, in the majority opinion, said testing urine for drugs
"for the specific purpose of incriminating those patients" is entirely
different from hospital employees providing police with evidence of
criminal conduct that "they inadvertently acquire in the course of
routine treatment."

The program "was designed to obtain evidence of criminal conduct by the
tested patients that would be turned over to the police and that could
be admissible in subsequent criminal prosecutions," the court said.

Justice Antonin Scalia filed a dissenting opinion, joined by Chief
Justice William Rehnquist and Justice Clarence Thomas, in which he
argued that the women had consented to the testing and that, even if
they had not, there were good reasons to justify the search.

Scalia said the doctors undertook the program because they wanted to use
the possibility of arrest as a strong incentive for the patients to get
treatment. The court's decision, he wrote, "proves once again that no
good deed goes unpunished."