PREGNANT PRIVACY

THE SUPREME Court yesterday struck down a program at a hospital in South
Carolina under which pregnant women were tested for cocaine use and
positive results were sent on to law enforcement authorities. By a 6 to 3
vote, the court held that the tests -- to the extent that the hospital
conducted them without the consent of the women involved -- violated the
Fourth Amendment rights of those women to be free from unreasonable
searches. The judges sent the case back to a lower court to determine
whether their consent had been obtained.

At the level of instinct and reason, the court's decision was an easy call.
The touchstone of legitimate searches under the Constitution is that they
be reasonable, and there is nothing reasonable about forcing pregnant women
to submit to warrantless drug tests in order to facilitate their prosecution.

Getting the legal doctrine to support this instinct, however, is tricky.
The court, after all, has long recognized that certain searches designed to
further government's non-law-enforcement needs do not require a warrant,
even though the results may end up as evidence in a criminal case. For
example, the court has okayed sobriety checkpoints on the roads under the
theory that their purpose is not to prosecute drunk drivers but to ensure
the safety of the streets; if those checkpoints end up locking up a few
intoxicated drivers, so much the better.

The drug testing program is no different, its defenders argue, since it was
designed to provide leverage with which to force drug-abusing women into
treatment, thereby ensuring fetal health.

There may well be a justification for testing of pregnant women, based
purely on such medical concerns.

But as Justice John Paul Stevens wrote for the court, this program was not
in any immediate sense about health: "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." Police and prosecutors helped
design the program -- though a testing policy had existed before -- and
"the Charleston prosecutors and police were extensively involved in the
day-to-day administration of the policy." In other words, though the
searches may have had the laudable long-term goal of getting women into
treatment, their immediate purpose was to enable criminal prosecution or
the threat of such prosecution. And under such circumstances, the court
rightly held, a non-consensual search must be accompanied by a warrant.