JUSTICES RULE AGAINST SECRET TESTS FOR DRUGS

WASHINGTON - The Supreme Court upheld the medical privacy of pregnant
women Wednesday, ruling that hospitals and police may not conspire to
secretly test the women for drug use.

In a 6-3 ruling, the court said the Constitution's protection against
unwarranted searches outweighs the government's need to detect drug
use, even when a fetus could be exposed.

The decision rejects a unique and controversial drug testing program
begun in Charleston, S.C., in 1988, when fears of a "crack baby"
epidemic reached their peak.

At the time, nurses and doctors across the nation urged women using
cocaine to stop. But in South Carolina, officials decided to go
further and prosecute mothers for child abuse if they were found to be
using drugs.

But the majority opinion by Justice John Paul Stevens was a strong
statement that the facts of the women's pregnancy and of possible
danger to their fetuses through illegal drug use did not change the
basic constitutional analysis: in the absence of either a warrant or
consent, the drug tests amounted to unconstitutional searches.

Justice Anthony Kennedy wrote a separate concurring opinion. Justice
Antonin Scalia wrote a dissenting opinion that was joined by Chief
Justice William Rehnquist and Justice Clarence Thomas.

The decision did not end the 10-year-old lawsuit brought against
Charleston by women who, after a positive urine test for cocaine, were
arrested under the program.

The question of whether any of the 10 plaintiffs consented to the
tests must now be decided in the lower courts.

The court overturned a 1999 decision by the federal appeals court in
Richmond that said regardless of whether the women provided informed
consent, the warrantless drug testing program was justified by the
"special needs" of stopping drug use by pregnant women and getting the
women into treatment.

Stevens said that the "special needs" exception to the Fourth
Amendment, which the court has recognized in limited circumstances to
justify drug testing for health and safety purposes, did not apply to
a program that was so directly connected to law enforcement.

"The central and indispensable feature of the policy from its
inception was the use of law enforcement to coerce the patients into
substance abuse treatment," Stevens said. "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," he wrote.

And that was the constitutional problem, Stevens said: because law
enforcement "always serves some broader social purpose or objective,"
a statement of a worthy ultimate goal could not suffice to insulate a
particular law enforcement program from constitutional scrutiny.

The "stark and unique fact" of this case, he said, was that the
cooperative program between the hospital and the police "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." Although the legal issue before the
court on Wednesday in Ferguson vs. Charleston, was a narrow one, the
case touched on deeper questions about medical privacy in general and
the rights of pregnant women in particular.

The hospital of the Medical University of South Carolina and the
Charleston police devised the drug-testing program in the face of
growing concern about the fate of "crack babies" born to cocaine-using
mothers.

At the time, the late 1980s and early 1990s, jurisdictions around the
country were considering various novel legal theories for prosecuting
pregnant women for behavior that endangered their fetuses, to the
concern of many medical professionals who warned that the most direct
effect would be to frighten women who were using drugs away from
prenatal care.

Organizations including the American Medical Association and the
American Public Health Association filed briefs with the court on
behalf of the plaintiffs that made that argument.

Stevens took explicit note of the briefs, saying that in light of
them, "it is especially difficult to argue that the program here was
designed simply to save lives."

Before Charleston first modified and then dropped its program after
several years, 30 women were arrested, with nearly all the charges
dropped after the women agreed to enter treatment. Some who tested
positive for cocaine during labor were taken to jail in handcuffs or
leg shackles shortly after giving birth.

The hospital did not test all its maternity patients, only those who
met certain criteria, many of which correlated with poverty.

In his dissenting opinion, Scalia said the fact that the public
employees and officials who participated in the program might now face
damages for violating the women's constitutional rights "proves once
again that no good deed goes unpunished."

He said the program served a legitimate medical purpose, and the fact
that it served a law enforcement purpose as well should not take it
outside the scope of the court's "special needs" doctrine.

The court has applied that doctrine a handful of times, to justify the
drug testing of student athletes, Customs agents and railroad workers
involved in train accidents, all in the absence of the warrants that
would ordinarily be required.

Stevens said those precedents differed from the case on Wednesday in
several important respects. The health and safety justifications were
"divorced from the state's general interest in law enforcement," he
said, while "the invasion of privacy in this case is far more
substantial than in those cases." Four months ago, in a decision that
foreshadowed the court's wariness about giving the special needs
doctrine too expansive a scope, the court ruled by the same 6-3
majority that an Indianapolis roadblock program designed to detect
drugs being transported in cars was unconstitutional.

Although the city justified the program on the grounds of safety,
Justice Sandra Day O'Connor wrote for the court in Indianapolis vs..
Edmond that it was too closely connected to ordinary law enforcement
to be able to skirt ordinary constitutional requirements.

Lynn Paltrow, a lawyer who represented the plaintiffs in the lower
courts, said on Wednesday that the decision was "a victory for all
patients who are entitled to expect that when they go to the doctor
they will receive medical care and not a search for police purposes."
Paltrow is executive director of National Advocates for Pregnant
Women, a program of the Women's Law Project in Philadelphia.

But Charlie Condon, the current South Carolina attorney general who as
Charleston prosecutor helped formulate the policy, said in a prepared
statement that "there is no right of a mother to jeopardize the health
and safety of an unborn child through her own drug abuse. There is no
constitutional right of a person to use drugs."