FORCED DRUG TESTS FOR PREGNANT WOMEN STRUCK DOWN

In a victory for civil-liberties advocates and abortion rights groups, the
Supreme Court today ruled that hospitals cannot administer drug tests to
pregnant women without their consent and forward positive results to the
police.

By a vote of 6 to 3, the court held that the drug tests conducted in the
past by a Charleston, S.C., public hospital amounted to warrantless police
searches of the women. The searches could not be justified by local
authorities' expressed interests in protecting the health of the women or
their unborn children.

The case had aroused strong feelings because of its potential practical
effect on the scope of police power and because it touched on questions of
racial discrimination and the legal status of fetal life.

The hospital's patient population is overwhelmingly poor and African
American. All but one of the 30 women arrested under the policy were black.
Mothers who tested positive faced charges not only because cocaine use
itself is illegal, but also because, under South Carolina law, a viable
fetus is a "person" and a woman who takes cocaine while pregnant may be
accused of distributing illegal drugs to a minor, or of committing child abuse.

The Charleston policy was apparently unique in the country, but a favorable
ruling from the court today might have signaled that other jurisdictions
could experiment with similar tactics. Instead, the court took the
opportunity to say that even an ostensibly well-intentioned curtailment of
privacy rights does not necessarily qualify for the "special needs"
exception to the search warrant requirement.

"Given the primary purpose of the Charleston program, which was to use the
threat of arrest and prosecution in order to force women into treatment,
and given the extensive involvement of law enforcement officials at every
stage of the policy, this case simply does not fit" previously-established
exceptions to the search warrant requirement, Justice John Paul Stevens
wrote for the court majority.

He was joined by Justices Sandra Day O'Connor, David H. Souter, Stephen G.
Breyer and Ruth Bader Ginsburg. Justice Anthony M. Kennedy wrote a separate
opinion concurring in the judgment for slightly different reasons.

The hospital began drug-testing in 1989, during the crack cocaine epidemic,
and turned positive results over to police. The policy was changed in 1990
to give drug-using patients a choice between being arrested or enrolling in
drug treatment programs.

Ten women sued the hospital in 1993, saying the policy violated the
Constitution. The hospital, which treats indigent patients, later dropped
the policy, but by then police had arrested 30 maternity patients.

A federal jury ruled for the hospital and the 4th U.S. Circuit Court of
Appeals agreed in 1999. The appeals court said the urine tests were
"minimally intrusive."

Justice Antonin Scalia dissented from the ruling. Scalia argued both that
the drug tests did not constitute a search under the Fourth Amendment and
that, even if it did, it would have been justified under the "special
needs" test. Chief Justice William H. Rehnquist and Justice Clarence Thomas
joined Scalia's dissent, but only on the second point.

"Today's judgment, authorizing the assessment of damages against the county
solicitor and individual doctors and nurses who participated in the
program, proves once again that no good deed goes unpunished," Scalia wrote.

The case is Ferguson v. City of Charleston, No. 99-936.

In a separate case that will have broad effects on American workplaces, the
justiced ruled that employers can force workers to take job-related
disputes to arbitration rather than to court.

Agreements to arbitrate workplace disputes are enforceable even if the
employer required the worker to sign the agreement in order to be hired,
the court said. Ruling 5 to 4 for Circuit City Stores, the justices said a
gay former employee cannot sue over alleged harassment at work.

Arbitration has increasingly been used to resolve a wide variety of
disputes including employment discrimination claims. Supporters of
arbitration say it is less complicated and less expensive than a lawsuit.

But employees' advocates say the process can be tilted toward employers and
that workers forfeit certain rights. Appeals often are limited, damages can
be capped and fact-finding can be restricted.

Justice Kennedy wrote the opinion, being joined by Rehnquist, Scalia,
Thomas and O'Connor. Justices Stevens, Ginsburg, Breyer and Souter
dissented. The case is Circuit City Stores v. Adams, 99-1379.