JUSTICES REJECT SOME PUBLIC-HOSPITAL DRUG SCREENINGS

Tests Of Pregnant Women Were Given To Police

U.S. Supreme Court

WASHINGTON -- The Supreme Court ruled Wednesday that hospital workers
cannot test pregnant women for illegal drug use without their consent if
the purpose is to alert the police to a crime.

The 6-3 decision did not finally resolve a 10-year-old lawsuit brought
against the city of Charleston, S.C., by women who were arrested, under a
cooperative program between a public hospital and the police department,
after a positive urine test for cocaine. The question of whether any of the
10 plaintiffs actually consented to the tests remains to be decided in the
lower courts.

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

The court overturned a 1999 decision by the federal appeals court in
Richmond that 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 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,'' he continued, ``the immediate objective of the searches
was to generate evidence for law enforcement purposes in order to reach
that goal.''

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.''

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 drug-using women away from prenatal care.

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 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. He also argued that testing a ``lawfully obtained'' urine sample
did not constitute a search as the Constitution defines the term. Thomas
and Rehnquist did not join him in that argument.

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 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.''

Lynn Paltrow, a lawyer who represented the plaintiffs in the lower courts,
said 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.

The hospital has argued throughout the litigation that the women signed
forms that provided consent to the urine tests and validated the sharing of
the information with the police. The plaintiffs' attorneys said Wednesday
that the women were not told in advance about the drug testing and provided
no valid consent. That issue will now be fought out in the 4th U.S. Circuit
Court of Appeals.

The Washington Post contributed to this article.