COURT RULES AGAINST S.C. ANTI-DRUG TACTIC

Justices Strike Hospital's Testing, at Police Behest,
of Nonconsenting Pregnant Women

The Supreme Court ruled yesterday that a public hospital cannot
administer drug tests to pregnant women without their consent and
forward positive results to police. The decision limits how far
government agencies may go in gathering and disseminating private
information about citizens -- even when it is supposed to be for their
own good.

By a vote of 6 to 3, the court held that tests of expectant mothers'
urine for cocaine, conducted by medical personnel in cooperation with
local law enforcement officials at the Medical University of South
Carolina in Charleston, amounted to unconstitutional police searches.
Officials' professed goals -- protecting the health of the women and
their unborn children -- did not justify conducting the tests without
a search warrant, the court said.

The case had aroused strong feelings among supporters and opponents of
the policy because it affected doctor-patient confidentiality and
touched on questions of racial and sexual discrimination, as well as
the legal status of fetal life.

The Charleston hospital's policy apparently was unique in the United
States, but a favorable ruling from the court might have signaled that
other jurisdictions could experiment with similar tactics.

However, the court said the drug test policy did not qualify for the
"special needs" exception that the justices have carved out of the
search warrant requirement in past cases involving non-police
personnel -- such as school principals searching students' lockers.
The police and prosecutors were too deeply involved in the Charleston
hospital's program, the court held.

"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"
the special needs definition, Justice John Paul Stevens wrote for the
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 court is sending a strong signal that other government
institutions shouldn't be in the business of helping the police do
police work," said William Stuntz, a professor of law at Harvard
University who specializes in criminal procedure.

Priscilla Lloyd Smith, an attorney for the Center for Reproductive Law
and Policy who argued against the hospital's actions in the Supreme
Court, added that "this is an extremely important decision in
affirming the right to confidential medical care for all Americans,
and it reaffirms that pregnant women have that same right. The court
recognized that even if the state has some benevolent purpose at the
end of the road, if they're going to use the criminal law to achieve
it, they need a warrant."

But Charlie Condon, the current state 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."

The Medical University of South Carolina's hospital serves a mostly
poor, black population. All but one of the 30 women arrested under the
policy were black. Women who tested positive faced charges of cocaine
use and, in some cases, because a viable fetus is legally a person in
South Carolina, of distributing illegal drugs to a minor or child abuse.

The Charleston policy, developed in 1989 by the hospital and local law
enforcement officials amid national concern over "crack babies," was
modified in 1990 to give drug-using patients a choice between being
arrested or enrolling in drug treatment programs.

Nevertheless, in 1993, Crystal M. Ferguson and nine other women who
had been arrested (but not prosecuted) under the policy sued for $ 4
million, claiming civil rights violations by the city, law enforcement
officials, medical personnel at the hospital and the hospital itself.

Facing that lawsuit and a civil rights investigation by the Clinton
administration's Department of Health and Human Services, the hospital
dropped the policy in 1994. Doctors and nurses organizations, in South
Carolina and elsewhere, also objected to the policy, suggesting that
the threat of prosecution would deter women from going to the hospital
and would defeat the policy's stated purpose.

Justice Antonin Scalia dissented from yesterday's ruling, arguing that
testing a "lawfully obtained" urine sample does not constitute a
search as the Constitution defines the term and that, even if it did,
it would be 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.

Yesterday's ruling does not end the litigation over the hospital's
policy, because the decision was based on the assumption that the
women had not consented to the drug tests.

That issue remains open in the case, however. When the lawsuit went to
trial in 1996, a jury in a South Carolina federal district court found
that the women had signed forms authorizing the hospital to conduct
drug tests and that they knew they could be prosecuted if the results
came back positive. Consequently, the hospital won at trial.

When the women appealed to the 4th U.S. Circuit Court of Appeals in
Richmond, they challenged that jury finding, but the court upheld the
hospital's policy as a valid instance of the special needs exception
to the search warrant requirement, obviating the need to decide
whether the women had consented to the tests.

In its decision yesterday, the Supreme Court sent the case back to the
4th Circuit for a decision on the consent question.

An attorney for Charleston, Robert Hood, said he is "optimistic" that
his side can win in the 4th Circuit because appellate courts normally
defer to juries on factual issues.

"We lost the constitutional issue, but whether or not they make money
. . . depends on whether they can convince the 4th Circuit that there
was not consent, which I don't believe they can do," Hood said.

Smith, the attorney for the women, said she will argue that the jury
lacked a "sufficient" basis for its finding.

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