COURT CURBS DRUG TESTS DURING PREGNANCY

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

The court's 6-to-3 decision did not 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 by Chief Justice
William H. Rehnquist and Justice Clarence Thomas.

The court overturned a 1999 decision by the United States Court of Appeals
for the Fourth Circuit, in Richmond, Va., 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.

Justice 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," Justice 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, Justice 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, Justice Stevens 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 today in Ferguson v. Charleston,
No. 99-936, was a narrow one, the case touched on deeper questions about
medical privacy in general and the rights of pregnant women in particular.
(Crystal Ferguson was one of the women tested.) 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 1980's and early 1990's, 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. Justice 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, Justice 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 ambit 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. Justice Stevens said those precedents differed from the
case today 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-to-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 ground of safety, Justice Sandra Day
O'Connor wrote for the court in Indianapolis v. 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 today 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." Ms. Paltrow is
executive director of National Advocates for Pregnant Women, a program of
the Women's Law Project in Philadelphia.

Priscilla J. Smith, a lawyer with the Center for Reproductive Law and
Policy in New York who argued the Supreme Court appeal, said the decision
would "stop an erosion of the privacy rights of pregnant women by
recognizing that concern for the fetus doesn't override pregnant women's
rights."

Another lawyer in the case, Catherine Weiss, director of the American Civil
Liberties Union's reproductive freedom project, said, "You can't just mouth
the words 'drugs' and 'pregnant woman' and get out from under all the
strictures that apply to ordinary law enforcement."

One unusual aspect of the case was that while the plaintiffs drew support
from many civil liberties and medical organizations, not a single
friend-of-the-court brief was filed on behalf of the city.

The hospital had argued throughout the litigation that the women had signed
forms that provided consent to the urine tests and validated the sharing of
the information with the police. The plaintiffs' lawyers said today that
the women were not told in advance about the drug testing and provided no
valid consent.

When the case was tried in Federal District Court in Charleston, the jury
found that the women had consented to the tests. The appeals court did not
decide that question because it found that the tests were valid under the
"special needs" doctrine regardless of whether there was consent. So the
case now returns to the appeals court for determination of whether the
women had consented.